By: Yost H.B. No. 1819
73R1050 JBN-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the adoption of the Environment Code; providing
1-3 penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. The Environment Code is adopted to read as
1-6 follows:
1-7 ENVIRONMENT CODE
1-8 TITLE 1. STATE ENVIRONMENTAL ADMINISTRATION
1-9 CHAPTER 1. GENERAL PROVISIONS
1-10 Sec. 1.001. Construction of Code. The Code Construction Act
1-11 (Chapter 311, Government Code) applies to the construction of each
1-12 provision in this code, except as otherwise expressly provided by
1-13 this code. (Sec. 1.002, Water Code.)
1-14 Sec. 1.002. Public Policy. It is the public policy of the
1-15 state to provide for the conservation and development of the
1-16 state's natural resources, including:
1-17 (1) the control, storage, preservation, and
1-18 distribution of the state's storm and floodwaters and the waters of
1-19 its rivers and streams for irrigation, power, and other useful
1-20 purposes;
1-21 (2) the reclamation and irrigation of the state's
1-22 arid, semiarid, and other land needing irrigation;
1-23 (3) the reclamation and drainage of the state's
1-24 overflowed land and other land needing drainage;
2-1 (4) the conservation and development of its forest,
2-2 water, and hydroelectric power;
2-3 (5) the navigation of the state's inland and coastal
2-4 waters; and
2-5 (6) the maintenance of a proper ecological environment
2-6 of the bays and estuaries of Texas and the health of related living
2-7 marine resources. (Sec. 1.003, Water Code.)
2-8 Sec. 1.003. INTERNAL REFERENCES. In this code:
2-9 (1) a reference to a title, chapter, or section
2-10 without further identification is a reference to a title, chapter,
2-11 or section of this code; and
2-12 (2) a reference to a subtitle, subchapter, subsection,
2-13 subdivision, paragraph, or other numbered or lettered unit without
2-14 further identification is a reference to a unit of the next larger
2-15 unit of this code in which the reference appears. (New.)
2-16 Sec. 1.004. REFERENCE IN LAW TO STATUTE REVISED BY CODE. A
2-17 reference in a law to a statute or a part of a statute revised by
2-18 this code is considered to be a reference to the part of this code
2-19 that revises that statute or part of the statute. (New.)
2-20 CHAPTER 2. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
2-21 SUBCHAPTER A. ORGANIZATION OF COMMISSION
2-22 Sec. 2.001. Purpose and Scope of Chapter. (a) The powers
2-23 and duties enumerated in this chapter are the general powers and
2-24 duties of the Texas Natural Resource Conservation Commission and
2-25 those incidental to the conduct of its business. The commission
2-26 has other specific powers and duties as prescribed in other
2-27 sections of this code and other laws of this state.
3-1 (b) It is the purpose of this chapter to provide an
3-2 organizational structure for the Texas Natural Resource
3-3 Conservation Commission that will provide more efficient and
3-4 effective administration of the conservation of natural resources
3-5 and the protection of the environment in this state and to define
3-6 the duties, responsibilities, authority, and functions of the
3-7 commission and the executive director. (Secs. 5.002, 5.011, Water
3-8 Code.)
3-9 Sec. 2.002. Declaration of Policy. (a) The Texas Natural
3-10 Resource Conservation Commission is the agency of the state given
3-11 primary responsibility for implementing the constitution and laws
3-12 of this state relating to the conservation of natural resources and
3-13 the protection of the environment.
3-14 (b) The commission shall administer the law so as to promote
3-15 the judicious use and maximum conservation and protection of the
3-16 quality of the environment and the natural resources of the state.
3-17 (Secs. 5.012, 5.120, Water Code.)
3-18 Sec. 2.003. Definitions. In this code, except as otherwise
3-19 provided:
3-20 (1) "Board" means the Texas Water Development Board.
3-21 (2) "Commission" means the Texas Natural Resource
3-22 Conservation Commission.
3-23 (3) "Executive director" means the executive director
3-24 of the Texas Natural Resource Conservation Commission. (Sec.
3-25 5.001, Water Code.)
3-26 Sec. 2.004. General Jurisdiction of Commission. (a) The
3-27 commission has general jurisdiction over:
4-1 (1) water and water rights including the issuance of
4-2 water rights permits, water rights adjudication, cancellation of
4-3 water rights, and enforcement of water rights;
4-4 (2) continuing supervision over districts created
4-5 under Article III, Sections 52(b)(1) and (2), and Article XVI,
4-6 Section 59, of the Texas Constitution;
4-7 (3) the state's water quality program including
4-8 issuance of permits, enforcement of water quality rules, standards,
4-9 orders, and permits, and water quality planning;
4-10 (4) the state's weather modification program including
4-11 the issuance of permits and licenses and the enforcement of
4-12 permits, licenses, rules, standards, and orders relating to weather
4-13 modification;
4-14 (5) the determination of the feasibility of certain
4-15 federal projects;
4-16 (6) the adoption and enforcement of rules and
4-17 performance of other acts relating to the safe construction,
4-18 maintenance, and removal of dams;
4-19 (7) conduct of the state's hazardous spill prevention
4-20 and control program;
4-21 (8) the administration of the state's program relating
4-22 to inactive hazardous substance, pollutant, and contaminant
4-23 disposal facilities;
4-24 (9) the administration of a portion of the state's
4-25 injection well program;
4-26 (10) the administration of the state's programs
4-27 involving underground water and water wells and drilled and mined
5-1 shafts;
5-2 (11) the state's responsibilities relating to regional
5-3 waste disposal;
5-4 (12) the responsibilities assigned to the commission
5-5 by Chapters 401 and 402, Health and Safety Code, and by Subchapters
5-6 A-E, Chapter 22, and Chapters 20 and 30;
5-7 (13) the administration of the national flood
5-8 insurance program;
5-9 (14) administration of the state's water rate program
5-10 under Chapter 12; and
5-11 (15) any other areas assigned to the commission by
5-12 this code and other laws of this state.
5-13 (b) The rights, powers, duties, and functions delegated to
5-14 the Texas Department of Water Resources by this code or by any
5-15 other law of this state that are not expressly assigned to the
5-16 board are vested in the commission. (Sec. 5.013, Water Code.)
5-17 Sec. 2.005. Application of Sunset Act. The Texas Natural
5-18 Resource Conservation Commission is subject to Chapter 325,
5-19 Government Code (Texas Sunset Act). Unless continued in existence
5-20 as provided by that chapter, the commission is abolished and this
5-21 chapter expires September 1, 2001. (Sec. 5.014, Water Code.)
5-22 Sec. 2.006. Attorney General to Represent Commission. The
5-23 attorney general shall represent the commission under this chapter
5-24 in all matters before the state courts and any court of the United
5-25 States. (Sec. 13.014, Water Code.)
5-26 Sec. 2.007. Commission; Membership and Appointment. (a)
5-27 The Texas Natural Resource Conservation Commission is an agency of
6-1 the state.
6-2 (b) The commission is composed of three members who are
6-3 appointed by the governor with the advice and consent of the
6-4 senate.
6-5 (c) The governor shall make the appointments in such a
6-6 manner that each member is from a different section of the state.
6-7 (d) Appointments to the commission shall be made without
6-8 regard to the race, color, handicap, sex, religion, age, or
6-9 national origin of the appointees.
6-10 (e) A person is not eligible to serve on the commission if
6-11 the person or the person's spouse:
6-12 (1) is employed by or participates in the management
6-13 of a business entity or other organization regulated by the
6-14 commission or receiving funds from the commission;
6-15 (2) owns, controls, or has, directly or indirectly,
6-16 more than a 10 percent interest in a business entity or other
6-17 organization regulated by the commission or receiving funds from
6-18 the commission; or
6-19 (3) uses or receives a substantial amount of tangible
6-20 goods, services, or funds from the commission. (Secs. 5.051,
6-21 5.052, 5.053, Water Code.)
6-22 Sec. 2.008. Removal of Commission Members. (a) It is a
6-23 ground for removal from the commission if a member:
6-24 (1) does not maintain during the service on the
6-25 commission the qualifications required for appointment to the
6-26 commission;
6-27 (2) violates a prohibition established by Sections
7-1 2.011(b) and 2.012;
7-2 (3) is unable to discharge his duties for a
7-3 substantial portion of the term for which he was appointed because
7-4 of illness or disability; or
7-5 (4) is absent from more than one-half of the regularly
7-6 scheduled commission meetings that the member is eligible to attend
7-7 during each calendar year, except when the absence is excused by a
7-8 majority vote of the commission.
7-9 (b) The validity of an action of the commission is not
7-10 affected by the fact that it was taken when a ground for removal of
7-11 a member of the commission existed.
7-12 (c) If a member of the commission has knowledge that a
7-13 potential ground for removal exists, he shall notify the chairman
7-14 of the commission of that ground. The chairman of the commission
7-15 shall then notify the governor that a potential ground for removal
7-16 exists. (Sec. 5.054, Water Code.)
7-17 Sec. 2.009. Terms of Office. (a) The members of the
7-18 commission hold office for staggered terms of six years, with the
7-19 term of one member expiring every two years. Each member holds
7-20 office until his successor is appointed and has qualified.
7-21 (b) A person appointed to the commission may not serve for
7-22 more than two six-year terms.
7-23 (c) Each member of the commission shall serve on a full-time
7-24 basis. (Secs. 5.056, 5.057, Water Code.)
7-25 Sec. 2.010. Officers; Meetings. (a) The governor shall
7-26 designate the chairman of the commission. He shall serve as
7-27 chairman until the governor designates a different chairman.
8-1 (b) The chairman may designate another commissioner to act
8-2 for him in his absence.
8-3 (c) The chairman shall preside at the meetings and hearings
8-4 of the commission.
8-5 (d) The commission shall hold regular meetings and all
8-6 hearings at times specified by a commission order and entered in
8-7 its minutes. The commission may hold special meetings at the times
8-8 and places in the state that the commission decides are appropriate
8-9 for the performance of its duties. The chairman or acting chairman
8-10 shall give the other members reasonable notice before holding a
8-11 special meeting.
8-12 (e) A majority of the commission is a quorum. (Sec. 5.058,
8-13 Water Code.)
8-14 Sec. 2.011. Oath of Office; Conflict of Interest. (a) Each
8-15 member of the commission is an officer of the state as that term is
8-16 used in the constitution, and each member shall qualify by taking
8-17 the official oath of office.
8-18 (b) An officer, employee, or paid consultant of a trade
8-19 association in an industry regulated by the commission may not be a
8-20 member of the commission or employee of the commission, nor may a
8-21 person who cohabits with or is the spouse of an officer, managerial
8-22 employee, or paid consultant of a trade association in an industry
8-23 regulated by the commission be a member of the commission or an
8-24 employee of the commission grade 17 or over, including exempt
8-25 employees, according to the position classification schedule under
8-26 the General Appropriations Act. (Secs. 5.055, 5.059, Water Code.)
8-27 Sec. 2.012. Lobbyist Prohibition. A person who is required
9-1 to register as a lobbyist under Chapter 305, Government Code, by
9-2 virtue of his activities for compensation in or on behalf of a
9-3 profession related to the operation of the commission may not serve
9-4 as a member of the commission or act as the general counsel to the
9-5 commission. (Sec. 5.060, Water Code.)
9-6 (Sections 2.013-2.020 reserved for expansion)
9-7 SUBCHAPTER B. GENERAL POWERS AND DUTIES
9-8 Sec. 2.021. Scope of Subchapter. The powers and duties
9-9 provided by this subchapter are the general powers and duties of
9-10 the commission and those incidental to the conduct of its business.
9-11 The commission has other specific powers and duties as prescribed
9-12 in other sections of the code and other laws of this state. (Sec.
9-13 5.101, Water Code.)
9-14 Sec. 2.022. General Policy and Powers. (a) The commission
9-15 has the powers to perform any acts whether specifically authorized
9-16 by this code or other law or implied by this code or other law,
9-17 necessary and convenient to the exercise of its jurisdiction and
9-18 powers as provided by this code and other laws.
9-19 (b) The commission may call and hold hearings, receive
9-20 evidence at hearings, administer oaths, issue subpoenas to compel
9-21 the attendance of witnesses and the production of papers and
9-22 documents, and make findings of fact and decisions with respect to
9-23 its jurisdiction under this code and other laws and rules, orders,
9-24 permits, licenses, certificates, and other actions adopted, issued,
9-25 or taken by the commission.
9-26 (c) The commission shall provide to its members, appointees,
9-27 and employees as often as is necessary information regarding their
10-1 qualifications under this code and their responsibilities under
10-2 applicable laws relating to standards of conduct for state officers
10-3 or employees.
10-4 (d) The commission shall develop and implement policies that
10-5 clearly separate the respective responsibilities of the commission
10-6 and the staff.
10-7 (e) The commission shall be knowledgeable of the
10-8 watercourses and natural resources of the state and of the needs of
10-9 the state concerning the use, storage and conservation of water and
10-10 the use and conservation of other natural resources and of the need
10-11 to maintain the quality of the environment in the state. (Secs.
10-12 5.102, 5.111, 5.113, 5.119, Water Code.)
10-13 Sec. 2.023. Rules. (a) The commission shall adopt any
10-14 rules necessary to carry out its powers and duties under this code
10-15 and other laws of this state.
10-16 (b) The commission shall adopt reasonable procedural rules
10-17 to be followed in a commission hearing. The executive director may
10-18 recommend to the commission for its consideration any rules that he
10-19 considers necessary.
10-20 (c) Rules shall be adopted in the manner provided by the
10-21 Administrative Procedure and Texas Register Act (Article 6252-13a,
10-22 Vernon's Texas Civil Statutes).
10-23 (d) Except as otherwise specifically provided by this code,
10-24 the commission, by rule, shall establish and approve all general
10-25 policy of the commission.
10-26 (e) The commission shall develop and implement policies that
10-27 will provide the public with a reasonable opportunity to appear
11-1 before the commission and to speak on any issue under the
11-2 jurisdiction of the commission.
11-3 (f) The commission may adopt rules necessary to implement
11-4 Subchapters A-E, Chapter 22.
11-5 (g) The commission may adopt rules for the administration of
11-6 Chapter 30. The commission shall hold a public hearing before
11-7 adopting a rule consistent with the policy and purposes of Chapter
11-8 30.
11-9 (h) If the rule will have statewide effect, notice of the
11-10 date, time, place, and purpose of the hearing shall be published
11-11 one time at least 20 days before the scheduled date of the hearing
11-12 in at least three newspapers, the combined circulation of which
11-13 will, in the commission's judgment, give reasonable circulation
11-14 throughout the state. If the rule will have effect in only a part
11-15 of the state, the notice shall be published one time at least 20
11-16 days before the scheduled date of the hearing in a newspaper of
11-17 general circulation in the area to be affected.
11-18 (i) Any person may appear and be heard at a hearing to adopt
11-19 a rule. The executive director shall make a record of the names
11-20 and addresses of the persons appearing at the hearing. A person
11-21 heard or represented at the hearing or requesting notice of the
11-22 commission's action shall be sent by mail written notice of the
11-23 commission's action.
11-24 (j) Subsections (g) and (h) notwithstanding, the commission
11-25 may adopt rules consistent with the Administrative Procedure and
11-26 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
11-27 Statutes), if the commission determines that the need for
12-1 expeditious adoption of proposed rules requires use of those
12-2 procedures.
12-3 (k) The terms and provisions of a rule adopted by the
12-4 commission may differentiate among particular conditions,
12-5 particular sources, and particular areas of the state. In adopting
12-6 a rule, the commission shall recognize that the quantity or
12-7 characteristic of air contaminants or the duration of their
12-8 presence in the atmosphere may cause a need for air control in one
12-9 area of the state but not in other areas. In this connection, the
12-10 commission shall consider:
12-11 (1) the factors found by it to be proper and just,
12-12 including existing physical conditions, topography, population, and
12-13 prevailing wind direction and velocity; and
12-14 (2) the fact that a rule and the degrees of
12-15 conformance with the rule that may be proper for an essentially
12-16 residential area of the state may not be proper for a highly
12-17 developed industrial area or a relatively unpopulated area.
12-18 (l) Except as provided by Sections 30.016-30.023 or to
12-19 comply with federal law or regulations, the commission by rule may
12-20 not specify:
12-21 (1) a particular method to be used to control or abate
12-22 air pollution;
12-23 (2) the type, design, or method of installation of
12-24 equipment to be used to control or abate air pollution; or
12-25 (3) the type, design, method of installation, or type
12-26 of construction of a manufacturing process or other kind of
12-27 equipment. (Secs. 5.103, 5.105, 5.112, Water Code; Secs. 363.021,
13-1 382.017, Health and Safety Code.)
13-2 Sec. 2.024. Interagency Contracts and Memoranda of
13-3 Understanding. (a) The commission and board by rule shall develop
13-4 memoranda of understanding as necessary to clarify and provide for
13-5 their respective duties, responsibilities, or functions on any
13-6 matter under the jurisdiction of the commission or board that is
13-7 not expressly assigned to either the commission or board.
13-8 (b) The commission may enter into a memorandum of
13-9 understanding with any other state agency and shall adopt by rule
13-10 any memorandum of understanding between the commission and any
13-11 other state agency. (Sec. 5.104, Water Code.)
13-12 Sec. 2.025. Budget Approval. The commission shall examine
13-13 and approve all budget recommendations for the commission that are
13-14 to be transmitted to the legislature. (Sec. 5.106, Water Code.)
13-15 Sec. 2.026. General Counsel. (a) The commission shall
13-16 appoint a general counsel who shall serve at the will of the
13-17 commission.
13-18 (b) The general counsel is the chief legal officer for the
13-19 commission.
13-20 (c) The general counsel must be an attorney licensed to
13-21 practice law in this state.
13-22 (d) The general counsel shall perform the duties and may
13-23 exercise the powers specifically authorized by this code or
13-24 delegated to the general counsel by the commission. (Sec. 5.110,
13-25 Water Code.)
13-26 Sec. 2.027. Creation of Office. (a) The commission shall
13-27 create an office of hearing examiners to assist the commission in
14-1 carrying out its powers and duties under this code.
14-2 (b) The office of hearing examiners is independent of the
14-3 executive director and the divisions of the commission and is under
14-4 the exclusive control of the commission.
14-5 (c) The office of hearing examiners shall be under the
14-6 direction of the chief hearing examiner.
14-7 (d) The chief hearing examiner and all assistant hearing
14-8 examiners employed in the office of hearing examiners shall be
14-9 attorneys licensed to practice law in this state and shall be
14-10 employed by the commission.
14-11 (e) The commission may delegate to a hearing examiner the
14-12 responsibility to hear any matter before the commission.
14-13 (f) A hearing examiner shall prepare for and hold any
14-14 hearing as directed by the commission and shall report to the
14-15 commission on the hearing in the manner provided by law. (Secs.
14-16 5.311, 5.312, 5.313, Water Code.)
14-17 Sec. 2.028. Public Interest Counsel. (a) The office of
14-18 public interest counsel is created to ensure that the commission
14-19 promotes the public's interest and is responsive to environmental
14-20 and citizens' concerns including environmental quality and consumer
14-21 protection.
14-22 (b) The office shall be headed by a public interest counsel
14-23 appointed by the commission. The executive director may submit the
14-24 names and qualifications of candidates for public interest counsel
14-25 to the commission.
14-26 (c) The counsel shall represent the public interest and be a
14-27 party to all proceedings before the commission.
15-1 (d) The office shall be adequately staffed to carry out its
15-2 functions under this code.
15-3 (e) A ruling, decision, or other act of the commission may
15-4 not be appealed by the counsel. (Secs. 5.271, 5.272, 5.273, 5.274,
15-5 5.275, Water Code.)
15-6 Sec. 2.029. Executive Director. (a) The commission shall
15-7 appoint an executive director to serve at the will of the
15-8 commission.
15-9 (b) The board shall exercise the powers of appointment which
15-10 the Texas Water Rights Commission had the authority to exercise on
15-11 August 30, 1977, except for those powers of appointment expressly
15-12 provided to the Texas Water Rights Commission in Chapters 50
15-13 through 63 inclusive, of the Water Code, which are delegated to the
15-14 commission. (Sec. 5.108, Water Code.)
15-15 Sec. 2.030. Chief Clerk. (a) The commission shall appoint
15-16 a chief clerk who shall serve at the will of the commission.
15-17 (b) The chief clerk shall assist the commission in carrying
15-18 out its duties under this code and other law.
15-19 (c) The chief clerk shall issue notice of public hearings
15-20 held under the authority of the commission. (Sec. 5.109, Water
15-21 Code.)
15-22 Sec. 2.031. Power to Administer Oaths. Each member of the
15-23 commission, the chief clerk, or a hearings examiner may administer
15-24 oaths in any hearing or examination on any matter submitted to the
15-25 commission for action. (Sec. 5.118, Water Code.)
15-26 Sec. 2.032. Hearings. (a) The commission may recess any
15-27 hearing or examination from time to time and from place to place.
16-1 (b) The commission by rule shall adopt standards and
16-2 procedures for establishing vehicle emissions inspection stations
16-3 authorized and licensed by the state.
16-4 (c) A vehicle emissions inspection may be performed at a
16-5 decentralized independent inspection station or at a centralized
16-6 inspection facility operated or licensed by the state. In
16-7 developing the program for vehicle emissions inspections, the
16-8 commission shall make all reasonable efforts to preserve the
16-9 present decentralized system.
16-10 (d) After consultation with the Texas Department of
16-11 Transportation, the commission shall require state and local
16-12 transportation planning entities designated by the commission to
16-13 prepare long-term projections of the combined impact of significant
16-14 planned transportation system changes on emissions and air quality.
16-15 The projections shall be prepared using air pollution estimation
16-16 methodologies established jointly by the commission and the Texas
16-17 Department of Transportation. This subsection does not restrict
16-18 the Texas Department of Transportation's function as the
16-19 transportation planning body for the state or its role in
16-20 identifying and initiating specific transportation-related projects
16-21 in the state.
16-22 (e) The commission may authorize enforcement personnel or
16-23 other individuals to remove, disconnect, adjust, or make inoperable
16-24 vehicle emissions control equipment, devices, or systems and to
16-25 operate a vehicle in the tampered condition in order to perform a
16-26 quality control audit of an inspection station or other quality
16-27 control activities as necessary to assess and ensure the
17-1 effectiveness of the vehicle emissions inspection and maintenance
17-2 program.
17-3 (f) The commission and the Department of Public Safety shall
17-4 develop a challenge station program to ensure quality control of a
17-5 vehicle emissions inspection and maintenance system. (Sec. 5.116,
17-6 Water Code; Sec. 382.038, Health and Safety Code.)
17-7 Sec. 2.033. Mandatory Enforcement Hearing. (a) The
17-8 executive director shall monitor compliance with all permits and
17-9 licenses issued by the commission under this code, and if the
17-10 evidence available to the executive director through this
17-11 monitoring process indicates that a permittee or licensee is in
17-12 substantial noncompliance with his permit or license for a period
17-13 of four months, or for a shorter period of time if the executive
17-14 director considers an emergency to exist, the executive director
17-15 shall report this fact to the commission together with the
17-16 information relating to the noncompliance.
17-17 (b) On receiving a report from the executive director under
17-18 Subsection (a), the commission shall call and hold a hearing to
17-19 determine whether the permittee or licensee who is the subject of
17-20 the executive director's report has been in substantial
17-21 noncompliance with his permit or license.
17-22 (c) At the conclusion of the hearing, the commission shall
17-23 issue one of the following orders stating that:
17-24 (1) no violation of the permit or license has
17-25 occurred;
17-26 (2) a violation of the permit or license has occurred
17-27 but has been corrected and no further action is necessary to
18-1 protect the public interest;
18-2 (3) the executive director is authorized to enter into
18-3 a compliance agreement with the permittee or licensee;
18-4 (4) a violation of the permit or license has occurred
18-5 and an administrative penalty is assessed as provided by this code;
18-6 or
18-7 (5) a violation of the permit or license has occurred,
18-8 and the executive director is directed to have enforcement
18-9 proceedings instituted against the permittee or licensee.
18-10 (d) A compliance agreement under Subsection (c)(3) is not
18-11 effective unless it is approved by the commission. If the
18-12 commission determines at a hearing that a permittee or licensee has
18-13 not complied with the terms of the compliance agreement, the
18-14 commission may direct the executive director to institute
18-15 enforcement proceedings.
18-16 (e) The executive director, on receiving an order from the
18-17 commission directing institution of enforcement proceedings, shall
18-18 take all necessary steps to have enforcement proceedings
18-19 instituted.
18-20 (f) The commission may compel the attendance of the
18-21 governing body or any other officer of any permittee or licensee at
18-22 any hearing held under this section. (Sec. 5.117, Water Code.)
18-23 Sec. 2.034. Public Information. (a) The commission shall
18-24 comply with Section 4(a)(2), Administrative Procedure and Texas
18-25 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), by
18-26 indexing and making available for public inspection all rules and
18-27 all other written statements of policy or interpretations
19-1 formulated, adopted, or used by the commission in the discharge of
19-2 its functions.
19-3 (b) The commission shall comply with Section 4(a)(3),
19-4 Administrative Procedure and Texas Register Act (Article 6252-13a,
19-5 Vernon's Texas Civil Statutes), by indexing and making available
19-6 for public inspection all of the commission's final orders,
19-7 decisions, and opinions.
19-8 (c) The commission shall prepare information of public
19-9 interest describing the functions of the commission and describing
19-10 the commission's procedures by which complaints are filed with and
19-11 resolved by the commission. The commission shall make the
19-12 information available to the general public and the appropriate
19-13 state agencies.
19-14 (d) Any statements, correspondence, or other form of oral or
19-15 written communication made by a member of the legislature to a
19-16 commission official or employee during a public hearing conducted
19-17 by the commission shall become part of the record of the hearing,
19-18 regardless of whether the member is a party to the hearing. (Secs.
19-19 5.121, 5.173, Water Code; Sec. 382.0291(a), Health and Safety
19-20 Code.)
19-21 Sec. 2.035. Seal. The commission shall have a seal bearing
19-22 the words Texas Natural Resource Conservation Commission encircling
19-23 the oak and olive branches common to other official seals. (Sec.
19-24 5.179, Water Code.)
19-25 (Sections 2.036-2.050 reserved for expansion)
19-26 SUBCHAPTER C. COMMISSION ADMINISTRATION
19-27 Sec. 2.051. Applications and Other Documents. (a)
20-1 Applications and other documents to be filed with the commission
20-2 for final action under this code shall be filed with the executive
20-3 director and handled in the manner provided by this code.
20-4 (b) At the time an application for a permit or license under
20-5 this code is filed with the executive director and is
20-6 administratively complete, the commission shall give notice of the
20-7 application to any person who may be affected by the granting of
20-8 the permit or license.
20-9 (c) The commission shall adopt rules for the notice required
20-10 by this section.
20-11 (d) The notice must state:
20-12 (1) the identifying number given the application by
20-13 the commission;
20-14 (2) the type of permit or license sought under the
20-15 application;
20-16 (3) the name and address of the applicant;
20-17 (4) the date on which the application was submitted;
20-18 and
20-19 (5) a brief summary of the information included in the
20-20 permit application. (Secs. 5.114, 5.115, Water Code.)
20-21 Sec. 2.052. Permit Consideration Time Limits. (a) Except
20-22 as provided in Subsection (b), all permit decisions shall be made
20-23 within 180 days of the receipt of the permit application or
20-24 application amendment or the determination of administrative
20-25 completeness, whichever is later.
20-26 (b) This section does not apply to permits issued under
20-27 federally delegated or approved programs unless allowed under that
21-1 program. (Sec. 5.314, Water Code.)
21-2 Sec. 2.053. Copies of Documents, Proceedings, Etc.
21-3 (a) Except as otherwise specifically provided by this code and
21-4 subject to the specific limitations provided by this code, on
21-5 application of any person the commission shall furnish certified or
21-6 other copies of any proceeding or other official record or of any
21-7 map, paper, or document filed with the commission. A certified
21-8 copy with the seal of the commission and the signature of the
21-9 chairman of the commission or the executive director or chief clerk
21-10 is admissible as evidence in any court or administrative
21-11 proceeding.
21-12 (b) The commission shall provide in its rules the fees that
21-13 will be charged for copies and is authorized to furnish copies,
21-14 certified or otherwise, to a person without charge when the
21-15 furnishing of the copies serves a public purpose. Other statutes
21-16 concerning fees for copies of records do not apply to the
21-17 commission, except that the fees set by the commission for copies
21-18 prepared by the commission may not exceed those prescribed in
21-19 Article 3913, Revised Statutes. (Sec. 5.174, Water Code.)
21-20 Sec. 2.054. Inspection of Compliance Records. (a) All
21-21 information, documents, and data collected by the commission in the
21-22 performance of its duties are the property of the state. Subject
21-23 to the limitations of this code, all records are open to inspection
21-24 by any person during regular office hours.
21-25 (b) This section is effective until delegation of NPDES
21-26 permit authority. (Sec. 5.175, Water Code.)
21-27 Sec. 2.0541. Inspection of Compliance Records. (a) All
22-1 information, documents, and data collected by the commission in the
22-2 performance of its duties are the property of the state.
22-3 (b) Except as provided by Subsection (c), records, reports,
22-4 data, or other information obtained relative to or from sources or
22-5 potential sources of discharges of water pollutants shall be
22-6 available to the public during regular office hours.
22-7 (c) If a showing satisfactory to the executive director is
22-8 made by any person that those records, reports, data, or other
22-9 information, other than effluent data, would divulge methods or
22-10 processes entitled to protection as trade secrets, the commission
22-11 shall consider those records, reports, data, or other information
22-12 as confidential.
22-13 (d) This chapter may not be construed to make confidential
22-14 any effluent data, including effluent data in records, reports, or
22-15 other information, and including effluent data in permits, draft
22-16 permits, and permit applications.
22-17 (e) Records, data, or other information considered
22-18 confidential may be disclosed or transmitted to officers,
22-19 employees, or authorized representatives of the state or of the
22-20 United States with responsibilities in water pollution control.
22-21 However, this disclosure or transmittal may be made only after
22-22 adequate written assurance is given to the executive director that
22-23 the confidentiality of the disclosed or transmitted records, data,
22-24 or other information will be afforded all reasonable protection
22-25 allowed by law by the receiving officer, employee or authorized
22-26 representative on behalf of, and under the authority of, the
22-27 receiving agency or political entity.
23-1 (f) The executive director may not disclose or transmit
23-2 records, data, or other information considered confidential if he
23-3 has reason to believe the recipient will not protect their
23-4 confidentiality to the most reasonable extent provided by law.
23-5 (g) This section is effective on delegation of NPDES permit
23-6 authority. (Sec. 5.175, Water Code.)
23-7 Sec. 2.055. Complaints. (a) The commission shall keep an
23-8 information file about each complaint filed with the commission
23-9 relating to an entity regulated by the commission.
23-10 (b) If a written complaint is filed with the commission
23-11 relating to an entity regulated by the commission, the commission
23-12 at least as frequently as quarterly and until final disposition of
23-13 the complaint shall notify the parties to the complaint of the
23-14 status of the complaint unless notice would jeopardize an
23-15 undercover investigation. (Secs. 5.176, 5.177, Water Code.)
23-16 Sec. 2.056. Funds From Other State Agencies. Any state
23-17 agency that has statutory responsibilities for environmental
23-18 pollution or environmental quality control and that receives a
23-19 legislative appropriation for these purposes may transfer to the
23-20 commission any amount mutually agreed on by the commission and the
23-21 agency, subject to the approval of the governor. (Sec. 5.172,
23-22 Water Code.)
23-23 Sec. 2.057. Audit By State Auditor. The financial
23-24 transactions of the commission are subject to audit by the state
23-25 auditor in accordance with Chapter 321, Government Code. (Sec.
23-26 5.171, Water Code.)
23-27 Sec. 2.058. Reports to Governor and Legislature. (a) The
24-1 commission shall make biennial reports in writing to the governor
24-2 and the members of the legislature. Each report shall include a
24-3 statement of the activities of the commission and its
24-4 recommendations for necessary and desirable legislation.
24-5 (b) The commission shall file annually with the governor and
24-6 the presiding officer of each house of the legislature a complete
24-7 and detailed written report accounting for all funds received and
24-8 disbursed by the commission during the preceding year. The form of
24-9 the annual report and the reporting time shall be that provided in
24-10 the General Appropriations Act. (Sec. 5.178, Water Code.)
24-11 (Sections 2.059-2.100 reserved for expansion)
24-12 SUBCHAPTER D. EXECUTIVE DIRECTOR
24-13 Sec. 2.101. General Responsibilities. The executive
24-14 director shall manage the administrative affairs of the commission
24-15 subject to this code and other laws and under the general
24-16 supervision and direction of the commission. (Sec. 5.221, Water
24-17 Code.)
24-18 Sec. 2.102. Deputy Directors. (a) The commission has four
24-19 deputy directors directly reporting to the executive director.
24-20 (b) The deputy director for air quality shall be responsible
24-21 for the management and supervision of all responsibilities of the
24-22 commission under the federal Clean Air Act (42 U.S.C. Section 7401
24-23 et seq.) and Chapter 30 including monitoring, permitting, policy
24-24 research, planning, small business assistance, mobile sources,
24-25 enforcement functions, and other duties assigned by the executive
24-26 director that are not assigned by this section to other deputy
24-27 directors. The deputy director for air quality must have at least
25-1 two years' experience in air pollution control program management
25-2 for the Texas Air Control Board or the commission.
25-3 (c) The deputy director for water shall be responsible for
25-4 the management and supervision of all water programs, including
25-5 water quality, water rights and uses, water utilities, petroleum
25-6 storage tank programs, water well drilling, the setting of
25-7 standards for drinking water, protection of public water supplies
25-8 and bodies of water, the regulation of on-site sewage disposal
25-9 systems, the administration of on-site wastewater treatment
25-10 research, wastewater treatment systems, and other duties assigned
25-11 by the executive director that are not assigned by this section to
25-12 other deputy directors.
25-13 (d) The deputy director for waste management shall be
25-14 responsible for all regulatory duties assigned to the commission
25-15 concerning the management, supervision, disposal, and cleanup of
25-16 all hazardous wastes and solid wastes, the disposal of radioactive
25-17 substances, and other duties assigned by the executive director
25-18 that are not assigned by this section to other deputy directors.
25-19 (e) The deputy director for administration shall be
25-20 responsible for the management and supervision of accounting,
25-21 budgeting, personnel, data processing systems with nonregulatory
25-22 purposes, general and staff services, and other duties assigned by
25-23 the executive director that are not assigned by this section to
25-24 other deputy directors.
25-25 (f) This section does not prohibit the commission or the
25-26 executive director from establishing a direct line of reporting
25-27 from persons providing or overseeing staff support functions for
26-1 the commission or the executive director, including hearings,
26-2 general legal consultation, research, or public information. The
26-3 salaries paid to the deputy directors described by Subsections (b)
26-4 through (e) may not be lower than those of any other position
26-5 established within the commission, other than the executive
26-6 director.
26-7 (g) This section expires September 1, 1997. (Effective
26-8 September 1, 1993, to September 1, 1997.) (Sec. 5.222, Water
26-9 Code.)
26-10 Sec. 2.103. Administrative Organization of Commission. (a)
26-11 Subject to approval of the commission, the executive director may
26-12 organize and reorganize the administrative sections and divisions
26-13 of the commission in a manner and in a form that will achieve the
26-14 greatest efficiency and effectiveness.
26-15 (b) The executive director, subject to approval by the
26-16 commission, shall employ any engineering, accounting, and
26-17 administrative personnel necessary to carry out Chapter 12.
26-18 (c) The executive director and the commission's staff are
26-19 responsible for the gathering of information relating to all
26-20 matters within the jurisdiction of the commission under Subchapter
26-21 A, Chapter 12. The duties of the executive director and the staff
26-22 include:
26-23 (1) accumulation of evidence and other information
26-24 from water and sewer utilities and from the commission and the
26-25 board and from other sources for the purposes specified by Chapter
26-26 12;
26-27 (2) preparation and presentation of evidence before
27-1 the commission or its appointed examiner in proceedings;
27-2 (3) conducting investigations of water and sewer
27-3 utilities under the jurisdiction of the commission;
27-4 (4) preparation of recommendations that the commission
27-5 undertake an investigation of any matter within its jurisdiction;
27-6 (5) preparation of recommendations and a report for
27-7 inclusion in the annual report of the commission;
27-8 (6) protection and representation of the public
27-9 interest, together with the public interest advocate, before the
27-10 commission; and
27-11 (7) other activities that are reasonably necessary to
27-12 enable the executive director and the staff to perform their
27-13 duties.
27-14 (d) The office of pollution prevention is created in the
27-15 executive office of the commission to direct and coordinate all
27-16 source reduction and waste minimization activities of the
27-17 commission. (Secs. 5.223, 13.011, Water Code; Sec. 361.0216,
27-18 Health and Safety Code.)
27-19 Sec. 2.104. Applications and Other Documents. (a) With
27-20 regard to any matter pending before the commission, the executive
27-21 director may obtain from the board information relating to that
27-22 matter.
27-23 (b) On receiving a request from the executive director, the
27-24 board should make the requested information available within 30
27-25 days after the information is requested and shall make the
27-26 requested information available not later than 90 days after the
27-27 information is requested.
28-1 (c) An application, petition, or other document requiring
28-2 action of the commission shall be presented to the executive
28-3 director and handled as provided by this code or other law and in
28-4 the rules adopted by the commission.
28-5 (d) After an application, petition, or other document is
28-6 processed, it shall be presented to the commission for action as
28-7 required by law and rules of the commission. (Secs. 5.224, 5.234,
28-8 Water Code.)
28-9 Sec. 2.105. Appearances at Hearings. The position of and
28-10 information developed by the commission shall be presented by the
28-11 executive director or his designated representative at hearings of
28-12 the commission and the hearings held by federal, state, and local
28-13 agencies on matters affecting the public's interest in the state's
28-14 environment and natural resources, including matters that have been
28-15 determined to be policies of the state. The executive director
28-16 shall be named a party in hearings before the commission. (Sec.
28-17 5.228, Water Code.)
28-18 Sec. 2.106. Enforcement. On approval of the commission, the
28-19 executive director may enforce the terms and conditions of any
28-20 permit, certified filing, certificate of adjudication, order,
28-21 standard, or rule by injunction or other appropriate remedy in a
28-22 court of competent jurisdiction. (Sec. 5.230, Water Code.)
28-23 Sec. 2.107. Contracts. (a) The executive director, on
28-24 behalf of the commission, may negotiate with and with the consent
28-25 of the commission enter into contracts with the United States or
28-26 any of its agencies for the purpose of carrying out the powers,
28-27 duties, and responsibilities of the commission.
29-1 (b) The executive director, on behalf of the commission, may
29-2 negotiate with and with the consent of the commission enter into
29-3 contracts or other agreements with states and political
29-4 subdivisions of this state or any other entity for the purpose of
29-5 carrying out the powers, duties, and responsibilities of the
29-6 commission. (Sec. 5.229, Water Code.)
29-7 Sec. 2.108. Gifts and Grants. The executive director may
29-8 apply for, request, solicit, contract for, receive, and accept
29-9 money and other assistance from any source to carry out the powers
29-10 and duties under this code and other law. (Sec. 5.233, Water
29-11 Code.)
29-12 Sec. 2.109. Equal Employment Opportunity Policy. (a) The
29-13 executive director or his designee shall prepare and maintain a
29-14 written policy statement to assure implementation of a program of
29-15 equal employment opportunity whereby all personnel transactions are
29-16 made without regard to race, color, handicap, sex, religion, age,
29-17 or national origin. The policy statement must include:
29-18 (1) personnel policies including policies relating to
29-19 recruitment, evaluation, selection, appointment, training, and
29-20 promotion of personnel;
29-21 (2) a comprehensive analysis of the commission's work
29-22 force that meets federal and state guidelines;
29-23 (3) procedures by which a determination can be made of
29-24 significant underutilization in the commission's work force of all
29-25 persons for whom federal or state guidelines encourage a more
29-26 equitable balance; and
29-27 (4) reasonable methods to address appropriately areas
30-1 of significant underutilization in the commission's work force of
30-2 all persons for whom federal or state guidelines encourage a more
30-3 equitable balance.
30-4 (b) The policy statement shall be filed with the governor's
30-5 office before November 1, 1985, cover an annual period, and be
30-6 updated at least annually. The governor's office shall develop a
30-7 biennial report to the legislature based on the information
30-8 submitted. This report may be made individually or as a part of
30-9 other biennial reports made to the legislature. (Sec. 5.227, Water
30-10 Code.)
30-11 Sec. 2.110. Employee Review and Compensation. (a) The
30-12 executive director or his designee shall develop an intra-agency
30-13 career ladder program, one part of which shall require the
30-14 intra-agency posting of all nonentry level positions concurrently
30-15 with any public posting.
30-16 (b) The executive director or his designee shall develop a
30-17 system of annual performance evaluations based on measurable job
30-18 tasks. All merit pay for commission employees must be based on the
30-19 system established under this subsection.
30-20 (c) If provided by legislative appropriation, the commission
30-21 may pay the costs of transporting and delivering the household
30-22 goods and effects of employees transferred by the executive
30-23 director from one permanent station to another when, in the
30-24 judgment of the executive director, the transfer will serve the
30-25 best interest of the state. (Secs. 5.225, 5.226, 5.232, Water
30-26 Code.)
30-27 Sec. 2.111. Travel Reimbursement. The executive director is
31-1 entitled to receive actual and necessary travel expenses. Other
31-2 employees of the commission are entitled to receive travel expenses
31-3 as provided in the General Appropriations Act. (Sec. 5.231, Water
31-4 Code.)
31-5 Sec. 2.112. Contamination Reports. (a) If the executive
31-6 director acquires information that confirms that a potential public
31-7 health hazard exists because usable groundwater has been or is
31-8 being contaminated, the executive director, not later than the 30th
31-9 day after the date on which the executive director acquires the
31-10 information confirming contamination, shall give written notice of
31-11 the contamination to the following persons:
31-12 (1) the county judge and the county health officer, if
31-13 any, in each county in which the contamination has occurred or is
31-14 occurring;
31-15 (2) any person under the commission's jurisdiction who
31-16 is suspected of contributing to the contamination; and
31-17 (3) any other state agency with jurisdiction over any
31-18 person who is suspected of contributing to the contamination.
31-19 (b) The executive director shall give the notice in the
31-20 manner and form, and include the information, required by rule of
31-21 the commission. (Sec. 5.236, Water Code.)
31-22 (Sections 2.113-2.150 reserved for expansion)
31-23 SUBCHAPTER E. JUDICIAL REVIEW
31-24 Sec. 2.151. Judicial Review of Commission Acts. (a) A
31-25 person affected by a ruling, order, decision, or other act of the
31-26 commission may file a petition to review, set aside, modify, or
31-27 suspend the act of the commission.
32-1 (b) A person affected by a ruling, order, or decision of the
32-2 commission must file his petition within 30 days after the
32-3 effective date of the ruling, order, or decision. A person
32-4 affected by an act other than a ruling, order, or decision must
32-5 file his petition within 30 days after the date the commission
32-6 performed the act. (Sec. 5.351, Water Code.)
32-7 Sec. 2.152. Appeal of Clean Air Act Action. (a) A person
32-8 affected by a ruling, order, decision, or other act of the
32-9 commission with respect to a matter covered by Chapter 30 may
32-10 appeal the action by filing a petition in a district court of
32-11 Travis County.
32-12 (b) The petition must be filed within 30 days after the date
32-13 of the commission's action or, in the case of a ruling, order, or
32-14 decision, within 30 days after the effective date of the ruling,
32-15 order, or decision.
32-16 (c) Service of citation on the commission must be
32-17 accomplished within 30 days after the date on which the petition is
32-18 filed. Citation may be served on the executive director or any
32-19 commission member.
32-20 (d) The plaintiff shall pursue the action with reasonable
32-21 diligence. If the plaintiff does not prosecute the action within
32-22 one year after the date on which the action is filed, the court
32-23 shall presume that the action has been abandoned. The court shall
32-24 dismiss the suit on a motion for dismissal made by the attorney
32-25 general unless the plaintiff, after receiving due notice, can show
32-26 good and sufficient cause for the delay.
32-27 (e) In an appeal of a commission action other than
33-1 cancellation or suspension of a variance, the issue is whether the
33-2 action is invalid, arbitrary, or unreasonable.
33-3 (f) An appeal of the cancellation or suspension of a
33-4 variance must be tried in the same manner as appeals from the
33-5 justice court to the county court. (Sec. 382.032, Health and
33-6 Safety Code.)
33-7 Sec. 2.153. Remedy for Inaction. A person affected by the
33-8 failure of the commission or the executive director to act in a
33-9 reasonable time on an application to appropriate water or to
33-10 perform any other duty with reasonable promptness may file a
33-11 petition to compel the commission or the executive director to show
33-12 cause why it should not be directed by the court to take immediate
33-13 action. (Sec. 5.352, Water Code.)
33-14 Sec. 2.154. Diligent Prosecution of Suit. The plaintiff
33-15 shall prosecute with reasonable diligence any suit brought under
33-16 Section 2.151 or 2.153. If the plaintiff does not secure proper
33-17 service of process or does not prosecute his suit within one year
33-18 after it is filed, the court shall presume that the suit has been
33-19 abandoned. The court shall dismiss the suit on a motion for
33-20 dismissal made by the attorney general unless the plaintiff after
33-21 receiving due notice can show good and sufficient cause for the
33-22 delay. (Sec. 5.353, Water Code.)
33-23 Sec. 2.155. Venue. A suit instituted under Section 2.151 or
33-24 2.153 must be brought in a district court in Travis County. (Sec.
33-25 5.354, Water Code.)
33-26 Sec. 2.156. Appeal of District Court Judgment. A judgment
33-27 or order of a district court in a suit brought for or against the
34-1 commission is appealable as are other civil cases in which the
34-2 district court has original jurisdiction. (Sec. 5.355, Water
34-3 Code.)
34-4 Sec. 2.157. Appeal by Executive Director Precluded. A
34-5 ruling, order, decision, or other act of the commission may not be
34-6 appealed by the executive director. (Sec. 5.356, Water Code.)
34-7 Sec. 2.158. Law Suits; Citation. Law suits filed by and
34-8 against the commission or executive director shall be in the name
34-9 of the commission. In suits against the commission or executive
34-10 director, citation may be served on the executive director. (Sec.
34-11 5.357, Water Code.)
34-12 Sec. 2.159. Enforcement Proceedings. The executive director
34-13 may institute court proceedings to compel compliance with the
34-14 provisions of Chapter 10 or the rules, orders, permits, or other
34-15 decisions of the commission. (Sec. 26.016, Water Code.)
34-16 (Sections 2.160-2.170 reserved for expansion)
34-17 SUBCHAPTER F. FINANCIAL PROVISIONS
34-18 Sec. 2.171. Federal Funds. (a) The executive director with
34-19 the approval of the commission or the executive administrator with
34-20 the approval of the board, as applicable under this code or other
34-21 laws, may execute agreements with the United States Environmental
34-22 Protection Agency or any other federal agency that administers
34-23 programs providing federal cooperation, assistance, grants, or
34-24 loans for research, development, investigation, training, planning,
34-25 studies, programming, and construction related to methods,
34-26 procedures, and facilities for the collection, treatment, and
34-27 disposal of waste or other water quality control activities. The
35-1 commission or board may accept federal funds for these purposes and
35-2 for other purposes consistent with the objectives of this chapter
35-3 and may use the funds as prescribed by law or as provided by
35-4 agreement.
35-5 (b) The commission may apply for and accept federal funds
35-6 and enter into contracts and agreements with the federal government
35-7 relating to planning, developing, maintaining, and enforcing the
35-8 municipal solid waste management program.
35-9 (c) The commission may accept and disburse funds received
35-10 from the federal government for purposes relating to solid waste
35-11 management and resource recovery in the manner provided by
35-12 Subchapters A-E, Chapter 22, and by agreement between the federal
35-13 government and the commission.
35-14 (d) State funds provided to public agencies or planning
35-15 regions under Subchapters A-E, Chapter 22, may be combined with
35-16 local or regional funds to match federal funds on approved programs
35-17 for municipal solid waste management. (Sec. 26.035, Water Code;
35-18 Secs. 363.023, 363.024, Health and Safety Code.)
35-19 Sec. 2.172. General Fees. (a) The executive director shall
35-20 charge and collect the fees prescribed by this section. The
35-21 executive director shall make a record of fees prescribed when due
35-22 and shall render an account to the person charged with the fees.
35-23 Each fee is a separate charge and is in addition to other fees
35-24 unless provided otherwise.
35-25 (b) Except as specifically provided by this section, the fee
35-26 for filing an application or petition is $100 plus the cost of any
35-27 required notice. The fee for a by-pass permit shall be set by the
36-1 commission at a reasonable amount to recover costs, but not less
36-2 than $100.
36-3 (c) The fee for filing a water permit application is $100
36-4 plus the cost of required notice.
36-5 (d) The fee for filing an application for fixing or
36-6 adjusting rates is $100 plus the cost of required notice.
36-7 (e) A person who files with the commission a petition for
36-8 the creation of a water district or addition of sewage and drainage
36-9 powers or a resolution for a water district conversion must pay a
36-10 one-time nonrefundable application fee. The commission by rule may
36-11 set the application fee in an amount not to exceed $700, plus the
36-12 cost of required notice. This fee is the only fee that the
36-13 commission may charge with regard to the processing of an
36-14 application for creation of a water district, addition of sewage or
36-15 drainage powers, or conversion under this code.
36-16 (f) A person who files a bond issue application with the
36-17 commission must pay an application fee set by the commission. The
36-18 commission by rule may set the application fee in an amount not to
36-19 exceed $500, plus the cost of required notice. If the bonds are
36-20 approved by the commission, the seller shall pay to the commission
36-21 a percentage of the bond proceeds not later than the seventh
36-22 business day after receipt of the bond proceeds. The commission by
36-23 rule may set the percentage of the proceeds in an amount not to
36-24 exceed 0.25 percent of the principal amount of the bonds actually
36-25 issued. Revenue from these fees shall be deposited in the state
36-26 treasury and credited to the water quality fund. Proceeds of the
36-27 fees shall be used to supplement any other funds available for
37-1 paying expenses of the commission in supervising the various bond
37-2 and construction activities of the districts filing the
37-3 applications.
37-4 (g) The fee for recording an instrument in the office of the
37-5 commission is $1.25 per page.
37-6 (h) The fee for the use of water for irrigation is 50 cents
37-7 per acre to be irrigated.
37-8 (i) The fee for impounding water, except under Section
37-9 11.142, is 50 cents per acre-foot of storage, based on the total
37-10 holding capacity of the reservoir at normal operating level.
37-11 (j) The fee for other uses of water not specifically named
37-12 in this section is $1 per acre-foot, except that no political
37-13 subdivision may be required to pay fees to use water for recharge
37-14 of underground freshwater-bearing sands and aquifers or for
37-15 abatement of natural pollution.
37-16 (k) A fee charged under this section for one use of water
37-17 under a permit from the commission may not exceed $25,000. The fee
37-18 for each additional use of water under a permit for which the
37-19 maximum fee is paid may not exceed $5,000.
37-20 (l) The fees prescribed by Subsections (h) through (j) are
37-21 one-time fees, payable when the application for an appropriation is
37-22 made. However, if the total fee for a permit exceeds $1,000, the
37-23 applicant shall pay one-tenth of the fee when the application is
37-24 filed, one-tenth within 30 days after notice is mailed to him that
37-25 the permit is granted, and the balance before he begins to use
37-26 water under the permit. If the applicant does not pay all of the
37-27 amount owed before beginning to use water under the permit, the
38-1 permit is annulled.
38-2 (m) If a permit is annulled, the matter reverts to the
38-3 status of a pending, filed application and, on the payment of use
38-4 fees as provided by this subsection together with sufficient
38-5 postage fees for mailing notice of hearing, the commission shall
38-6 set the application for hearing and proceed as provided by this
38-7 code.
38-8 (n) Each provider of potable water or sewer utility service
38-9 shall collect a regulatory assessment from each retail customer as
38-10 follows:
38-11 (1) A public utility as defined in Section 12.002 of
38-12 this code shall collect from each retail customer a regulatory
38-13 assessment equal to one percent of the charge for retail water or
38-14 sewer service.
38-15 (2) A water supply or sewer service corporation as
38-16 defined in Section 12.002 of this code shall collect from each
38-17 retail customer a regulatory assessment equal to one-half of one
38-18 percent of the charge for retail water or sewer service.
38-19 (3) A district as defined in Section 50.001, Water
38-20 Code, that provides potable water or sewer utility service to
38-21 retail customers shall collect from each retail customer a
38-22 regulatory assessment equal to one-half of one percent of the
38-23 charge for retail water or sewer service.
38-24 (o) The regulatory assessment under Subsection (n) may be
38-25 listed on the customer's bill as a separate item and shall be
38-26 collected in addition to other charges for utility services. The
38-27 commission shall use the assessments collected from districts
39-1 solely to pay costs and expenses incurred by the commission in the
39-2 regulation of districts. The commission shall use the assessments
39-3 collected from water supply or sewer service corporations solely to
39-4 pay costs and expenses incurred by the commission in the regulation
39-5 of water supply or sewer service corporations. The commission
39-6 shall use the assessments collected from public utilities solely to
39-7 pay costs and expenses incurred by the commission in the regulation
39-8 of public utilities. The commission shall annually use a portion
39-9 of the assessments to provide on-site technical assistance and
39-10 training to public utilities, water supply or sewer service
39-11 corporations, and districts. The commission shall contract with
39-12 others to provide the services.
39-13 (p) Except as otherwise provided by this subsection,
39-14 assessments under Subsection (n) collected from retail customers
39-15 for the prior 12 months are due on January 15 of each year. The
39-16 executive director shall collect all assessments from the utility
39-17 service providers, and those funds shall be paid into the state
39-18 treasury and credited to the water utility fund. A utility service
39-19 provider may make quarterly payments due on January 15, April 15,
39-20 July 15, and October 15 of each year. If payments are made
39-21 quarterly and received by the commission not later than the 30th
39-22 day after the due date, the utility service provider may retain an
39-23 administrative fee equal to 10 percent of the amount due for costs
39-24 incurred in collecting and remitting the assessment. The
39-25 commission shall assess on a utility service provider a penalty
39-26 equal to 10 percent of the amount due for any payment received
39-27 after January 31. Funds delinquent for more than 30 days shall
40-1 draw interest at the rate of 10 percent a year on the assessment
40-2 and penalty due. The commission shall assess a penalty against a
40-3 municipality with a population of more than 1.5 million that does
40-4 not provide municipal water and sewer services in an annexed area
40-5 on or before 4-1/2 years after the annexation takes effect in
40-6 accordance with Section 43.056, Local Government Code. A penalty
40-7 assessed under this paragraph shall be not more than $1,000 for
40-8 each day the services are not provided after 4-1/2 years after the
40-9 annexation. A penalty collected under this paragraph shall be
40-10 deposited into a special fund in the state treasury to be used to
40-11 provide water and sewer service to residents of the city.
40-12 (q) The regulatory assessment does not apply to water that
40-13 has not been treated for the purpose of human consumption.
40-14 (r) The commission and the Parks and Wildlife Commission are
40-15 exempted from payment of any filing, recording, or use fees
40-16 required by this code.
40-17 (s) The commission by rule shall set a fee to be paid by
40-18 each applicant or licensee on the issuance or renewal of a
40-19 certificate of competency under Section 10.106. The amount of the
40-20 fee is determined according to the costs of the commission in
40-21 administering Section 10.106, but may not exceed $25 annually for
40-22 an individual wastewater treatment plant operator and $500 annually
40-23 for a person, company, corporation, firm, or partnership that is in
40-24 the business as a wastewater treatment facility operations company.
40-25 The commission shall deposit any fees collected under this
40-26 subsection in the state treasury to the credit of the waste
40-27 treatment facility inspection fund.
41-1 (t) The commission shall hold all fees, except filing fees,
41-2 which are paid with an application until the commission finally
41-3 determines whether the application should be granted. If the
41-4 application is not granted, the commission shall return the fees to
41-5 the applicant. (Secs. 5.235, 12.112, 12.114, 26.0301(e), 26.265,
41-6 Water Code.)
41-7 Sec. 2.173. Water Quality Permit Fees. (a) The commission
41-8 also may prescribe and require the payment of reasonable license
41-9 fees by an applicant for a license, including fees for periodic
41-10 renewal of a license. The commission may change the amount of the
41-11 license fees from time to time. The amount of the fees shall be
41-12 based on the reasonable cost of performing the licensing function
41-13 and administering the licensing system, including, where
41-14 applicable, costs of soil percolation and other tests to determine
41-15 the suitability of using a particular type or types of private
41-16 sewage facilities in the area or at any location within the area,
41-17 field inspections, travel, and other costs directly attributable to
41-18 performing the licensing function and administering the licensing
41-19 system.
41-20 (b) If the commission or the executive director has the
41-21 responsibility for performing the licensing function, the license
41-22 fees shall be paid to the commission. Those fees shall not be
41-23 deposited in the General Revenue Fund of the state but shall be
41-24 deposited in a special fund for use by the commission in performing
41-25 the licensing function and administering the licensing system, and
41-26 the fees so deposited are hereby appropriated to the commission to
41-27 use for those purposes only.
42-1 (c) If a local government has the responsibility for
42-2 performing the licensing function, the fees shall be paid to the
42-3 local government.
42-4 (d) An annual waste treatment inspection fee is imposed on
42-5 each permittee for each waste discharge permit held by the
42-6 permittee. The fee is to supplement any other funds available to
42-7 pay expenses of the commission in inspecting waste treatment
42-8 facilities and enforcing the laws of the state, and the rules of
42-9 the commission, governing waste discharge and waste treatment
42-10 facilities. The fee for each year is imposed on each permit in
42-11 effect during any part of the year. The commission, by rule, shall
42-12 adopt a fee schedule for determining the amount of the fee to be
42-13 charged. The amount of the fee may not exceed $11,000 for each
42-14 waste discharge permit held by a permittee. In determining the
42-15 amount of the waste treatment inspection fee, the commission may
42-16 consider permitting factors such as flow volume, toxic pollutant
42-17 potential, level of traditional pollutants, and heat load. The
42-18 commission also may consider the designated uses and segment
42-19 ranking classification of the water affected by discharges from the
42-20 permitted facility. The fees collected under this subsection are
42-21 in addition to other fees and shall be deposited in a special fund
42-22 in the state treasury to be known as the waste treatment facility
42-23 inspection fund. Money in the fund shall be used as follows:
42-24 (1) to supplement any other funds available for paying
42-25 expenses of the commission in inspecting waste treatment
42-26 facilities;
42-27 (2) to pay for the issuance and renewal of
43-1 certificates of competency under and to administer Section 10.106;
43-2 and
43-3 (3) to pay for processing plans or amendments to plans
43-4 and inspecting the construction of projects under those plans
43-5 pursuant to Section 2.177 and rules of the commission adopted under
43-6 Sections 2.177 and 10.104. This subsection is effective until
43-7 delegation of NPDES permit authority.
43-8 (e) An annual waste treatment inspection fee is imposed on
43-9 each permittee for each waste discharge permit held by the
43-10 permittee. The fee is to supplement any other funds available to
43-11 pay expenses of the commission in inspecting waste treatment
43-12 facilities and enforcing the laws of the state and the rules of the
43-13 commission governing waste discharge and waste treatment
43-14 facilities. The fee for each year is imposed on each permit in
43-15 effect during any part of the year. The commission by rule shall
43-16 adopt a fee schedule for determining the amount of the fee to be
43-17 charged. The amount of the fee may not exceed $15,000 for each
43-18 waste discharge permit held by a permittee. In determining the
43-19 amount of the waste treatment inspection fee, the commission may
43-20 consider permitting factors such as flow volume, toxic pollutant
43-21 potential, level of traditional pollutants, and heat load. The
43-22 commission may consider the designated uses and segment ranking
43-23 classification of the water affected by discharges from the
43-24 permitted facility. Finally, the commission also may consider the
43-25 expenses necessary to obtain and administer the NPDES program. The
43-26 fees collected under this subsection are in addition to other fees
43-27 and shall be deposited in a special fund in the state treasury to
44-1 be known as the waste treatment facility inspection fund. Money in
44-2 the fund shall be used as follows:
44-3 (1) to supplement any other funds available for paying
44-4 expenses of the commission in inspecting waste treatment
44-5 facilities;
44-6 (2) to pay for the issuance and renewal of
44-7 certificates of competency under and to administer Section 10.106;
44-8 (3) to pay for processing plans or amendments to plans
44-9 and inspecting the construction of projects under those plans
44-10 pursuant to Section 2.177 and rules of the commission adopted under
44-11 Sections 2.177 and 10.104; and
44-12 (4) to pay for any expenses of the commission
44-13 necessary to obtain and administer the NPDES program in lieu of the
44-14 federal government. This subsection is effective on delegation of
44-15 NPDES permit authority.
44-16 (f) The commission shall adopt and assess reasonable and
44-17 necessary fees adequate to recover the costs of the commission in
44-18 administering Section 10.127. (Secs. 26.0291, 26.031(h), (i), (j),
44-19 26.177(e), Water Code.)
44-20 Sec. 2.174. Water Rate Regulation Fees and Assessments. (a)
44-21 A rate change application filed with the commission must be
44-22 accompanied by a filing fee, the amount of which is based on the
44-23 number of connections to which the change applies as follows:
44-24 (1) fewer than 100 connections--$50
44-25 (2) 100-200 connections--$100
44-26 (3) 201-500 connections--$200
44-27 (4) more than 500 connections--$500.
45-1 (b) An application for a certificate of public convenience
45-2 and necessity under Section 12.243 must be accompanied by an
45-3 application fee of $100.
45-4 (c) An application for sale, assignment, or lease of a
45-5 certificate of public convenience and necessity under Section
45-6 12.249 or for a sale, acquisition, lease, or rental of a water or
45-7 sewer system under Section 12.301 must be accompanied by an
45-8 application fee the amount of which is based on the number of
45-9 connections affected as follows:
45-10 (1) fewer than 100 connections--$50
45-11 (2) 100-200 connections--$100
45-12 (3) 201-500 connections--$200
45-13 (4) more than 500 connections--$500.
45-14 (d) The fees under this section are in lieu of the
45-15 application fees required by Section 2.172(b) or (d).
45-16 (e) All fees paid under this section shall be collected by
45-17 the executive director and paid into the General Revenue Fund.
45-18 (f) The budget of the commission is subject to legislative
45-19 approval as part of the General Appropriations Act.
45-20 (g) The transactions of the commission are subject to audit
45-21 by the State Auditor in accordance with Chapter 321, Government
45-22 Code. (Secs. 13.4521, 13.4522, 13.453, 13.454, 13.455, Water
45-23 Code.)
45-24 Sec. 2.175. Solid Waste Disposal Permit Fees. (a) In this
45-25 section:
45-26 (1) "Captured facility" means a manufacturing or
45-27 production facility which generates an industrial solid waste or
46-1 hazardous waste which is routinely stored, processed, or disposed,
46-2 on a shared basis, in an integrated waste management unit owned and
46-3 operated by and located within a contiguous manufacturing facility.
46-4 (2) "Commercial waste storage, processing, or disposal
46-5 facility" includes any facility that accepts an industrial solid
46-6 waste or a hazardous waste for storage, processing, including
46-7 incineration, or disposal for a charge.
46-8 (3) "Dry weight" means the weight of constituents
46-9 other than water.
46-10 (4) "Generator" means a person whose act or process
46-11 produces industrial solid waste or hazardous waste or whose act
46-12 first causes an industrial solid waste or a hazardous waste to be
46-13 regulated by the commission.
46-14 (5) "Hazardous waste" means solid waste not otherwise
46-15 exempt that is identified or listed as hazardous waste by the
46-16 administrator of the United States Environmental Protection Agency
46-17 under the federal Solid Waste Disposal Act, as amended (42 U.S.C.
46-18 Section 6901 et seq.).
46-19 (6) "Land disposal" does not include the normal
46-20 application of agricultural chemicals or fertilizers.
46-21 (7) "Land disposal facility" includes:
46-22 (A) a landfill;
46-23 (B) a surface impoundment, excluding an
46-24 impoundment treating or storing waste that is disposed of under
46-25 Chapter 10 or 13;
46-26 (C) a waste pile;
46-27 (D) a facility at which land treatment, land
47-1 farming, or a land application process is used; and
47-2 (E) an injection well.
47-3 (8) "Noncommercial waste storage, processing, or
47-4 disposal facility" includes any facility that accepts an industrial
47-5 solid waste or a hazardous waste for storage, processing, including
47-6 incineration, or disposal for no charge or that stores, processes,
47-7 or disposes of waste generated on site.
47-8 (9) "Primary metals high volume, low-hazard waste" is
47-9 hazardous waste from the extraction, beneficiation, and processing
47-10 of ores, minerals, or scrap metal and whose constituents are
47-11 subject to the criteria for the identification or listing as a
47-12 hazardous waste under Section 3001(a) of the Resource Conservation
47-13 and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.) and
47-14 account for 10 percent or less of its total dry weight volume.
47-15 (b) Except as provided by Subsection (e), the commission
47-16 shall charge a fee on solid waste that is disposed of within this
47-17 state. The fee is the greater of 50 cents per ton or, for
47-18 compacted solid waste, 50 cents per cubic yard or, for uncompacted
47-19 solid waste, 10 cents per cubic yard received for disposal at a
47-20 landfill. The commission shall set the fee for sludge or similar
47-21 waste applied to the land for beneficial use on a dry weight basis
47-22 and for solid waste received at an incinerator or a shredding and
47-23 composting facility at half the fee set for solid waste received
47-24 for disposal at a landfill. The commission may charge comparable
47-25 fees for other means of solid waste disposal that are used. The
47-26 commission may raise or lower the fees in accordance with
47-27 commission spending levels established by the legislature.
48-1 (c) The commission shall charge an annual registration fee
48-2 to a transporter of solid waste who is required to register with
48-3 the commission under rules adopted by the commission. The
48-4 commission by rule shall adopt a fee schedule. The fee shall be
48-5 reasonably related to the volume, the type, or both the volume and
48-6 type of waste transported. The registration fee charged under this
48-7 subsection may not be less than $25 or more than $500.
48-8 (d) The operator of each municipal solid waste facility
48-9 shall maintain records and report to the commission annually on the
48-10 amount of solid waste that the facility transfers, processes,
48-11 stores, treats, or disposes of. Each transporter required to
48-12 register with the commission shall maintain records and report to
48-13 the commission annually on the amount of solid waste that the
48-14 transporter transports. The commission by rule shall establish
48-15 procedures for recordkeeping and reporting required under this
48-16 subsection.
48-17 (e) The commission may not charge a fee under Subsection (b)
48-18 for scrap tires that are deposited in a designated recycling
48-19 collection area at a landfill permitted by the commission or
48-20 licensed by a county or by a political subdivision exercising the
48-21 authority granted by Section 20.165 and that are temporarily stored
48-22 for eventual recycling, reuse, or energy recovery.
48-23 (f) The hazardous and solid waste fees fund is in the state
48-24 treasury. The fund consists of money collected by the commission
48-25 from:
48-26 (1) fees imposed on generators of industrial solid
48-27 waste or hazardous waste under Subsections (k) and (l);
49-1 (2) fees imposed on owners or operators of permitted
49-2 industrial solid waste or hazardous waste facilities, or owners or
49-3 operators of industrial solid waste or hazardous waste facilities
49-4 subject to the requirement of permit authorization, under
49-5 Subsection (m);
49-6 (3) fees imposed on the owner or operator of an
49-7 industrial solid waste or hazardous waste facility for
49-8 noncommercial and commercial management or disposal of hazardous
49-9 waste under Subsections (n)-(p);
49-10 (4) fees imposed on applicants for industrial solid
49-11 waste and hazardous waste permits under Subsection (q); and
49-12 (5) interest and penalties imposed under Subsection
49-13 (u) for late payment of industrial solid waste and hazardous waste
49-14 fees authorized under this subchapter.
49-15 (g) Except as provided by Subsection (o)(1), the commission
49-16 may use the money in the fund only for regulation of industrial
49-17 solid and hazardous waste under this chapter, including payment to
49-18 other state agencies for services provided under contract
49-19 concerning enforcement of this chapter. The total amount of
49-20 generation fees and facility fees collected and deposited to the
49-21 credit of the hazardous and solid waste fees fund in a fiscal year
49-22 may not be less than $4.5 million or more than $6.0 million. Any
49-23 unobligated balance in the fund in excess of $1 million at the end
49-24 of the state fiscal year shall be transferred to the hazardous and
49-25 solid waste remediation fee fund.
49-26 (h) The hazardous and solid waste remediation fee fund is in
49-27 the state treasury. The fund consists of money collected by the
50-1 commission from:
50-2 (1) fees imposed on the owner or operator of an
50-3 industrial solid waste or hazardous waste facility for commercial
50-4 and noncommercial management or disposal of hazardous waste under
50-5 Subsections (n)-(p) and fees imposed under Subsections (r)-(s);
50-6 (2) interest and penalties imposed under Subsection
50-7 (u) for late payment of a fee or late filing of a report;
50-8 (3) money paid by a person liable for facility cleanup
50-9 and maintenance under Section 20.197;
50-10 (4) the interest received from the investment of this
50-11 fund, in accounts under the charge of the treasurer, to be credited
50-12 pro rata to the hazardous and solid waste remediation fee fund; and
50-13 (5) monies transferred from other agencies under
50-14 provisions of this code or grants from any person made for the
50-15 purpose of remediation of facilities under this chapter.
50-16 (i) The commission may use the money collected and deposited
50-17 to the credit of the fund under this section, including interest
50-18 credited under Subsection (h)(4), only for:
50-19 (1) necessary and appropriate removal and remedial
50-20 action at sites at which solid waste or hazardous substances have
50-21 been disposed if funds from a liable person, independent third
50-22 person, or the federal government are not sufficient for the
50-23 removal or remedial action;
50-24 (2) necessary and appropriate maintenance of removal
50-25 and remedial actions for the expected life of those actions if:
50-26 (A) funds from a liable person have been
50-27 collected and deposited to the credit of the fund for that purpose;
51-1 or
51-2 (B) funds from a liable person, independent
51-3 third person, or the federal government are not sufficient for the
51-4 maintenance;
51-5 (3) expenses concerning compliance with:
51-6 (A) the Comprehensive Environmental Response,
51-7 Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
51-8 seq.) as amended;
51-9 (B) the federal Superfund Amendments and
51-10 Reauthorization Act of 1986 (10 U.S.C. Section 2701 et seq.); and
51-11 (C) Subchapters E and G, Chapter 20;
51-12 (4) expenses concerning the regulation and management
51-13 of household hazardous substances and the prevention of pollution
51-14 of the water resources of the state from the uncontrolled release
51-15 of hazardous substances; and
51-16 (5) expenses concerning the cleanup or removal of a
51-17 spill, release, or potential threat of release of a hazardous
51-18 substance where immediate action is appropriate to protect human
51-19 health and the environment.
51-20 (j) The commission shall establish the fee rates for waste
51-21 management under Subsections (n)-(p) and revise them as necessary
51-22 so that the amount collected each year equals between $12 million
51-23 and $16 million after making payments to counties under Subsection
51-24 (o)(1). The commission shall monitor the unobligated balance in
51-25 the hazardous and solid waste remediation fee fund and all sources
51-26 of revenue to the fund and may adjust the amount of fees collected
51-27 under this subsection and Subsections (r) and (s), within
52-1 prescribed limits, to maintain an unobligated balance of at least
52-2 $5 million and no more than $25 million at the end of each fiscal
52-3 year. For the purpose of this subsection, the unobligated balance
52-4 in the hazardous and solid waste remediation fee fund shall be
52-5 determined by subtracting from the cash balance of the fund at the
52-6 end of each quarter:
52-7 (1) the total of all operating expenses encumbered by
52-8 the commission from the fund;
52-9 (2) the sum of the total balances remaining on all
52-10 contracts entered into by the commission to be paid from the fund;
52-11 and
52-12 (3) the estimated total cost of investigation and
52-13 remedial action at any site eligible for funding under the
52-14 Comprehensive Environmental Response, Compensation and Liability
52-15 Act, as amended, or Subchapter E or G, Chapter 20, and not
52-16 currently under contract.
52-17 (k) The annual generation fee prescribed by this subsection
52-18 is imposed on each generator who generates Class I industrial solid
52-19 waste or hazardous waste during any part of the year. The
52-20 commission shall:
52-21 (1) require each generator of industrial solid waste
52-22 or hazardous waste to register its activities; and
52-23 (2) collect the annual generation fee imposed under
52-24 this subsection.
52-25 (l) The commission by rule shall adopt a generation fee
52-26 schedule for use in determining the amount of fees to be charged.
52-27 The annual generation fee may not be less than $50 or more than
53-1 $25,000, except that the fee for generation of nonhazardous waste
53-2 shall not be more than $1,000. The commission by rule may exempt
53-3 generators of small quantities of Class I industrial solid waste or
53-4 hazardous waste from the payment of a generation fee under
53-5 Subsection (k). Wastes generated in a removal or remedial action
53-6 accomplished through the expenditure of public funds from the
53-7 hazardous and solid waste remediation fee fund shall be exempt from
53-8 any generation fee assessed under Subsection (k). Wastewaters
53-9 containing hazardous wastes which are designated as hazardous
53-10 solely because they exhibit a hazardous characteristic as defined
53-11 in 40 Code of Federal Regulations, Part 261, Subpart C, relating to
53-12 characteristics of hazardous waste, and are rendered nonhazardous
53-13 by neutralization or other treatment on-site in totally enclosed
53-14 treatment facilities or wastewater treatment units for which no
53-15 permit is required under Chapter 20 are exempt from the assessment
53-16 of hazardous waste generation fees. By rule, the commission may
53-17 authorize additional exemptions if consistent with state waste
53-18 management policy. An exemption from fee assessment does not limit
53-19 a generator's obligation to report waste generation or waste
53-20 management activity under any applicable regulation of the
53-21 commission.
53-22 (m) The annual facility fee prescribed by this subsection is
53-23 imposed on each person who holds one or more permits for the
53-24 management of Class I industrial solid waste or hazardous waste or
53-25 is operating a waste management unit subject to the requirement for
53-26 permit authorization to process, store, or dispose of Class I
53-27 industrial solid waste or hazardous waste during any part of the
54-1 year. The commission by rule shall adopt a facility fee schedule
54-2 for determining the amount of each annual fee to be charged. The
54-3 annual facility fee may not be less than $250. The maximum fee for
54-4 a facility may not exceed $25,000. The annual fee to be charged
54-5 each Class I industrial solid waste or hazardous waste facility
54-6 must be that set by the fee schedule adopted by the commission.
54-7 The commission shall collect the facility fee imposed under this
54-8 subsection. During a year in which a facility subject to interim
54-9 status hazardous waste management requirements receives a final
54-10 permit, the facility fee under this section may be imposed only on
54-11 one of those classifications.
54-12 (n) Except as provided by this subsection, a fee shall be
54-13 imposed on the owner or operator of a waste storage, processing, or
54-14 disposal facility for hazardous waste that is managed on site.
54-15 This fee is in addition to any other fee that may be imposed under
54-16 Chapter 20. The commission by rule shall establish fee rates for
54-17 both commercial and noncommercial storage, processing, and disposal
54-18 of hazardous waste, as well as the manner of collection, and shall
54-19 revise the fee amounts as necessary. The hazardous waste
54-20 management fee shall be based on the total weight or volume of a
54-21 hazardous waste other than wastes that are disposed of in an
54-22 underground injection well. The fee for those wastes shall be
54-23 based on the dry weight of the waste. The hazardous waste
54-24 management fee for wastes generated in this state may not exceed
54-25 $20 per ton for wastes that are landfilled. The commission by rule
54-26 shall establish the amount of the fee for all other waste
54-27 management methods at a lesser amount and shall base the amount on
55-1 the factors specified in Subsection (t). A fee, which must be the
55-2 same for wastes generated both in state and out of state and
55-3 consistent with fees assessed for the management of other hazardous
55-4 wastes, shall be established by the commission for the storage,
55-5 processing, incineration, and disposal of hazardous waste fuels
55-6 that the commission by rule shall define considering Btu content,
55-7 metals content, chlorinated hydrocarbon content, and the degree to
55-8 which the waste fuel is used for energy recovery. A fee imposed on
55-9 the owner or operator of a commercial hazardous waste storage,
55-10 processing, or disposal facility, for hazardous wastes that are
55-11 generated in this state and received from an affiliate or
55-12 wholly-owned subsidiary of the commercial facility, or from a
55-13 captured facility, shall be the same fee imposed on a noncommercial
55-14 facility. For the purpose of this subsection, an affiliate of a
55-15 commercial hazardous waste facility must have a controlling
55-16 interest in common with that facility. A fee may not be imposed on
55-17 the owner or operator of a waste storage, processing, or disposal
55-18 facility for the storage of hazardous wastes for fewer than 90
55-19 days. A fee may not be imposed under this subsection on the
55-20 operation of a facility permitted under Chapter 10 or the federal
55-21 National Pollutant Discharge Elimination System program for wastes
55-22 treated, processed, or disposed of in a wastewater treatment system
55-23 that discharges into surface water of the state. The storage,
55-24 processing, or disposal of hazardous wastes generated in a removal
55-25 or remedial action accomplished through the expenditure of public
55-26 funds from the hazardous and solid waste remediation fee fund shall
55-27 be exempt from the assessment of a waste management fee under this
56-1 subsection. The owner or operator of a waste storage, processing,
56-2 or disposal facility receiving hazardous waste from out-of-state
56-3 generators shall be assessed a fee amount required on wastes
56-4 generated in state plus an additional increment that the commission
56-5 by rule shall establish. In establishing an incremental fee for
56-6 out-of-state wastes, the commission shall consider:
56-7 (1) factors specified by Subsection (t);
56-8 (2) added costs to the state of regulating the
56-9 interstate transport and subsequent management and disposal of
56-10 imported hazardous wastes and its associated risks;
56-11 (3) similar fees that may be imposed in a generator's
56-12 state of origin for the storage, processing, or disposal of
56-13 hazardous waste; and
56-14 (4) contributions in both fees and taxes paid by
56-15 generators in this state to the support of the state's hazardous
56-16 waste regulatory programs.
56-17 (o) A fee for hazardous wastes that are legitimately
56-18 reclaimed, reused, or recycled at a waste storage, processing, or
56-19 disposal facility must be the same for wastes generated in state
56-20 and out of state. Fees collected under Subsection (n) shall be
56-21 credited as follows:
56-22 (1) 25 percent of the commercial hazardous waste fee
56-23 collected from each commercial waste storage, processing, or
56-24 disposal facility shall be credited to the hazardous and solid
56-25 waste fees fund to be distributed to the county in which the
56-26 facility is located to assist that county in defraying the costs
56-27 associated with commercial hazardous waste management facilities;
57-1 and
57-2 (2) of the remaining amount of the commercial
57-3 hazardous waste fee and of the total amount of the noncommercial
57-4 hazardous waste fee collected from each waste storage, processing,
57-5 or disposal facility:
57-6 (A) 50 percent of each amount shall be credited
57-7 to the hazardous and solid waste remediation fee fund; and
57-8 (B) 50 percent of each amount shall be credited
57-9 to the hazardous and solid waste fees fund.
57-10 (p) Funds due an affected county under Subsection (o)(1)
57-11 shall be paid by the commission not later than the 60th day after
57-12 the receipt and verification of the payments from commercial
57-13 facilities in the county. A generator of hazardous waste shall
57-14 provide to the operator of a land disposal facility certification
57-15 of the computation of the dry weight of a hazardous waste to be
57-16 disposed. The commission by rule shall provide:
57-17 (1) for methods of computing the dry weight of
57-18 hazardous waste; and
57-19 (2) for a method to determine or estimate the dry
57-20 weight of small volumes of hazardous waste delivered to hazardous
57-21 waste disposal facilities for which the costs of a dry weight
57-22 analysis are disproportionate to the costs of disposal.
57-23 (q) A permit application fee is imposed on each applicant
57-24 for an industrial solid waste or hazardous waste permit. The
57-25 commission by rule shall establish the fee for permit applications
57-26 at an amount that is reasonable to recover the demonstrable costs
57-27 of processing an application and developing a draft permit, but
58-1 that is not less than $2,000 nor more than $50,000. The commission
58-2 may also establish a fee rate for approval of applications or
58-3 petitions other than new permits, including but not limited to
58-4 minor amendments, modifications, and closure plans, which fee may
58-5 be less than $2,000. Application fees collected under this
58-6 subsection shall be deposited to the credit of the hazardous and
58-7 solid waste fees fund.
58-8 (r) In this subsection, "lead-acid battery" means any
58-9 battery with a capacity of six or more volts which contains lead
58-10 and sulfuric acid. A wholesale or retail battery dealer who sells
58-11 or offers to sell lead-acid batteries not for resale shall collect
58-12 at the time and place of sale a fee for each lead-acid battery
58-13 sold, according to the following schedule:
58-14 (1) for a lead-acid battery with a capacity of less
58-15 than 12 volts, a fee of $2;
58-16 (2) for a lead-acid battery with a capacity of 12 or
58-17 more volts, a fee of $3.
58-18 (s) A dealer required to collect a fee under Subsection (r)
58-19 shall list as a separate item on an invoice a fee due under this
58-20 subsection and, except as otherwise provided by this subsection, on
58-21 or before the 20th day of the month following the end of each
58-22 calendar month and on a form and in the manner prescribed by the
58-23 comptroller, shall file a report with and shall remit to the
58-24 comptroller the amount of fees collected during the preceding
58-25 calendar month. A person required to collect a fee under
58-26 Subsection (r) who collects less than $50 for a calendar month or
58-27 less than $150 for a calendar quarter is not required to file a
59-1 monthly report but shall file a quarterly report with and make a
59-2 quarterly remittance to the comptroller. The quarterly report and
59-3 remittance shall include fees collected during the preceding
59-4 calendar quarter. The report and remittance are due not later than
59-5 the 20th day following the end of the calendar quarter. An invoice
59-6 or other record required by this subsection or rules of the
59-7 comptroller must be maintained for at least four years after the
59-8 date on which the invoice or record is prepared and be available
59-9 for inspection by the comptroller at all reasonable times. The
59-10 comptroller shall adopt rules necessary for the administration,
59-11 collection, reporting, and payment of the fees payable or collected
59-12 under Subsection (r). A person who does not file a report as
59-13 provided by this subsection or who possesses a fee collected or
59-14 payable under Subsection (r) and who does not remit the fee to the
59-15 comptroller at the time and in the manner required by this
59-16 subsection and the rules of the comptroller shall pay a penalty of
59-17 five percent of the amount of the fee due and payable. If the
59-18 person does not file the report or pay the fee before the 30th day
59-19 after the date on which the fee or report is due, the person shall
59-20 pay a penalty of an additional five percent of the amount of the
59-21 fee due and payable. Except as provided in this subsection, the
59-22 provisions of Chapters 101 and 111-113, Tax Code, apply to the
59-23 administration, payment, collection and enforcement of fees under
59-24 Subsection (r) in the same manner that these provisions apply to
59-25 the administration, payment, collection, and enforcement of taxes
59-26 under Title 2, Tax Code. A dealer required to collect a fee under
59-27 Subsection (r) may retain 2-1/2 cents from each fee the dealer
60-1 collects. A dealer shall account for amounts retained under this
60-2 subsection in the manner prescribed by the comptroller. The
60-3 comptroller may deduct a percentage of the fees, not to exceed four
60-4 percent of receipts, to pay the reasonable and necessary costs of
60-5 administering and enforcing this subsection. The comptroller shall
60-6 credit the amount deducted to the general revenue fund. The
60-7 balance of these fees, penalties, and interest collected by the
60-8 comptroller shall be deposited to the hazardous and solid waste
60-9 remediation fee fund.
60-10 (t) To promote the public policy of preferred waste
60-11 management methods under Section 20.023 and to provide for an
60-12 equitable fee rate structure, the commission shall consider the
60-13 following in establishing the fees authorized under this section:
60-14 (1) the variation in risks to the public associated
60-15 with different waste management methods, including storage,
60-16 specifically:
60-17 (A) promoting the establishment and maintenance
60-18 of industrial solid waste and hazardous waste reclamation, reuse,
60-19 and recycling facilities;
60-20 (B) promoting the public policy of preferred
60-21 waste management methods for waste streams that are amenable to
60-22 multiple waste management methods; and
60-23 (C) considering whether the waste is ultimately
60-24 disposed of in the state;
60-25 (2) the funding needed to adequately and equitably
60-26 support the regulation of industrial solid waste and hazardous
60-27 waste generation, storage, processing, and disposal activities and
61-1 the remediation of contaminated disposal sites, considering:
61-2 (A) the nature and extent of regulated
61-3 activities and the variation in the cost of regulating different
61-4 types of facilities;
61-5 (B) the cost to the state of operating an
61-6 effective program for the regulation of industrial solid waste and
61-7 hazardous waste which protects human health and the environment and
61-8 is consistent with state and federal authority;
61-9 (C) the higher costs of regulation and oversight
61-10 that may be required for commercial hazardous waste management
61-11 facilities;
61-12 (D) the sources and causes of contamination at
61-13 sites in need of remediation; and
61-14 (E) the benefits and beneficiaries of the
61-15 regulatory programs and activities supported through fees assessed
61-16 under this section;
61-17 (3) promoting the efficient and effective use of
61-18 existing industrial solid waste and hazardous waste storage,
61-19 processing, and disposal facilities within the state;
61-20 (4) whether a volume of waste received by a facility
61-21 has been or will be assessed a hazardous waste fee at other
61-22 facilities under Subsections (n)-(p);
61-23 (5) the prevailing rates of similar fees for hazardous
61-24 waste activities charged in other states to which wastes from this
61-25 state may be exported or from which wastes may be imported for
61-26 storage, processing, or disposal; and
61-27 (6) in addition, in establishing fees for the
62-1 management of hazardous waste under Subsections (n)-(p) the amount
62-2 of state matching funds necessary for remedial actions under the
62-3 Comprehensive Environmental Response, Compensation and Liability
62-4 Act and the costs of state-funded remedial actions under Subchapter
62-5 E, Chapter 20.
62-6 (u) Interest at an annual rate of 15 percent of the amount
62-7 of a fee due under Subsections (k)-(q) and unpaid accrues from the
62-8 date on which the fee is due. A person is subject to a civil
62-9 penalty of up to $100 for each day the violation continues for
62-10 failure to timely submit a properly completed report as required by
62-11 commission rule under Subsection (m). Interest collected under
62-12 this subsection for late payment of a fee shall be deposited in the
62-13 state treasury to the credit of the respective fund to which the
62-14 late fee is credited. Any penalty collected under this subsection
62-15 for late filing of reports shall be deposited in the state treasury
62-16 to the credit of the hazardous and solid waste remediation fee
62-17 fund. (Secs. 361.013, 361.131-361.140, Health and Safety Code.)
62-18 Sec. 2.176. Air Quality Permit Fees. (a) The commission
62-19 shall adopt, charge, and collect a fee for:
62-20 (1) each application for:
62-21 (A) a permit or permit amendment, revision, or
62-22 modification not subject to Title IV or V of the federal Clean Air
62-23 Act Amendments of 1990 (Pub.L. No. 101-549);
62-24 (B) a renewal review of a permit issued under
62-25 Section 30.059 not subject to Title IV or V of the federal Clean
62-26 Air Act Amendments of 1990 (Pub.L. No. 101-549);
62-27 (2) inspections of a facility or source performed to
63-1 enforce Chapter 30 or rules adopted under Chapter 30 until the
63-2 facility or source is required to obtain a Title IV or V operating
63-3 permit under the federal Clean Air Act Amendments of 1990 (Pub.L.
63-4 No. 101-549); and
63-5 (3) inspections performed to enforce Chapter 30 or
63-6 rules adopted under Chapter 30 at a facility or source not required
63-7 to obtain a Title IV or V operating permit under the federal Clean
63-8 Air Act Amendments of 1990 (Pub.L. No. 101-549).
63-9 (b) The commission may adopt rules relating to charging and
63-10 collecting a fee for an exemption from a permit authorized by
63-11 commission rule and for a variance.
63-12 (c) For purposes of the fees, the commission shall treat two
63-13 or more facilities that compose an integrated system or process as
63-14 a single facility if a structure, device, item of equipment, or
63-15 enclosure that constitutes or contains a given stationary source
63-16 operates in conjunction with and is functionally integrated with
63-17 one or more other similar structures, devices, items of equipment,
63-18 or enclosures.
63-19 (d) A fee assessed under this section may not be less than
63-20 $25 or more than $75,000.
63-21 (e) The commission by rule shall establish the fees to be
63-22 collected under Subsection (a) in amounts sufficient to recover:
63-23 (1) the reasonable costs to review and act on a
63-24 variance application and enforce the terms and conditions of the
63-25 variance; and
63-26 (2) not less than 50 percent of the commission's
63-27 actual annual expenditures to:
64-1 (A) review and act on permits or special
64-2 permits;
64-3 (B) amend and review permits;
64-4 (C) inspect permitted, exempted, and specially
64-5 permitted facilities; and
64-6 (D) enforce the rules and orders adopted and
64-7 permits, special permits, and exemptions issued under Chapter 30,
64-8 excluding rules and orders adopted and permits required under Title
64-9 IV or V of the federal Clean Air Act Amendments of 1990 (Pub.L. No.
64-10 101-549). (Sec. 382.062, Health and Safety Code.)
64-11 Sec. 2.177. Edwards Aquifer Plan Review Fee. (a) The
64-12 commission may impose fees for processing plans or amendments to
64-13 plans that are subject to review and approval under the
64-14 commission's rules for the protection of the Edwards Aquifer and
64-15 for inspecting the construction of projects covered by those plans.
64-16 (b) The plans for which fees may be imposed are:
64-17 (1) water pollution abatement plans;
64-18 (2) plans for sewage collection systems; and
64-19 (3) plans for hydrocarbon storage facilities or
64-20 hazardous substance storage facilities.
64-21 (c) The commission by rule shall adopt a fee schedule for
64-22 fees that it may impose under this section.
64-23 (d) A fee imposed under this section may not be less than
64-24 $100 or more than $2,000.
64-25 (e) A fee charged under this section must be based on the
64-26 following criteria:
64-27 (1) if a pollution abatement plan, the area or acreage
65-1 covered by the plan;
65-2 (2) if a sewage collection systems plan, the number of
65-3 linear feet of pipe or line; and
65-4 (3) if a hydrocarbon storage facility or hazardous
65-5 substance storage facility plan, the number of tanks.
65-6 (f) The executive director shall charge and collect a fee
65-7 imposed under this section and shall record the time at which the
65-8 fee is due and render an account to the person charged with the
65-9 fee.
65-10 (g) A fee imposed under this section is a separate charge in
65-11 addition to any other fee that may be provided by law or rules of
65-12 the commission.
65-13 (h) A fee collected under this section shall be deposited in
65-14 the State Treasury to the credit of the waste treatment facility
65-15 inspection fund. (Sec. 26.0461, Water Code.)
65-16 Sec. 2.178. Fee on Delivery of Certain Petroleum Products.
65-17 (a) In this section:
65-18 (1) "Bulk facility" means a facility, including
65-19 pipeline terminals, refinery terminals, rail and barge terminals,
65-20 and associated underground and aboveground tanks, connected or
65-21 separate, from which petroleum products are withdrawn from bulk and
65-22 delivered into a cargo tank or a barge used to transport those
65-23 products. This term does not include petroleum products consumed
65-24 at an electric generating facility.
65-25 (2) "Cargo tank" means an assembly that is used for
65-26 transporting, hauling, or delivering liquids and that consists of a
65-27 tank having one or more compartments mounted on a wagon, truck,
66-1 trailer, railcar, or wheels.
66-2 (3) "Withdrawal from bulk" means the removal of a
66-3 petroleum product from a bulk facility storage tank for delivery
66-4 directly into a cargo tank or a barge to be transported to another
66-5 location other than another bulk facility for distribution or sale
66-6 in this state.
66-7 (b) A fee is imposed on the delivery of a petroleum product
66-8 on withdrawal from bulk of that product as provided by this
66-9 subsection. Each operator of a bulk facility on withdrawal from
66-10 bulk of a petroleum product shall collect from the person who
66-11 orders the withdrawal a fee in an amount determined as follows:
66-12 (1) $12.50 for each delivery into a cargo tank having
66-13 a capacity of less than 2,500 gallons;
66-14 (2) $25 for each delivery into a cargo tank having a
66-15 capacity of 2,500 gallons or more but less than 5,000 gallons;
66-16 (3) $37.50 for each delivery into a cargo tank having
66-17 a capacity of 5,000 gallons or more but less than 8,000 gallons;
66-18 (4) $50 for each delivery into a cargo tank having a
66-19 capacity of 8,000 gallons or more but less than 10,000 gallons; and
66-20 (5) a $25 fee for each increment of 5,000 gallons or
66-21 any part thereof delivered into a cargo tank having a capacity of
66-22 10,000 gallons or more.
66-23 (c) The fee collected under Subsection (b) shall be computed
66-24 on the net amount of a petroleum product delivered into a cargo
66-25 tank.
66-26 (d) A person who imports a petroleum product in a cargo tank
66-27 or a barge destined for delivery into an underground or aboveground
67-1 storage tank, regardless of whether or not the tank is exempt from
67-2 regulation under Section 10.204, other than a storage tank
67-3 connected to or part of a bulk facility in this state, shall pay to
67-4 the comptroller a fee on the number of gallons imported, computed
67-5 as provided by Subsections (b) and (c). If a bulk facility
67-6 operator imports a petroleum product in a cargo tank or a barge,
67-7 the bulk facility operator is not required to pay the fee on that
67-8 imported petroleum product if the petroleum product is delivered to
67-9 a bulk facility from which the petroleum product will be withdrawn
67-10 from bulk.
67-11 (e) A bulk facility operator who receives petroleum products
67-12 on which the fee has been paid may take credit for the fee paid on
67-13 monthly reports.
67-14 (f) Subsection (b) does not apply to a delivery of a
67-15 petroleum product destined for export from this state if the
67-16 petroleum product is in continuous movement to a destination
67-17 outside this state.
67-18 (g) Each operator of a bulk facility and each person covered
67-19 by Subsection (d) shall file an application with the comptroller
67-20 for a permit to deliver a petroleum product into a cargo tank
67-21 destined for delivery to an underground or aboveground storage
67-22 tank, regardless of whether or not the tank is exempt from
67-23 regulation under Section 10.204. A permit issued by the
67-24 comptroller under this subsection is valid on and after the date of
67-25 its issuance and until the permit is surrendered by the holder or
67-26 canceled by the comptroller. An applicant for a permit issued
67-27 under this subsection must use a form adopted or approved by the
68-1 comptroller that contains:
68-2 (1) the name under which the applicant transacts or
68-3 intends to transact business;
68-4 (2) the principal office, residence, or place of
68-5 business in this state of the applicant;
68-6 (3) if the applicant is not an individual, the names
68-7 of the principal officers of an applicant corporation, or the name
68-8 of the member of an applicant partnership, and the office, street,
68-9 or post office address of each; and
68-10 (4) any other information required by the comptroller.
68-11 (h) A permit must be posted in a conspicuous place or kept
68-12 available for inspection at the principal place of business of the
68-13 owner. A copy of the permit must be kept at each place of business
68-14 or other place of storage from which petroleum products are
68-15 delivered into cargo tanks and in each motor vehicle used by the
68-16 permit holder to transport petroleum products by him for delivery
68-17 into petroleum storage tanks in this state.
68-18 (i) Each operator of a bulk facility and each person covered
68-19 by Subsection (d) shall:
68-20 (1) list, as a separate line item on an invoice or
68-21 cargo manifest required under this section, the amount of the
68-22 delivery fee due under this section; and
68-23 (2) on or before the 25th day of the month following
68-24 the end of each calendar month, file a report with the comptroller
68-25 and remit the amount of fees required to be collected or paid
68-26 during the preceding month.
68-27 (j) Each operator of a bulk facility or his representative
69-1 and each person covered by Subsection (d) shall prepare the report
69-2 required under Subsection (i) on on a form provided or approved by
69-3 the comptroller.
69-4 (k) The cargo manifests or invoices or copies of the cargo
69-5 manifests or invoices and any other records required under this
69-6 section or rules of the comptroller must be maintained for a period
69-7 of four years after the date on which the document or other record
69-8 is prepared and be open for inspection by the comptroller at all
69-9 reasonable times.
69-10 (l) As provided by the rules of the comptroller, the owner
69-11 or lessee of a cargo tank or a common or contract carrier
69-12 transporting a petroleum product shall possess a cargo manifest or
69-13 an invoice showing the delivery point of the product, the amount of
69-14 the required fee, and other information as required by rules of the
69-15 comptroller.
69-16 (m) The comptroller shall adopt rules necessary for the
69-17 administration, collection, reporting, and payment of the fees
69-18 payable or collected under this section.
69-19 (n) A person who fails to file a report as provided by
69-20 Subsection (i) or who possesses a fee collected or payable under
69-21 this section and who fails to remit the fee to the comptroller at
69-22 the time and in the manner required by this section and rules of
69-23 the comptroller shall pay a penalty of five percent of the amount
69-24 of the fee due and payable. If the person fails to file the report
69-25 or pay the fee before the 30th day after the date on which the fee
69-26 or report is due, the person shall pay a penalty of an additional
69-27 five percent of the amount of the fee due and payable.
70-1 (o) Chapters 101 and 111-113, and Sections 153.006, 153.007,
70-2 and 153.116(b)-(j), Tax Code, apply to the administration, payment,
70-3 collection, and enforcement of fees under this section in the same
70-4 manner that those chapters apply to the administration, payment,
70-5 collection, and enforcement of taxes under Title 2, Tax Code.
70-6 (p) The comptroller may add a penalty of 75 percent of the
70-7 amount of the fee, penalty, and interest due if failure to file the
70-8 report or pay the fee when it comes due is attributable to fraud or
70-9 an intent to evade the application of this section or a rule made
70-10 under this section or Chapter 111, Tax Code.
70-11 (q) The comptroller may require a bond or other security
70-12 from a permittee and may establish the amount of the bond or other
70-13 security.
70-14 (r) A person forfeits to the state a civil penalty of not
70-15 less than $25 nor more than $200 if the person:
70-16 (1) refuses to stop and permit the inspection and
70-17 examination of a motor vehicle transporting petroleum products on
70-18 demand of a peace officer or the comptroller;
70-19 (2) fails or refuses to comply with or violates a
70-20 provision of this section; or
70-21 (3) fails or refuses to comply with or violates a
70-22 comptroller's rule for administering or enforcing this section.
70-23 (s) A person commits an offense if the person:
70-24 (1) refuses to stop and permit the inspection and
70-25 examination of a motor vehicle transporting petroleum products on
70-26 the demand of a peace officer or the comptroller;
70-27 (2) makes a delivery of petroleum products into cargo
71-1 tanks on which he knows the fee is required to be collected, if at
71-2 the time the delivery is made he does not hold a valid permit
71-3 issued under this section;
71-4 (3) makes a delivery of petroleum products imported
71-5 into this state on which he knows a fee is required to be
71-6 collected, if at the time the delivery is made he does not hold a
71-7 valid permit issued under this section;
71-8 (4) refuses to permit the comptroller or the attorney
71-9 general to inspect, examine, or audit a book or record required to
71-10 be kept by any person required to hold a permit under this section;
71-11 (5) refuses to permit the comptroller or the attorney
71-12 general to inspect or examine any plant, equipment, or premises
71-13 where petroleum products are stored or delivered into cargo tanks;
71-14 (6) refuses to permit the comptroller or the attorney
71-15 general to measure or gauge the contents of or take samples from a
71-16 storage tank or container on premises where petroleum products are
71-17 stored or delivered into cargo tanks;
71-18 (7) is required to hold a permit under this section
71-19 and fails or refuses to make or deliver to the comptroller a report
71-20 required by this section to be made and delivered to the
71-21 comptroller;
71-22 (8) refuses, while transporting petroleum products, to
71-23 stop the motor vehicle he is operating when called on to do so by a
71-24 person authorized to stop the motor vehicle;
71-25 (9) transports petroleum products for which a cargo
71-26 manifest is required to be carried without possessing or exhibiting
71-27 on demand by an officer authorized to make the demand a cargo
72-1 manifest containing the information required to be shown on the
72-2 manifest;
72-3 (10) mutilates, destroys, or secretes a book or record
72-4 required by this section to be kept by any person required to hold
72-5 a permit under this section;
72-6 (11) is required to hold a permit under this section
72-7 or is the agent or employee of that person and makes a false entry
72-8 or fails to make an entry in the books and records required under
72-9 this section to be made by the person;
72-10 (12) transports in any manner petroleum products under
72-11 a false cargo manifest;
72-12 (13) engages in a petroleum products transaction that
72-13 requires that the person have a permit under this section without
72-14 then and there holding the required permit;
72-15 (14) makes and delivers to the comptroller a report
72-16 required under this section to be made and delivered to the
72-17 comptroller, if the report contains false information;
72-18 (15) forges, falsifies, or alters an invoice or
72-19 manifest prescribed by law; or
72-20 (16) fails to remit any fees collected by any person
72-21 required to hold a permit under this section.
72-22 (t) The following criminal penalties apply to the offenses
72-23 enumerated in Subsection (s):
72-24 (1) an offense under Subdivision (1) is a Class C
72-25 misdemeanor;
72-26 (2) an offense under Subdivisions (2) through (7) is a
72-27 Class B misdemeanor;
73-1 (3) an offense under Subdivisions (8) and (9) is a
73-2 Class A misdemeanor;
73-3 (4) an offense under Subdivisions (10) through (15) is
73-4 a felony of the third degree;
73-5 (5) an offense under Subdivision (16) is a felony of
73-6 the second degree; and
73-7 (6) violations of three or more separate offenses
73-8 under Subdivisions (10) through (15) committed pursuant to one
73-9 scheme or continuous course of conduct may be considered as one
73-10 offense and are punished as a felony of the second degree.
73-11 (u) The court may not fine a corporation or association
73-12 under Section 12.51(c), Penal Code, unless the amount of the fine
73-13 under that subsection is greater than the amount that could be
73-14 fixed by the court under Section 12.51(b), Penal Code.
73-15 (v) In addition to a sentence imposed on a corporation, the
73-16 court shall give notice of the conviction to the attorney general
73-17 as required by Article 17A.09, Code of Criminal Procedure.
73-18 (w) The comptroller shall deduct two percent of the amount
73-19 collected under this section as the state's charge for its services
73-20 and shall credit the amount deducted to the general revenue fund.
73-21 The balance of the fees, penalties, and interest collected by the
73-22 comptroller shall be deposited in the state treasury to the credit
73-23 of the petroleum storage tank remediation fund.
73-24 (x) The fee imposed under this section may not be collected
73-25 or required to be paid on or after the first day of the second
73-26 month following notification by the commission of the date on which
73-27 the unobligated balance in the petroleum storage tank remediation
74-1 fund equals or exceeds $100 million. The commission shall notify
74-2 the comptroller in writing of the date on which the unobligated
74-3 balance equals or exceeds $100 million.
74-4 (y) If the unobligated balance in the petroleum storage tank
74-5 remediation fund falls below $25 million, the fee shall be
74-6 reinstated effective on the first day of the second month following
74-7 notification by the commission.
74-8 (z) For purposes of Subsections (x) and (y), the unobligated
74-9 balance in the petroleum storage tank remediation fund shall be
74-10 determined by subtracting from the cash balance of the fund at the
74-11 end of each month the sum of the total balances remaining on all
74-12 contracts entered by the commission or an eligible owner for
74-13 corrective action plus the total estimates made by the commission
74-14 of allowable costs for corrective action that are unpaid relating
74-15 to all commission orders issued before that date to enforce this
74-16 subchapter. (Sec. 26.3574, Water Code.)
74-17 Sec. 2.179. Storage Tank Fees. (a) The storage tank fund
74-18 is created in the State Treasury.
74-19 (b) The storage tank fund consists of money collected by the
74-20 commission from:
74-21 (1) fees imposed on facilities with underground or
74-22 aboveground storage tanks used for the storage of regulated
74-23 substances;
74-24 (2) the interest and penalties imposed under this
74-25 section for the late payment of those fees;
74-26 (3) funds received from cost recovery for corrective
74-27 and enforcement actions taken under Subchapter H, Chapter 10,
75-1 except as provided by Subsection (c);
75-2 (4) funds received from insurers, guarantors, or other
75-3 sources of financial responsibility; and
75-4 (5) funds from the federal government and other
75-5 sources for use in connection with the storage tank program.
75-6 (c) If the commission uses money from the petroleum storage
75-7 tank remediation fund for corrective action or enforcement as
75-8 provided by Subchapter H, Chapter 10, money recovered in a court
75-9 proceeding under Section 10.221 shall be deposited in the state
75-10 treasury to the credit of the petroleum storage tank remediation
75-11 fund.
75-12 (d) The commission shall impose an annual facility fee on a
75-13 facility that operates one or more underground or aboveground
75-14 storage tanks. The commission may also impose reasonable interest
75-15 and penalties for late payment of the fee as provided by commission
75-16 rule. The commission may establish a fee schedule that will
75-17 generate an amount of money sufficient to fund the commission's
75-18 budget for the regulatory program regarding underground and
75-19 aboveground storage tanks authorized by Subchapter H, Chapter 10.
75-20 (e) The commission may use money in the storage tank fund
75-21 to:
75-22 (1) pay the costs of taking corrective action;
75-23 (2) provide matching funds for grants and to fund
75-24 contracts executed under Subchapter H, Chapter 10; and
75-25 (3) pay for administrative expenses, rules
75-26 development, enforcement, monitoring, and inspection costs, and
75-27 other costs incurred in the course of carrying out the purposes and
76-1 duties of Subchapter H, Chapter 10.
76-2 (f) The maximum annual fee that the commission may impose on
76-3 a facility is $25 for each aboveground storage tank and $50 for
76-4 each underground storage tank operated at the facility.
76-5 (g) The commission shall collect the fees imposed under this
76-6 section on dates set by commission rule. The period between
76-7 collection dates may not exceed two years. The commission shall
76-8 deposit all fees collected and all interest and penalties for late
76-9 payment in the State Treasury to the credit of the storage tank
76-10 fund.
76-11 (h) The commission shall adopt rules necessary to administer
76-12 this section. (Sec. 26.358, Water Code.)
76-13 Sec. 2.180. Injection Well Fees. With each application for
76-14 a disposal well permit, the commission shall collect a fee of $25
76-15 for the benefit of the state. (Sec. 27.014, Water Code.)
76-16 Sec. 2.181. On-Site Sewage Disposal System Fees. (a) The
76-17 commission by rule shall establish and collect a reasonable permit
76-18 fee to cover the cost of issuing permits under Chapter 15 and
76-19 administering the permitting system.
76-20 (b) The commission at its discretion may provide variances
76-21 to the uniform application of the permit fee.
76-22 (c) The permit fee shall be paid to the authorized agent or
76-23 the commission, whichever performs the permitting function.
76-24 (d) The commission may assess a charge-back fee to a local
76-25 governmental entity for which the commission issues permits for
76-26 administrative costs relating to the permitting function that are
76-27 not covered by the permit fees collected.
77-1 (e) The commission shall establish and collect a reasonable
77-2 registration fee to cover the cost of issuing registrations under
77-3 Chapter 15. (Secs. 366.058, 366.059, 366.074, Health and Safety
77-4 Code.)
77-5 Sec. 2.182. Toxic Chemical Release Reporting Fund; Fees.
77-6 (a) The toxic chemical release reporting fund consists of money
77-7 collected by the commission from:
77-8 (1) fees imposed on owners and operators of facilities
77-9 required to submit a toxic chemical release form; and
77-10 (2) penalties imposed under Chapter 50.
77-11 (b) The commission may use the money collected and deposited
77-12 in the fund to pay for:
77-13 (1) costs incurred by the commission in implementing
77-14 Chapter 50; and
77-15 (2) other commission activities necessary to implement
77-16 the Emergency Planning and Community Right-to-Know Act of 1986 (42
77-17 U.S.C. Section 11001 et seq.).
77-18 (c) The owner or operator of a facility required to submit a
77-19 toxic chemical release form under Chapter 50 shall pay, at the time
77-20 of submission, a fee of $25 for each toxic chemical release form
77-21 submitted.
77-22 (d) The maximum fee for a facility may not exceed $250.
77-23 (e) The commission by rule may increase or decrease the
77-24 toxic chemical release form reporting fee as necessary.
77-25 (f) Fees collected under this subsection shall be deposited
77-26 in the state treasury to the credit of the toxic chemical release
77-27 reporting fund. (Secs. 370.007, 370.008, Health and Safety Code.)
78-1 Sec. 2.183. Used Oil Recycling Fund; Fees. (a) The used
78-2 oil recycling fund is in the state treasury.
78-3 (b) The fund consists of:
78-4 (1) fees collected under Subchapter B, Chapter 51, and
78-5 Subsection (f);
78-6 (2) interest and penalties imposed under Chapter 51
78-7 for late payment of fees, failure to file a report, or other
78-8 violations of Chapter 51; and
78-9 (3) gifts, grants, donations, or other financial
78-10 assistance the department is authorized to receive under Section
78-11 51.027.
78-12 (c) Except as provided by Subsection (d), the commission may
78-13 use money in the fund for purposes authorized by Chapter 51,
78-14 including:
78-15 (1) public education;
78-16 (2) grants;
78-17 (3) registration of used oil collection centers, used
78-18 oil transporters, used oil marketers, and used oil recyclers; and
78-19 (4) administrative costs of implementing Chapter 51.
78-20 (d) The commission shall use 25 percent of the fees
78-21 collected under Subsections (e)-(k) for the sole purpose of
78-22 restoring the environmental quality of those sites in the state
78-23 that the commission has identified as having been contaminated
78-24 through improper used oil management and for which other funds from
78-25 a potentially responsible party or the federal government are not
78-26 sufficient. This subsection expires on January 1, 1997.
78-27 (e) In Subsections (f)-(k):
79-1 (1) "First sale" means the first actual sale of
79-2 automotive oil delivered to a location in this state and sold to a
79-3 purchaser who is not an automotive oil manufacturer. The term does
79-4 not include the sale of automotive oil exported from this state to
79-5 a location outside this state for the purpose of sale or use
79-6 outside this state. This term does not include sales of automotive
79-7 oils for resale to or use by vessels engaged in foreign or
79-8 interstate commerce.
79-9 (2) "Importer" means any person who imports or causes
79-10 to be imported automotive oil into this state for sale, use, or
79-11 consumption.
79-12 (3) "Oil manufacturer" means any person or entity that
79-13 formulates automotive oil and packages, distributes, or sells that
79-14 automotive oil.
79-15 (f) An oil manufacturer or importer who makes a first sale
79-16 of automotive oil is liable for a fee.
79-17 (g) Each oil manufacturer or importer required to pay a fee
79-18 under this Subsection (f) shall:
79-19 (1) prepare and maintain, on a form provided or
79-20 approved by the comptroller, a report of each first sale of
79-21 automotive oil by the person and the price received;
79-22 (2) retain the invoice or a copy of the invoice or
79-23 other appropriate record of the sale for four years from the date
79-24 of sale; and
79-25 (3) on or before the 25th day of the month following
79-26 the end of each calendar quarter, file a report with the
79-27 comptroller and remit to the comptroller the amount of fees
80-1 required to be paid for the preceding quarter.
80-2 (h) Records required to be maintained under Subsection (g)
80-3 shall be available for inspection by the comptroller at all
80-4 reasonable times.
80-5 (i) The comptroller shall adopt rules necessary for the
80-6 administration, collection, reporting, and payment of the fees
80-7 payable or collected under Subsection (f).
80-8 (j) Except as provided by this section, Chapters 101 and 111
80-9 through 113, Tax Code, apply to the administration, payment,
80-10 collection, and enforcement of fees under Subsection (f) in the
80-11 same manner that those chapters apply to the administration,
80-12 payment, collection, and enforcement of taxes under Title 2, Tax
80-13 Code.
80-14 (k) The fee imposed under Subsection (f) is two cents per
80-15 quart or eight cents per gallon of automotive oil. The commission
80-16 shall monitor the unobligated balance of the used oil recycling
80-17 fund and shall adjust the fee rate to meet expenditure requirements
80-18 of the used oil recycling program and to maintain an appropriate
80-19 fund balance. The fee may not exceed five cents per quart or 20
80-20 cents per gallon of automotive oil. On or before September 1 of
80-21 each year, the commission and the comptroller jointly shall issue
80-22 notice of the effective fee rate for the next fiscal year. A
80-23 person required to pay the fee may retain one percent of the amount
80-24 of the fees due from each quarterly payment as reimbursement for
80-25 administrative costs. The comptroller may deduct a percentage of
80-26 the fees collected in the amount sufficient to pay the reasonable
80-27 and necessary costs of administering and enforcing Subsections
81-1 (f)-(j) and this subsection. The comptroller shall credit the
81-2 amount deducted to the general revenue fund. The balance of fees
81-3 and all penalties and interest collected shall be deposited to the
81-4 credit of the used oil recycling fund. (Secs. 371.061, 371.062,
81-5 Health and Safety Code.)
81-6 Sec. 2.184. Waste Tire Recycling Fund; Fees. (a) A
81-7 wholesale or retail tire dealer who sells or offers to sell new
81-8 tires not for resale shall collect at the time and place of sale a
81-9 waste tire recycling fee of $2 for each new automobile, van, bus,
81-10 truck, trailer, semitrailer, truck tractor and semitrailer
81-11 combination, or recreational vehicle tire sold that has a rim
81-12 diameter equal to or greater than 12 inches but less than 26
81-13 inches.
81-14 (b) A dealer required to collect a fee under this section
81-15 may retain 2-1/2 cents from each fee the dealer collects. A dealer
81-16 shall account for amounts retained under this subsection in the
81-17 manner prescribed by the comptroller.
81-18 (c) A dealer required to collect a fee under this section:
81-19 (1) shall list as a separate item on an invoice a fee
81-20 due under this section; and
81-21 (2) except as provided by Subsection (d), on or before
81-22 the 20th day of the month following the end of each calendar month
81-23 and on a form and in the manner prescribed by the comptroller,
81-24 shall file a report with and shall remit to the comptroller the
81-25 amount of fees collected during the preceding calendar month.
81-26 (d) A person required to collect a fee under this section
81-27 who collects less than $50 for a calendar month or less than $150
82-1 for a calendar quarter is not required to file a monthly report but
82-2 shall file a quarterly report with and make a quarterly remittance
82-3 to the comptroller. The quarterly report and remittance shall
82-4 include fees collected during the preceding calendar quarter. The
82-5 report and remittance are due not later than the 20th day of the
82-6 month following the end of the calendar quarter.
82-7 (e) An invoice or other record required by this section or
82-8 rules of the comptroller must be maintained for at least four years
82-9 after the date on which the invoice or record is prepared and be
82-10 open for inspection by the comptroller at all reasonable times.
82-11 (f) The comptroller shall adopt rules necessary for the
82-12 administration, collection, reporting, and payment of the fees
82-13 payable or collected under this section.
82-14 (g) The waste tire recycling fund is a special account in
82-15 the general revenue fund.
82-16 (h) The commission shall administer the fund.
82-17 (i) The fund consists of fees and penalties collected under
82-18 this section, interest on money in the fund, and money from gifts,
82-19 grants, or any other source intended to be used for the purposes of
82-20 Subchapter N, Chapter 20.
82-21 (j) The fund may be used only to pay:
82-22 (1) waste tire processors that meet the requirements
82-23 for payment under Section 20.475 and rules adopted under that
82-24 section;
82-25 (2) the commission's reasonable and necessary
82-26 administrative costs of performing its duties under Subchapter N,
82-27 Chapter 20, in an amount not to exceed six percent of the money
83-1 annually accruing to the fund; and
83-2 (3) the comptroller's reasonable and necessary
83-3 administrative costs of performing the comptroller's duties under
83-4 Subchapter N, Chapter 20, in an amount not to exceed two percent of
83-5 the money annually accruing to the fund. (Secs. 361.472, 361.475,
83-6 Health and Safety Code.)
83-7 (Sections 2.185-2.200 reserved for expansion)
83-8 SUBCHAPTER G. GENERAL AUTHORITY
83-9 Sec. 2.201. Power to Enter Property. (a) The members of
83-10 the commission and employees and agents of the commission are
83-11 entitled to enter any public or private property at any reasonable
83-12 time for the purpose of inspecting and investigating conditions
83-13 relating to the quality of water in the state. Members, employees,
83-14 or agents acting under this authority who enter private property
83-15 shall observe the establishment's rules and regulations concerning
83-16 safety, internal security, and fire protection, and if the property
83-17 has management in residence, shall notify management or the person
83-18 then in charge of his presence and shall exhibit proper
83-19 credentials. If any member, employee, or agent is refused the
83-20 right to enter in or on public or private property under this
83-21 authority, the executive director may invoke the remedies
83-22 authorized in Section 10.025. This subsection is effective until
83-23 delegation of NPDES permit authority.
83-24 (b) The members of the commission and employees and agents
83-25 of the commission are entitled to enter any public or private
83-26 property at any reasonable time for the purpose of inspecting and
83-27 investigating conditions relating to the quality of water in the
84-1 state or the compliance with any rule, regulation, permit or other
84-2 order of the commission. Members, employees, or agents acting
84-3 under this authority who enter private property shall observe the
84-4 establishment's rules and regulations concerning safety, internal
84-5 security, and fire protection, and if the property has management
84-6 in residence, shall notify management or the person then in charge
84-7 of his presence and shall exhibit proper credentials. If any
84-8 member, employee, or agent is refused the right to enter in or on
84-9 public or private property under this authority, the executive
84-10 director may invoke the remedies authorized in Section 10.0251.
84-11 This subsection is effective on delegation of NPDES permit
84-12 authority.
84-13 (c) The executive director or his authorized agent may
84-14 inspect any impoundment, diversion, or distribution works during
84-15 construction to determine whether or not they are being constructed
84-16 in a safe manner and whether or not they are being constructed
84-17 according to the order of the commission.
84-18 (d) Any member or employee of the commission may enter any
84-19 person's land, natural waterway, or artificial waterway for the
84-20 purpose of making an investigation that would, in the judgment of
84-21 the executive director, assist the commission in the discharge of
84-22 its duties.
84-23 (e) Members of the commission and the railroad commission
84-24 and employees of the commission and the railroad commission may
84-25 enter public or private property to inspect and investigate
84-26 conditions relating to injection well or disposal well activities
84-27 within their respective jurisdictions or to monitor compliance with
85-1 a rule, permit, or other order of the commission or railroad
85-2 commission. Members or employees acting under the authority of
85-3 this subsection who enter an establishment on public or private
85-4 property shall observe the establishment's safety, internal
85-5 security, and fire protection rules.
85-6 (f) Members of the commission, employees and agents of the
85-7 commission, and authorized agents or employees of local governments
85-8 may enter public or private property at any time to inspect and
85-9 investigate conditions relating to shaft activities or to monitor
85-10 compliance with a rule, permit, or other order of the commission.
85-11 Members, employees, or agents acting under the authority of this
85-12 subsection who enter an establishment on public or private property
85-13 shall observe the establishment's safety, internal security, and
85-14 fire protection rules.
85-15 (g) The commission is authorized to inspect and approve
85-16 solid waste facilities used or proposed to be used to store,
85-17 process, or dispose of the solid waste under the agency's
85-18 jurisdiction.
85-19 (h) A member, employee, or agent of the commission may enter
85-20 public or private property, other than property designed for and
85-21 used exclusively as a private residence housing not more than three
85-22 families, at a reasonable time to inspect and investigate
85-23 conditions relating to emissions of air contaminants to or the
85-24 concentration of air contaminants in the atmosphere.
85-25 (i) A member, employee, or agent who enters private property
85-26 that has management in residence shall:
85-27 (1) notify the management, or the person then in
86-1 charge, of the member's, employee's, or agent's presence; and
86-2 (2) show proper credentials.
86-3 (j) A member, employee, or agent who enters private property
86-4 shall observe that establishment's rules concerning safety,
86-5 internal security, and fire protection.
86-6 (k) The commission is entitled to the remedies provided by
86-7 Sections 30.082-30.085 if a member, employee, or agent is refused
86-8 the right to enter public or private property as provided by
86-9 Subsection (h). (Secs. 12.016, 12.017, 26.014, 27.071, 28.051,
86-10 Water Code; Secs. 361.032(a), 382.015, Health and Safety Code.)
86-11 Sec. 2.202. Power to Examine Records. (a) The members of
86-12 the commission and employees and agents of the commission may
86-13 examine during regular business hours any records or memoranda
86-14 pertaining to the operation of any sewer system, disposal system,
86-15 or treatment facility or pertaining to any discharge of waste.
86-16 This subsection is effective until delegation of NPDES permit
86-17 authority.
86-18 (b) The members of the commission and employees and agents
86-19 of the commission may examine and copy during regular business
86-20 hours any records or memoranda pertaining to the operation of any
86-21 sewer system, disposal system, or treatment facility or pertaining
86-22 to any discharge of waste or pollutants into any water in the
86-23 state, or any other records required to be maintained. This
86-24 subsection is effective on delegation of NPDES permit authority.
86-25 (c) Members of the commission and the railroad commission
86-26 and employees of the commission and railroad commission may examine
86-27 and copy those records or memoranda of a business they are
87-1 investigating as provided by Section 2.201(e) that relate to the
87-2 operation of an injection or disposal well, or any other records
87-3 required to be maintained by law.
87-4 (d) Members of the commission, employees and agents of the
87-5 commission, and authorized agents or employees of local governments
87-6 may examine and copy those records or memoranda of a shaft
87-7 permittee or his contractors they are investigating or monitoring
87-8 as provided by Section 2.201(f) that relate to the construction and
87-9 operation of a shaft or any other records required to be maintained
87-10 by law.
87-11 (e) Authorized agents or employees of the commission have
87-12 access to and may examine and copy during regular business hours
87-13 any records pertaining to hazardous waste management and control.
87-14 Except as provided by this subsection, records copied under this
87-15 subsection are public records. If the owner of the records shows
87-16 to the satisfaction of the executive director that the records
87-17 would divulge trade secrets if made public, the commission shall
87-18 consider the copied records confidential. This subsection does not
87-19 require the commission to consider the composition or
87-20 characteristics of solid waste being processed, stored, disposed
87-21 of, or otherwise handled to be held confidential.
87-22 (f) A member, employee, or agent of the commission may
87-23 examine during regular business hours any records or memoranda
87-24 relating to the operation of any air pollution or emission control
87-25 equipment or facility, or relating to emission of air contaminants.
87-26 This subsection does not authorize the examination of records or
87-27 memoranda relating to the operation of equipment or a facility on
88-1 property designed for and used exclusively as a private residence
88-2 housing not more than three families. The commission may prescribe
88-3 reasonable requirements for:
88-4 (1) measuring and monitoring the emissions of air
88-5 contaminants from a source or from an activity causing or resulting
88-6 in the emission of air contaminants subject to the commission's
88-7 jurisdiction under Chapter 30; and
88-8 (2) the owner or operator of the source to make and
88-9 maintain records on the measuring and monitoring of emissions.
88-10 (Secs. 26.015, 27.072, 28.052, Water Code; Secs. 361.037, 382.016,
88-11 Health and Safety Code.)
88-12 Sec. 2.203. Contracts, Instruments. (a) With the approval
88-13 of the commission, the executive director may make contracts and
88-14 execute instruments that are necessary or convenient to the
88-15 exercise of the commission's powers or the performance of its
88-16 duties.
88-17 (b) The commission may execute contracts and instruments
88-18 that are necessary or convenient to perform its powers or duties.
88-19 (Sec. 26.018, Water Code; Sec. 382.033, Health and Safety Code.)
88-20 Sec. 2.204. Hearing Powers. (a) The commission may call
88-21 and hold hearings, administer oaths, receive evidence at the
88-22 hearing, issue subpoenas to compel the attendance of witnesses and
88-23 the production of papers and documents related to the hearing, and
88-24 make findings of fact and decisions with respect to administering
88-25 the provisions of Chapter 10 or the rules, orders, or other actions
88-26 of the commission.
88-27 (b) The commission may call and hold hearings, administer
89-1 oaths, receive evidence at a hearing, issue subpoenas to compel the
89-2 attendance of witnesses and the production of papers and documents
89-3 related to a hearing, and make findings of fact and decisions
89-4 relating to administering Chapter 30 or the rules, orders, or other
89-5 actions of the commission.
89-6 (c) When a public hearing conducted by the commission is
89-7 required by law to be conducted at a certain location, the
89-8 commission shall determine the place within that location at which
89-9 the hearing will be conducted. In making that determination, the
89-10 commission shall consider the cost of available facilities and the
89-11 adequacy of a facility to accommodate the type of hearing and
89-12 anticipated attendance. The commission shall conduct at least one
89-13 session of a public hearing after normal business hours on request
89-14 by a party to the hearing or any person who desires to attend the
89-15 hearing. An applicant for a license, permit, registration, or
89-16 similar form of permission required by law to be obtained from the
89-17 commission may not amend the application after the 31st day before
89-18 the date on which a public hearing on the application is scheduled
89-19 to begin. If an amendment of an application would be necessary
89-20 within that period, the applicant shall resubmit the application to
89-21 the commission and must again comply with notice requirements and
89-22 any other requirements of law or commission rule as though the
89-23 application were originally submitted to the board on that date.
89-24 If an application for a license, permit, registration, or similar
89-25 form of permission required by law is pending before the commission
89-26 at a time when changes take effect concerning notice requirements
89-27 imposed by law for that type of application, the applicant must
90-1 comply with the new notice requirements. (Sec. 26.020, Water Code;
90-2 Secs. 382.029, 382.0291(b)-(e), Health and Safety Code.)
90-3 Sec. 2.205. Delegation of Hearing Powers. (a) Except for
90-4 those hearings required to be held before the commission under
90-5 Section 10.018(c), the commission may authorize the chief hearing
90-6 examiner to call and hold hearings on any subject on which the
90-7 commission may hold a hearing. The commission may also authorize
90-8 the chief hearing examiner to delegate to one or more hearing
90-9 examiners the authority to hold any hearing called by him. At any
90-10 hearing called by the chief hearing examiner, he or the person
90-11 delegated the authority by him to hold the hearing is empowered to
90-12 administer oaths and receive evidence. The individual or
90-13 individuals holding a hearing under the authority of this
90-14 subsection shall report the hearing in the manner prescribed by the
90-15 commission.
90-16 (b) The commission may delegate the authority to hold
90-17 hearings called by the commission to one or more commission
90-18 members, the executive director, or one or more commission
90-19 employees. Except for hearings required to be held before the
90-20 commission under Section 30.027, the commission may authorize the
90-21 executive director to call and hold a hearing on any subject on
90-22 which the commission may hold a hearing and delegate the authority
90-23 to hold any hearing called by the executive director to one or more
90-24 commission employees. The commission may establish the
90-25 qualifications for individuals to whom the commission or the
90-26 executive director delegates the authority to hold hearings. An
90-27 individual holding a hearing under this subsection may administer
91-1 oaths and receive evidence at the hearing and shall report the
91-2 hearing in the manner prescribed by the commission. (Sec. 26.021,
91-3 Water Code; Sec. 382.030, Health and Safety Code.)
91-4 Sec. 2.206. Notice of Hearings; Continuance. (a) Except as
91-5 otherwise provided in Sections 10.018 and 10.126, the provisions of
91-6 this subsection apply to all hearings conducted in compliance with
91-7 Chapter 10. Notice of the hearing shall be published at least once
91-8 in a newspaper regularly published or circulated in each county
91-9 where, by virtue of the county's geographical relation to the
91-10 subject matter of the hearing, the commission has reason to believe
91-11 persons reside who may be affected by the action that may be taken
91-12 as a result of the hearing. The date of the publication shall be
91-13 not less than 20 days before the date set for the hearing. If
91-14 notice of the hearing is required by this chapter to be given to a
91-15 person, the notice shall be served personally or mailed not less
91-16 than 20 days before the date set for the hearing to the person at
91-17 his last address known to the commission. If the party is not an
91-18 individual, the notice may be given to any officer, agent, or legal
91-19 representative of the party. The individual or individuals holding
91-20 the hearing, called the hearing body, shall conduct the hearing at
91-21 the time and place stated in the notice. The hearing body may
91-22 continue the hearing from time to time and from place to place
91-23 without the necessity of publishing, serving, mailing, or otherwise
91-24 issuing a new notice. If a hearing is continued and a time and
91-25 place for the hearing to reconvene are not publicly announced by
91-26 the person conducting the hearing at the hearing before it is
91-27 recessed, a notice of any further setting of the hearing shall be
92-1 served personally or mailed in the manner prescribed in this
92-2 subsection at a reasonable time before the new setting, but it is
92-3 not necessary to publish a newspaper notice of the new setting.
92-4 (b) Notice of a hearing under Chapter 30 shall be published
92-5 at least once in a newspaper of general circulation in the
92-6 municipality in which the facility is located or is proposed to be
92-7 located or in the municipality nearest to the location or proposed
92-8 location of the facility. The notice must be published not less
92-9 than 30 days before the date set for the hearing. Notice of the
92-10 hearing must describe briefly and in summary form the purpose of
92-11 the hearing and the date, time, and place of the hearing. If
92-12 notice of a hearing is required by Chapter 30 to be given to a
92-13 person, the notice shall be served personally or mailed to the
92-14 person at the person's most recent address known to the board not
92-15 less than 30 days before the date set for the hearing. If the
92-16 party is not an individual, the notice may be given to an officer,
92-17 agent, or legal representative of the party. The hearing body
92-18 shall conduct the hearing at the time and place stated in the
92-19 notice. The hearing body may continue the hearing from time to
92-20 time and from place to place without the necessity of publishing,
92-21 serving, mailing, or otherwise issuing new notice. If a hearing is
92-22 continued and a time and place for the hearing to reconvene are not
92-23 publicly announced by the hearing body at the hearing before it is
92-24 recessed, a notice of any further setting of the hearing shall be
92-25 served personally or mailed in the manner prescribed by this
92-26 subsection at a reasonable time before the new setting, but it is
92-27 not necessary to publish a newspaper notice of the new setting. In
93-1 this subsection, "hearing body" means the individual or individuals
93-2 that hold a hearing under this subsection. This subsection applies
93-3 to all hearings held under Chapter 30 except as otherwise specified
93-4 by Section 2.023, 30.027, or 30.078. (Sec. 26.022, Water Code;
93-5 Sec. 382.031, Health and Safety Code.)
93-6 Sec. 2.207. RESEARCH, INVESTIGATIONS. (a) The executive
93-7 director shall conduct or have conducted any research and
93-8 investigations it considers advisable and necessary for the
93-9 discharge of the duties under Chapter 10.
93-10 (b) The commission shall conduct or require any research and
93-11 investigations it considers advisable and necessary to perform its
93-12 duties under Chapter 30. (Sec. 26.013, Water Code; Sec. 382.034,
93-13 Health and Safety Code.)
93-14 Sec. 2.208. Reports and Public Information. (a) The
93-15 commission shall provide for publishing or otherwise releasing on a
93-16 regular basis as public information:
93-17 (1) the results of inspections and investigations
93-18 conducted under Section 2.201; and
93-19 (2) any other information routinely prepared by the
93-20 commission relating to compliance with Chapter 10 or with a rule or
93-21 order adopted under that chapter.
93-22 (b) The commission shall establish a procedure by which, in
93-23 response to a written request, a person or organization will be
93-24 sent a copy of an inspection, investigation, or compliance report
93-25 for a specified facility or system or for facilities or systems in
93-26 a specified area or, on a regular basis, a copy of the information
93-27 released under Subsection (a).
94-1 (c) The commission shall charge a reasonable fee for each
94-2 copy sent under Subsection (b). The fee must be set at an amount
94-3 that is estimated to recover the full cost of producing and copying
94-4 and mailing a copy of the report and must be paid in cash or by
94-5 cashier's check.
94-6 (d) A copy of a report shall be sent to the person or
94-7 organization requesting it not later than the 30th day after the
94-8 date on which the fee is paid or on which the report is made,
94-9 whichever is later.
94-10 (e) This section does not apply to any information excepted
94-11 under Section 3, Chapter 424, Acts of the 63rd Legislature, Regular
94-12 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes).
94-13 (Sec. 26.0151, Water Code.)
94-14 Sec. 2.209. Cooperation and Memorandum of Understanding.
94-15 (a) The commission shall:
94-16 (1) encourage voluntary cooperation by the people,
94-17 cities, industries, associations, agricultural interests, and
94-18 representatives of other interests in preserving the greatest
94-19 possible utility of water in the state;
94-20 (2) encourage the formation and organization of
94-21 cooperative groups, associations, cities, industries, and other
94-22 water users for the purpose of providing a medium to discuss and
94-23 formulate plans for attainment of water quality control;
94-24 (3) establish policies and procedures for securing
94-25 close cooperation among state agencies that have water quality
94-26 control functions; and
94-27 (4) cooperate with the governments of the United
95-1 States and other states and with official or unofficial agencies
95-2 and organizations with respect to water quality control matters and
95-3 with respect to formulation of interstate water quality control
95-4 compacts or agreements, and when representation of state interests
95-5 on a basin planning agency for water quality purposes is required
95-6 under Section 3(c) of the Federal Water Pollution Control Act, as
95-7 amended, or other federal legislation having a similar purpose, the
95-8 representation shall include an officer or employee of the
95-9 commission.
95-10 (b) The commission by rule shall adopt any memorandum of
95-11 understanding between the commission and another state agency.
95-12 (c) The commission shall:
95-13 (1) encourage voluntary cooperation by persons or
95-14 affected groups in restoring and preserving the purity of the
95-15 state's air;
95-16 (2) encourage and conduct studies, investigations, and
95-17 research concerning air quality control;
95-18 (3) collect and disseminate information on air quality
95-19 control;
95-20 (4) advise, consult, and cooperate with other state
95-21 agencies, political subdivisions of the state, industries, other
95-22 states, the federal government, and interested persons or groups
95-23 concerning matters of common interest in air quality control; and
95-24 (5) represent the state in all matters relating to air
95-25 quality plans, procedures, or negotiations for interstate compacts.
95-26 (Sec. 26.017, Water Code; Secs. 382.035, 382.036, Health and Safety
95-27 Code.)
96-1 Sec. 2.210. Orders. (a) The commission is authorized to
96-2 issue orders and make determinations necessary to effectuate the
96-3 purposes of Chapter 10. The commission shall set forth the
96-4 findings on which it bases any order granting or denying special
96-5 relief requested of the commission or involving a determination
96-6 following a hearing on an alleged violation of Section 10.011 or
96-7 10.0111 or directing a person to perform or refrain from performing
96-8 a certain act or activity.
96-9 (b) The commission may issue orders and make determinations
96-10 as necessary to carry out the purposes of Chapter 30. Orders
96-11 authorized by Chapter 30 may be issued only by the commission
96-12 unless expressly provided by Chapter 30. If it appears that
96-13 Chapter 30 or a commission rule, order, or determination is being
96-14 violated, the commission, or the executive director if authorized
96-15 by the commission or Chapter 30, may proceed under Sections
96-16 30.082-30.084, or hold a public hearing and issue orders on the
96-17 alleged violation, or take any other action authorized by Chapter
96-18 30 as the facts may warrant. In addition to the notice required by
96-19 the Administrative Procedure and Texas Register Act (Article
96-20 6252-13a, Vernon's Texas Civil Statutes), the commission or the
96-21 executive director shall give notice to such other interested
96-22 persons as the commission or the executive director may designate.
96-23 (Sec. 26.019, Water Code; Sec. 382.023, Health and Safety Code.)
96-24 Sec. 2.211. Denial of Application; Involvement of Former
96-25 Employees. (a) After providing an opportunity for a hearing to an
96-26 applicant, the state agency shall deny an application for the
96-27 issuance, amendment, renewal, or transfer of a permit within its
97-1 jurisdiction and may not issue, amend, renew, or transfer the
97-2 permit if the state agency determines that a former employee:
97-3 (1) participated personally and substantially as a
97-4 former employee in the state agency's review, evaluation, or
97-5 processing of that application before leaving employment with the
97-6 state agency; and
97-7 (2) after leaving employment with the state agency,
97-8 provided assistance on the same application for the issuance,
97-9 amendment, renewal, or transfer of a permit, including assistance
97-10 with preparation or presentation of the application or legal
97-11 representation of the applicant.
97-12 (b) Action taken under this section does not prejudice any
97-13 application in which the former employee did not provide
97-14 assistance.
97-15 (c) In this section, "former employee" means a person:
97-16 (1) who was previously employed by the state agency as
97-17 a supervisory or exempt employee; and
97-18 (2) whose duties during employment with that state
97-19 agency included involvement in or supervision of that state
97-20 agency's review, evaluation, or processing of applications. (Sec.
97-21 26.0283, Water Code; Sec. 361.0885, Health and Safety Code.)
97-22 CHAPTER 3. ON-SITE WASTEWATER TREATMENT
97-23 RESEARCH COUNCIL
97-24 Sec. 3.001. Definitions. In this chapter:
97-25 (1) "Council" means the On-site Wastewater Treatment
97-26 Research Council.
97-27 (2) "Commission" means the Texas Natural Resource
98-1 Conservation Commission.
98-2 (3) "On-site wastewater treatment system" means a
98-3 system of treatment devices or disposal facilities that:
98-4 (A) is used for the disposal of domestic sewage,
98-5 excluding liquid waste resulting from the processes used in
98-6 industrial and commercial establishments;
98-7 (B) is located on the site where the sewage is
98-8 produced; and
98-9 (C) produces not more than 5,000 gallons of
98-10 waste a day. (Sec. 367.001, Health and Safety Code.)
98-11 Sec. 3.002. Composition of Council. The On-site Wastewater
98-12 Treatment Research Council is composed of the following 11 members
98-13 appointed by the governor:
98-14 (1) two builders of housing constructed on-site in
98-15 this state;
98-16 (2) one residential real estate developer;
98-17 (3) one professional engaged in municipal or county
98-18 regulation of on-site wastewater treatment in this state;
98-19 (4) one practicing engineer with significant
98-20 experience designing on-site wastewater treatment systems;
98-21 (5) two employees of the Texas Natural Resource
98-22 Conservation Commission;
98-23 (6) one representative of an industry using on-site
98-24 wastewater treatment in this state as part of its commercial or
98-25 manufacturing process;
98-26 (7) one person employed in the field of rural water
98-27 quality in this state;
99-1 (8) one soils scientist who is involved in and
99-2 familiar with innovative on-site wastewater disposal techniques;
99-3 and
99-4 (9) one representative of the public with a
99-5 demonstrated involvement in efforts to safeguard the environment.
99-6 (Sec. 367.002, Health and Safety Code.)
99-7 Sec. 3.003. Application of Sunset Act. (a) The council is
99-8 abolished and this chapter expires September 1, 2001.
99-9 (b) If this chapter expires under Subsection (a),
99-10 uncommitted money in the on-site wastewater treatment research
99-11 account shall be deposited to the credit of the general revenue
99-12 fund. (Sec. 367.003, Health and Safety Code.)
99-13 Sec. 3.004. Terms. Council members serve for staggered
99-14 two-year terms, with the terms of five members expiring September 1
99-15 of each even-numbered year and the terms of six members expiring
99-16 September 1 of each odd-numbered year. (Sec. 367.004, Health and
99-17 Safety Code.)
99-18 Sec. 3.005. Officers; Meetings. (a) Each year the council
99-19 shall elect one of its members as chairman.
99-20 (b) The council shall meet quarterly as designated by the
99-21 chairman or may meet in an emergency as determined by the chairman
99-22 or a majority of the members.
99-23 (c) The vote of a majority, but not fewer than four, of the
99-24 council members present at a meeting or the written approval of a
99-25 majority of the council members is required for any council action,
99-26 including the approval of a grant request. (Sec. 367.005, Health
99-27 and Safety Code.)
100-1 Sec. 3.006. Compensation; Expenses. A council member is
100-2 entitled to receive:
100-3 (1) the amount provided by legislative appropriation
100-4 for the member's services; and
100-5 (2) reimbursement for travel expenses and other
100-6 necessary expenses as provided by law. (Sec. 367.006, Health and
100-7 Safety Code.)
100-8 Sec. 3.007. Administration. (a) The commission, at the
100-9 direction of the council, shall implement council decisions.
100-10 (b) The council may enter into an interagency contract with
100-11 the commission to provide staff and other administrative support as
100-12 required to improve the quality of wastewater treatment and reduce
100-13 the cost of providing wastewater treatment to consumers.
100-14 (c) The council may accept grants and donations from other
100-15 sources to supplement the fees collected under Section 3.010.
100-16 Grants and donations shall be deposited to the credit of the
100-17 on-site wastewater treatment research account of the general
100-18 revenue fund and may be disbursed as the council directs and in
100-19 accordance with Section 3.008.
100-20 (d) Administrative and facilities support costs are payable
100-21 from the on-site wastewater treatment research account.
100-22 (Sec. 367.007, Health and Safety Code.)
100-23 Sec. 3.008. AWARD OF COMPETITIVE GRANTS. (a) The council
100-24 shall establish procedures for awarding competitive grants and
100-25 disbursing grant money.
100-26 (b) The council may award competitive grants to:
100-27 (1) support applied research and demonstration
101-1 projects by accredited colleges and universities in this state, by
101-2 other governmental entities, or by acceptable public or private
101-3 research centers regarding on-site wastewater treatment technology
101-4 and systems applicable to this state that are directed toward
101-5 improving the quality of wastewater treatment and reducing the cost
101-6 of providing wastewater treatment to consumers; and
101-7 (2) enhance technology transfer regarding on-site
101-8 wastewater treatment by using educational courses, seminars,
101-9 symposia, publications, and other forms of information
101-10 dissemination.
101-11 (c) The council may award grants or make other expenditures
101-12 authorized under this chapter only after the comptroller certifies
101-13 that the on-site wastewater treatment research account contains
101-14 enough money to pay for those expenditures. (Sec. 367.008, Health
101-15 and Safety Code.)
101-16 Sec. 3.009. APPROPRIATIONS. Money appropriated for the
101-17 purposes of this chapter shall be disbursed as the council directs
101-18 and in accordance with Section 3.008. (Sec. 367.009, Health and
101-19 Safety Code.)
101-20 Sec. 3.010. Fees. (a) The Texas Department of Health and
101-21 each county, municipality, public health department, and river
101-22 authority shall collect a $10 fee for each on-site wastewater
101-23 treatment permit it issues.
101-24 (b) The fee shall be forwarded to the commission not later
101-25 than the 30th day after the date on which it is collected.
101-26 (c) The commission may enforce the collection and forwarding
101-27 of the fee.
102-1 (d) The fee proceeds shall be deposited to the credit of the
102-2 on-site wastewater treatment research account of the general
102-3 revenue fund. (Sec. 367.010, Health and Safety Code.)
102-4 CHAPTER 4. ENVIRONMENTAL ADVISORY COUNCILS
102-5 SUBCHAPTER A. STATUTORY ADVISORY COUNCILS
102-6 Sec. 4.001. COUNCILS ESTABLISHED BY OTHER LAW. In addition
102-7 to the advisory councils established under this chapter, advisory
102-8 councils with duties relating to the environment are provided for
102-9 by other law, including:
102-10 (1) the Texas water well drillers advisory council
102-11 (Chapters 32 and 33, Water Code); and
102-12 (2) the Texas irrigators advisory council (Chapter 34,
102-13 Water Code).
102-14 (Sections 4.002-4.010 reserved for expansion)
102-15 SUBCHAPTER B. ADVISORY COUNCILS
102-16 Sec. 4.011. Advisory Councils. The commission may create
102-17 and consult with advisory councils, including councils for the
102-18 environment, councils for public information, or any other councils
102-19 that the commission may consider appropriate. (Sec. 5.107, Water
102-20 Code.)
102-21 Sec. 4.012. Municipal Solid Waste Management and Resource
102-22 Recovery Advisory Council. (a) The Municipal Solid Waste
102-23 Management and Resource Recovery Advisory Council is composed of
102-24 the following 15 members appointed by the commission:
102-25 (1) an elected official from a municipality with a
102-26 population of 750,000 or more;
102-27 (2) an elected official from a municipality with a
103-1 population of 100,000 or more but less than 750,000;
103-2 (3) an elected official from a municipality with a
103-3 population of 25,000 or more but less than 100,000;
103-4 (4) an elected official from a municipality with a
103-5 population of less than 25,000;
103-6 (5) two elected officials of separate counties, one of
103-7 whom is from a county with a population of less than 150,000;
103-8 (6) an official from a municipality or county solid
103-9 waste agency;
103-10 (7) a representative from a private environmental
103-11 conservation organization;
103-12 (8) a representative from a public solid waste
103-13 district or authority;
103-14 (9) a representative from a planning region;
103-15 (10) a representative of the financial community;
103-16 (11) a representative from a solid waste management
103-17 organization composed primarily of commercial operators;
103-18 (12) a commission member; and
103-19 (13) two persons representing the public who would not
103-20 otherwise qualify as members under this subsection.
103-21 (b) Advisory council members serve for staggered six-year
103-22 terms, with the terms of five members expiring August 31 of each
103-23 odd-numbered year.
103-24 (c) The commission shall fill a vacancy on the advisory
103-25 council for the unexpired term by appointing a person who has the
103-26 same qualifications as required under Subsection (a) for the person
103-27 who previously held the vacated position.
104-1 (d) A person who is appointed to a term on the advisory
104-2 council or to fill a vacancy on the advisory council may continue
104-3 to serve as a member only while the person continues to qualify for
104-4 the category from which the person is appointed.
104-5 (e) The chairman of the commission shall appoint one member
104-6 as advisory council president.
104-7 (f) The advisory council president serves for a term of two
104-8 years expiring August 31 of each odd-numbered year.
104-9 (g) Each advisory council member other than the member
104-10 representing the commission is entitled to $50 for each council
104-11 meeting the member attends and the travel allowance provided by the
104-12 General Appropriations Act for state employees.
104-13 (h) The member representing the commission is entitled to
104-14 receive the same per diem and travel allowance the member receives
104-15 for board meetings.
104-16 (i) The expenses incurred by the advisory council are to be
104-17 paid from the planning fund, the technical assistance fund, or
104-18 other money available for that purpose.
104-19 (j) The advisory council shall adopt and may amend
104-20 procedures for the conduct of advisory council business.
104-21 (k) The advisory council shall hold at least one meeting
104-22 every three months.
104-23 (l) The advisory council shall:
104-24 (1) review and evaluate the effect of state policies
104-25 and programs on municipal solid waste management;
104-26 (2) make recommendations to the commission on matters
104-27 relating to municipal solid waste management;
105-1 (3) recommend legislation to the commission to
105-2 encourage the efficient management of municipal solid waste;
105-3 (4) recommend policies to the commission for the use,
105-4 allocation, or distribution of the planning fund that include:
105-5 (A) identification of statewide priorities for
105-6 use of funds;
105-7 (B) the manner and form of application for
105-8 financial assistance; and
105-9 (C) criteria, in addition to those prescribed by
105-10 Section 22.093(d), to be evaluated in establishing priorities for
105-11 providing financial assistance to applicants; and
105-12 (5) recommend to the commission special studies and
105-13 projects to further the effectiveness of municipal solid waste
105-14 management and resource recovery. (Secs. 363.041, 363.042,
105-15 363.043, 363.044, 363.045, 363.046, Health and Safety Code.)
105-16 Sec. 4.013. Waste Reduction Advisory Committee. (a) The
105-17 waste reduction advisory committee is composed of nine members with
105-18 a balanced representation of environmental and public interest
105-19 groups and the regulated community.
105-20 (b) The committee shall advise the commission, pollution
105-21 prevention council, and interagency coordination council on:
105-22 (1) matters the council is required to consider under
105-23 Section 20.021(d);
105-24 (2) the appropriate organization of state agencies and
105-25 the financial and technical resources required to aid the state in
105-26 its efforts to promote waste reduction and minimization;
105-27 (3) the development of public awareness programs to
106-1 educate citizens about hazardous waste and the appropriate disposal
106-2 of hazardous waste and hazardous materials that are used and
106-3 collected by households;
106-4 (4) the provision of technical assistance to local
106-5 governments for the development of waste management strategies
106-6 designed to assist small quantity generators of hazardous waste;
106-7 and
106-8 (5) other possible programs to more effectively
106-9 implement the state's hierarchy of preferred waste management
106-10 technologies as set forth in Section 20.023(a). (Sec. 361.0215,
106-11 Health and Safety Code.)
106-12 Sec. 4.014. Pollution Prevention Council. (a) The
106-13 commission and the Railroad Commission of Texas shall each
106-14 designate an individual to coordinate source reduction and waste
106-15 minimization efforts and programs in the appointing agency and
106-16 represent the agency on the pollution prevention council. The
106-17 individual designated shall report to that individual's executive
106-18 director or assistant or deputy director.
106-19 (b) The pollution prevention council shall coordinate the
106-20 activities of its represented agencies that concern source
106-21 reduction and waste minimization to ensure the consistency of and
106-22 to avoid duplication or conflict in programs. (Sec. 361.0211,
106-23 Health and Safety Code.)
106-24 (Chapters 5-9 reserved for expansion)
106-25 TITLE 2. WATER QUALITY AND WATER RIGHTS
106-26 CHAPTER 10. WATER QUALITY CONTROL
106-27 SUBCHAPTER A. ADMINISTRATIVE PROVISIONS
107-1 Sec. 10.001. Policy of This Chapter. It is the policy of
107-2 this state and the purpose of this chapter to maintain the quality
107-3 of water in the state consistent with the public health and
107-4 enjoyment, the propagation and protection of terrestrial and
107-5 aquatic life, the operation of existing industries, and the
107-6 economic development of the state; to encourage and promote the
107-7 development and use of regional and areawide waste collection,
107-8 treatment, and disposal systems to serve the waste disposal needs
107-9 of the citizens of the state; and to require the use of all
107-10 reasonable methods to implement this policy. (Sec. 26.003, Water
107-11 Code.)
107-12 Sec. 10.002. Definitions. (a) As used in this chapter:
107-13 (1) "Board" means the Texas Water Development Board.
107-14 (2) "Commission" means the Texas Natural Resource
107-15 Conservation Commission.
107-16 (3) "Executive administrator" means the executive
107-17 administrator of the Texas Water Development Board.
107-18 (4) "Executive director" means the executive director
107-19 of the commission.
107-20 (5) "Water" or "water in the state" means groundwater,
107-21 percolating or otherwise, lakes, bays, ponds, impounding
107-22 reservoirs, springs, rivers, streams, creeks, estuaries, marshes,
107-23 inlets, canals, the Gulf of Mexico inside the territorial limits of
107-24 the state, and all other bodies of surface water, natural or
107-25 artificial, inland or coastal, fresh or salt, navigable or
107-26 nonnavigable, and including the beds and banks of all watercourses
107-27 and bodies of surface water, that are wholly or partially inside or
108-1 bordering the state or inside the jurisdiction of the state.
108-2 (6) "Waste" means sewage, industrial waste, municipal
108-3 waste, recreational waste, agricultural waste, or other waste, as
108-4 defined in this section.
108-5 (7) "Sewage" means waterborne human waste and waste
108-6 from domestic activities, such as washing, bathing, and food
108-7 preparation.
108-8 (8) "Municipal waste" means waterborne liquid,
108-9 gaseous, or solid substances that result from any discharge from a
108-10 publicly owned sewer system, treatment facility, or disposal
108-11 system.
108-12 (9) "Recreational waste" means waterborne liquid,
108-13 gaseous, or solid substances that emanate from any public or
108-14 private park, beach, or recreational area.
108-15 (10) "Agricultural waste" means waterborne liquid,
108-16 gaseous, or solid substances that arise from the agricultural
108-17 industry and agricultural activities, including without limitation
108-18 agricultural animal feeding pens and lots, structures for housing
108-19 and feeding agricultural animals, and processing facilities for
108-20 agricultural products. The term "agricultural waste" does not
108-21 include tail water or runoff water from irrigation or rainwater
108-22 runoff from cultivated or uncultivated range land, pasture land,
108-23 and farmland.
108-24 (11) "Industrial waste" means waterborne liquid,
108-25 gaseous, or solid substances that result from any process of
108-26 industry, manufacturing, trade, or business.
108-27 (12) "Other waste" means garbage, refuse, decayed
109-1 wood, sawdust, shavings, bark, sand, lime, cinders, ashes, offal,
109-2 oil, tar, dyestuffs, acids, chemicals, salt water, or any other
109-3 substance, other than sewage, industrial waste, municipal waste,
109-4 recreational waste, or agricultural waste, that may cause
109-5 impairment of the quality of water in the state. "Other waste"
109-6 also includes tail water or runoff water from irrigation or
109-7 rainwater runoff from cultivated or uncultivated range land,
109-8 pasture land, and farmland that may cause impairment of the quality
109-9 of the water in the state.
109-10 (13) "Pollution" means the alteration of the physical,
109-11 thermal, chemical, or biological quality of, or the contamination
109-12 of, any water in the state that renders the water harmful,
109-13 detrimental, or injurious to humans, animal life, vegetation, or
109-14 property or to public health, safety, or welfare, or impairs the
109-15 usefulness or the public enjoyment of the water for any lawful or
109-16 reasonable purpose.
109-17 (14) "Sewer system" means pipelines, conduits, storm
109-18 sewers, canals, pumping stations, force mains, and all other
109-19 constructions, devices, and appurtenant appliances used to
109-20 transport waste.
109-21 (15) "Treatment facility" means any plant, disposal
109-22 field, lagoon, incinerator, area devoted to sanitary landfills, or
109-23 other facility installed for the purpose of treating, neutralizing,
109-24 or stabilizing waste.
109-25 (16) "Disposal system" means any system for disposing
109-26 of waste, including sewer systems and treatment facilities.
109-27 (17) "Local government" means an incorporated city, a
110-1 county, a river authority, or a water district or authority acting
110-2 under Article III, Section 52 or Article XVI, Section 59 of the
110-3 Texas Constitution.
110-4 (18) "Permit" means an order issued by the commission
110-5 in accordance with the procedures prescribed in this chapter
110-6 establishing the treatment which shall be given to wastes being
110-7 discharged into or adjacent to any water in the state to preserve
110-8 and enhance the quality of the water and specifying the conditions
110-9 under which the discharge may be made.
110-10 (19) "To discharge" includes to deposit, conduct,
110-11 drain, emit, throw, run, allow to seep, or otherwise release or
110-12 dispose of, or to allow, permit, or suffer any of these acts or
110-13 omissions.
110-14 (b) As used in this chapter:
110-15 (1) "Board" means the Texas Water Development Board.
110-16 (2) "Commission" means the Texas Natural Resource
110-17 Conservation Commission.
110-18 (3) "Executive administrator" means the executive
110-19 administrator of the Texas Water Development Board.
110-20 (4) "Executive director" means the executive director
110-21 of the commission.
110-22 (5) "Water" or "water in the state" means groundwater,
110-23 percolating or otherwise, lakes, bays, ponds, impounding
110-24 reservoirs, springs, rivers, streams, creeks, estuaries, wetlands,
110-25 marshes, inlets, canals, the Gulf of Mexico, inside the territorial
110-26 limits of the state, and all other bodies of surface water, natural
110-27 or artificial, inland or coastal, fresh or salt, navigable or
111-1 nonnavigable, and including the beds and banks of all watercourses
111-2 and bodies of surface water, that are wholly or partially inside or
111-3 bordering the state or inside the jurisdiction of the state.
111-4 (6) "Waste" means sewage, industrial waste, municipal
111-5 waste, recreational waste, agricultural waste, or other waste, as
111-6 defined in this section.
111-7 (7) "Sewage" means waterborne human waste and waste
111-8 from domestic activities, such as washing, bathing, and food
111-9 preparation.
111-10 (8) "Municipal waste" means waterborne liquid,
111-11 gaseous, or solid substances that result from any discharge from a
111-12 publicly owned sewer system, treatment facility, or disposal
111-13 system.
111-14 (9) "Recreational waste" means waterborne liquid,
111-15 gaseous, or solid substances that emanate from any public or
111-16 private park, beach, or recreational area.
111-17 (10) "Agricultural waste" means waterborne liquid,
111-18 gaseous, or solid substances that arise from the agricultural
111-19 industry and agricultural activities, including without limitation
111-20 agricultural animal feeding pens and lots, structures for housing
111-21 and feeding agricultural animals, and processing facilities for
111-22 agricultural products. The term "agricultural waste" does not
111-23 include tail water or runoff water from irrigation or rainwater
111-24 runoff from cultivated or uncultivated range land, pasture land,
111-25 and farmland.
111-26 (11) "Industrial waste" means waterborne liquid,
111-27 gaseous, or solid substances that result from any process of
112-1 industry, manufacturing, trade, or business.
112-2 (12) "Other waste" means garbage, refuse, decayed
112-3 wood, sawdust, shavings, bark, sand, lime, cinders, ashes, offal,
112-4 oil, tar, dyestuffs, acids, chemicals, salt water, or any other
112-5 substance, other than sewage, industrial waste, municipal waste,
112-6 recreational waste, or agricultural waste.
112-7 (13) "Pollutant" means dredged spoil, solid waste,
112-8 incinerator residue, sewage, garbage, sewage sludge, filter
112-9 backwash, munitions, chemical wastes, biological materials,
112-10 radioactive materials, heat, wrecked or discarded equipment, rock,
112-11 sand, cellar dirt, and industrial, municipal, and agricultural
112-12 waste discharged into any water in the state. The term "pollutant"
112-13 does not include tail water or runoff water from irrigation or
112-14 rainwater runoff from cultivated or uncultivated rangeland,
112-15 pastureland, and farmland.
112-16 (14) "Pollution" means the alteration of the physical,
112-17 thermal, chemical, or biological quality of, or the contamination
112-18 of, any water in the state that renders the water harmful,
112-19 detrimental, or injurious to humans, animal life, vegetation, or
112-20 property or to public health, safety, or welfare, or impairs the
112-21 usefulness or the public enjoyment of the water for any lawful or
112-22 reasonable purpose.
112-23 (15) "Sewer system" means pipelines, conduits, storm
112-24 sewers, canals, pumping stations, force mains, and all other
112-25 constructions, devices, and appurtenant appliances used to
112-26 transport waste.
112-27 (16) "Treatment facility" means any plant, disposal
113-1 field, lagoon, incinerator, area devoted to sanitary landfills, or
113-2 other facility installed for the purpose of treating, neutralizing,
113-3 or stabilizing waste.
113-4 (17) "Disposal system" means any system for disposing
113-5 of waste, including sewer systems and treatment facilities.
113-6 (18) "Local government" means an incorporated city, a
113-7 county, a river authority, or a water district or authority acting
113-8 under Article III, Section 52, or Article XVI, Section 59 of the
113-9 Texas Constitution.
113-10 (19) "Permit" means an order issued by the commission
113-11 in accordance with the procedures prescribed in this chapter
113-12 establishing the treatment which shall be given to wastes being
113-13 discharged into or adjacent to any water in the state to preserve
113-14 and enhance the quality of the water and specifying the conditions
113-15 under which the discharge may be made.
113-16 (20) "To discharge" includes to deposit, conduct,
113-17 drain, emit, throw, run, allow to seep, or otherwise release or
113-18 dispose of, or to allow, permit, or suffer any of these acts or
113-19 omissions.
113-20 (21) "Point source" means any discernible, confined
113-21 and discrete conveyance, including but not limited to any pipe,
113-22 ditch, channel, tunnel, conduit, well, discrete fissure, container,
113-23 rolling stock, concentrated animal feeding operation, or vessel or
113-24 other floating craft, from which pollutants or wastes are or may be
113-25 discharged into or adjacent to any water in the state.
113-26 (22) "Identified state supplement to an NPDES permit"
113-27 means any part of a permit on which the commission has entered a
114-1 written designation to indicate that the commission has adopted
114-2 that part solely in order to carry out the commission's duties
114-3 under state statutes and not in pursuance of administration
114-4 undertaken to carry out a permit program under approval by the
114-5 Administrator of the United States Environmental Protection Agency.
114-6 (23) "NPDES" means the National Pollutant Discharge
114-7 Elimination System under which the Administrator of the United
114-8 States Environmental Protection Agency can delegate permitting
114-9 authority to the State of Texas in accordance with Section 402(b)
114-10 of the Federal Water Pollution Control Act.
114-11 (24) "Treatment works" means any devices and systems
114-12 used in the storage, treatment, recycling, and reclamation of waste
114-13 to implement this chapter or necessary to recycle or reuse water at
114-14 the most economical cost over the estimated life of the works,
114-15 including:
114-16 (A) intercepting sewers, outfall sewers,
114-17 pumping, power, and other equipment and their appurtenances;
114-18 (B) extensions, improvements, remodeling,
114-19 additions, and alterations of the items in Paragraph (A);
114-20 (C) elements essential to provide a reliable
114-21 recycled supply such as standby treatment units and clear-well
114-22 facilities;
114-23 (D) any works, including sites and acquisition
114-24 of the land that will be a part of or used in connection with the
114-25 treatment process or is used for ultimate disposal of residues
114-26 resulting from such treatment;
114-27 (E) any plant, disposal field, lagoon, canal,
115-1 incinerator, area devoted to sanitary landfills, or other
115-2 facilities installed for the purpose of treating, neutralizing, or
115-3 stabilizing waste; and
115-4 (F) facilities to provide for the collection,
115-5 control, and disposal of waste heat.
115-6 (25) "Person" means an individual, association,
115-7 partnership, corporation, municipality, state or federal agency, or
115-8 an agent or employee thereof. Subsection (a) is effective until
115-9 delegation of NPDES permit authority. Subsection (b) is effective
115-10 on delegation of NPDES permit authority. (Sec. 26.001, Water
115-11 Code.)
115-12 Sec. 10.003. Ownership of Groundwater. Nothing in this
115-13 chapter affects ownership rights in underground water. (Sec.
115-14 26.002, Water Code.)
115-15 (Sections 10.004-10.010 reserved for expansion)
115-16 SUBCHAPTER B. PROHIBITION AGAINST POLLUTION
115-17 Sec. 10.011. Unauthorized Discharges Prohibited.
115-18 (a) Except as authorized by a rule, permit, or order issued by the
115-19 commission, no person may:
115-20 (1) discharge sewage, municipal waste, recreational
115-21 waste, agricultural waste, or industrial waste into or adjacent to
115-22 any water in the state;
115-23 (2) discharge other waste into or adjacent to any
115-24 water in the state which in itself or in conjunction with any other
115-25 discharge or activity causes, continues to cause, or will cause
115-26 pollution of any of the water in the state; or
115-27 (3) commit any other act or engage in any other
116-1 activity which in itself or in conjunction with any other discharge
116-2 or activity causes, continues to cause, or will cause pollution of
116-3 any of the water in the state, unless the activity is under the
116-4 jurisdiction of the Parks and Wildlife Department, the General Land
116-5 Office, or the Railroad Commission of Texas, in which case this
116-6 subdivision does not apply.
116-7 (b) In the enforcement of Subsections (a)(2) and (3),
116-8 consideration shall be given to the state of existing technology,
116-9 economic feasibility, and the water quality needs of the water that
116-10 might be affected.
116-11 (c) No person may cause, suffer, allow, or permit the
116-12 discharge of any waste or the performance of any activity in
116-13 violation of this chapter or of any rule, permit, or order of the
116-14 commission.
116-15 (d) This section is effective until delegation of NPDES
116-16 permit authority. (Sec. 26.121, Water Code.)
116-17 Sec. 10.0111. Unauthorized Discharges Prohibited. (a)
116-18 Except as authorized by the commission, no person may:
116-19 (1) discharge sewage, municipal waste, recreational
116-20 waste, agricultural waste, or industrial waste into or adjacent to
116-21 any water in the state;
116-22 (2) discharge other waste into or adjacent to any
116-23 water in the state which in itself or in conjunction with any other
116-24 discharge or activity causes, continues to cause, or will cause
116-25 pollution of any of the water in the state; or
116-26 (3) commit any other act or engage in any other
116-27 activity which in itself or in conjunction with any other discharge
117-1 or activity causes, continues to cause, or will cause pollution of
117-2 any of the water in the state, unless the activity is under the
117-3 jurisdiction of the Parks and Wildlife Department, the General Land
117-4 Office, or the Railroad Commission of Texas, in which case this
117-5 subdivision does not apply.
117-6 (b) In the enforcement of Subsections (a)(2) and (3),
117-7 consideration shall be given to the state of existing technology,
117-8 economic feasibility, and the water quality needs of the water that
117-9 might be affected. This subdivision does not apply to any NPDES
117-10 activity.
117-11 (c) No person may cause, suffer, allow, or permit the
117-12 discharge of any waste or the performance of any activity in
117-13 violation of this chapter or of any permit or order of the
117-14 commission.
117-15 (d) Except as authorized by the commission, no person may
117-16 discharge any pollutant, sewage, municipal waste, recreational
117-17 waste, agricultural waste, or industrial waste from any point
117-18 source into any water in the state.
117-19 (e) No person may cause, suffer, allow, or permit the
117-20 discharge from a point source of any waste or of any pollutant, or
117-21 the performance or failure of any activity other than a discharge,
117-22 in violation of this chapter or of any rule, regulation, permit, or
117-23 other order of the commission.
117-24 (f) This section is effective on delegation of NPDES permit
117-25 authority. (Sec. 26.121, Water Code.)
117-26 Sec. 10.012. Commission May Issue Permits. (a) The
117-27 commission may issue permits and amendments to permits for the
118-1 discharge of waste into or adjacent to water in the state.
118-2 (b) A person desiring to obtain a permit or to amend a
118-3 permit shall submit an application to the commission containing all
118-4 information reasonably required by the commission.
118-5 (c) A person may not commence construction of a treatment
118-6 facility until the commission has issued a permit to authorize the
118-7 discharge of waste from the facility, except with the approval of
118-8 the commission.
118-9 (d) This section is effective until delegation of NPDES
118-10 permit authority. (Sec. 26.027, Water Code.)
118-11 Sec. 10.0121. Commission May Issue Permits. (a) The
118-12 commission may issue permits and amendments to permits for the
118-13 discharge of waste or pollutants into or adjacent to water in the
118-14 state. No permit shall be issued authorizing the discharge of any
118-15 radiological, chemical, or biological warfare agent or high-level
118-16 radioactive waste. The commission may refuse to issue a permit
118-17 when the commission finds that issuance of the permit would violate
118-18 the provisions of any state or federal law or rule or regulation
118-19 promulgated thereunder, or when the commission finds that issuance
118-20 of the permit would interfere with the purpose of this chapter.
118-21 (b) A person desiring to obtain a permit or to amend a
118-22 permit shall submit an application to the commission containing all
118-23 information reasonably required by the commission.
118-24 (c) A person may not commence construction of a treatment
118-25 facility until the commission has issued a permit to authorize the
118-26 discharge of waste from the facility, except with the approval of
118-27 the commission.
119-1 (d) The commission may not require under this chapter any
119-2 permit for the placing of dredged or fill materials into or
119-3 adjacent to water in the state for the purpose of constructing,
119-4 modifying, or maintaining facilities or structures, but this does
119-5 not change or limit any authority the commission may have with
119-6 respect to the control of water quality. The commission may adopt
119-7 rules and regulations to govern and control the discharge of
119-8 dredged or fill materials consistent with the purpose of this
119-9 chapter.
119-10 (e) This section is effective on delegation of NPDES permit
119-11 authority. (Sec. 26.027, Water Code.)
119-12 Sec. 10.013. Action on Application. (a) Except as provided
119-13 in Subsections (b) and (c), notice shall be given to the persons
119-14 who in the judgment of the commission may be affected by an
119-15 application for a permit, permit amendment, or renewal of a permit.
119-16 For any application involving an average daily discharge of five
119-17 million gallons or more, the notice shall be given not later than
119-18 20 days before the date on which the commission acts on the
119-19 application, to each county judge in the county or counties located
119-20 within 100 statute miles of the point of discharge who have
119-21 requested in writing that the commission give that notice and
119-22 through which water, into or adjacent to which waste or pollutants
119-23 are to be discharged under the permit, flows after the discharge.
119-24 The commission, on the motion of a commissioner, or on the request
119-25 of the executive director or any affected person, shall hold a
119-26 public hearing on the application for a permit, permit amendment,
119-27 or renewal of a permit.
120-1 (b) An application to amend a permit to improve the quality
120-2 of waste authorized to be discharged may be set for consideration
120-3 and may be acted on by the commission at a regular meeting without
120-4 the necessity of holding a public hearing if the applicant does not
120-5 seek to increase significantly the quantity of waste authorized to
120-6 be discharged or change materially the pattern or place of
120-7 discharge. Notice of the application shall be mailed to the mayor
120-8 and health authorities for the city or town, and the county judge
120-9 and health authorities for the county, in which the waste is or
120-10 will be discharged, at least 10 days before the commission meeting,
120-11 and they may present information to the commission on the
120-12 application.
120-13 (c) An application to renew a permit for a confined animal
120-14 feeding operation which was issued between July 1, 1974, and
120-15 December 31, 1977, may be set for consideration and may be acted on
120-16 by the commission at a regular meeting without the necessity of
120-17 holding a public hearing if the applicant does not seek to
120-18 discharge into or adjacent to water in the state and does not seek
120-19 to change materially the pattern or place of disposal.
120-20 (d) For the purposes of Subsection (a), the commission may
120-21 act on the application without holding a public hearing if all of
120-22 the following conditions are met:
120-23 (1) not less than 30 days before the date of action on
120-24 the application by the commission, the applicant has published the
120-25 commission's notice of the application at least once in a newspaper
120-26 regularly published or circulated within each county where the
120-27 proposed facility or discharge is located and in each county
121-1 affected by the discharge;
121-2 (2) not less than 30 days before the date of action on
121-3 the application by the commission, the applicant has served or
121-4 mailed the commission's notice of the application to persons who in
121-5 the judgment of the commission may be affected, including the
121-6 county judges as required by Subsection (a), and as part of his
121-7 application the applicant shall submit an affidavit which lists the
121-8 names and addresses of the persons who may be affected by the
121-9 application and includes the source of the list; and
121-10 (3) within 30 days after the date of the newspaper
121-11 publication of the commission's notice, neither a commissioner, the
121-12 executive director, nor an affected person who objects to the
121-13 application has requested a public hearing. (Sec. 26.028, Water
121-14 Code.)
121-15 Sec. 10.014. Consideration of Past Performance and
121-16 Compliance. In considering the issuance, amendment, or renewal of
121-17 a permit to discharge effluent comprised primarily of sewage or
121-18 municipal waste, the commission shall consider any adjudicated
121-19 decision on or compliance proceeding addressing past performance
121-20 and compliance of the applicant and its operator with the laws of
121-21 this state governing waste discharge, waste treatment, or waste
121-22 disposal facilities and with the terms of any permit or order
121-23 issued by the commission. (Sec. 26.0281, Water Code.)
121-24 Sec. 10.015. Conditions of Permit; Amendment; Revocation and
121-25 Suspension. (a) In each permit, the commission shall prescribe
121-26 the conditions on which it is issued, including:
121-27 (1) the duration of the permit;
122-1 (2) the location of the point of discharge of the
122-2 waste;
122-3 (3) the maximum quantity of waste that may be
122-4 discharged under the permit at any time and from time to time;
122-5 (4) the character and quality of waste that may be
122-6 discharged under the permit; and
122-7 (5) any monitoring and reporting requirements
122-8 prescribed by the commission for the permittee.
122-9 (b) After a public hearing, notice of which shall be given
122-10 to the permittee, the commission may require the permittee, from
122-11 time to time, for good cause, to conform to new or additional
122-12 conditions. The commission shall allow the permittee a reasonable
122-13 time to conform to the new or additional conditions, and on
122-14 application of the permittee, the commission may grant additional
122-15 time.
122-16 (c) A permit does not become a vested right in the
122-17 permittee. After a public hearing, notice of which shall be given
122-18 to the permittee, the commission may revoke or suspend a permit for
122-19 good cause on any of the following grounds:
122-20 (1) the permittee has failed or is failing to comply
122-21 with the conditions of the permit;
122-22 (2) the permit is subject to cancellation or
122-23 suspension under Section 10.154;
122-24 (3) the permit or operations under the permit have
122-25 been abandoned; or
122-26 (4) the permit is no longer needed by the permittee.
122-27 (d) The notice required by Subsections (b) and (c) shall be
123-1 sent to the permittee at his last known address as shown by the
123-2 records of the commission.
123-3 (e) If the permittee requests or consents to the revocation
123-4 or suspension of the permit, the executive director may revoke or
123-5 suspend the permit.
123-6 (f) This section is effective until delegation of NPDES
123-7 permit authority. (Sec. 26.029, Water Code.)
123-8 Sec. 10.0151. Conditions of Permit; Amendment; Revocation
123-9 and Suspension. (a) In each permit, the commission shall
123-10 prescribe the conditions on which it is issued, including:
123-11 (1) the duration of the permit;
123-12 (2) the location of the point of discharge of the
123-13 waste;
123-14 (3) the maximum quantity of waste that may be
123-15 discharged under the permit at any time and from time to time;
123-16 (4) the character and quality of waste that may be
123-17 discharged under the permit; and
123-18 (5) any monitoring and reporting requirements
123-19 prescribed by the commission for the permittee.
123-20 (b) After a public hearing, notice of which shall be given
123-21 to the permittee, the commission may require the permittee, from
123-22 time to time, for good cause, in conformance with applicable laws,
123-23 to conform to new or additional conditions.
123-24 (c) A permit does not become a vested right in the
123-25 permittee. After a public hearing in conformance with applicable
123-26 laws, notice of which shall be given to the permittee, the
123-27 commission may revoke or suspend a permit for good cause on any of
124-1 the following grounds:
124-2 (1) the permittee has failed or is failing to comply
124-3 with the conditions of the permit;
124-4 (2) the permit is subject to cancellation or
124-5 suspension under Section 10.154;
124-6 (3) the permit or operations under the permit have
124-7 been abandoned;
124-8 (4) the permit is no longer needed by the permittee;
124-9 (5) the commission finds that a change in conditions
124-10 requires elimination of the discharge;
124-11 (6) revocation or suspension is necessary in order to
124-12 maintain the quality of water in the state consistent with the
124-13 objectives of this chapter; or
124-14 (7) the permit was obtained by misrepresentation or
124-15 failure to disclose fully all relevant facts.
124-16 (d) The notice required by Subsections (b) and (c) shall be
124-17 sent to the permittee at his last known address as shown by the
124-18 records of the commission.
124-19 (e) If the permittee requests or consents to the revocation
124-20 or suspension of the permit, the executive director may revoke or
124-21 suspend the permit.
124-22 (f) This section is effective on delegation of NPDES permit
124-23 authority. (Sec. 26.029, Water Code.)
124-24 Sec. 10.016. Permit; Effect on Recreational Water. (a) In
124-25 considering the issuance of a permit to discharge effluent into any
124-26 body of water having an established recreational standard, the
124-27 commission shall consider any unpleasant odor quality of the
125-1 effluent and the possible adverse effect that it might have on the
125-2 receiving body of water, and the commission may consider the odor
125-3 as one of the elements of the water quality of the effluent.
125-4 (b) In considering the issuance of a permit to discharge
125-5 effluent comprised primarily of sewage or municipal waste into any
125-6 body of water that crosses or abuts any park, playground, or
125-7 schoolyard within one mile of the point of discharge, the
125-8 commission shall consider any unpleasant qualities of the effluent,
125-9 including unpleasant odor, and any possible adverse effects that
125-10 the discharge of the effluent might have on the recreational value
125-11 of the park, playground, or schoolyard. (Sec. 26.030, Water Code.)
125-12 Sec. 10.017. Control of Certain Waste Discharges by Rule.
125-13 Whenever the commission determines that the quality of water in an
125-14 area is adversely affected or threatened by the combined effects of
125-15 several relatively small-quantity discharges of wastes being made
125-16 for which it is not practical to issue individual permits or that
125-17 the general nature of a particular type of activity which produces
125-18 a waste discharge is such that requiring individual permits is
125-19 unnecessarily burdensome both to the waste discharger and the
125-20 commission, the commission may by rule regulate and set the
125-21 requirements and conditions for the discharges of waste. (Sec.
125-22 26.040, Water Code.)
125-23 Sec. 10.018. Temporary and Emergency Orders and
125-24 Authorizations to Discharge Untreated or Partially Treated
125-25 Wastewater. (a) The commission may issue temporary or emergency
125-26 orders relating to the discharge of waste or pollutants when this
125-27 is necessary to enable action to be taken more expeditiously than
126-1 is otherwise provided by this chapter to effectuate the policy and
126-2 purposes of this chapter.
126-3 (b) A person desiring to obtain a temporary or emergency
126-4 order to discharge waste or pollutants, including untreated or
126-5 partially treated wastewater, into or adjacent to water in this
126-6 state shall submit a sworn application to the commission containing
126-7 the following information and any other information the commission
126-8 requires:
126-9 (1) a statement that the discharge is unavoidable to
126-10 prevent loss of life, serious injury, severe property damage, or
126-11 severe economic loss, or to make necessary and unforeseen repairs
126-12 to a facility, that there are no feasible alternatives to the
126-13 proposed discharge, and that the discharge will not cause
126-14 significant hazard to human life and health, unreasonable damage to
126-15 property of persons other than the applicant, or unreasonable
126-16 economic loss to persons other than the applicant;
126-17 (2) a statement that the proposed discharge will not
126-18 present a significant hazard to the uses that may be made of the
126-19 receiving water after the discharge;
126-20 (3) an estimate of the dates on which the proposed
126-21 discharge will begin and end;
126-22 (4) a statement of the volume and quality of the
126-23 proposed discharge;
126-24 (5) an explanation of measures proposed to minimize
126-25 the volume and duration of the discharge; and
126-26 (6) an explanation of measures proposed to maximize
126-27 the waste treatment efficiency of units not taken out of service or
127-1 facilities provided for interim use.
127-2 (c) The commission may issue emergency orders relating to
127-3 the discharge of waste or pollutants without notice and hearing, or
127-4 with such notice and hearing as the commission considers
127-5 practicable under the circumstances, only if the commission finds
127-6 the applicant's statement made under Subsection (b)(1) to be
127-7 correct.
127-8 (d) If the commission issues an emergency order under this
127-9 authority without a hearing, the order shall fix a time and place
127-10 for a hearing to be held before the commission, which shall be held
127-11 as soon after the emergency order is issued as is practicable.
127-12 (e) At the hearing, the commission shall affirm, modify, or
127-13 set aside the emergency order. Any hearing on an emergency order
127-14 shall be conducted in accordance with the Administrative Procedure
127-15 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
127-16 Statutes), or the rules of the commission. Any set of commission
127-17 rules concerning a hearing on an emergency order must include
127-18 provisions for presentation of evidence by the applicant under
127-19 oath, presentation of rebuttal evidence, and cross-examination of
127-20 witnesses.
127-21 (f) If emergency conditions exist which make it necessary to
127-22 take action more expeditiously than is otherwise provided by this
127-23 section, the executive director may authorize the discharge of
127-24 untreated or partially treated wastewater from a permitted facility
127-25 into or adjacent to water in the state if he determines that the
127-26 discharge is unavoidable to prevent loss of life, serious injury,
127-27 severe property damage, or severe economic loss, or to make
128-1 necessary and unforeseen repairs to the facility, that there are no
128-2 feasible alternatives to the discharge, and that the discharge will
128-3 not cause significant hazard to human life and health, unreasonable
128-4 damage to property of persons other than the applicant, or
128-5 unreasonable economic loss to persons other than the applicant. If
128-6 the executive director issues an authorization to discharge under
128-7 this authority, the commission shall hold a hearing as provided for
128-8 in Subsection (d) as soon as practicable but in no event later than
128-9 10 days after issuance of the authorization to affirm, modify or
128-10 set aside the authorization. The requirements of Subsection (b)
128-11 shall be satisfied by the applicant on or before such hearing date.
128-12 (g) The requirements of Section 2.206(a) relating to the
128-13 time for notice, newspaper notice, and method of giving a person
128-14 notice do not apply to a hearing held on an emergency permit under
128-15 this section, but such general notice of the hearing shall be given
128-16 as the commission, under Subsections (c) and (e), considers
128-17 practicable under the circumstances.
128-18 (h) Temporary orders other than emergency orders require a
128-19 hearing before issuance of the order. The commission shall give
128-20 notice not less than 20 days before the date set for the hearing.
128-21 (Sec. 26.0191, Water Code.)
128-22 Sec. 10.019. Consideration of Need and Regional Treatment
128-23 Options. In considering the issuance, amendment, or renewal of a
128-24 permit to discharge waste, the commission may deny or alter the
128-25 terms and conditions of the proposed permit, amendment, or renewal
128-26 based on consideration of need, including the expected volume and
128-27 quality of the influent and the availability of existing or
129-1 proposed areawide or regional waste collection, treatment, and
129-2 disposal systems not designated as such by commission order
129-3 pursuant to provisions of this subchapter. This section is
129-4 expressly directed to the control and treatment of conventional
129-5 pollutants normally found in domestic wastewater. (Sec. 26.0282,
129-6 Water Code.)
129-7 Sec. 10.020. Expiration of Permits Within Same Watershed.
129-8 The commission shall, to the greatest extent practicable, require
129-9 that all permits for the discharge of waste within a single
129-10 watershed or within a region of a single watershed contain the same
129-11 expiration date. The commission shall adopt and implement
129-12 procedures for the simultaneous review and renewal of all those
129-13 permits within a watershed or region of a watershed. The purpose
129-14 of the review is to require comprehensive evaluation of the
129-15 combined effects of permitted discharges on water quality within
129-16 the watershed and to facilitate the receipt of information from the
129-17 public and other entities affected by those discharges. (Sec.
129-18 26.0285, Water Code.)
129-19 Sec. 10.021. Disposal of Boat Sewage. (a) As used in this
129-20 section, "boat" means any vessel or other watercraft, whether moved
129-21 by oars, paddles, sails, or other power mechanism, inboard or
129-22 outboard, or any other vessel or structure floating on water in
129-23 this state, whether or not capable of self-locomotion, including
129-24 but not limited to cabin cruisers, houseboats, barges, marinas, and
129-25 similar floating objects.
129-26 (b) The commission shall issue rules concerning the disposal
129-27 of sewage from boats located or operated on inland fresh waters in
130-1 this state. The rules of the commission shall include provisions
130-2 for the establishment of standards for sewage disposal devices, the
130-3 certification of sewage disposal devices, including on-shore
130-4 pump-out facilities, and the visible and conspicuous display of
130-5 evidence of certification of sewage disposal devices on each boat
130-6 equipped with such device and on each on-shore pump-out device.
130-7 (c) The commission may delegate the administration and
130-8 performance of the certification function to the executive director
130-9 or to any other governmental entity. The commission shall collect
130-10 the following fees from applicants for certification:
130-11 Boat Certificates (annual):
130-12 Initial Certificates for Pump-out $35
130-13 Pump-out Renewal $25
130-14 Marine Sanitation Device (biennial):
130-15 Boat over 26 Feet or Houseboat $15
130-16 Boat 26 Feet or less with Permanent Device $15
130-17 All certification fees shall be paid to the entity performing the
130-18 certification function. All fees collected by any state agency
130-19 shall be deposited in a special fund for use by that agency in
130-20 administering and performing the certification function and shall
130-21 not be deposited in the General Revenue Fund of the state.
130-22 (d) Before issuing any rules under Subsection (b), the
130-23 commission or any person authorized by it under Section 2.205 shall
130-24 hold hearings on those rules in Austin and in five other locations
130-25 in the state in order to provide the best opportunity for all
130-26 citizens of the state to appear and present evidence to the
130-27 commission.
131-1 (e) Notice of the hearing in Austin shall be published at
131-2 least once in one or more newspapers having general circulation in
131-3 the state. Notice of each of the other hearings shall be published
131-4 at least once in one or more newspapers having general circulation
131-5 in the region in which each hearing is to be held.
131-6 (f) Copies of each rule issued by the commission under this
131-7 section shall be filed in the offices of the commission in Austin,
131-8 in the office of the Secretary of State in Austin, and the office
131-9 of the county clerk in each county in the state. The commission
131-10 shall provide for publication of notice of each rule issued under
131-11 this section in at least one newspaper of general circulation in
131-12 each county of the state and shall furnish the county judge of each
131-13 county of the state a copy of the rules. (Sec. 26.044, Water
131-14 Code.)
131-15 Sec. 10.022. Pump-Out Facilities for Boat Sewage. (a) In
131-16 this section:
131-17 (1) "Boat" means the same as defined in Section
131-18 10.021(a).
131-19 (2) "Boat pump-out station" means any private or
131-20 public shoreside installation either independent of or in addition
131-21 to an organized waste collection, treatment, and disposal system
131-22 used to receive boat sewage.
131-23 (3) "Shoreside installation" means marinas and other
131-24 installations servicing boats on fresh water of Texas.
131-25 (4) "Fresh water" means as geographically applied all
131-26 of the surface lakes, streams, and reservoirs of the state,
131-27 exclusive of the extent of ordinary tidal action on this water.
132-1 (b) After a public hearing and after making every reasonable
132-2 effort to bring about the establishment of an adequate number of
132-3 boat pump-out stations on fresh water, the commission may enter an
132-4 order requiring the establishment of boat pump-out stations by a
132-5 local government that has any jurisdiction over at least a portion
132-6 of the fresh water or over land immediately adjacent to the fresh
132-7 water.
132-8 (c) If a local government is authorized to issue
132-9 authorization for the operation of shoreside installations, the
132-10 local government may require the installation and operation of boat
132-11 pump-out stations where necessary. The local government shall
132-12 require the installation and operation of boat pump-out stations if
132-13 required by the commission.
132-14 (d) A local government responsible for establishing boat
132-15 pump-out stations may issue bonds or may use general revenue funds
132-16 from normal operations to finance the construction and operation of
132-17 the pump-out facilities. Pump-out stations established as a result
132-18 of this section will be self-sustaining with respect to costs and
132-19 revenues collected from users of said facilities, and local
132-20 governments are authorized to levy reasonable, appropriate charges
132-21 or fees to recover cost of installation and operation of the
132-22 pump-out stations. Nothing in this section is to be construed to
132-23 require any local government to rebate to the State of Texas funds
132-24 collected pursuant to this program.
132-25 (e) The hearings required by this section and other acts of
132-26 the commission in carrying out the provisions of this section shall
132-27 be handled as provided in the rules of the commission. (Sec.
133-1 26.045, Water Code.)
133-2 Sec. 10.023. Civil Penalty. A person who violates any
133-3 provision of this chapter or any rule, permit, or order of the
133-4 commission is subject to a civil penalty of not less than $50 nor
133-5 more than $10,000 for each act of violation and for each day of
133-6 violation to be recovered as provided in this subchapter. This
133-7 section is effective until delegation of NPDES permit authority.
133-8 (Sec. 26.122, Water Code.)
133-9 Sec. 10.0231. Civil Penalty. (a) A person who violates any
133-10 provision of this chapter, other than Section 10.0111(d) or (e), or
133-11 who violates any rule, permit, or order of the commission is
133-12 subject to a civil penalty of not less than $50 nor more than
133-13 $10,000 for each act of violation and for each day of violation to
133-14 be recovered as provided in this subchapter.
133-15 (b) A person who violates Section 10.0111(d) or (e) is
133-16 subject to a civil penalty of not more than $10,000 for each act of
133-17 violation and for each day of violation, to be recovered as
133-18 provided in this subchapter; provided, however, that in suits
133-19 instituted pursuant to this subsection, the civil penalty, if any,
133-20 assessed against the person who committed or who is committing the
133-21 violation shall be no more than $10,000 for each act of violation
133-22 and for each day of violation where the violation is of a
133-23 limitation or condition included in a permit issued by the
133-24 commission prior to delegation by the Administrator of the United
133-25 States Environmental Protection Agency of NPDES permit authority
133-26 under Section 402(b) of the Federal Water Pollution Control Act, or
133-27 of any limitation or condition included in an identified state
134-1 supplement to an NPDES permit issued after NPDES permit delegation
134-2 by the Administrator of the United States Environmental Protection
134-3 Agency. This section is effective on delegation of NPDES permit
134-4 authority. (Sec. 26.122, Water Code.)
134-5 Sec. 10.024. Administrative Penalty. (a) If a person
134-6 violates this chapter or a rule or order adopted or a permit issued
134-7 under this chapter and no local government has instituted a lawsuit
134-8 under this chapter and is diligently prosecuting that lawsuit
134-9 against the same person for the same violation under Section
134-10 10.026, the commission may assess a civil penalty against that
134-11 person as provided by this section.
134-12 (b) The penalty may be in an amount not to exceed $10,000 a
134-13 day for a person who violates this chapter or a rule, order, or
134-14 permit. Each day a violation continues may be considered a
134-15 separate violation for purposes of penalty assessment.
134-16 (c) In determining the amount of the penalty, the commission
134-17 shall consider:
134-18 (1) the nature, circumstances, extent, duration, and
134-19 gravity of the prohibited acts with special emphasis on the hazard
134-20 or potential hazard created to the health or safety of the public;
134-21 (2) the impact of the violation on a receiving stream
134-22 or underground water reservoir, on the property owners along a
134-23 receiving stream or underground water reservoir, and on water users
134-24 of a receiving stream or underground water reservoir;
134-25 (3) with respect to the alleged violator:
134-26 (A) the history and extent of previous
134-27 violations;
135-1 (B) the degree of culpability, including whether
135-2 the violation was attributable to mechanical or electrical failures
135-3 and whether the violation could have been reasonably anticipated
135-4 and avoided;
135-5 (C) the demonstrated good faith, including
135-6 actions taken by the alleged violator to rectify the cause of the
135-7 violation;
135-8 (D) any economic benefit gained through the
135-9 violation; and
135-10 (E) the amount necessary to deter future
135-11 violations; and
135-12 (4) any other matters that justice may require.
135-13 (d) If, after examination of a possible violation and the
135-14 facts surrounding that possible violation, the executive director
135-15 concludes that a violation has occurred, the executive director may
135-16 issue a preliminary report stating the facts on which he based that
135-17 conclusion, recommending that a civil penalty under this section be
135-18 imposed on the person charged, and recommending the amount of that
135-19 proposed penalty. The executive director shall base the
135-20 recommended amount of the proposed penalty on the factors provided
135-21 by Subsection (c), and the executive director shall analyze each
135-22 factor for the benefit of the commission.
135-23 (e) Not later than the 10th day after the date on which the
135-24 report is issued, the executive director shall give written notice
135-25 of the report to the person charged with the violation. The notice
135-26 shall include a brief summary of the charges, a statement of the
135-27 amount of the penalty recommended, and a statement of the right of
136-1 the person charged to a hearing on the occurrence of the violation,
136-2 or the amount of the penalty, or both the occurrence of the
136-3 violation and the amount of the penalty.
136-4 (f) Not later than the 20th day after the date on which
136-5 notice is received, the person charged either may give to the
136-6 commission written consent to the executive director's report,
136-7 including the recommended penalty, or may make a written request
136-8 for a hearing.
136-9 (g) If the person charged with the violation consents to the
136-10 penalty recommended by the executive director or fails to timely
136-11 respond to the notice, the commission by order shall either assess
136-12 that penalty or order a hearing to be held on the findings and
136-13 recommendations in the executive director's report. If the
136-14 commission assesses the penalty recommended by the report, the
136-15 commission shall give written notice to the person charged of its
136-16 decision.
136-17 (h) If the person charged requests, or the commission
136-18 orders, a hearing, the commission shall call a hearing and give
136-19 notice of the hearing. As a result of the hearing, the commission
136-20 by order either may find that a violation has occurred and may
136-21 assess a civil penalty, may find that a violation has occurred but
136-22 that no penalty should be assessed, or may find that no violation
136-23 has occurred. All proceedings under this subsection are subject to
136-24 the Administrative Procedure and Texas Register Act (Article
136-25 6252-13a, Vernon's Texas Civil Statutes). In making any penalty
136-26 decision, the commission shall analyze each of the factors provided
136-27 by Subsection (c).
137-1 (i) The commission shall give notice of its decision to the
137-2 person charged, and if the commission finds that a violation has
137-3 occurred and has assessed a civil penalty, the commission shall
137-4 give written notice to the person charged of its findings, of the
137-5 amount of the penalty, and of his right to judicial review of the
137-6 commission's order. If the commission is required to give notice
137-7 of a civil penalty under this subsection or Subsection (g), the
137-8 commission shall file notice of its decision in the Texas Register
137-9 not later than the 10th day after the date on which the decision is
137-10 adopted.
137-11 (j) Within the 30-day period immediately following the day
137-12 on which the commission's order is final, as provided by Section
137-13 16(c), Administrative Procedure and Texas Register Act (Article
137-14 6252-13a, Vernon's Texas Civil Statutes), the person charged with
137-15 the penalty shall:
137-16 (1) pay the penalty in full; or
137-17 (2) if the person seeks judicial review of either the
137-18 fact of the violation or the amount of the penalty or of both the
137-19 fact of the violation and the amount of the penalty:
137-20 (A) forward the amount of the penalty to the
137-21 commission for placement in an escrow account; or
137-22 (B) instead of payment into an escrow account,
137-23 post with the commission a supersedeas bond in a form approved by
137-24 the commission for the amount of the penalty to be effective until
137-25 all judicial review of the order or decision is final.
137-26 (k) Failure to forward the money to or to post the bond with
137-27 the commission within the time provided by Subsection (j) results
138-1 in a waiver of all legal rights to judicial review. Also, if the
138-2 person charged fails to forward the money or post the bond as
138-3 provided by Subsection (j), the commission or the executive
138-4 director may forward the matter to the attorney general for
138-5 enforcement.
138-6 (l) Judicial review of the order or decision of the
138-7 commission assessing the penalty shall be under the substantial
138-8 evidence rule and shall be instituted by filing a petition with a
138-9 district court in Travis County, as provided by Section 19,
138-10 Administrative Procedure and Texas Register Act (Article 6252-13a,
138-11 Vernon's Texas Civil Statutes).
138-12 (m) A penalty collected under this section shall be
138-13 deposited in the State Treasury to the credit of the General
138-14 Revenue Fund.
138-15 (n) Notwithstanding any other provision to the contrary, the
138-16 commission may compromise, modify, or remit, with or without
138-17 condition, any civil penalty imposed under this section.
138-18 (o) Payment of an administrative penalty under this section
138-19 shall be full and complete satisfaction of the violation for which
138-20 the administrative penalty is assessed and shall preclude any other
138-21 civil or criminal penalty for the same violation. (Sec. 26.136,
138-22 Water Code.)
138-23 Sec. 10.025. Enforcement by Commission. (a) The commission
138-24 shall diligently and uniformly enforce each of its rules, permits,
138-25 and orders.
138-26 (b) Whenever it appears that a person has violated or is
138-27 violating or is threatening to violate any provision of this
139-1 chapter or any rule, permit, or order of the commission, then the
139-2 executive director may have a civil suit instituted in a district
139-3 court for injunctive relief to restrain the person from continuing
139-4 the violation or threat of violation, or for the assessment and
139-5 recovery of a civil penalty of not less than $50 nor more than
139-6 $10,000 for each act of violation and for each day of violation, or
139-7 for both injunctive relief and civil penalty.
139-8 (c) On application for injunctive relief and a finding that
139-9 a person is violating or threatening to violate any provision of
139-10 this chapter or any rule, permit, or order of the commission, the
139-11 district court shall grant the injunctive relief the facts may
139-12 warrant.
139-13 (d) At the request of the executive director, the attorney
139-14 general shall institute and conduct a suit in the name of the State
139-15 of Texas for injunctive relief or to recover the civil penalty or
139-16 for both injunctive relief and penalty as authorized in Subsection
139-17 (b).
139-18 (e) The commission, through the executive director, shall
139-19 refer matters to the attorney general's office for enforcement
139-20 through civil suit if a person:
139-21 (1) is alleged to be making or to have made an
139-22 unauthorized discharge of waste into or adjacent to the water in
139-23 the state at a new point of discharge without a permit in violation
139-24 of state law; or
139-25 (2) has been the subject of two or more finally issued
139-26 administrative penalty orders under this chapter for violations
139-27 occurring at the same wastewater management system or other point
140-1 of discharge within two years before the first alleged violation
140-2 currently under investigation at that plant site.
140-3 (f) Violations that were reported by the violator or
140-4 violations consisting of errors in recordkeeping or in
140-5 self-reporting submissions may not be considered in determining
140-6 whether Subsection (e) applies.
140-7 (g) Even though the criteria of Subsection (e) are met, the
140-8 attorney general's office and the executive director may agree to
140-9 resolve any of the alleged violations, before or after referral, by
140-10 administrative order issued by the appropriate regulatory agency
140-11 after approval by the attorney general.
140-12 (h) The commission shall consult with the attorney general's
140-13 office for assistance in determining whether referral to the
140-14 attorney general for enforcement is mandatory under this section or
140-15 whether referral is appropriate for the disposition of enforcement
140-16 matters under this chapter. If referral is determined to be
140-17 mandatory or appropriate, the commission shall consult with the
140-18 attorney general's office for assistance in determining whether
140-19 criminal or civil enforcement action should be taken. The
140-20 commission shall use all available enforcement options.
140-21 (i) This section is effective until delegation of NPDES
140-22 permit authority. (Sec. 26.123, Water Code.)
140-23 Sec. 10.0251. Enforcement by Commission. (a) The
140-24 commission shall diligently and uniformly enforce each of its
140-25 rules, permits, or orders.
140-26 (b) Whenever it appears that a person has violated or is
140-27 violating or is threatening to violate any provision of this
141-1 chapter, other than Section 10.0111(d) or (e), or has violated or
141-2 is violating, or is threatening to violate, any rule, permit, or
141-3 order of the commission, then the executive director may have a
141-4 civil suit instituted in a district court for injunctive relief to
141-5 restrain the person from continuing the violation or threat of
141-6 violation, or for the assessment and recovery of a civil penalty of
141-7 not less than $50 nor more than $10,000 for each act of violation
141-8 and for each day of violation, or for both injunctive relief and
141-9 civil penalty.
141-10 (c) Whenever it appears that a person has violated or is
141-11 violating, or is threatening to violate, Section 10.0111(d) or (e),
141-12 then the executive director may have a civil suit instituted in a
141-13 district court for injunctive relief to restrain the person from
141-14 continuing the violation or threat of violation, or for the
141-15 assessment and recovery of a civil penalty of not more than $10,000
141-16 for each act of violation and for each day of violation, or for
141-17 both injunctive relief and civil penalty; provided, however, that
141-18 in suits instituted pursuant to this subsection, the civil penalty,
141-19 if any, assessed against the person who committed or who is
141-20 committing the violation shall be no more than $10,000 for each act
141-21 of violation and for each day of violation where the violation is
141-22 of a limitation or condition included in a permit issued by the
141-23 commission prior to delegation by the Administrator of the United
141-24 States Environmental Protection Agency of NPDES permit authority
141-25 under Section 402(b) of the Federal Water Pollution Control Act, or
141-26 of any limitation or condition included in an identified state
141-27 supplement to an NPDES permit issued after NPDES permit delegation
142-1 by the Administrator of the United States Environmental Protection
142-2 Agency.
142-3 (d) On application for injunctive relief and a finding that
142-4 a person is violating or threatening to violate any provision of
142-5 this chapter or any rule, permit, or order of the commission, the
142-6 district court shall grant the injunctive relief the facts may
142-7 warrant.
142-8 (e) At the request of the executive director, the attorney
142-9 general shall institute and conduct a suit in the name of the State
142-10 of Texas for injunctive relief or to recover the civil penalty or
142-11 for both injunctive relief and penalty as authorized in Subsection
142-12 (b) or (c).
142-13 (f) The commission, through the executive director, shall
142-14 refer matters to the attorney general's office for enforcement
142-15 through civil suit if a person:
142-16 (1) is alleged to be making or to have made an
142-17 unauthorized discharge of waste into or adjacent to the waters in
142-18 the state at a new point of discharge without a permit in violation
142-19 of state law; or
142-20 (2) has been the subject of two or more finally issued
142-21 administrative penalty orders under this chapter for violations
142-22 occurring at the same wastewater management system or other point
142-23 of discharge within two years before the first alleged violation
142-24 currently under investigation at that plant site.
142-25 (g) Violations that were reported by the violator or
142-26 violations consisting of errors in recordkeeping or in
142-27 self-reporting submissions may not be considered in determining
143-1 whether Subsection (f) applies.
143-2 (h) Even though the criteria of Subsection (f) are met, the
143-3 attorney general's office and the executive director may agree to
143-4 resolve any of the alleged violations, before or after referral, by
143-5 administrative order issued by the appropriate regulatory agency
143-6 after approval by the attorney general.
143-7 (i) The commission shall consult with the attorney general's
143-8 office for assistance in determining whether referral to the
143-9 attorney general for enforcement is mandatory under this section or
143-10 whether referral is appropriate for the disposition of enforcement
143-11 matters under this chapter. If referral is determined to be
143-12 mandatory or appropriate, the commission shall consult with the
143-13 attorney general's office for assistance in determining whether
143-14 criminal or civil enforcement action should be taken. The
143-15 commission shall use all available enforcement options.
143-16 (j) This section is effective on delegation of NPDES permit
143-17 authority. (Sec. 26.123, Water Code.)
143-18 Sec. 10.026. Enforcement by Others. (a) Whenever it
143-19 appears that a violation or threat of violation of any provision of
143-20 Section 10.011 or 10.0111 or any rule, permit, or order of the
143-21 commission has occurred or is occurring within the jurisdiction of
143-22 a local government, exclusive of its extraterritorial jurisdiction,
143-23 the local government, in the same manner as the commission, may
143-24 have a suit instituted in a district court through its own attorney
143-25 for the injunctive relief or civil penalties or both, as authorized
143-26 in Section 10.025 or 10.0251, against the person who committed or
143-27 is committing or threatening to commit the violation. This power
144-1 may not be exercised by a local government unless its governing
144-2 body adopts a resolution authorizing the exercise of the power. In
144-3 a suit brought by a local government under this section, the
144-4 commission is a necessary and indispensable party.
144-5 (b) Whenever it appears that a violation or a threat of
144-6 violation of any provision of Section 10.011 or 10.0111 or any
144-7 rule, permit, or order of the commission has occurred or is
144-8 occurring that affects aquatic life or wildlife, the Parks and
144-9 Wildlife Department, in the same manner as the commission in
144-10 Section 10.025 or 10.0251, may have a suit instituted in a district
144-11 court for injunctive relief or civil penalties or both, as
144-12 authorized in Section 10.025 or 10.0251, against the person who
144-13 committed or is committing or is threatening to commit the
144-14 violation. The suit shall be brought in the name of the State of
144-15 Texas by the attorney general or by the county attorney or the
144-16 district attorney, as appropriate, of the county in which venue for
144-17 the suit is proper. The suit may be brought in the county where
144-18 the defendant resides or in the county where the violation or
144-19 threat of violation occurs. In a suit brought under this section
144-20 for a violation that is a proximate cause of injury to aquatic life
144-21 or wildlife normally taken for commercial or sport purposes or to
144-22 species on which this life is directly dependent for food, the
144-23 Parks and Wildlife Department is entitled to recover damages for
144-24 the injury. In determining damages, the court may consider the
144-25 valuation of the injured resources established in rules adopted by
144-26 the Parks and Wildlife Commission under Subchapter D, Chapter 12,
144-27 Parks and Wildlife Code, or the replacement cost of the injured
145-1 resources. Any recovery of damages for injury to aquatic life or
145-2 wildlife shall be deposited to the credit of the game, fish, and
145-3 water safety fund under Section 11.032, Parks and Wildlife Code,
145-4 and the Parks and Wildlife Department shall use funds recovered
145-5 under this section to replenish or enhance the injured resources in
145-6 the geographic area in which the injury occurs. The actual cost of
145-7 investigation, reasonable attorney's fees, and reasonable expert
145-8 witness fees may also be recovered, and those recovered amounts
145-9 shall be credited to the same operating funds from which
145-10 expenditures occurred. This section does not limit recovery for
145-11 damages available under other law. (Sec. 26.124, Water Code.)
145-12 Sec. 10.027. Venue and Procedure. (a) A suit for
145-13 injunctive relief or recovery of a civil penalty or for both
145-14 injunctive relief and penalty may be brought either in the county
145-15 in which the defendant resides or in the county in which the
145-16 violation or threat of violation occurs.
145-17 (b) In any suit brought to enjoin a violation or threat of
145-18 violation of this chapter or any rule, permit, or order of the
145-19 commission, the court may grant the commission, the Parks and
145-20 Wildlife Department, or the local government, without bond or other
145-21 undertaking, any prohibitory or mandatory injunction the facts may
145-22 warrant, including temporary restraining orders, after notice and
145-23 hearing temporary injunctions, and permanent injunctions.
145-24 (c) A suit brought under this chapter shall be given
145-25 precedence over all other cases of a different nature on the docket
145-26 of the appellate court.
145-27 (d) Either party may appeal from a final judgment of the
146-1 court as in other civil cases. (Sec. 26.125, Water Code.)
146-2 Sec. 10.028. Disposition of Civil Penalties. (a) All civil
146-3 penalties recovered in suits instituted by the State of Texas under
146-4 this chapter through the commission or the Parks and Wildlife
146-5 Department shall be paid to the General Revenue Fund of the State
146-6 of Texas.
146-7 (b) All civil penalties recovered in suits instituted by a
146-8 local government or governments under this chapter shall be equally
146-9 divided between the State of Texas and the local government or
146-10 governments first instituting the suit, with 50 percent of the
146-11 recovery to be paid to the General Revenue Fund of the State of
146-12 Texas and the other 50 percent paid equally to the local government
146-13 or governments first instituting the suit. (Sec. 26.126, Water
146-14 Code.)
146-15 Sec. 10.029. Commission as Principal Authority. The
146-16 commission is the principal authority in the state on matters
146-17 relating to the quality of the water in the state. The executive
146-18 director has the responsibility for establishing a water quality
146-19 sampling and monitoring program for the state. All other state
146-20 agencies engaged in water quality or water pollution control
146-21 activities shall coordinate those activities with the commission.
146-22 (Sec. 26.127, Water Code.)
146-23 Sec. 10.030. Duty of Other State Agencies. (a) The Parks
146-24 and Wildlife Department and its authorized employees shall enforce
146-25 the provisions of this chapter to the extent any violation affects
146-26 aquatic life and wildlife as provided in Section 10.026(b).
146-27 (b) The Texas Department of Health shall continue to apply
147-1 the authority vested in it by Chapter 341, Health and Safety Code,
147-2 in the abatement of nuisances resulting from pollution not
147-3 otherwise covered by this chapter. The Texas Department of Health
147-4 shall investigate and make recommendations to the commission
147-5 concerning the health aspects of matters related to the quality of
147-6 the water in the state.
147-7 (c) The Railroad Commission of Texas is solely responsible
147-8 for the control and disposition of waste and the abatement and
147-9 prevention of pollution of surface and subsurface water resulting
147-10 from:
147-11 (1) activities associated with the exploration,
147-12 development, and production of oil or gas or geothermal resources,
147-13 including:
147-14 (A) activities associated with the drilling of
147-15 injection water source wells which penetrate the base of useable
147-16 quality water;
147-17 (B) activities associated with the drilling of
147-18 cathodic protection holes associated with the cathodic protection
147-19 of wells and pipelines subject to the jurisdiction of the Railroad
147-20 Commission of Texas;
147-21 (C) activities associated with gasoline plants,
147-22 natural gas or natural gas liquids processing plants, pressure
147-23 maintenance plants, or repressurizing plants;
147-24 (D) activities associated with any underground
147-25 natural gas storage facility, provided the terms "natural gas" and
147-26 "storage facility" shall have the meanings set out in Section
147-27 91.173, Natural Resources Code;
148-1 (E) activities associated with any underground
148-2 hydrocarbon storage facility, provided the terms "hydrocarbons" and
148-3 "underground hydrocarbon storage facility" shall have the meanings
148-4 set out in Section 91.201, Natural Resources Code; and
148-5 (F) activities associated with the storage,
148-6 handling, reclamation, gathering, transportation, or distribution
148-7 of oil or gas prior to the refining of such oil or prior to the use
148-8 of such gas in any manufacturing process or as a residential or
148-9 industrial fuel;
148-10 (2) except to the extent the activities are regulated
148-11 by the Texas Department of Health under Chapter 401, Health and
148-12 Safety Code, activities associated with uranium exploration
148-13 consisting of the disturbance of the surface or subsurface for the
148-14 purpose of or related to determining the location, quantity, or
148-15 quality of uranium ore; and
148-16 (3) any other activities regulated by the Railroad
148-17 Commission of Texas pursuant to Section 91.101, Natural Resources
148-18 Code.
148-19 (d) The Railroad Commission of Texas may issue permits for
148-20 the discharge of waste resulting from these activities, and the
148-21 discharge of waste into water in this state resulting from these
148-22 activities shall meet the water quality standards established by
148-23 the commission.
148-24 (e) The term "waste" as used in this section does not
148-25 include any waste that results from activities associated with
148-26 gasoline plants, natural gas or natural gas liquids processing
148-27 plants, pressure maintenance plants, or repressurizing plants if
149-1 that waste is a hazardous waste as defined by the administrator of
149-2 the United States Environmental Protection Agency pursuant to the
149-3 federal Solid Waste Disposal Act, as amended by the Resource
149-4 Conservation and Recovery Act, 42 U.S.C. 6901 et seq., as amended.
149-5 (f) Subsections (c), (d), and (e) are effective until
149-6 delegation of RCRA authority to Railroad Commission of Texas.
149-7 (g) The Railroad Commission of Texas is solely responsible
149-8 for the control and disposition of waste and the abatement and
149-9 prevention of pollution of surface and subsurface water resulting
149-10 from:
149-11 (1) activities associated with the exploration,
149-12 development, and production of oil or gas or geothermal resources,
149-13 including:
149-14 (A) activities associated with the drilling of
149-15 injection water source wells which penetrate the base of useable
149-16 quality water;
149-17 (B) activities associated with the drilling of
149-18 cathodic protection holes associated with the cathodic protection
149-19 of wells and pipelines subject to the jurisdiction of the Railroad
149-20 Commission of Texas;
149-21 (C) activities associated with gasoline plants,
149-22 natural gas or natural gas liquids processing plants, pressure
149-23 maintenance plants, or repressurizing plants;
149-24 (D) activities associated with any underground
149-25 natural gas storage facility, provided the terms "natural gas" and
149-26 "storage facility" shall have the meanings set out in Section
149-27 91.173, Natural Resources Code;
150-1 (E) activities associated with any underground
150-2 hydrocarbon storage facility, provided the terms "hydrocarbons" and
150-3 "underground hydrocarbon storage facility" shall have the meanings
150-4 set out in Section 91.201, Natural Resources Code; and
150-5 (F) activities associated with the storage,
150-6 handling, reclamation, gathering, transportation, or distribution
150-7 of oil or gas prior to the refining of such oil or prior to the use
150-8 of such gas in any manufacturing process or as a residential or
150-9 industrial fuel;
150-10 (2) except to the extent the activities are regulated
150-11 by the Texas Department of Health under Chapter 401, Health and
150-12 Safety Code, activities associated with uranium exploration
150-13 consisting of the disturbance of the surface or subsurface for the
150-14 purpose of or related to determining the location, quantity, or
150-15 quality of uranium ore; and
150-16 (3) any other activities regulated by the Railroad
150-17 Commission of Texas pursuant to Section 91.101, Natural Resources
150-18 Code.
150-19 (h) The Railroad Commission of Texas may issue permits for
150-20 the discharge of waste resulting from these activities, and the
150-21 discharge of waste into water in this state resulting from these
150-22 activities shall meet the water quality standards established by
150-23 the commission.
150-24 (i) Subsections (g) and (h) are effective on delegation of
150-25 RCRA authority to Railroad Commission of Texas. (Sec. 26.129,
150-26 26.130, 26.131, Water Code.)
150-27 Sec. 10.031. Act of God, War, Etc. Any pollution, or any
151-1 discharge of waste without a permit or in violation of a permit,
151-2 caused by an act of God, war, strike, riot, or other catastrophe is
151-3 not a violation of this chapter. (Sec. 26.132, Water Code.)
151-4 Sec. 10.032. Effect on Private Remedies. Nothing in this
151-5 chapter affects the right of any private corporation or individual
151-6 to pursue any available common-law remedy to abate a condition of
151-7 pollution or other nuisance or to recover damages. (Sec. 26.133,
151-8 Water Code.)
151-9 Sec. 10.033. Effect on Other Laws. (a) Nothing in this
151-10 chapter affects the powers and duties of the commission and the
151-11 Railroad Commission of Texas with respect to injection wells as
151-12 provided in Chapter 13.
151-13 (b) The commission and the water well drillers advisory
151-14 council shall continue to exercise the authority granted to them
151-15 under other law. (Sec. 26.135, Water Code.)
151-16 (Sections 10.034-10.050 reserved for expansion)
151-17 SUBCHAPTER C. WATER QUALITY STANDARDS.
151-18 Sec. 10.051. State Water Quality Plan. The executive
151-19 director shall prepare and develop a general, comprehensive plan
151-20 for the control of water quality in the state which shall be used
151-21 as a flexible guide by the commission when approved by the
151-22 commission. (Sec. 26.012, Water Code.)
151-23 Sec. 10.052. Water Quality Standards. (a) The commission
151-24 by rule shall set water quality standards for the water in the
151-25 state and may amend the standards from time to time. The
151-26 commission has the sole and exclusive authority to set water
151-27 quality standards for all water in the state. The commission shall
152-1 consider the existence and effects of nonpoint source pollution,
152-2 toxic materials, and nutrient loading in developing water quality
152-3 standards and related waste load models for water quality.
152-4 (b) The commission shall publish its water quality standards
152-5 and amendments and shall make copies available to the public on
152-6 written request. (Secs. 26.023, 26.026, Water Code.)
152-7 Sec. 10.053. Pretreatment Effluent Standards. (a) The
152-8 commission is authorized to administer a program for the regulation
152-9 of pretreatment of pollutants which are introduced into publicly
152-10 owned treatment works.
152-11 (b) The commission is authorized to adopt regulations for
152-12 the administration of this program consistent with 33 U.S.C.
152-13 Section 1317 and rules adopted thereunder by the Environmental
152-14 Protection Agency.
152-15 (c) The commission shall impose as conditions in permits for
152-16 the discharge of pollutants from publicly owned treatment works
152-17 requirements for information to be provided by the permittee
152-18 concerning new introductions of pollutants or substantial changes
152-19 in the volume or character of pollutants being introduced into such
152-20 treatment works.
152-21 (d) The commission is authorized to impose as conditions in
152-22 permits for the discharge of pollutants from publicly owned
152-23 treatment works appropriate measures to establish and insure
152-24 compliance by industrial users with any system of user charges
152-25 required under state or federal law or any regulations or
152-26 guidelines promulgated thereunder.
152-27 (e) The commission is authorized to apply, and to enforce
153-1 pursuant to this subchapter, against industrial users of publicly
153-2 owned treatment works, toxic effluent standards and pretreatment
153-3 standards for the introduction into such treatment works of
153-4 pollutants which interfere with, pass through, or otherwise are
153-5 incompatible with such treatment works.
153-6 (f) This section is effective on delegation of NPDES permit
153-7 authority. (Secs. 26.1211, 26.047, Water Code.)
153-8 Sec. 10.054. Graywater Standards. (a) The commission by
153-9 rule shall adopt and implement minimum standards for the use of
153-10 graywater in irrigation and for other agricultural, domestic,
153-11 commercial, and industrial purposes that will assure that the use
153-12 of graywater will not be a nuisance or damage the quality of
153-13 surface water and groundwater in this state.
153-14 (b) The commission by rule shall adopt and implement minimum
153-15 standards for the use of graywater in irrigation and for other
153-16 agricultural, domestic, commercial, and industrial purposes to
153-17 assure that the use of graywater is not a nuisance and does not
153-18 damage the quality of surface water and groundwater in this state.
153-19 (c) In this section, "graywater" means wastewater from
153-20 clothes-washing machines, showers, bathtubs, hand-washing
153-21 lavatories, and sinks that are not used for food preparation or
153-22 disposal of chemical and biological ingredients. (Sec. 26.0311,
153-23 Water Code; Sec. 341.039, Health and Safety Code.)
153-24 Sec. 10.055. Hearings on Standards; Notice. (a) Before
153-25 setting or amending water quality standards, the commission shall:
153-26 (1) hold public hearings at which any person may
153-27 appear and present evidence under oath, pertinent for consideration
154-1 by the commission; and
154-2 (2) consult with the executive administrator to insure
154-3 that the proposed standards are not inconsistent with the
154-4 objectives of the state water plan.
154-5 (b) The commission shall provide notice of a hearing under
154-6 Subsection (a) by publishing the notice in the Texas Register.
154-7 (c) In addition to the requirements of Subsection (a), the
154-8 commission shall also provide notice to each of the following that
154-9 the commission believes may be affected:
154-10 (1) each local government whose boundary is contiguous
154-11 to the water in question or whose boundaries contain all or part of
154-12 the water, or through whose boundaries the water flows; and
154-13 (2) the holders of permits from the commission to
154-14 discharge waste into or adjacent to the water in question. (Secs.
154-15 26.024, 26.025, Water Code.)
154-16 Sec. 10.056. Water Quality Management Plans. (a) The
154-17 executive director shall develop and prepare, and from time to time
154-18 revise, comprehensive water quality management plans for the
154-19 different areas of the state, as designated by the commission.
154-20 (b) The executive director may contract with local
154-21 governments, regional planning commissions, planning agencies,
154-22 other state agencies, colleges and universities in the state, and
154-23 any other qualified and competent person to assist the commission
154-24 in developing and preparing, and from time to time revising, water
154-25 quality management plans for areas designated by the commission.
154-26 (c) With funds provided for the purpose by legislative
154-27 appropriation, the commission may make grants or interest-free
155-1 loans to, or contract with, local governments, regional planning
155-2 commissions, and planning agencies to pay administrative and other
155-3 expenses of such entities for developing and preparing, and from
155-4 time to time revising, water quality management plans for areas
155-5 designated by the commission. The period of time for which funding
155-6 under this provision may be provided for developing and preparing
155-7 or for revising a plan may not exceed three consecutive years in
155-8 each instance. Any loan made pursuant to this subsection shall be
155-9 repaid when the construction of any project included in the plan is
155-10 begun.
155-11 (d) Any person developing or revising a plan shall, during
155-12 the course of the work, consult with the commission and with local
155-13 governments and other federal, state, and local governmental
155-14 agencies which in the judgment of the commission may be affected by
155-15 or have a legitimate interest in the plan.
155-16 (e) Insofar as may be practical, the water quality
155-17 management plans shall be reasonably compatible with the other
155-18 governmental plans for the area, such as area or regional
155-19 transportation, public utility, zoning, public education,
155-20 recreation, housing, and other related development plans. (Sec.
155-21 26.036, Water Code.)
155-22 Sec. 10.057. Approval of Plans. (a) After a water quality
155-23 management plan has been prepared or significantly revised as
155-24 authorized in Section 10.056, it shall be submitted to the
155-25 commission and to such local governments and other federal, state,
155-26 and local governmental agencies as in the judgment of the
155-27 commission may be affected by or have a legitimate interest in the
156-1 plan.
156-2 (b) After a reasonable period of time as determined by the
156-3 commission for the persons to whom the plan was submitted to review
156-4 and consult on the plan, a public hearing shall be held on whether
156-5 the plan should be approved or whether the plan should be modified
156-6 in any way. Notice of the hearing shall be given to the person or
156-7 persons who prepared or revised the plan and to the persons to whom
156-8 the plan was submitted for review.
156-9 (c) After the public hearing if the commission finds that
156-10 the plan complies with the policy and purpose of this chapter and
156-11 the rules and policies of the commission, it shall approve the
156-12 plan. If the commission does not so find, it may disapprove the
156-13 plan, modify the plan as necessary so that it will comply, or
156-14 return it for further development and later resubmission to the
156-15 commission, in accordance with the procedure in Section 10.056.
156-16 (d) When a water quality management plan has been approved
156-17 as provided in this section, the plan may be furnished to the
156-18 Federal Environmental Protection Agency, the Federal Water Quality
156-19 Administration, or any other federal official or agency in
156-20 fulfillment of any federal water quality management planning
156-21 requirement specified for any purpose by the federal government.
156-22 (e) The board and the commission may use an approved water
156-23 quality management plan or a plan in progress but not completed or
156-24 approved in reviewing and making determinations on applications for
156-25 permits and on applications for financial assistance for
156-26 construction of treatment works. (Sec. 26.037, Water Code.)
156-27 Sec. 10.058. Fiscal Control on Water Quality Management
157-1 Planning. In administering the program for making grants and loans
157-2 to and contracting with local governments, regional planning
157-3 commissions, and planning agencies as authorized in Section
157-4 10.056(c), the commission shall adopt rules and procedures for the
157-5 necessary engineering review and supervision, fiscal control, and
157-6 fund accounting. The fiscal control and fund accounting procedures
157-7 are supplemental to other procedures prescribed by law. (Sec.
157-8 26.038, Water Code.)
157-9 Sec. 10.059. Regional Assessment of Water Quality by
157-10 Watershed/River Basin. (a) The commission shall ensure the
157-11 comprehensive regional assessment of water quality in each
157-12 watershed and river basin of the state. In order to conserve
157-13 public funds and avoid duplication of effort, river authorities
157-14 shall, to the greatest extent possible and under the supervision of
157-15 the commission, conduct regional assessments of their own
157-16 watersheds. The commission, either directly or through cooperative
157-17 agreements and contracts with local governments, shall conduct
157-18 regional assessments of watersheds where a river authority is
157-19 unable to perform an adequate assessment of its own watershed. The
157-20 assessment must include a review of wastewater discharges, nonpoint
157-21 source pollution, nutrient loading, toxic materials, biological
157-22 health of aquatic life, public education and involvement in water
157-23 quality issues, local and regional pollution prevention efforts,
157-24 and other factors that affect water quality within the watershed.
157-25 The assessment shall also review any significant regulatory or
157-26 enforcement issues affecting the watershed. The assessment
157-27 required by this section is a continuing duty, and the assessment
158-1 shall be revised as necessary to show changes in the factors
158-2 subject to assessment.
158-3 (b) In order to assist in the coordination and development
158-4 of assessments and reports required by this section, a river
158-5 authority shall organize and lead a basin-wide steering committee
158-6 that includes representatives from all appropriate state agencies,
158-7 political subdivisions, and other governmental bodies with an
158-8 interest in water quality matters of the watershed or river basin.
158-9 Each committee member shall help identify significant water quality
158-10 issues within the basin and shall make available to the river
158-11 authority all relevant water quality data held by the represented
158-12 entities. A river authority shall also develop a public input
158-13 process that provides for meaningful comments and review by private
158-14 citizens and organizations on each regional assessment and report.
158-15 (c) The purpose of the assessment required by this section
158-16 is not to mandate exhaustive and detailed water quality studies,
158-17 but rather to identify significant issues affecting water quality
158-18 within each watershed and river basin of the state and to provide
158-19 sufficient information for the commission, river authorities, and
158-20 other governmental bodies to take appropriate corrective action
158-21 necessary to maintain and improve the quality of the state's water
158-22 resources. The commission shall establish by rule the level of
158-23 detail required for each watershed and river basin assessment.
158-24 (d) On or before October 1 of each even-numbered year, each
158-25 river authority shall report in writing to the governor,
158-26 commission, and Parks and Wildlife Department on the water quality
158-27 assessment of the authority's watershed, including an
159-1 identification of any significant regulatory or enforcement issues,
159-2 and on any actions taken by the authority and other local
159-3 governments to improve water quality within the authority's
159-4 watershed. The assessment report must identify each legal,
159-5 administrative, economic, or other impediment to further water
159-6 quality efforts by the authority and local governments. The
159-7 commission shall then prepare a report that summarizes each river
159-8 authority's assessment report, describes the commission's regional
159-9 water quality assessment efforts, and lists the commission's past
159-10 and proposed actions for improving water quality within the
159-11 watersheds subject to such assessments. The commission shall
159-12 submit its report, along with the commission's comments and
159-13 recommendations on regional water quality management, to the
159-14 governor, the lieutenant governor, and the speaker of the house of
159-15 representatives on or before December 1 of each even-numbered year.
159-16 (e) Each local government within the watershed of a river
159-17 authority shall cooperate in making the assessment under Subsection
159-18 (a) and in preparing the report by providing to the river authority
159-19 all information available to the local government about water
159-20 quality within the jurisdiction of the local government, including
159-21 the extraterritorial jurisdiction of a municipality. Nothing in
159-22 this section shall be construed to limit or increase the authority
159-23 or obligations of a municipality in regard to water pollution
159-24 control and abatement programs described by Section 10.127.
159-25 (f) If more than one river authority is located in a
159-26 watershed, all river authorities within the watershed shall
159-27 cooperate in making the assessments and preparing the reports.
160-1 (g) For purposes of this section, solid waste and solid
160-2 waste management shall have the same meaning as in Chapter 20.
160-3 Each river authority and local government is authorized and
160-4 encouraged, but not required, to manage solid waste and to
160-5 facilitate and promote programs for the collection and disposal of
160-6 household consumer and agricultural products which contain
160-7 hazardous constituents or hazardous substances and which, when
160-8 disposed of improperly, represent a threat of contamination to the
160-9 water resources of the state. Such programs may include the
160-10 establishment of a permanent collection site, mobile collection
160-11 sites, periodic collection events, or other methods which a river
160-12 authority or local government may deem effective.
160-13 (h) The commission shall apportion, assess, and recover the
160-14 reasonable costs of administering water quality management programs
160-15 under this section from all users of water and wastewater permit
160-16 holders in the watershed according to the records of the commission
160-17 generally in proportion to their right, through permit or contract,
160-18 to use water from and discharge wastewater in the watershed. The
160-19 cost to river authorities and others to conduct regional water
160-20 quality assessment shall be subject to prior review and approval by
160-21 the commission as to methods of allocation and total amount to be
160-22 recovered. The commission shall adopt rules to supervise and
160-23 implement the water quality assessment and associated costs. The
160-24 rules shall ensure that water users and wastewater dischargers do
160-25 not pay excessive amounts, that a river authority may recover no
160-26 more than the actual costs of administering the water quality
160-27 management programs called for in this section, and that no
161-1 municipality shall be assessed cost for any efforts that duplicate
161-2 water quality management activities described in Section 10.127.
161-3 (i) In this section, "river authority" means:
161-4 (1) a river authority as defined by Section 30.003,
161-5 Water Code, that includes 10 or more counties; and
161-6 (2) any other river authority or special district
161-7 created under Article III, Section 52, Subsection (b)(1) or (2), or
161-8 Article XVI, Section 59, of the Texas Constitution that is
161-9 designated by rule of the commission to comply with this section.
161-10 (Sec. 26.0135, Water Code.)
161-11 Sec. 10.060. Regional Water Quality Implementation. The
161-12 commission is the agency with primary responsibility for
161-13 implementation of regional water quality management functions,
161-14 including enforcement actions, within the state. The commission by
161-15 rule shall coordinate the water quality responsibilities of river
161-16 authorities within each watershed and shall, where appropriate,
161-17 delegate water quality functions to local governments under Section
161-18 10.125. Nothing in this section is intended to enlarge, diminish,
161-19 or supersede the water quality powers, including enforcement
161-20 authority, authorized by law for river authorities, the State Soil
161-21 and Water Conservation Board, and local governments. For purposes
161-22 of this section, river authority shall have the same meaning as
161-23 that contained in Section 10.059(i). (Sec. 26.0136, Water Code.)
161-24 (Sections 10.061-10.100 reserved for expansion)
161-25 SUBCHAPTER D. GENERAL POWERS AND DUTIES
161-26 Sec. 10.101. General Powers and Duties. Except as otherwise
161-27 specifically provided, the commission shall administer the
162-1 provisions of this chapter and shall establish the level of quality
162-2 to be maintained in, and shall control the quality of, the water in
162-3 this state as provided by this chapter. Waste discharges or
162-4 impending waste discharges covered by the provisions of this
162-5 chapter are subject to reasonable rules or orders adopted or issued
162-6 by the commission in the public interest. The commission has the
162-7 powers and duties specifically prescribed by this chapter and all
162-8 other powers necessary or convenient to carry out its
162-9 responsibilities. This chapter does not apply to discharges of oil
162-10 covered under Chapter 40, Natural Resources Code. (Sec. 26.011,
162-11 Water Code.)
162-12 Sec. 10.102. Health Hazards. The commission may use any
162-13 means provided by this chapter to prevent a discharge of waste that
162-14 is injurious to public health. (Sec. 26.041, Water Code.)
162-15 Sec. 10.103. Monitoring and Reporting. The commission may
162-16 prescribe reasonable requirements for a person making waste
162-17 discharges to monitor and report on his waste collection,
162-18 treatment, and disposal activities. When in the judgment of the
162-19 commission significant water quality management benefits will
162-20 result or water quality management needs justify, the commission
162-21 may also prescribe reasonable requirements for any person or
162-22 persons making waste discharges to monitor and report on the
162-23 quality of any water in the state which the commission has reason
162-24 to believe may be materially affected by the waste discharges.
162-25 This section is effective until delegation of NPDES permit
162-26 authority. (Sec. 26.042, Water Code.)
162-27 Sec. 10.1031. Monitoring and Reporting. (a) The commission
163-1 may prescribe reasonable requirements for a person making
163-2 discharges of any waste or of any pollutant to monitor and report
163-3 on his activities concerning collection, treatment, and disposal of
163-4 the waste or pollutant.
163-5 (b) The commission may, by regulation, order, permit, or
163-6 otherwise require the owner or operator of any source of a
163-7 discharge of pollutants into any water in the state or of any
163-8 source which is an industrial user of a publicly owned treatment
163-9 works to:
163-10 (1) establish and maintain such records;
163-11 (2) make such reports;
163-12 (3) sample any discharges in accordance with such
163-13 methods, at such locations, at such intervals, and in such manner
163-14 as the commission shall prescribe; and
163-15 (4) provide such other information relating to
163-16 discharges of pollutants into any water in the state or to
163-17 introductions of pollutants into publicly owned treatment works as
163-18 the commission may reasonably require.
163-19 (c) When in the judgment of the commission significant water
163-20 quality management benefits will result or water quality management
163-21 needs justify, the commission may also prescribe reasonable
163-22 requirements for any person or persons making discharges of any
163-23 waste or of any pollutant to monitor and report on the quality of
163-24 any water in the state which the commission has reason to believe
163-25 may be materially affected by the discharges.
163-26 (d) This section is effective on delegation of NPDES permit
163-27 authority. (Sec. 26.042, Water Code.)
164-1 Sec. 10.104. Protection of the Edwards Aquifer. (a) As
164-2 used in this section, "Edwards Aquifer" means that portion of an
164-3 arcuate belt of porous, waterbearing limestones composed of the
164-4 Comanche Peak, Edwards, and Georgetown formations trending from
164-5 west to east to northeast through Kinney, Uvalde, Medina, Bexar,
164-6 Kendall, Comal, and Hays counties, respectively, and as defined in
164-7 the most recent rules of the commission for the protection of the
164-8 quality of the potable underground water in those counties.
164-9 (b) Annually, the commission shall hold a public hearing in
164-10 Kinney, Uvalde, Medina, Bexar, Kendall, Comal, or Hays County, and
164-11 a hearing in any other of those counties whose commissioners court
164-12 requests that a hearing be held in its county, to receive evidence
164-13 from the public on actions the commission should take to protect
164-14 the Edwards Aquifer from pollution. Notice of the public hearing
164-15 shall be given and the hearing shall be conducted in accordance
164-16 with the rules of the commission. (Sec. 26.046, Water Code.)
164-17 Sec. 10.105. The State of Texas Water Pollution Control
164-18 Compact. (a) The legislature recognizes that various river
164-19 authorities and municipal water districts and authorities of the
164-20 state have signed, and that others are authorized to sign and may
164-21 sign, a document entitled "The State of Texas Water Pollution
164-22 Control Compact" (hereinafter called the "compact"), which was
164-23 approved by Order of the Texas Water Quality Board on March 26,
164-24 1971, and which is now on file in the official records of the
164-25 commission, wherein each of the signatories is by law an official
164-26 agency of the state, created pursuant to Article XVI, Section 59 of
164-27 the Texas Constitution and operating on a multiple county or
165-1 regional basis, and that collectively those signatories constitute
165-2 an agency of the state authorized to agree to pay, and to pay, for
165-3 and on behalf of the state not less than 25 percent of the
165-4 estimated costs of all water pollution control projects in the
165-5 state, wherever located, for which federal grants are to be made
165-6 pursuant to Clause (7), Subsection (b), Section 1158, Federal Water
165-7 Pollution Control Act, as amended (33 U.S.C. Section 1158), or any
165-8 similar law, in accordance with and subject to the terms and
165-9 conditions of the compact. The compact provides a method for
165-10 taking advantage of increased federal grants for water pollution
165-11 control projects by virtue of the state payment which will be made
165-12 from the proceeds from the sale of bonds by the signatories to the
165-13 compact. The compact is hereby ratified and approved, and it is
165-14 hereby provided that Section 30.026, Water Code, shall not
165-15 constitute a limitation or restriction on any signatory with
165-16 respect to any contract entered into pursuant to the compact or
165-17 with respect to any water pollution control project in the state,
165-18 wherever located, for which the aforesaid federal grants are to be
165-19 made, and such signatory shall not be required to obtain the
165-20 consent of any other river authority or conservation and
165-21 reclamation district which is not a signatory with respect to any
165-22 such contract or project. Each signatory to the compact is
165-23 empowered and authorized to do any and all things and to take any
165-24 and all action and to execute any and all contracts and documents
165-25 which are necessary or convenient in carrying out the purposes and
165-26 objectives of the compact and issuing bonds pursuant thereto, with
165-27 reference to any water pollution control project in the state,
166-1 wherever located, for which the aforesaid federal grants are to be
166-2 made.
166-3 (b) It is further found, determined, and enacted that all
166-4 bonds issued pursuant to said compact and all bonds issued to
166-5 refund or refinance same are and will be for water quality
166-6 enhancement purposes, within the meaning of Article III, Section
166-7 49-d-1, as amended, of the Texas Constitution and any and all bonds
166-8 issued by a signatory to said compact to pay for all or any part of
166-9 a project pursuant to the compact and any bonds issued to refund or
166-10 refinance any such bonds may be purchased by the Texas Water
166-11 Development Board with money received from the sale of Texas Water
166-12 Development Board bonds pursuant to said Article III, Section
166-13 49-d-1, as amended, of the Texas Constitution. The bonds or
166-14 refunding bonds shall be purchased directly from any such signatory
166-15 at such price as is necessary to provide the state payment and any
166-16 other part of the cost of the project or necessary to accomplish
166-17 the refunding, and all purchases shall constitute loans for water
166-18 quality enhancement. The bonds or refunding bonds shall have the
166-19 characteristics and be issued on such terms and conditions as are
166-20 acceptable to the board. The proceeds received by any such
166-21 signatory from the sale of any such bonds shall be used to provide
166-22 the state payment pursuant to the compact and any other part of the
166-23 cost of the project, and the proceeds from the sale of any such
166-24 refunding bonds to refund any outstanding bonds issued pursuant to
166-25 the compact shall be used to pay off and retire the bonds being
166-26 refunded thereby.
166-27 (c) This section is not intended to interfere in any way
167-1 with the operation of Article III, Section 49-d-1, as amended, of
167-2 the Texas Constitution or the enabling legislation enacted pursuant
167-3 thereto, and the aforesaid compact shall constitute merely a
167-4 complementary or supplemental method for providing the state
167-5 payment solely in instances that it is deemed necessary or
167-6 advisable by the board. (Sec. 26.043, Water Code.)
167-7 Sec. 10.106. Certificate of Competency. (a) The holders of
167-8 permits to discharge wastewater from a sewage treatment facility
167-9 shall employ a treatment plant operator holding a valid certificate
167-10 of competency issued under the direction of the commission.
167-11 (b) Every person, company, corporation, firm, or partnership
167-12 that employs sewage treatment plant operators and is in the
167-13 business of providing as a sewage treatment facility operations
167-14 must hold a valid certificate of competency issued under the
167-15 direction of the commission. Any employee of a person, company,
167-16 corporation, firm, or partnership who will be operating a sewage
167-17 treatment facility must hold a valid certificate of competency
167-18 issued under the direction of the commission.
167-19 (c) The commission may suspend or revoke the certificate of
167-20 competency for sewage treatment facility operation of an individual
167-21 treatment facility operator or a sewage treatment facility
167-22 operations company, after notice and hearing before the commission,
167-23 if the holder of a certificate of competency is responsible for
167-24 violating a discharge permit of a sewage treatment plant.
167-25 (d) The holder of a certificate of competency is not subject
167-26 to the revocation or suspension of the certificate of competency
167-27 under Subsection (c) if:
168-1 (1) the holder of a certificate is unable to properly
168-2 operate the sewage treatment facility due to the refusal of the
168-3 permittee to authorize necessary expenditures to operate the sewage
168-4 treatment facility properly; or
168-5 (2) failure of the sewage treatment facility to comply
168-6 with its discharge permit results from faulty design of the sewage
168-7 treatment facility. (Secs. 26.0301(a), (b), (c), (d), Water
168-8 Code.)
168-9 Sec. 10.107. Private Sewage Facilities. (a) As used in
168-10 this section and Section 10.129, "private sewage facilities" means
168-11 septic tanks, pit privies, cesspools, sewage holding tanks,
168-12 injection wells used to dispose of sewage, chemical toilets,
168-13 treatment tanks, and all other facilities, systems, and methods
168-14 used for the disposal of sewage other than disposal systems
168-15 operated under a permit issued by the commission.
168-16 (b) Whenever it appears that the use of private sewage
168-17 facilities in an area is causing or may cause pollution or is
168-18 injuring or may injure the public health, the commission may hold a
168-19 public hearing in or near the area to determine whether rules
168-20 should be adopted controlling or prohibiting the installation or
168-21 use of private sewage facilities in the area.
168-22 (c) Before the commission adopts its rules, the executive
168-23 director shall consult with the commissioner of the Texas
168-24 Department of Health for recommendations concerning the impact of
168-25 the use of private sewage facilities in the area on public health
168-26 and present the recommendations at the hearing.
168-27 (d) If the commission finds after the hearing that the use
169-1 of private sewage facilities in an area is causing or may cause
169-2 pollution or is injuring or may injure the public health, the
169-3 commission may adopt rules as it may consider appropriate to abate
169-4 or prevent pollution or injury to public health.
169-5 (e) The rules may, without limitation, do one or more of the
169-6 following:
169-7 (1) limit the number and kind of private sewage
169-8 facilities which may be used in the area;
169-9 (2) prohibit the installation and use of additional
169-10 private sewage facilities or kinds of private sewage facilities in
169-11 the area;
169-12 (3) require modifications or improvements to existing
169-13 private sewage facilities or impose limitations on their use; and
169-14 (4) provide for a gradual and systematic reduction of
169-15 the number or kinds of private sewage facilities in the area.
169-16 (f) The commission may provide in the rules for a system of
169-17 licensing of private sewage facilities in the area, including
169-18 procedures for cancellation of a license for violation of this
169-19 section, the license, or the rules of the commission. The
169-20 commission may also provide in the system of licensing for periodic
169-21 renewal of the licenses, but this may not be required more
169-22 frequently than once a year.
169-23 (g) The commission may delegate the licensing function and
169-24 the administration of the licensing system to the executive
169-25 director or to any local government whose boundaries include the
169-26 area or which has been designated by the commission under Sections
169-27 10.151 through 10.156 as the agency to develop a regional waste
170-1 disposal system which includes the area or to any district or
170-2 authority created and existing under Article XVI, Section 59 or
170-3 Article III, Section 52 of the Texas Constitution, which owns or
170-4 operates a dam or reservoir project within the area regulated.
170-5 (Secs. 26.031(a), (b), (c), (d), (e), (f), (g), Water Code.)
170-6 Sec. 10.108. Rating of Waste Disposal Systems. (a) After
170-7 consultation with the Texas Department of Health, the commission
170-8 shall provide by rule for a system of approved ratings for
170-9 municipal waste disposal systems and other waste disposal systems
170-10 which the commission may designate.
170-11 (b) The owner or operator of a municipal waste disposal
170-12 system which attains an approved rating has the privilege of
170-13 erecting signs of a design approved by the commission on highways
170-14 approaching or inside the boundaries of the municipality, subject
170-15 to reasonable restrictions and requirements which may be
170-16 established by the Texas Department of Transportation.
170-17 (c) In addition, the owner or operator of any waste disposal
170-18 system, including a municipal system, which attains an approved
170-19 rating has the privilege of erecting signs of a design approved by
170-20 the commission at locations which may be approved or established by
170-21 the commission, subject to such reasonable restrictions and
170-22 requirements which may be imposed by any governmental entity having
170-23 jurisdiction.
170-24 (d) If the waste disposal system fails to continue to
170-25 achieve an approved rating, the commission may revoke the
170-26 privilege. On due notice from the commission, the owner or
170-27 operator of the system shall remove the signs. (Sec. 26.033, Water
171-1 Code.)
171-2 Sec. 10.109. Approval of Disposal System Plans. (a) The
171-3 commission shall review and approve plans and specifications for
171-4 all treatment facilities, sewer systems, and disposal systems that
171-5 transport, treat, or dispose of primarily domestic wastes.
171-6 (b) Before beginning construction, every person who proposes
171-7 to construct or materially alter the efficiency of any treatment
171-8 works to which this section applies shall submit completed plans
171-9 and specifications to the commission for review and approval.
171-10 (c) The commission shall approve the plans and
171-11 specifications if they conform to the waste discharge requirements
171-12 and water quality standards established by the commission. (Sec.
171-13 26.034, Water Code.)
171-14 (Sections 10.110-10.120 reserved for expansion)
171-15 SUBCHAPTER E. AUTHORITY OF LOCAL GOVERNMENTS
171-16 Sec. 10.121. INSPECTION OF PUBLIC WATER. A local government
171-17 may inspect the public water in its area and determine whether or
171-18 not:
171-19 (1) the quality of the water meets the state water
171-20 quality standards adopted by the commission;
171-21 (2) persons discharging effluent into the public water
171-22 located in the areas of which the local government has jurisdiction
171-23 have obtained permits for discharge of the effluent; and
171-24 (3) persons who have permits are making discharges in
171-25 compliance with the requirements of the permits. (Sec. 26.171,
171-26 Water Code.)
171-27 Sec. 10.122. RECOMMENDATION TO COMMISSION. A local
172-1 government may make written recommendations to the commission as to
172-2 what in its judgment the water quality standards should be for any
172-3 public water within its territorial jurisdiction. (Sec. 26.172,
172-4 Water Code.)
172-5 Sec. 10.123. POWER TO ENTER PROPERTY. (a) A local
172-6 government has the same power as the commission has under
172-7 Section 2.201 to enter public and private property within its
172-8 territorial jurisdiction to make inspections and investigations of
172-9 conditions relating to water quality. The local government in
172-10 exercising this power is subject to the same provisions and
172-11 restrictions as the commission.
172-12 (b) When requested by the executive director, the result of
172-13 any inspection or investigation made by the local government shall
172-14 be transmitted to the commission for its consideration.
172-15 (Sec. 26.173, Water Code.)
172-16 Sec. 10.124. ENFORCEMENT ACTION. A local government may
172-17 bring an enforcement action under this chapter in the manner
172-18 provided in Subchapter D for local governments. (Sec. 26.174,
172-19 Water Code.)
172-20 Sec. 10.125. COOPERATIVE AGREEMENTS. (a) A local
172-21 government may execute cooperative agreements with the commission
172-22 or other local governments:
172-23 (1) to provide for the performance of water quality
172-24 management, inspection, and enforcement functions and to provide
172-25 technical aid and educational services to any party to the
172-26 agreement; and
172-27 (2) for the transfer of money or property from any
173-1 party to the agreement to another party to the agreement for the
173-2 purpose of water quality management, inspection, enforcement,
173-3 technical aid and education, and the construction, ownership,
173-4 purchase, maintenance, and operation of disposal systems.
173-5 (b) When in the opinion of the executive director it would
173-6 facilitate and enhance the performance by a local government of its
173-7 water quality management, inspection, and enforcement functions
173-8 pursuant to a cooperative agreement between the local government
173-9 and the commission as authorized in Subsection (a), the executive
173-10 director may assign and delegate to the local government during the
173-11 period of the agreement such of the pertinent powers and functions
173-12 vested in the commission under this chapter as in the judgment of
173-13 the executive director may be necessary or helpful to the local
173-14 government in performing those management, inspection, and
173-15 enforcement functions.
173-16 (c) At any time and from time to time prior to the
173-17 termination of the cooperative agreement, the executive director
173-18 may modify or rescind any such assignment or delegation.
173-19 (d) The executive director shall notify immediately a local
173-20 government to whom it assigns or delegates any powers and functions
173-21 pursuant to Subsections (b) and (c) or as to when it modifies or
173-22 rescinds any such assignment or delegation. (Sec. 26.175, Water
173-23 Code.)
173-24 Sec. 10.126. DISPOSAL SYSTEM RULES. (a) Every local
173-25 government which owns or operates a disposal system is empowered to
173-26 and shall, except as authorized in Subsection (c), enact and
173-27 enforce rules, ordinances, orders, or resolutions, referred to in
174-1 this section as rules, to control and regulate the type, character,
174-2 and quality of waste which may be discharged to the disposal system
174-3 and, where necessary, to require pretreatment of waste to be
174-4 discharged to the system, so as to protect the health and safety of
174-5 personnel maintaining and operating the disposal system and to
174-6 prevent unreasonable adverse effects on the disposal system.
174-7 (b) The local government in its rules may establish the
174-8 charges and assessments which may be made to and collected from all
174-9 persons who discharge waste to the disposal system or who have
174-10 conduits or other facilities for discharging waste connected to the
174-11 disposal system, referred to in this subsection as "users." The
174-12 charges and assessments shall be equitable as between all users and
174-13 shall correspond as near as can be practically determined to the
174-14 cost of making the waste disposal services available to all users
174-15 and of treating the waste of each user or class of users. The
174-16 charges and assessments may include user charges, connection fees,
174-17 or any other methods of obtaining revenue from the disposal system
174-18 available to the local government. In establishing the charges and
174-19 assessments, the local government shall take into account:
174-20 (1) the volume, type, character, and quality of the
174-21 waste of each user or class of users;
174-22 (2) the techniques of treatment required;
174-23 (3) any capital costs and debt retirement expenses of
174-24 the disposal system required to be paid for from the charges and
174-25 assessments;
174-26 (4) the costs of operating and maintaining the system
174-27 to comply with this chapter and the permits, rules, and orders of
175-1 the commission; and
175-2 (5) any other costs directly attributable to providing
175-3 the waste disposal service under standard, accepted cost-accounting
175-4 practices.
175-5 (c) A local government may apply to the commission for an
175-6 exception from the requirements of Subsections (a) and (b) or for a
175-7 modification of those requirements. The application shall contain
175-8 the exception or modifications desired, the reasons the exception
175-9 or modifications are needed, and the grounds authorized in this
175-10 subsection on which the commission should grant the application. A
175-11 public hearing on the application shall be held in or near the
175-12 territorial area of the local government, and notice of the hearing
175-13 shall be given to the local government. If after the hearing the
175-14 commission in its judgment determines that the volume, type,
175-15 character, and quality of the waste of the users of the system or
175-16 of a particular user or class of users of the system do not warrant
175-17 the enactment and enforcement of rules containing the requirements
175-18 prescribed in Subsections (a) and (b) or that the enactment and
175-19 enforcement of the rules would be impractical or unreasonably
175-20 burdensome on the local government in relation to the public
175-21 benefit to be derived, then the commission in its discretion may
175-22 enter an order granting an exception to those requirements or
175-23 modifying those requirements in any particular in response to
175-24 circumstances shown to exist.
175-25 (d) At any time and from time to time as circumstances may
175-26 require, the commission may amend or revoke any order it enters
175-27 pursuant to Subsection (c). Before the commission amends or
176-1 revokes such an order, a public hearing shall be held in or near
176-2 the territorial area of the local government in question, and
176-3 notice of the hearing shall be given to the local government. If
176-4 after the hearing the commission in its judgment determines that
176-5 the circumstances on which it based the order have changed
176-6 significantly or no longer exist, the commission may revoke the
176-7 order or amend it in any particular in response to the
176-8 circumstances then shown to exist.
176-9 (e) In the event of any conflict between the provisions of
176-10 this section and any other laws or parts of laws, the provisions of
176-11 this section shall control. (Sec. 26.176, Water Code.)
176-12 Sec. 10.127. WATER POLLUTION CONTROL DUTIES OF CITIES. (a)
176-13 Every city in this state having a population of 5,000 or more
176-14 inhabitants shall, and any city of this state may, establish a
176-15 water pollution control and abatement program for the city. The
176-16 city shall employ or retain an adequate number of personnel on
176-17 either a part-time or full-time basis as the needs and
176-18 circumstances of the city may require, who by virtue of their
176-19 training or experience are qualified to perform the water pollution
176-20 control and abatement functions required to enable the city to
176-21 carry out its duties and responsibilities under this section.
176-22 (b) The water pollution control and abatement program of a
176-23 city shall encompass the entire city and may include areas within
176-24 its extraterritorial jurisdiction which in the judgment of the city
176-25 should be included to enable the city to achieve the objectives of
176-26 the city for the area within its territorial jurisdiction. The
176-27 city shall include in the program the services and functions which,
177-1 in the judgment of the city or as may be reasonably required by the
177-2 commission, will provide effective water pollution control and
177-3 abatement for the city, including the following services and
177-4 functions:
177-5 (1) the development and maintenance of an inventory of
177-6 all significant waste discharges into or adjacent to the water
177-7 within the city and, where the city so elects, within the
177-8 extraterritorial jurisdiction of the city, without regard to
177-9 whether or not the discharges are authorized by the commission;
177-10 (2) the regular monitoring of all significant waste
177-11 discharges included in the inventory prepared pursuant to
177-12 Subdivision (1) of this subsection;
177-13 (3) the collecting of samples and the conducting of
177-14 periodic inspections and tests of the waste discharges being
177-15 monitored to determine whether the discharges are being conducted
177-16 in compliance with this chapter and any applicable permits, orders,
177-17 or rules of the commission, and whether they should be covered by a
177-18 permit from the commission;
177-19 (4) in cooperation with the commission, a procedure
177-20 for obtaining compliance by the waste dischargers being monitored,
177-21 including where necessary the use of legal enforcement proceedings;
177-22 (5) the development and execution of reasonable and
177-23 realistic plans for controlling and abating pollution or potential
177-24 pollution resulting from generalized discharges of waste which are
177-25 not traceable to a specific source, such as storm sewer discharges
177-26 and urban runoff from rainwater; and
177-27 (6) any additional services, functions, or other
178-1 requirements as may be prescribed by commission rule.
178-2 (c) The water pollution control and abatement program
178-3 required by Subsections (a) and (b) must be submitted to the
178-4 commission for review and approval. The commission may adopt rules
178-5 providing the criteria for the establishment of those programs and
178-6 the review and approval of those programs.
178-7 (d) Any person affected by any ruling, order, decision,
178-8 ordinance, program, resolution, or other act of a city relating to
178-9 water pollution control and abatement outside the corporate limits
178-10 of such city adopted pursuant to this section or any other
178-11 statutory authorization may appeal such action to the commission or
178-12 district court. An appeal must be filed with the commission
178-13 within 60 days of the enactment of the ruling, order, decision,
178-14 ordinance, program, resolution, or act of the city. The issue on
178-15 appeal is whether the action or program is invalid, arbitrary,
178-16 unreasonable, inefficient, or ineffective in its attempt to control
178-17 water quality. The commission or district court may overturn or
178-18 modify the action of the city. If an appeal is taken from a
178-19 commission ruling, the commission ruling shall be in effect for all
178-20 purposes until final disposition is made by a court of competent
178-21 jurisdiction so as not to delay any permit approvals.
178-22 (e) All financial assistance from the board to a city having
178-23 a population of 5,000 or more inhabitants shall be conditioned on
178-24 the city submitting to the commission for review and in accordance
178-25 with rules and submission schedules promulgated by the commission a
178-26 water pollution control and abatement program as required by
178-27 Subsections (a)-(d). The board may award grants from the research
179-1 and planning fund of the water assistance fund to river authorities
179-2 seeking such funds for purposes of performing regional water
179-3 quality assessments described in Section 10.059. (Secs. 26.177(a),
179-4 (b), (c), (d), Water Code; Sec. 26.178, Water Code, as added by
179-5 Sec. 5, Ch. 294, Acts 72nd Leg., R.S., 1991.)
179-6 Sec. 10.128. NONPOINT SOURCE WATER POLLUTION CONTROL
179-7 PROGRAMS OF CERTAIN MUNICIPALITIES. (a) This section applies to a
179-8 municipality to which Section 42.903, Local Government Code,
179-9 applies.
179-10 (b) The municipality shall exercise the powers granted under
179-11 state law to a municipality to adopt ordinances to control and
179-12 abate nonpoint source water pollution or to protect threatened or
179-13 endangered species.
179-14 (c) The municipality by ordinance shall adopt a nonpoint
179-15 source water pollution control and abatement program for the
179-16 municipality and its extraterritorial jurisdiction before the
179-17 municipality adopts a resolution or ordinance creating an
179-18 extraterritorial jurisdiction under Section 42.903, Local
179-19 Government Code. The municipality shall submit the ordinance
179-20 creating the program to the commission. Notwithstanding any other
179-21 law requiring the adoption of an ordinance creating an
179-22 extraterritorial jurisdiction and approval by the commission, the
179-23 ordinance creating the program becomes effective and is enforceable
179-24 by the municipality on the 90th day after the date the municipality
179-25 submits the ordinance unless the ordinance is disapproved by the
179-26 commission during the 90-day period.
179-27 (d) If the commission disapproves a program submitted under
180-1 Subsection (c), the commission shall make recommendations to the
180-2 municipality. The municipality shall adopt and incorporate the
180-3 commission's recommendations in the program.
180-4 (e) The nonpoint source water pollution controls of the
180-5 municipality that had extraterritorial jurisdiction over an area
180-6 before the area was included in the extraterritorial jurisdiction
180-7 of another municipality under Section 42.903, Local Government
180-8 Code, are effective during the 90-day period that the program is
180-9 pending before the commission or until an amended program
180-10 satisfactory to the commission is adopted. The municipality,
180-11 including the area in its extraterritorial jurisdiction under
180-12 Section 42.903, Local Government Code, shall enforce the controls
180-13 during the 90-day period.
180-14 (f) If a nonpoint source water pollution control and
180-15 abatement program is adopted by a river authority that has
180-16 boundaries that encompass the extraterritorial jurisdiction of the
180-17 municipality, the standards under the program adopted by the
180-18 municipality must meet or exceed the standards under the program
180-19 adopted by the river authority.
180-20 (g) The municipality may not grant a waiver to its nonpoint
180-21 source water pollution control and abatement program unless
180-22 granting the waiver would demonstrably improve water quality.
180-23 (Sec. 26.178, Water Code, as added by Sec. 13.01(b), Ch. 16, Acts
180-24 72nd Leg., R.S., 1991.)
180-25 Sec. 10.129. CONTROL OF PRIVATE SEWAGE FACILITIES BY
180-26 COUNTIES. (a) Whenever it appears to the commissioners court of
180-27 any county that the use of private sewage facilities in an area
181-1 within the county is causing or may cause pollution or is injuring
181-2 or may injure the public health, the county may proceed in the same
181-3 manner and in accordance with the same procedures as the commission
181-4 to hold a public hearing and adopt an order, resolution, or other
181-5 rule as it may consider appropriate to abate or prevent pollution
181-6 or injury to public health.
181-7 (b) The order, resolution, or other rule may provide the
181-8 same restrictions and requirements as are authorized for an order
181-9 of the commission adopted under Section 10.107.
181-10 (c) Before the order, resolution, or other rule becomes
181-11 effective, the county shall submit it to the commission and obtain
181-12 the commission's written approval.
181-13 (d) In the event of any conflict within an area between
181-14 rules adopted by the commission and an order, resolution, or other
181-15 rule adopted by a county under this section, the rules of the
181-16 commission shall take precedence.
181-17 (e) Where a system of licensing has been adopted by the
181-18 commission or the commissioners court of a county, no person may
181-19 install or use private sewage facilities required to be licensed
181-20 without obtaining a license. (Sec. 26.032, Water Code.)
181-21 Sec. 10.130. Sewage discharge into open ponds; municipal
181-22 corporations of 600,000 to 900,000. (a) No municipal corporation
181-23 with a population of not less than 600,000 nor more than 950,000
181-24 according to the last preceding Federal census, may discharge any
181-25 municipal sewage into any open pond, the surface area of which pond
181-26 covers more than 100 acres, if the discharge will cause or result
181-27 in a nuisance. The commission and the Texas Department of Health
182-1 shall make periodic inspections of such ponds as necessary, but at
182-2 least once every year, and shall ascertain whether such pond is
182-3 causing or will cause or result in a nuisance. If the commission,
182-4 acting in accord with the Texas Department of Health, shall
182-5 ascertain that the maintenance of such pond creates or continues a
182-6 nuisance, it shall advise the municipal corporation making such
182-7 discharge and shall allow such municipal corporation adequate time
182-8 to abate such nuisance.
182-9 (b) Any municipal corporation with a population of not less
182-10 than 600,000 nor more than 950,000 which fails to abate a nuisance
182-11 pursuant to a directive of the commission as provided in Subsection
182-12 (a), within a reasonable time after notification of such failure by
182-13 the commission, shall be liable to a civil penalty of not more than
182-14 $1,000 a day for each day that it maintains such a nuisance.
182-15 (c) Chapter 311, Government Code, does not apply to this
182-16 section. (V.A.C.S. Art. 4477-1a.)
182-17 (Sections 10.131-10.150 reserved for expansion)
182-18 SUBCHAPTER F. REGIONAL AND AREA-WIDE SYSTEMS
182-19 Sec. 10.151. General Policy. (a) The legislature finds and
182-20 declares that it is necessary to the health, safety, and welfare of
182-21 the people of this state to implement the state policy to encourage
182-22 and promote the development and use of regional and area-wide waste
182-23 collection, treatment, and disposal systems to serve the waste
182-24 disposal needs of the citizens of the state and to prevent
182-25 pollution and maintain and enhance the quality of the water in the
182-26 state.
182-27 (b) Within any standard metropolitan statistical area in the
183-1 state, the commission is authorized to implement this policy in the
183-2 manner and in accordance with the procedure provided in this
183-3 section and Sections 10.152-10.156.
183-4 (c) In those portions of the state which are not within a
183-5 standard metropolitan statistical area, the commission shall
183-6 observe this state policy by encouraging interested and affected
183-7 persons to cooperate in developing and using regional and area-wide
183-8 systems. The commission may not use the procedure specified in
183-9 this section and Sections 10.152-10.156 in these areas to implement
183-10 this policy. However, this does not affect or diminish any
183-11 authority which the commission may otherwise have and exercise
183-12 under other provisions of this chapter.
183-13 (d) The term "standard metropolitan statistical area," as
183-14 used in this section, means an area consisting of a county or one
183-15 or more contiguous counties which is officially designated as such
183-16 by the United States Office of Management and Budget or its
183-17 successor in this function. (Sec. 26.081, Water Code.)
183-18 Sec. 10.152. Hearing to Define Area of Regional or Area-Wide
183-19 System. (a) Whenever it appears to the commission that because of
183-20 the existing or reasonably foreseeable residential, commercial,
183-21 industrial, recreational, or other economic development in an area
183-22 a regional or area-wide waste collection, treatment, or disposal
183-23 system or systems are necessary to prevent pollution or maintain
183-24 and enhance the quality of the water in the state, the commission
183-25 may hold a public hearing in or near the area to determine whether
183-26 the policy stated in Section 10.151 should be implemented in that
183-27 area.
184-1 (b) Notice of the hearing shall be given to the local
184-2 governments which in the judgment of the commission may be
184-3 affected.
184-4 (c) If after the hearing the commission finds that a
184-5 regional or area-wide system or systems are necessary or desirable
184-6 to prevent pollution or maintain and enhance the quality of the
184-7 water in the state, the commission may enter an order defining the
184-8 area in which such a system or systems are necessary or desirable.
184-9 (Sec. 26.082, Water Code.)
184-10 Sec. 10.153. Hearing to Designate Systems to Serve the Area
184-11 Defined; Order; Election; Etc. (a) At the hearing held under
184-12 Section 10.152 or at a subsequent hearing held in or near an area
184-13 defined under Section 10.152, the commission may consider whether
184-14 to designate the person to provide a regional or area-wide system
184-15 or systems to serve all or part of the waste collection, treatment,
184-16 or disposal needs of the area defined.
184-17 (b) Notice of the hearing shall be given to the local
184-18 governments and to owners and operators of any waste collection,
184-19 treatment, and disposal systems who in the judgment of the
184-20 commission may be affected.
184-21 (c) If after the hearing the commission finds that there is
184-22 an existing or proposed system or systems then capable or which in
184-23 the reasonably foreseeable future will be capable of serving the
184-24 waste collection, treatment, or disposal needs of all or part of
184-25 the area defined and that the owners or operators of the system or
184-26 systems are agreeable to providing the services, the commission may
184-27 enter an order designating the person to provide the waste
185-1 collection, treatment, or disposal system or systems to serve all
185-2 or part of the area defined.
185-3 (d) After the commission enters an order under Subsection
185-4 (c) and if the commission receives a timely and sufficient request
185-5 for an election as provided in Section 10.157, the commission shall
185-6 designate a presiding judge for an election, to determine whether
185-7 the proposed regional or area-wide system or systems operated by
185-8 the designated regional entity should be created. (Sec. 26.083,
185-9 Water Code.)
185-10 Sec. 10.154. Actions Available to Commission After
185-11 Designation of Systems. (a) After the commission has entered an
185-12 order as authorized in Section 10.153, the commission may, after
185-13 public hearing and after giving notice of the hearing to the
185-14 persons who in the judgment of the commission may be affected, take
185-15 any one or more of the following actions:
185-16 (1) enter an order requiring any person discharging or
185-17 proposing to discharge waste into or adjacent to the water in the
185-18 state in an area defined in an order entered under Section 10.152
185-19 to use a regional or area-wide system designated under Section
185-20 10.153 for the disposal of his waste;
185-21 (2) refuse to grant any permits for the discharge of
185-22 waste or to approve any plans for the construction or material
185-23 alteration of any sewer system, treatment facility, or disposal
185-24 system in an area defined in an order entered under Section 10.152
185-25 unless the permits or plans comply and are consistent with any
185-26 orders entered under Sections 10.151-10.153, this section, and
185-27 Sections 10.155-10.156; or
186-1 (3) cancel or suspend any permit, or amend any permit
186-2 in any particular, which authorizes the discharge of waste in an
186-3 area defined in an order entered under Section 10.152.
186-4 (b) Before exercising the authority granted in this section,
186-5 the commission shall find affirmatively:
186-6 (1) that there is an existing or proposed regional or
186-7 area-wide system designated under Section 10.153 which is capable
186-8 or which in the reasonably foreseeable future will be capable of
186-9 serving the waste collection, treatment, or disposal needs of the
186-10 person or persons who are the subject of an action taken by the
186-11 commission under this section;
186-12 (2) that the owner or operator of the designated
186-13 regional or area-wide system is agreeable to providing the service;
186-14 (3) that it is feasible for the service to be provided
186-15 on the basis of waste collection, treatment, and disposal
186-16 technology, engineering, financial, and related considerations
186-17 existing at the time, exclusive of any loss of revenue from any
186-18 existing or proposed waste collection, treatment, or disposal
186-19 systems in which the person or persons who are the subject of an
186-20 action taken under this section have an interest;
186-21 (4) that inclusion of the person or persons who are
186-22 the subject of an action taken by the commission under this section
186-23 will not suffer undue financial hardship as a result of inclusion
186-24 in a regional or area-wide system; and
186-25 (5) that a majority of the votes cast in any election
186-26 held under Section 10.157 favor the creation of the regional or
186-27 area-wide system or systems operated by the designated regional
187-1 entity.
187-2 (c) An action taken by the commission under Section 10.155,
187-3 excluding any person or persons from a regional or area-wide system
187-4 because the person or persons will suffer undue financial hardship
187-5 as a result of inclusion in the regional or area-wide system, shall
187-6 be subject to a review at a later time determined by the commission
187-7 in accordance with the criteria set out in this section, not to
187-8 exceed three years from the date of exclusion.
187-9 (d) If a person or persons excluded from a regional or
187-10 area-wide system fail to operate the excluded facilities in a
187-11 manner that will comply with its permits, the permits shall be
187-12 subject to cancellation after review by the commission, and the
187-13 facilities may become a part of the regional or area-wide system.
187-14 (Sec. 26.084, Water Code.)
187-15 Sec. 10.155. Inclusion at a Later Time. Any person or
187-16 persons who are the subject of an action taken by the commission
187-17 under Section 10.154 and who are excluded from a regional or
187-18 area-wide system because the person or persons will suffer undue
187-19 financial hardship as a result of inclusion in the regional or
187-20 area-wide system may be added to the system at a later time under
187-21 the provisions of Section 10.154. (Sec. 26.085, Water Code.)
187-22 Sec. 10.156. Rates for Services by Designated Systems.
187-23 (a) On motion of any interested party and after a public hearing,
187-24 the commission may set reasonable rates for the furnishing of waste
187-25 collection, treatment, or disposal services to any person by a
187-26 regional or area-wide system designated under Section 10.153.
187-27 (b) Notice of the hearing shall be given to the owner or
188-1 operator of the designated regional or area-wide system, the person
188-2 requesting the hearing, and any other person who in the judgment of
188-3 the commission may be affected by the action taken by the
188-4 commission as a result of the hearing.
188-5 (c) After the hearing, the commission shall enter an order
188-6 setting forth its findings and the rates which may be charged for
188-7 the services by the owner or operator of the designated regional or
188-8 area-wide system. (Sec. 26.086, Water Code.)
188-9 Sec. 10.157. Election for Approval of Regional or Area-Wide
188-10 System. (a) After the commission under Sections 10.152 and
188-11 10.153, enters an order: defining an area for a regional or
188-12 area-wide system or systems; designating a regional entity to
188-13 operate the regional or area-wide system or systems; and appointing
188-14 a presiding judge for the election, an election shall be held
188-15 within the boundaries of the proposed regional or area-wide system
188-16 or systems to be operated by the designated regional entity upon
188-17 the filing of a timely and sufficient request for an election
188-18 except as provided in Subsection (i).
188-19 (b) Any person located within the boundaries of the proposed
188-20 regional or area-wide system or systems requesting an election for
188-21 the approval of the proposed regional or area-wide system or
188-22 systems to be operated by the designated regional entity shall file
188-23 a written request with the commission within 30 days of the date
188-24 the commission enters an order under Section 10.153. The request
188-25 shall include a petition signed by 50 persons holding title to the
188-26 land within the proposed regional or area-wide system or systems,
188-27 as indicated by the county tax rolls.
189-1 (c) Notice of the election shall state the day and place or
189-2 places for holding the election, and the proposition to be voted
189-3 on. The notice shall be published once a week for two consecutive
189-4 weeks in a newspaper with general circulation in the county or
189-5 counties in which the regional or area-wide system or systems is to
189-6 be located. The first publication of the notice shall be at least
189-7 14 days before the day set for the election. Notice of the
189-8 election shall be given to the local governments and to owners and
189-9 operators of any waste collection, treatment, and disposal systems
189-10 who in the judgment of the commission may be affected.
189-11 (d) Absentee balloting in the election shall begin 10 days
189-12 before the election and shall end as provided in the Texas Election
189-13 Code. The ballots for the election shall be printed to provide for
189-14 voting for or against the regional or area-wide system to be
189-15 operated by the designated regional entity.
189-16 (e) Immediately after the election, the presiding judge
189-17 shall make returns of the result to the executive director. The
189-18 executive director shall canvass the returns and report to the
189-19 commission his findings of the results at the earliest possible
189-20 time.
189-21 (f) If a majority of the votes cast in the election favor
189-22 the creation of the regional or area-wide system or systems
189-23 operated by the designated regional entity, then the commission
189-24 shall declare the regional system is created and enter the results
189-25 in its minutes. If a majority of the votes cast in the election
189-26 are against the creation of the regional or area-wide system or
189-27 systems operated by the designated regional entity, then the
190-1 commission shall declare that the regional system was defeated and
190-2 enter the result in its minutes.
190-3 (g) The order canvassing the results of the confirmation
190-4 election shall contain a description of the regional system's
190-5 boundaries and shall be filed in the deed records of the county or
190-6 counties in which the regional system is located.
190-7 (h) The legislature, through the General Appropriations Act,
190-8 may provide funds for the conduct of elections required under this
190-9 section. If no funds are appropriated for this purpose, the costs
190-10 of conducting the election shall be assessed by the commission.
190-11 (i) This subsection applies to regional or area-wide system
190-12 or systems and regional entities which have been designated prior
190-13 to the effective date of this Act. An election to approve creation
190-14 of a regional or area-wide system or systems and the designation of
190-15 a regional entity to operate those systems as provided in this
190-16 section shall not be required for those regional systems or
190-17 entities to which this subsection applies. (Sec. 26.087, Water
190-18 Code.)
190-19 (Sections 10.158-10.170 reserved for expansion)
190-20 SUBCHAPTER G. OIL AND HAZARDOUS SUBSTANCE SPILL
190-21 PREVENTION AND CONTROL
190-22 Sec. 10.171. Short Title. This subchapter may be cited as
190-23 the Texas Hazardous Substances Spill Prevention and Control Act.
190-24 (Sec. 26.261, Water Code.)
190-25 Sec. 10.172. Policy. It is the policy of this state to
190-26 prevent the spill or discharge of hazardous substances into the
190-27 waters in the state and to cause the removal of such spills and
191-1 discharges without undue delay. This subchapter shall be construed
191-2 to conform with Chapter 40, Natural Resources Code. (Sec. 26.262,
191-3 Water Code.)
191-4 Sec. 10.173. Definitions. As used in this subchapter:
191-5 (1) "Discharge or spill" means an act or omission by
191-6 which hazardous substances in harmful quantities are spilled,
191-7 leaked, pumped, poured, emitted, entered, or dumped onto or into
191-8 waters in this state or by which those substances are deposited
191-9 where, unless controlled or removed, they may drain, seep, run, or
191-10 otherwise enter water in this state. The term "discharge" or
191-11 "spill" under this subchapter shall not include any discharge to
191-12 which Subchapter C, D, E, F, or G, Chapter 40, Natural Resources
191-13 Code, applies or any discharge which is authorized by a permit
191-14 issued pursuant to federal law or any other law of this state or,
191-15 with the exception of spills in coastal waters, regulated by the
191-16 Railroad Commission of Texas.
191-17 (2) "Fund" means the Texas Spill Response Fund.
191-18 (3) "Harmful quantity" means that quantity of
191-19 hazardous substance the discharge or spill of which is determined
191-20 to be harmful to the environment or public health or welfare or may
191-21 reasonably be anticipated to present an imminent and substantial
191-22 danger to the public health or welfare by the administrator of the
191-23 Environmental Protection Agency pursuant to federal law and by the
191-24 executive director.
191-25 (4) "Hazardous substance" means any substance
191-26 designated as such by the administrator of the Environmental
191-27 Protection Agency pursuant to the Comprehensive Environmental
192-1 Response, Compensation, and Liability Act (42 U.S.C. Sec. 9601 et
192-2 seq.), regulated pursuant to Section 311 of the federal Clean
192-3 Water Act (33 U.S.C. Sec. 1321 et seq.), or designated by the
192-4 commission.
192-5 (5) "Person" includes an individual, firm,
192-6 corporation, association, and partnership.
192-7 (6) "Person responsible" or "responsible person"
192-8 means:
192-9 (A) the owner, operator, or demise charterer of
192-10 a vessel from which a spill emanates;
192-11 (B) the owner or operator of a facility from
192-12 which a spill emanates;
192-13 (C) any other person who causes, suffers,
192-14 allows, or permits a spill or discharge. (Sec. 26.263, Water
192-15 Code.)
192-16 Sec. 10.174. Administrative Provisions. (a) Except as
192-17 provided in Chapter 40, Natural Resources Code, the commission
192-18 shall be the state's lead agency in spill response, shall conduct
192-19 spill response for the state, and shall otherwise administer this
192-20 subchapter. The commission shall conduct spill response and
192-21 cleanup for spills and discharges of hazardous substances other
192-22 than oil in or threatening coastal waters according to the
192-23 applicable provisions of the state coastal discharge contingency
192-24 plan promulgated by the commission under Section 40.053, Natural
192-25 Resources Code. The commission shall cooperate with other
192-26 agencies, departments, and subdivisions of this state and of the
192-27 United States in implementing this subchapter. In the event of a
193-1 discharge or spill and after reasonable effort to obtain entry
193-2 rights from each property owner involved, if any, the executive
193-3 director may enter affected property to carry out necessary spill
193-4 response actions.
193-5 (b) The commission may issue rules necessary and convenient
193-6 to carry out the purposes of this subchapter.
193-7 (c) The executive director shall enforce the provisions of
193-8 this subchapter and any rules given effect pursuant to Subsection
193-9 (b).
193-10 (d) The executive director with the approval of the
193-11 commission may contract with any public agency or private persons
193-12 or other entity for the purpose of implementing this subchapter.
193-13 (e) The executive director shall solicit the assistance of
193-14 and cooperate with local governments, the federal government, other
193-15 agencies and departments of this state, and private persons and
193-16 other entities to develop regional contingency plans for prevention
193-17 and control of hazardous substance spills and discharges. The
193-18 executive director may solicit the assistance of spill cleanup
193-19 experts in determining appropriate measures to be taken in cleaning
193-20 up a spill or discharge. The executive director shall develop a
193-21 list of spill cleanup experts to be consulted, but shall not be
193-22 limited to that list in seeking assistance. No person providing
193-23 such assistance shall be held liable for any acts or omissions of
193-24 the executive director which may result from soliciting such
193-25 assistance.
193-26 (f) The commission and the Texas Department of
193-27 Transportation, in cooperation with the governor, the United States
194-1 Coast Guard, and the Environmental Protection Agency, shall develop
194-2 a contractual agreement whereby personnel, equipment, and materials
194-3 in possession or under control of the Texas Department of
194-4 Transportation may be diverted and utilized for spill and discharge
194-5 cleanup as provided for in this subchapter. Under the agreement,
194-6 the following conditions shall be met:
194-7 (1) the commission and the Texas Department of
194-8 Transportation shall develop and maintain written agreements and
194-9 contracts on how such utilization will be effected, and designating
194-10 agents for this purpose;
194-11 (2) personnel, equipment, and materials may be
194-12 diverted only with the approval of the commission and the Texas
194-13 Department of Transportation, acting through their designated
194-14 agents, or by action of the governor;
194-15 (3) all expenses and costs of acquisition of such
194-16 equipment and materials or resulting from such cleanup activities
194-17 shall be paid from the fund, subject to reimbursement as provided
194-18 in this subchapter; and
194-19 (4) subsequent to such activities, a full report of
194-20 all expenditures and significant actions shall be prepared and
194-21 submitted to the governor and the Legislative Budget Board, and
194-22 shall be reviewed by the commission.
194-23 (g) The executive director shall develop and revise from
194-24 time to time written action and contractual plans with the
194-25 designated on-scene coordinator provided for by federal law.
194-26 (h)(1) In developing rules and plans under this subchapter
194-27 and in engaging in cleanup activities under this subchapter, the
195-1 commission shall recognize the authority of the predesignated
195-2 federal on-scene coordinator to oversee, coordinate, and direct all
195-3 private and public activities related to cleanup of discharges and
195-4 spills that are undertaken pursuant to the Comprehensive
195-5 Environmental Response, Compensation, and Liability Act (42 U.S.C.
195-6 Sec. 9601 et seq.), the federal Clean Water Act (33 U.S.C. Sec.
195-7 1321 et seq.), and the national contingency plan authorized by the
195-8 federal Clean Water Act (33 U.S.C. Sec. 1321 et seq.).
195-9 (2) Nothing in this subchapter shall require the
195-10 state-designated on-scene coordinator to defer to federal
195-11 authority, unless preempted by federal law, if remedial action is
195-12 unduly delayed or is ineffective.
195-13 (3) Nothing in this subchapter shall prevent the
195-14 executive director from appointing a state-designated on-scene
195-15 coordinator and acting independently if no on-scene federal
195-16 coordinator is present or no action is being taken by an agency of
195-17 the federal government.
195-18 (4) If an incident under this subchapter is eligible
195-19 for federal funds, the commission shall seek reimbursement from the
195-20 designated agencies of the federal government for the reasonable
195-21 costs incurred in cleanup operations, including but not limited to
195-22 costs of personnel, equipment, the use of equipment, and supplies
195-23 and restoration of land and aquatic resources held in trust or
195-24 owned by the state.
195-25 (5) The commission may enter into contracts or
195-26 cooperative agreements under Section 104(c) and (d) of the
195-27 Comprehensive Environmental Response, Compensation, and Liability
196-1 Act (42 U.S.C. Sec. 9601 et seq.) or Section 311 of the federal
196-2 Clean Water Act (33 U.S.C. Sec. 1321 et seq.) to undertake
196-3 authorized removal actions under this subchapter.
196-4 (i) The executive director shall after appropriate
196-5 investigation prepare a report on state-funded cleanup of a
196-6 discharge or spill, and this report shall provide the following
196-7 information:
196-8 (1) a description of the incident, including location,
196-9 amount, and characteristics of the material discharged or spilled
196-10 and the prevailing weather conditions;
196-11 (2) the time and duration of discharge or spill and
196-12 the time and method by which the discharge or spill was reported;
196-13 (3) the action taken, and by whom, to contain and
196-14 clean up the discharge or spill;
196-15 (4) an assessment of both the short-term and long-term
196-16 environmental impact of the accidental discharge or spill;
196-17 (5) the cost of cleanup operations incurred by the
196-18 state;
196-19 (6) an evaluation of the principal causes of the
196-20 discharge or spill and an assessment of how similar incidents might
196-21 be prevented in the future; and
196-22 (7) a description of any legal action being taken to
196-23 levy penalties or collect damages.
196-24 (j) This subchapter is cumulative of all other powers of the
196-25 commission.
196-26 (k) In the event that a discharge or spill presents or
196-27 threatens to present an occurrence of disaster proportions, the
197-1 governor shall utilize the authority granted him under the Texas
197-2 Disaster Act of 1975 (Chapter 418, Government Code) to make
197-3 available and bring to bear all resources of the state to prevent
197-4 or lessen the impact of such a disaster.
197-5 (l) To the extent practicable and in lieu of the provisions
197-6 of this subchapter, for facilities permitted under Chapter 20 to
197-7 store, process, or dispose of hazardous waste, the department shall
197-8 use procedures established under existing hazardous waste permits
197-9 to abate or remove discharges or spills. (Sec. 26.264, Water
197-10 Code.)
197-11 Sec. 10.175. Texas Spill Response Fund. (a) There is
197-12 hereby created the Texas Spill Response Fund. This fund shall not
197-13 exceed $5 million, exclusive of fines and penalties received under
197-14 this subchapter.
197-15 (b) The fund shall consist of money appropriated to it by
197-16 the legislature and any fines, civil penalties, or other
197-17 reimbursement to the fund provided for under this subchapter.
197-18 (c) The executive director with the approval of the
197-19 commission may expend money in the fund only for the purpose of
197-20 obtaining personnel, equipment, and supplies required in the
197-21 cleanup of discharges and spills, including restoration of land and
197-22 aquatic resources held in trust or owned by the state.
197-23 (d) In addition to any cause of action under Chapter 40,
197-24 Natural Resources Code, the state has a cause of action against any
197-25 responsible person for recovery of:
197-26 (1) expenditures out of the fund; and
197-27 (2) costs that would have been incurred or paid by the
198-1 responsible person if the responsible person had fully carried out
198-2 the duties under Section 10.176, including:
198-3 (A) reasonable costs of reasonable and necessary
198-4 scientific studies to determine impacts of the spill on the
198-5 environment and natural resources and to determine the manner in
198-6 which to respond to spill impacts;
198-7 (B) costs of attorney services;
198-8 (C) out-of-pocket costs associated with state
198-9 agency action;
198-10 (D) reasonable costs incurred by the state in
198-11 cleanup operations, including costs of personnel, equipment, and
198-12 supplies and restoration of land and aquatic resources held in
198-13 trust or owned by the state; and
198-14 (E) costs of remediating injuries proximately
198-15 caused by reasonable cleanup activities.
198-16 (e) The state's right to recover under Subsection (d) arises
198-17 whether or not expenditures have actually been made out of the
198-18 fund.
198-19 (f) It is the intent of the legislature that the state
198-20 attempt to recover the costs of cleanup according to the following
198-21 priority:
198-22 (1) a responsible person; and
198-23 (2) the federal government to the extent that recovery
198-24 from a responsible person is insufficient to pay the costs of
198-25 cleanup.
198-26 (g) In a suit brought under Subsection (d), any responsible
198-27 person who, after reasonable notice has been given by the executive
199-1 director, has failed, after a reasonable period, to carry out his
199-2 duties under Section 10.176 is liable to the state for twice the
199-3 costs incurred by the state under this subchapter in cleaning up
199-4 the spill or discharge. Reasonable notice under this subsection
199-5 must include a statement as to the basis for finding the person to
199-6 whom notice is sent to be a responsible person. Any responsible
199-7 person held liable under this subsection or Subsection (d) has the
199-8 right to recover indemnity or contribution from any third party who
199-9 caused, suffered, allowed, or permitted the spill or discharge.
199-10 Liability arising under this subsection or Subsection (d) does not
199-11 affect any rights the responsible person has against a third party
199-12 whose acts caused or contributed to the spill or discharge.
199-13 (Sec. 26.265, Water Code.)
199-14 Sec. 10.176. Removal of Spill or Discharge. (a) Any owner,
199-15 operator, demise charterer, or person in charge of a vessel or of
199-16 any on-shore facility or off-shore facility shall immediately
199-17 undertake all reasonable actions to abate and remove the discharge
199-18 or spill subject to applicable federal and state requirements, and
199-19 subject to the control of the federal on-scene coordinator.
199-20 (b) In the event that the responsible person is unwilling or
199-21 in the opinion of the executive director is unable to remove the
199-22 discharge or spill, or the removal operation of the responsible
199-23 person is inadequate, the commission may undertake the removal of
199-24 the discharge or spill and may retain agents for these purposes who
199-25 shall operate under the direction of the executive director.
199-26 (c) Any discharge or spill of a hazardous substance, the
199-27 source of which is unknown, occurring in or having a potentially
200-1 harmful effect on waters in this state or in waters beyond the
200-2 jurisdiction of this state and which may reasonably be expected to
200-3 enter waters in this state may be removed by or under the direction
200-4 of the executive director. Any expense involved in the removal of
200-5 an unexplained discharge pursuant to this subsection shall be paid,
200-6 on the commission's approval, from the fund, subject to the
200-7 authority of the commission to seek reimbursement from an agency of
200-8 the federal government, and from the responsible person if the
200-9 identity of that person is discovered. (Sec. 26.266, Water Code.)
200-10 Sec. 10.177. Exemptions. (a) No person shall be held
200-11 liable under this subchapter for any spill or discharge resulting
200-12 from an act of God, act of war, third party negligence, or an act
200-13 of government.
200-14 (b) Nothing in this subchapter shall in any way affect or
200-15 limit the liability of any person to any other person or to the
200-16 United States, or to this state.
200-17 (c) Notwithstanding any other provision of this subchapter,
200-18 the state or the commission shall utilize any and all procedures
200-19 relating to releases or threatened releases of solid wastes
200-20 contained in Chapter 20 prior to utilizing the provisions of this
200-21 subchapter with respect to such releases or threatened releases.
200-22 (Sec. 26.267, Water Code.)
200-23 Sec. 10.178. Penalties. (a) This section is cumulative of
200-24 all penalties and enforcement provisions provided elsewhere to the
200-25 commission, except that the commission may not assess penalties
200-26 under this section for violations of this subchapter which are also
200-27 violations of any permit, rule, or order applicable to hazardous
201-1 waste under Chapter 20.
201-2 (b) Any person who violates any provision of this subchapter
201-3 or of a commission rule or order issued pursuant to this subchapter
201-4 is subject to a civil penalty of not less than $100 nor more than
201-5 $10,000 for each act of violation and for each day of violation.
201-6 The day on which a spill or discharge occurs and each day during
201-7 which the spill or discharge has not been removed is a day of
201-8 violation.
201-9 (c) Any person operating, in charge of, or responsible for a
201-10 facility or vessel which causes a discharge or spill as defined in
201-11 this subchapter and fails to report said spill or discharge upon
201-12 discovery thereof shall be guilty of a Class A misdemeanor.
201-13 (d) Any person who knowingly falsifies records or reports
201-14 concerning the prevention or cleanup of a discharge or spill as
201-15 provided for in this subchapter is guilty of a felony of the third
201-16 degree.
201-17 (e) The penalties authorized by this subchapter for
201-18 discharges and spills shall not apply to any discharge or spill
201-19 promptly reported and where reasonable precautions to minimize the
201-20 spill's impacts and reasonable efforts to clean it up were made by
201-21 the responsible person in accordance with the rules and orders of
201-22 the commission, unless the commission finds that the discharge or
201-23 spill is the result of the negligence of the responsible person.
201-24 (Sec. 26.268, Water Code.)
201-25 Sec. 10.179. Accidental Discharges and Spills. (a) As used
201-26 in this section:
201-27 (1) "Accidental discharge" means an act or omission
202-1 through which waste or other substances are inadvertently
202-2 discharged into water in the state.
202-3 (2) "Spill" means an act or omission through which
202-4 waste or other substances are deposited where, unless controlled or
202-5 removed, they will drain, seep, run, or otherwise enter water in
202-6 the state.
202-7 (3) "Other substances" means substances which may be
202-8 useful or valuable and therefore are not ordinarily considered to
202-9 be waste, but which will cause pollution if discharged into water
202-10 in the state.
202-11 (b) Whenever an accidental discharge or spill occurs at or
202-12 from any activity or facility which causes or may cause pollution,
202-13 the individual operating, in charge of, or responsible for the
202-14 activity or facility shall notify the commission as soon as
202-15 possible and not later than 24 hours after the occurrence.
202-16 (c) Activities which are inherently or potentially capable
202-17 of causing or resulting in the spillage or accidental discharge of
202-18 waste or other substances and which pose serious or significant
202-19 threats of pollution are subject to reasonable rules establishing
202-20 safety and preventive measures which the commission may adopt or
202-21 issue. The safety and preventive measures which may be required
202-22 shall be commensurate with the potential harm which could result
202-23 from the escape of the waste or other substances.
202-24 (d) The provisions of this section are cumulative of the
202-25 other provisions in this chapter relating to waste discharges, and
202-26 nothing in this section exempts any person from complying with or
202-27 being subject to any other provision of this chapter.
203-1 (Sec. 26.039, Water Code.)
203-2 (Sections 10.180-10.200 reserved for expansion)
203-3 SUBCHAPTER H. UNDERGROUND STORAGE TANKS
203-4 Sec. 10.201. Purpose. (a) The legislature finds that
203-5 leaking underground tanks storing certain hazardous, toxic, or
203-6 otherwise harmful substances have caused and continue to pose
203-7 serious groundwater contamination problems in Texas.
203-8 (b) The legislature declares that it is the policy of this
203-9 state and the purpose of this subchapter to:
203-10 (1) maintain and protect the quality of groundwater
203-11 and surface water resources in the state from certain substances in
203-12 underground and aboveground storage tanks that may pollute
203-13 groundwater and surface water resources; and
203-14 (2) require the use of all reasonable methods to
203-15 implement this policy. (Sec. 26.341, Water Code.)
203-16 Sec. 10.202. Definitions. In this subchapter:
203-17 (1) "Aboveground storage tank" means a nonvehicular
203-18 device that is:
203-19 (A) made of nonearthen materials;
203-20 (B) located on or above the surface of the
203-21 ground or on or above the surface of the floor of a structure below
203-22 ground such as a mineworking, basement, or vault; and
203-23 (C) designed to contain an accumulation of
203-24 petroleum.
203-25 (2) "Claim" means a demand in writing for a certain
203-26 sum.
203-27 (3) "Corporate fiduciary" means an entity chartered by
204-1 the Banking Department of Texas, the Savings and Loan Department of
204-2 Texas, the United States comptroller of the currency, or the
204-3 director of the United States Office of Thrift Supervision that
204-4 acts as a receiver, conservator, guardian, executor, administrator,
204-5 trustee, or fiduciary of real or personal property.
204-6 (4) "Eligible owner or operator" means a person
204-7 designated as an eligible owner or operator for purposes of this
204-8 subchapter by the commission under Section 10.224.
204-9 (5) "Hazardous substance" has the meaning assigned by
204-10 Section 101(14) of the Comprehensive Environmental Response,
204-11 Compensation, and Liability Act of 1980 (42 U.S.C. Section 9601 et
204-12 seq.).
204-13 (6) "Hydraulic fluid" means any regulated substance
204-14 that can be used in a hydraulic lift system.
204-15 (7) "Lender" means:
204-16 (A) a state or national bank;
204-17 (B) a state or federal savings and loan
204-18 association or savings bank;
204-19 (C) a credit union;
204-20 (D) a state or federal agency that customarily
204-21 provides financing; or
204-22 (E) an entity that is registered with the Office
204-23 of Consumer Credit Commissioner pursuant to Chapter 7, Title 79,
204-24 Revised Statutes (Article 5069-7.01 et seq., Vernon's Texas Civil
204-25 Statutes), if the entity is regularly engaged in the business of
204-26 extending credit and if extending credit represents the majority of
204-27 the entity's total business activity.
205-1 (8) "Person" means an individual, trust, firm,
205-2 joint-stock company, corporation, government corporation,
205-3 partnership, association, state, municipality, commission,
205-4 political subdivision of a state, an interstate body, a consortium,
205-5 joint venture, commercial entity, or the United States government.
205-6 (9) "Petroleum product" means a petroleum product that
205-7 is obtained from distilling and processing crude oil and that is
205-8 capable of being used as a fuel for the propulsion of a motor
205-9 vehicle or aircraft, including motor gasoline, gasohol, other
205-10 alcohol blended fuels, aviation gasoline, kerosene, distillate fuel
205-11 oil, and #1 and #2 diesel. The term does not include naphtha-type
205-12 jet fuel, kerosene-type jet fuel, or a petroleum product destined
205-13 for use in chemical manufacturing or feedstock of that
205-14 manufacturing.
205-15 (10) "Petroleum storage tank" means:
205-16 (A) any one or combination of aboveground
205-17 storage tanks that contain petroleum products and that are
205-18 regulated by the commission; or
205-19 (B) any one or combination of underground
205-20 storage tanks and any connecting underground pipes that contain
205-21 petroleum products and that are regulated by the commission.
205-22 (11) "Regulated substance" means an element, compound,
205-23 mixture, solution, or substance that, when released into the
205-24 environment, may present substantial danger to the public health,
205-25 welfare, or the environment.
205-26 (12) "Release" means any spilling including overfills,
205-27 leaking, emitting, discharging, escaping, leaching, or disposing
206-1 from an underground or aboveground storage tank into groundwater,
206-2 surface water, or subsurface soils.
206-3 (13) "Spent oil" means a regulated substance that is a
206-4 lubricating oil or similar petroleum substance which has been
206-5 refined from crude oil, used for its designed or intended purposes,
206-6 and contaminated as a result of that use by physical or chemical
206-7 impurities, including spent motor vehicle lubricating oils,
206-8 transmission fluid, or brake fluid.
206-9 (14) "Underground storage tank" means any one or
206-10 combination of underground tanks and any connecting underground
206-11 pipes used to contain an accumulation of regulated substances, the
206-12 volume of which, including the volume of the connecting underground
206-13 pipes, is 10 percent or more beneath the surface of the ground.
206-14 (15) "Vehicle service and fueling facility" means a
206-15 facility where motor vehicles are serviced or repaired and where
206-16 petroleum products are stored and dispensed from fixed equipment
206-17 into the fuel tanks of motor vehicles. (Sec. 26.342, Water Code.)
206-18 Sec. 10.203. Regulated Substances. (a) Regulated
206-19 substances under this subchapter include:
206-20 (1) a substance defined in Section 101(14) of the
206-21 Comprehensive Environmental Response, Compensation, and Liability
206-22 Act of 1980 (42 U.S.C. Section 9601 et seq.), but does not include
206-23 a substance regulated as a hazardous waste under the federal Solid
206-24 Waste Disposal Act (42 U.S.C. Section 6921 et seq.);
206-25 (2) petroleum, including crude oil or a fraction of
206-26 it, that is liquid at standard conditions of temperature and
206-27 pressure; and
207-1 (3) any other substance designated by the commission.
207-2 (b) Standard conditions of temperature and pressure under
207-3 Subsection (a)(2) are 60 degrees Fahrenheit and 14.7 pounds per
207-4 square inch absolute. (Sec. 26.343, Water Code.)
207-5 Sec. 10.204. Exemptions. (a) An underground or aboveground
207-6 storage tank is exempt from regulation under this subchapter if the
207-7 tank is:
207-8 (1) a farm or residential tank with a capacity of
207-9 1,100 gallons or less used for storing motor fuel for noncommercial
207-10 purposes;
207-11 (2) used for storing heating oil for consumptive use
207-12 on the premises where stored;
207-13 (3) a septic tank;
207-14 (4) a surface impoundment, pit, pond, or lagoon;
207-15 (5) a storm water or waste water collection system;
207-16 (6) a flow-through process tank;
207-17 (7) a tank, liquid trap, gathering line, or other
207-18 facility used in connection with an activity associated with the
207-19 exploration, development, or production of oil, gas, or geothermal
207-20 resources, or any other activity regulated by the Railroad
207-21 Commission of Texas pursuant to Section 91.101, Natural Resources
207-22 Code; or
207-23 (8) a transformer or other electrical equipment that
207-24 contains a regulated substance and that is used in the transmission
207-25 of electricity, to the extent that such a transformer or equipment
207-26 is exempted by the United States Environmental Protection Agency
207-27 under 40 C.F.R. Part 280.
208-1 (b) A storage tank is exempt from regulation under this
208-2 subchapter if the sole or principal substance in the tank is a
208-3 hazardous substance and the tank is located:
208-4 (1) in an underground area, including a basement,
208-5 cellar, mineworking, drift, shaft, or tunnel; and
208-6 (2) on or above the surface of the floor of that area.
208-7 (c) An interstate pipeline facility, including gathering
208-8 lines, or an aboveground storage tank connected to such a facility
208-9 is exempt from regulation under this subchapter if the pipeline
208-10 facility is regulated under:
208-11 (1) the Natural Gas Pipeline Safety Act of 1968 (49
208-12 U.S.C. Section 1671 et seq.); or
208-13 (2) the Hazardous Liquid Pipeline Safety Act of 1979
208-14 (49 U.S.C. Section 2001 et seq.).
208-15 (d) An intrastate pipeline facility or an aboveground
208-16 storage tank connected to such a facility is exempt from regulation
208-17 under this subchapter if the pipeline facility is regulated under
208-18 one of the following state laws:
208-19 (1) Chapter 111, Natural Resources Code;
208-20 (2) Chapter 117, Natural Resources Code; or
208-21 (3) Articles 6053-1 and 6053-2, Revised Statutes.
208-22 (e) Except for Section 10.212, in-ground hydraulic lifts
208-23 that use a compressed air/hydraulic fluid system and hold less than
208-24 100 gallons of hydraulic oil, if exempt by the federal
208-25 Environmental Protection Agency, are exempt under this subchapter.
208-26 (f) An aboveground storage tank that is located at or is
208-27 part of a petrochemical plant, a petroleum refinery, an electric
209-1 generating facility, or a bulk facility as that term is defined by
209-2 Section 2.178(a) is exempt from regulation under this subchapter
209-3 but is not exempt for purposes of the fee imposed under Section
209-4 2.178.
209-5 (g) Costs incurred as a result of a release from a storage
209-6 tank system owned, operated, or maintained by a common carrier
209-7 railroad are not reimbursable pursuant to the provisions of this
209-8 section. Common carrier railroads are exempt from the fees
209-9 collected pursuant to the provisions of this subchapter. (Sec.
209-10 26.344, Water Code.)
209-11 Sec. 10.205. Aboveground Storage Tanks. (a) An aboveground
209-12 storage tank that is not exempt from regulation under Section
209-13 10.204 is subject to the registration requirements of Section
209-14 10.207 and to regulation by the commission only to the extent
209-15 prescribed by this subchapter.
209-16 (b) The commission may not develop a regulatory program for
209-17 aboveground storage tanks that is more extensive than the
209-18 regulatory program authorized by this subchapter unless additional
209-19 regulation of aboveground storage tanks is necessary to comply or
209-20 be in conformity with requirements adopted by the United States
209-21 Environmental Protection Agency or with federal law. (Sec.
209-22 26.3441, Water Code.)
209-23 Sec. 10.206. Administrative Provisions. (a) The commission
209-24 shall administer this subchapter and may develop a regulatory
209-25 program regarding underground and aboveground storage tanks in
209-26 accordance with this subchapter.
209-27 (b) In implementing this subchapter, the commission shall
210-1 cooperate with:
210-2 (1) cities and towns;
210-3 (2) agencies, departments, and other political
210-4 subdivisions of the state; and
210-5 (3) the United States and its agencies.
210-6 (c) The commission may adopt rules necessary to carry out
210-7 the purposes of this subchapter.
210-8 (d) The commission may authorize the executive director to
210-9 enter into contracts with a public agency, private person, or other
210-10 entity for the purpose of implementing this subchapter.
210-11 (e) The commission may enter into contracts and cooperative
210-12 agreements with the federal government to carry out remedial action
210-13 for releases from underground and aboveground storage tanks as
210-14 authorized by the federal Solid Waste Disposal Act (42 U.S.C.
210-15 Section 6901 et seq.). (Sec. 26.345, Water Code.)
210-16 Sec. 10.207. Registration Requirements. (a) An underground
210-17 or aboveground storage tank must be registered with the commission
210-18 unless the tank is exempt from regulation under Section 10.204 or
210-19 the tank is covered under Subsection (b). The commission by rule
210-20 shall establish the procedures and requirements for establishing
210-21 and maintaining current registration information concerning
210-22 underground and aboveground storage tanks.
210-23 (b) An underground storage tank is not required to be
210-24 registered if the tank:
210-25 (1) does not contain a regulated substance; and
210-26 (2) is not in operation and has not been in operation
210-27 since January 1, 1974.
211-1 (c) The commission shall issue to each person who owns or
211-2 operates a petroleum storage tank that is registered under this
211-3 section a registration certificate that includes a brief
211-4 description of:
211-5 (1) the responsibility of the owner or operator under
211-6 Section 10.214; and
211-7 (2) the rights of the owner or operator to participate
211-8 in the petroleum storage tank remediation fund and groundwater
211-9 protection cleanup program established under this subchapter.
211-10 (d) A person who has previously provided notice to the
211-11 commission of an underground storage tank under Section 9002 of the
211-12 federal Solid Waste Disposal Act (42 U.S.C. Section 6921 et seq.)
211-13 is not required to register the tank with the commission under this
211-14 section. (Sec. 26.346, Water Code.)
211-15 Sec. 10.208. Tank Standards. (a) The commission shall
211-16 adopt performance standards for existing underground storage tanks
211-17 and underground storage tanks brought into use on or after the
211-18 effective date of the standards.
211-19 (b) The performance standards for underground storage tanks
211-20 must include design, construction, installation, release detection,
211-21 and compatibility standards. (Sec. 26.347, Water Code.)
211-22 Sec. 10.209. Leak Detection and Record Maintenance. The
211-23 commission shall adopt standards of performance for maintaining a
211-24 leak detection system, an inventory control system together with
211-25 tank testing, or a comparable system or method designed to identify
211-26 releases in a manner consistent with the protection of human health
211-27 and the environment. In addition, the commission shall adopt
212-1 requirements for maintaining records of any leak detection
212-2 monitoring that includes inventory control or tank testing system
212-3 or comparable system. (Sec. 26.348, Water Code.)
212-4 Sec. 10.210. Reporting of Releases and Corrective Action.
212-5 (a) The commission shall adopt requirements for the reporting of
212-6 any releases and corrective action taken in response to a release
212-7 from an underground or aboveground storage tank.
212-8 (b) The commission shall prepare an annual compilation of
212-9 reported releases, make that report available to the public, and
212-10 provide that report to the legislature and to the governor. The
212-11 report must contain, for each reported release:
212-12 (1) the corrective action or other response taken by
212-13 the owner, operator, commission, or any local governmental agency;
212-14 and
212-15 (2) any information or enforcement action taken by the
212-16 commission against the owner or operator responsible for the
212-17 release. (Sec. 26.349, Water Code.)
212-18 Sec. 10.211. Tank Closure Requirements. The commission
212-19 shall adopt requirements for the closure of tanks, including the
212-20 removal, disposal, or removal and disposal of tanks to prevent
212-21 future releases of regulated substances into the environment.
212-22 (Sec. 26.350, Water Code.)
212-23 Sec. 10.212. Corrective Action. (a) The commission shall
212-24 adopt rules establishing the requirements for taking corrective
212-25 action in response to a release from an underground or aboveground
212-26 storage tank. Corrective action may include:
212-27 (1) site cleanup, including the removal, treatment,
213-1 and disposal of surface and subsurface contamination;
213-2 (2) removal of underground or aboveground storage
213-3 tanks;
213-4 (3) measures to halt a release in progress or to
213-5 prevent future or threatened releases of regulated substances;
213-6 (4) well monitoring, taking of soil borings, and any
213-7 other actions reasonably necessary to determine the extent of
213-8 contamination caused by a release;
213-9 (5) providing alternate water supplies; and
213-10 (6) any other action reasonably necessary to protect
213-11 the public health and safety or the environment from harm or
213-12 threatened harm due to releases of regulated substances from
213-13 underground or aboveground storage tanks.
213-14 (b) The owner or operator of an underground or aboveground
213-15 storage tank shall immediately take all reasonable actions to
213-16 prevent a threatened release of regulated substances from an
213-17 underground or aboveground storage tank and to abate and remove any
213-18 releases subject to applicable federal and state requirements. The
213-19 owner or operator may be ordered to take corrective action under
213-20 this subchapter.
213-21 (c) The commission may undertake corrective action in
213-22 response to a release or a threatened release if:
213-23 (1) the owner or operator of the underground or
213-24 aboveground storage tank is unwilling to take corrective action;
213-25 (2) the owner or operator of the underground or
213-26 aboveground storage tank cannot be found;
213-27 (3) the owner or operator of the underground or
214-1 aboveground storage tank, in the opinion of the executive director,
214-2 is unable to take the corrective action necessary to protect the
214-3 public health and safety or the environment; or
214-4 (4) notwithstanding any other provision of this
214-5 chapter, the executive director determines that more expeditious
214-6 corrective action than is provided by this chapter is necessary to
214-7 protect the public health and safety or the environment from harm.
214-8 (d) The commission may retain agents to take corrective
214-9 action it considers necessary under this section. The agents shall
214-10 operate under the direction of the executive director. Any
214-11 expenses arising from corrective action taken by the commission or
214-12 the executive director may be paid from the storage tank fund.
214-13 (e) The commission has the primary regulatory authority to
214-14 direct the remediation of a release from an underground or
214-15 aboveground storage tank that contains petroleum if the release
214-16 does not present an immediate or imminent threat of fire or
214-17 explosion. (Sec. 26.351, Water Code.)
214-18 Sec. 10.213. Corrective Action by Commission. (a)
214-19 Notwithstanding Section 10.212(c), to the extent that the
214-20 commission pays from the petroleum storage tank remediation fund or
214-21 from sources other than the storage tank fund the expenses of the
214-22 investigations, cleanups, and corrective action measures it
214-23 performs, the commission may undertake those corrective action
214-24 measures described in Section 10.212 in response to a release or a
214-25 threatened release from an underground or aboveground storage tank
214-26 under any circumstances in which the commission considers it
214-27 necessary to protect the public health and safety or the
215-1 environment.
215-2 (b) The state, the commission, and their agents or employees
215-3 are not liable for damages arising out of the loss of access to or
215-4 the use of real property or losses to a business located on the
215-5 real property if those damages arise out of a delay in procuring
215-6 services for corrective action, initiating corrective action, or
215-7 completing corrective action on the property. This subsection
215-8 applies only to cases in which the commission undertakes corrective
215-9 action. (Sec. 26.3511, Water Code.)
215-10 Sec. 10.214. Owner or Operator Responsibility; Limitations
215-11 on Fund Payments for Corrective Action. (a) The provisions of
215-12 this subchapter relating to the groundwater protection cleanup
215-13 program and to the petroleum storage tank remediation fund do not
215-14 limit the responsibility or liability of an owner or operator of a
215-15 petroleum storage tank required to take corrective action under an
215-16 order issued in accordance with this subchapter by the commission.
215-17 (b) Funds from the petroleum storage tank remediation fund
215-18 may not be used to pay, and the owner or operator of a petroleum
215-19 storage tank ordered by the commission to take corrective action is
215-20 responsible for payment of, the following:
215-21 (1) the owner or operator contribution described by
215-22 Subsection (e);
215-23 (2) any expenses for corrective action that exceed $1
215-24 million for each occurrence;
215-25 (3) any expenses for corrective action that are not
215-26 covered by payment from the petroleum storage tank remediation fund
215-27 under the rules or decisions of the commission under this
216-1 subchapter; or
216-2 (4) any expenses for corrective action not ordered or
216-3 agreed to by the commission.
216-4 (c) The owner or operator contribution under Subsection
216-5 (b)(1) may include the costs of site assessment.
216-6 (d) Subsection (b)(1) does not prohibit payment from the
216-7 petroleum storage tank remediation fund of expenses incurred by an
216-8 eligible owner or operator as a result of an order issued by the
216-9 commission under Section 10.222 if the commission finds that the
216-10 eligible owner or operator is not responsible for the release from
216-11 a petroleum storage tank. An eligible owner or operator covered by
216-12 this subsection is eligible for reimbursement from the petroleum
216-13 storage tank remediation fund for the expenses incurred relating to
216-14 corrective action that result from the order issued by the
216-15 commission under Section 10.222.
216-16 (e) An owner or operator shall pay under Subsection (b)(1)
216-17 the first expenses for corrective action taken for each occurrence
216-18 as follows:
216-19 (1) a person who owns or operates 1,000 or more single
216-20 petroleum storage tanks, the first $10,000;
216-21 (2) a person who owns or operates not fewer than 100
216-22 or more than 999 single petroleum storage tanks, the first $5,000;
216-23 (3) a person who owns or operates not fewer than 13 or
216-24 more than 99 single petroleum storage tanks, the first $2,500; and
216-25 (4) a person who owns or operates fewer than 13 single
216-26 petroleum storage tanks, the first $1,000. (Sec. 26.3512, Water
216-27 Code.)
217-1 Sec. 10.215. Liability and Costs: Multiple Owners and
217-2 Operators. (a) This section applies at a site where the owner and
217-3 the operator are different persons or at a site where there is more
217-4 than one underground storage tank, petroleum storage tank, or a
217-5 combination of both.
217-6 (b) Each owner and operator of an underground storage tank
217-7 or petroleum storage tank at a site to which this section applies
217-8 and from which a release or threatened release occurs is
217-9 responsible for taking all corrective action at the site which may
217-10 be required under this subchapter; provided that liability for the
217-11 expenses of corrective action among owners and operators may be
217-12 apportioned as provided by this section.
217-13 (c) All owners and operators of underground storage tanks
217-14 and petroleum storage tanks at a site to which this section applies
217-15 shall attempt to negotiate a settlement among themselves as to the
217-16 apportionment of expenses.
217-17 (d) If the owners and operators reach a settlement as to the
217-18 apportionment of expenses on or before the 30th day from the date
217-19 on which the commission issues an order requiring corrective
217-20 action, they shall submit the settlement to the commission for
217-21 review. If the commission approves the settlement, the parties
217-22 shall be liable for the expenses of taking corrective action in
217-23 accordance with the approved settlement. Any action for breach of
217-24 contract on the settlement agreement shall be to the district court
217-25 of Travis County.
217-26 (e) If the parties cannot reach a settlement by the 30th day
217-27 after the commission issues its order, the commission shall file
218-1 suit in the district court of Travis County. In its petition, the
218-2 commission:
218-3 (1) shall request the court to apportion the expenses
218-4 of corrective action among the owners and operators; and
218-5 (2) may request the court to award recovery of costs
218-6 as provided by Section 10.221. In the alternative, the commission
218-7 may file an action for recovery of costs at a later time.
218-8 (f) Where the owner or operator can prove by a preponderance
218-9 of the evidence that liability for the expenses of taking
218-10 corrective action in response to a release or threatened release is
218-11 divisible, that person shall be liable for the expenses only to the
218-12 extent that the impact to the groundwater, surface water, or
218-13 subsurface soils is attributable to the release or threatened
218-14 release from his underground storage tank or petroleum storage
218-15 tank.
218-16 (g) The court may allocate corrective action costs among
218-17 liable parties, using such equitable factors as the court
218-18 determines are appropriate if the evidence is insufficient to
218-19 establish each party's divisible portion of the liability for
218-20 corrective action under Subsection (f) and joint and several
218-21 liability would impose undue hardship on the owners and operators.
218-22 (h) If the court apportions liability for the expenses of
218-23 corrective action as provided by Subsection (f) or (g), cost
218-24 recovery against the owners and operators shall be based on the
218-25 apportionment.
218-26 (i) The commission may use the petroleum storage tank
218-27 remediation fund to take corrective action at any time before,
219-1 during, or after the conclusion of apportionment proceedings
219-2 commenced under this section.
219-3 (j) Any owner or operator of a petroleum storage tank at the
219-4 site may voluntarily undertake such corrective action at the site
219-5 as the commission may agree to or require. An owner or operator
219-6 who undertakes corrective action pursuant to this subsection may
219-7 have contribution against all other owners and operators with tanks
219-8 at the site.
219-9 (k) Nothing in this section:
219-10 (1) prohibits the commission from using the storage
219-11 tank fund to take corrective action as provided by this subchapter
219-12 and having cost recovery for the storage tank fund; or
219-13 (2) affects the assessment of administrative penalties
219-14 by the commission for violations of this subchapter or rules or
219-15 orders adopted thereunder.
219-16 (l) At the request of the commission, the attorney general
219-17 shall file suit on behalf of the commission to seek the relief
219-18 provided by this section. (Sec. 26.3513, Water Code.)
219-19 Sec. 10.216. Limits on Liability of Lender. (a) This
219-20 section applies:
219-21 (1) to a lender that has a security or lienhold
219-22 interest in an underground or aboveground storage tank, in real
219-23 property on which an underground or aboveground storage tank is
219-24 located, or in any other personal property attached to or located
219-25 on property on which an underground or aboveground storage tank is
219-26 located, as security for a loan to finance the acquisition or
219-27 development of the property, to finance the removal, repair,
220-1 replacement, or upgrading of the tank, or to finance the
220-2 performance of corrective action in response to a release of a
220-3 regulated substance from the tank; or
220-4 (2) to situations in which the real or personal
220-5 property constitutes collateral for a commercial loan.
220-6 (b) A lender is not liable as an owner or operator under
220-7 this subchapter solely because the lender holds indicia of
220-8 ownership to protect a security or lienhold interest in property as
220-9 described by Subsection (a).
220-10 (c) A lender that exercises control over a property before
220-11 foreclosure to preserve the collateral or to retain revenues from
220-12 the property for the payment of debt, or that otherwise exercises
220-13 the control of a mortgagee in possession, is not liable as an owner
220-14 or operator under this subchapter unless that control leads to
220-15 action that the commission finds is causing or exacerbating
220-16 contamination associated with the release of a regulated substance
220-17 from a tank located on the property.
220-18 (d) A lender that has a bona fide security or lienhold
220-19 interest in any real or personal property as described by
220-20 Subsection (a) and that forecloses on or receives an assignment or
220-21 deed in lieu of foreclosure and becomes the owner of that real or
220-22 personal property is not liable as an owner or operator under this
220-23 subchapter if the lender removes from service any underground or
220-24 aboveground storage tanks on the property in accordance with
220-25 commission rules and takes and with due diligence completes
220-26 corrective action in response to any release from those tanks in
220-27 accordance with commission rules. A lender shall begin removal or
221-1 corrective action as prescribed by the commission within a
221-2 reasonable time, as set by the commission, after the date on which
221-3 the lender becomes the owner of the property, but not to exceed 90
221-4 days after that date.
221-5 (e) If a lender removes a tank from service or takes
221-6 corrective action at any time before or after foreclosure, the
221-7 lender shall perform corrective action in accordance with
221-8 requirements adopted by the commission under this subchapter.
221-9 (Sec. 26.3514, Water Code.)
221-10 Sec. 10.217. Limits on Liability of Corporate Fiduciary.
221-11 (a) A corporate fiduciary or its agent is not liable in an
221-12 individual capacity as an owner or operator of an underground or
221-13 aboveground storage tank under this subchapter solely because:
221-14 (1) the corporate fiduciary or its agent has legal
221-15 title to real or personal property for purposes of administering a
221-16 trust or estate of which the property is a part; or
221-17 (2) the corporate fiduciary or its agent does not have
221-18 legal title to the real or personal property but operates or
221-19 manages the property under the terms of an estate or trust of which
221-20 the property is a part.
221-21 (b) Subsection (a) does not relieve a trust, estate, or
221-22 beneficiary of any liability the trust, estate, or beneficiary may
221-23 have as an owner or operator under this subchapter. (Sec. 26.3515,
221-24 Water Code.)
221-25 Sec. 10.218. Financial Responsibility. (a) The commission
221-26 shall adopt requirements for maintaining evidence of financial
221-27 responsibility for taking corrective action and compensating third
222-1 parties for bodily injury and property damage caused by sudden and
222-2 nonsudden accidental releases arising from operating an underground
222-3 storage tank.
222-4 (b) An owner or operator of an underground storage tank may
222-5 submit the registration certificate issued by the commission to the
222-6 owner or operator under Section 10.207 to the United States
222-7 Environmental Protection Agency as evidence of the owner's or
222-8 operator's eligibility for funds for corrective action from the
222-9 petroleum storage tank remediation fund. (Sec. 26.352, Water
222-10 Code.)
222-11 Sec. 10.219. Commission Orders. (a) The commission may
222-12 issue orders to enforce this subchapter and rules adopted under
222-13 this subchapter in accordance with the procedures applicable to
222-14 orders issued under Section 2.210.
222-15 (b) The groundwater protection cleanup program established
222-16 under Section 10.225 does not affect the commission's right to
222-17 pursue enforcement orders with or without administrative penalties
222-18 if an owner or operator violates this code, an order issued under
222-19 this subchapter, or a rule adopted by the commission. (Sec.
222-20 26.353, Water Code.)
222-21 Sec. 10.220. Emergency Orders. (a) Notwithstanding any
222-22 other provision of this chapter, the executive director may issue
222-23 emergency orders to the persons identified in Subsection (e) if it
222-24 appears that:
222-25 (1) there is an actual or threatened release of a
222-26 regulated substance from an underground or aboveground storage
222-27 tank; and
223-1 (2) the executive director determines that more
223-2 expeditious corrective action than is otherwise provided for under
223-3 this chapter is necessary to protect the public health and safety
223-4 or the environment from harm.
223-5 (b) An order issued under Subsection (a) may prohibit a
223-6 person from allowing or continuing the release or threatened
223-7 release and require the person to take the actions necessary to
223-8 eliminate the release or threatened release.
223-9 (c) An emergency order issued under this section shall be:
223-10 (1) mailed by certified mail, return receipt
223-11 requested, to each person identified in the order;
223-12 (2) hand delivered to each person identified in the
223-13 order; or
223-14 (3) on failure of service by certified mail or hand
223-15 delivery, served by publication one time in the Texas Register and
223-16 one time in a newspaper with general circulation in each county in
223-17 which any of the persons had a last known address.
223-18 (d) An emergency order issued under this section does not
223-19 require notice or an adjudicative hearing before its issuance. If
223-20 the executive director issues an order under this section, the
223-21 commission shall fix a time and place for a hearing to affirm,
223-22 modify, or set aside the emergency order issued by the executive
223-23 director. The hearing before the commission shall be held as soon
223-24 as practicable after the issuance of the emergency order.
223-25 (e) The executive director may issue orders under this
223-26 section to the following persons:
223-27 (1) the owner of an underground or aboveground storage
224-1 tank; or
224-2 (2) the operator of an underground or aboveground
224-3 storage tank. (Sec. 26.354, Water Code.)
224-4 Sec. 10.221. Recovery of Costs. (a) If the commission has
224-5 incurred any costs in undertaking corrective action or enforcement
224-6 action with respect to the release of regulated substances from an
224-7 underground or aboveground storage tank, the owner or the operator
224-8 of the tank is liable to the state for all reasonable costs of
224-9 those corrective and enforcement actions and for court costs and
224-10 reasonable attorney's fees.
224-11 (b) An owner or operator of an underground or aboveground
224-12 storage tank from which a regulated substance is released is liable
224-13 to the state unless the release was caused by:
224-14 (1) an act of God;
224-15 (2) an act of war;
224-16 (3) the negligence of the State of Texas or the United
224-17 States; or
224-18 (4) an act or omission of a third party.
224-19 (c) The state's right to recover under this section arises
224-20 whether or not the commission:
224-21 (1) uses funds from the storage tank fund or the
224-22 petroleum storage tank remediation fund; or
224-23 (2) receives or will receive funds from the state, the
224-24 federal government, or any other source for the purpose of
224-25 corrective action or enforcement.
224-26 (d) If the commission uses money from the petroleum storage
224-27 tank remediation fund for corrective action or enforcement and if
225-1 the costs are recovered under this section, the commission may not
225-2 recover more than the amount of the applicable owner or operator
225-3 contribution described by Section 10.214(e) from an eligible owner
225-4 or operator for corrective action for each occurrence.
225-5 (e) An indemnification, hold harmless, or similar agreement
225-6 or conveyance is not effective to transfer the liability imposed
225-7 under this section from the owner or operator of an underground or
225-8 aboveground storage tank or from a person who may be liable for a
225-9 release or threat of release to any other person. This section
225-10 does not bar any agreement to insure, hold harmless, or indemnify a
225-11 party to the agreement for any liability under this section.
225-12 (f) This section does not bar a cause of action that an
225-13 owner or operator or any other person subject to liability under
225-14 this section or a guarantor has or would have by reason of
225-15 subrogation or otherwise against any person.
225-16 (g) At the request of the commission, the attorney general
225-17 shall initiate court proceedings to recover costs under this
225-18 section.
225-19 (h) Except as provided by Subsection (i), money recovered in
225-20 a court proceeding under this section shall be deposited in the
225-21 State Treasury to the credit of the storage tank fund.
225-22 (i) If the commission uses money from the petroleum storage
225-23 tank remediation fund for corrective action or enforcement as
225-24 provided by this subchapter, money recovered in a court proceeding
225-25 under this section shall be deposited in the state treasury to the
225-26 credit of the petroleum storage tank remediation fund. (Sec.
225-27 26.355, Water Code.)
226-1 Sec. 10.222. Inspections, Monitoring, and Testing. (a) For
226-2 the purposes of developing or assisting in the development of a
226-3 regulation, conducting a study, or enforcing this subchapter, an
226-4 owner or operator of an underground or aboveground storage tank, on
226-5 the request of the commission, shall:
226-6 (1) furnish information relating to the tank,
226-7 including tank equipment and contents; and
226-8 (2) permit a designated agent or employee of the
226-9 commission at all reasonable times to have access to and to copy
226-10 all records relating to the tank.
226-11 (b) For the purposes of developing or assisting in the
226-12 development of a regulation, conducting a study, or enforcing this
226-13 subchapter, the commission, its designated agent, or employee may:
226-14 (1) enter at reasonable times an establishment or
226-15 place in which an underground or aboveground storage tank is
226-16 located;
226-17 (2) inspect and obtain samples of a regulated
226-18 substance contained in the tank from any person; and
226-19 (3) conduct monitoring or testing of the tank,
226-20 associated equipment, contents, or surrounding soils, air, surface
226-21 water, or groundwater.
226-22 (c) The commission may order an owner or an operator of an
226-23 underground or aboveground storage tank to conduct monitoring and
226-24 testing if the commission finds that there is reasonable cause to
226-25 believe that a release has occurred in the area in which the
226-26 underground or aboveground storage tank is located.
226-27 (d) Each inspection made under this section must be begun
227-1 and completed with reasonable promptness. Before a designated
227-2 agent or employee of the commission enters private property to
227-3 carry out a function authorized under this section, the agent or
227-4 employee must give reasonable notice and exhibit proper
227-5 identification to the manager or owner of the property or to
227-6 another appropriate person, as provided by commission rule. The
227-7 commission's designated agent or employee must observe the
227-8 regulations of the establishment being inspected, including
227-9 regulations regarding safety, internal security, and fire
227-10 protection. (Sec. 26.356, Water Code.)
227-11 Sec. 10.223. Standards and Rules. (a) Standards and rules
227-12 concerning underground storage tanks adopted by the commission
227-13 under this subchapter must be at least as stringent as the federal
227-14 requirements under Title VI of the Hazardous and Solid Waste
227-15 Amendments of 1984 (42 U.S.C. Section 6901 et seq.).
227-16 (b) The commission may not impose standards or rules more
227-17 stringent than the federal requirements unless the commission
227-18 determines that more stringent standards or rules are necessary to
227-19 protect human health or the environment. (Sec. 26.357, Water
227-20 Code.)
227-21 Sec. 10.224. Eligible Owner or Operator. (a) The
227-22 commission by rule shall establish criteria to be met by a person
227-23 to qualify as an eligible owner or operator.
227-24 (b) To be an eligible owner or operator for purposes of this
227-25 subchapter, a person must:
227-26 (1) be one of the following:
227-27 (A) an owner or operator of a petroleum storage
228-1 tank that is subject to regulation under this subchapter;
228-2 (B) an owner of land that can clearly prove that
228-3 the land has been contaminated by a release of petroleum products
228-4 from a petroleum storage tank that is subject to regulation under
228-5 this subchapter, whether or not the tank is still attached to that
228-6 land; or
228-7 (C) a lender that has a bona fide security or
228-8 lienhold interest in or mortgage lien on any property contaminated
228-9 by the release of petroleum products from a petroleum storage tank
228-10 subject to regulation under this subchapter, or that forecloses on
228-11 or receives an assignment or deed in lieu of foreclosure and
228-12 becomes the owner of such property;
228-13 (2) be in compliance with this subchapter as
228-14 determined by the commission; and
228-15 (3) meet qualifying criteria established by the
228-16 commission under Subsection (a).
228-17 (c) The commission by rule may prescribe special conditions,
228-18 consistent with the objective of formulating an overall plan for
228-19 remediation of an entire contaminated site, for designating as an
228-20 eligible owner:
228-21 (1) a person described by Subsection (b)(1)(B) who
228-22 owns land contaminated by a release of petroleum products from a
228-23 tank that was or is located on property the person does not own; or
228-24 (2) a lender described by Subsection (b)(1)(C).
228-25 (d) In determining whether an owner or operator is in
228-26 compliance with this subchapter, the commission may consider such
228-27 factors as the owner's or operator's compliance with tank
229-1 registration, release detection and reporting, and corrective
229-2 action requirements.
229-3 (e) The commission shall designate a person as an eligible
229-4 owner or operator for purposes of this subchapter as provided by
229-5 this section.
229-6 (f) The commission may not establish any requirements for
229-7 eligibility under this section that are not consistent with this
229-8 subchapter or with federal law and federal regulations. (Sec.
229-9 26.3571, Water Code.)
229-10 Sec. 10.225. Groundwater Protection Cleanup Program.
229-11 (a) The groundwater protection cleanup program is established, and
229-12 the commission shall administer that program.
229-13 (b) In administering the program, the commission shall:
229-14 (1) negotiate with or direct responsible parties in
229-15 site assessment and remediation matters;
229-16 (2) approve site-specific corrective action plans for
229-17 each site;
229-18 (3) review and inspect site assessment and remedial
229-19 activities and reports; and
229-20 (4) process claims for petroleum storage tank
229-21 remediation fund disbursement.
229-22 (c) The commission shall adopt by rule criteria to be used
229-23 to determine:
229-24 (1) the necessity for site assessment; and
229-25 (2) the nature of the site assessment required. (Sec.
229-26 26.3572, Water Code.)
229-27 Sec. 10.226. Petroleum Storage Tank Remediation Fund.
230-1 (a) The petroleum storage tank remediation fund is created in the
230-2 state treasury. The commission shall administer the fund in
230-3 accordance with this subchapter.
230-4 (b) The petroleum storage tank remediation fund consists of
230-5 money from:
230-6 (1) fees charged under Section 2.178;
230-7 (2) the interest and penalties for the late payment of
230-8 the fee charged under Section 2.178; and
230-9 (3) funds received from cost recovery for corrective
230-10 action and enforcement actions concerning petroleum storage tanks
230-11 as provided by this subchapter.
230-12 (c) Interest earned on amounts in the petroleum storage tank
230-13 remediation fund shall be credited to the general revenue fund.
230-14 (d) The commission may use the money in the petroleum
230-15 storage tank remediation fund to pay:
230-16 (1) necessary expenses associated with the
230-17 administration of the petroleum storage tank remediation fund and
230-18 the groundwater protection cleanup program, not to exceed an amount
230-19 equal to three percent of the gross receipts of that fund, provided
230-20 that the increment between two and three percent of the gross
230-21 receipts may be used only to pay administrative expenses associated
230-22 with regulating petroleum storage tanks, reimbursing eligible
230-23 owners and operators, and disposing of contaminated soils;
230-24 (2) expenses associated with investigation, cleanup,
230-25 or corrective action measures performed in response to a release or
230-26 threatened release from a petroleum storage tank, whether those
230-27 expenses are incurred by the commission or pursuant to a contract
231-1 between a contractor and an eligible owner or operator as
231-2 authorized by this subchapter; and
231-3 (3) subject to the conditions of Subsection (e),
231-4 expenses associated with investigation, cleanup, or corrective
231-5 action measures performed in response to a release or threatened
231-6 release of hydraulic fluid or spent oil from hydraulic lift systems
231-7 or tanks located at a vehicle service and fueling facility and used
231-8 as part of the operations of that facility.
231-9 (e) The commission may pay from the fund expenses under
231-10 Subsection (d)(3), whether or not the hydraulic fluid or spent oil
231-11 contamination is mixed with petroleum product contamination, but
231-12 the commission may require an eligible owner or operator to
231-13 demonstrate that the release of spent oil is not mixed with any
231-14 substance except:
231-15 (1) hydraulic fluid from a hydraulic lift system;
231-16 (2) petroleum products from a petroleum storage tank
231-17 system; or
231-18 (3) another substance that was contained in the
231-19 hydraulic lift system or the spent oil tank owned or operated by
231-20 the person claiming reimbursement.
231-21 (f) The commission, in accordance with this subchapter and
231-22 rules adopted under this subchapter, may:
231-23 (1) contract directly with a person to perform
231-24 corrective action and pay the contractor from the petroleum storage
231-25 tank remediation fund;
231-26 (2) reimburse an eligible owner or operator from the
231-27 petroleum storage tank remediation fund for the expenses of
232-1 corrective action performed on or after September 1, 1987; or
232-2 (3) pay the claim of a person who has contracted with
232-3 an eligible owner or operator to perform corrective action with
232-4 funds from the petroleum storage tank remediation fund.
232-5 (g) The commission shall administer the petroleum storage
232-6 tank remediation fund and by rule adopt guidelines and procedures
232-7 for the use of and eligibility for that fund as the commission
232-8 finds necessary to:
232-9 (1) make the most efficient use of the money
232-10 available; and
232-11 (2) provide the most effective protection to the
232-12 environment and provide for the public health and safety.
232-13 (h) Consistent with the objectives provided under Subsection
232-14 (g) and this subchapter, the commission may by rule adopt:
232-15 (1) guidelines the commission considers necessary for
232-16 determining the amounts that may be paid from the petroleum storage
232-17 tank remediation fund;
232-18 (2) guidelines concerning reimbursement for expenses
232-19 incurred by an eligible owner or operator and covered under Section
232-20 10.214(d); and
232-21 (3) minimum qualifications the commission considers
232-22 necessary for a person with whom an eligible owner or operator may
232-23 contract to participate in corrective action.
232-24 (i) The commission may implement a registration program for
232-25 persons who contract to perform corrective action and may require
232-26 registration and the use of registered contractors as a
232-27 prerequisite to receiving money from the petroleum storage tank
233-1 remediation fund for corrective action under this subchapter.
233-2 (j) The commission shall hear any complaint regarding the
233-3 payment of a claim from the petroleum storage tank remediation fund
233-4 arising from a contract between a contractor and an eligible owner
233-5 or operator. A hearing held under this subsection shall be
233-6 conducted in accordance with the procedures for a contested case
233-7 under the Administrative Procedure and Texas Register Act (Article
233-8 6252-13a, Vernon's Texas Civil Statutes). An appeal of a
233-9 commission decision under this subsection shall be to the district
233-10 court of Travis County and the substantial evidence rule applies.
233-11 (k) The commission shall satisfy a claim for payment that is
233-12 eligible to be paid under this subchapter and the rules adopted
233-13 under this subchapter made by a contractor, from the petroleum
233-14 storage tank remediation fund as provided by Chapter 82, Acts of
233-15 the 69th Legislature, Regular Session, 1985 (Article 601f, Vernon's
233-16 Texas Civil Statutes), regardless of whether the commission:
233-17 (1) contracts directly for the goods or services; or
233-18 (2) pays a claim under a contract executed by a
233-19 petroleum storage tank owner or operator.
233-20 (l) The commission may use any amount up to $1 million from
233-21 the petroleum storage tank remediation fund to pay expenses
233-22 associated with the corrective action for each occurrence taken in
233-23 response to a release from a petroleum storage tank.
233-24 (m) The petroleum storage tank remediation fund may not be
233-25 used for corrective action taken in response to a release from an
233-26 underground storage tank if the sole or principal substance in the
233-27 tank is a hazardous substance.
234-1 (n) The petroleum storage tank remediation fund may be used
234-2 to pay for corrective action in response to a release whether the
234-3 action is taken inside or outside of the boundaries of the property
234-4 on which the leaking petroleum storage tank is located.
234-5 (o) The petroleum storage tank remediation fund may not be
234-6 used to compensate third parties for bodily injury or property
234-7 damage. (Sec. 26.3573, Water Code.)
234-8 Sec. 10.227. Local Regulation or Ordinance. This subchapter
234-9 establishes a unified statewide program for underground and surface
234-10 water protection, and any local regulation or ordinance is
234-11 effective only to the extent the regulation or ordinance does not
234-12 conflict with the standards adopted for the design, construction,
234-13 installation, or operation of underground storage tanks under this
234-14 subchapter. (Sec. 26.359, Water Code.)
234-15 (Sections 10.228-10.250 reserved for expansion)
234-16 SUBCHAPTER I. CRIMINAL PROSECUTION
234-17 Sec. 10.251. Definitions. As used in this subchapter:
234-18 (1) "Water" includes both surface and subsurface
234-19 water, and "water in the state" means any water within the
234-20 jurisdiction of the state.
234-21 (2) "Water pollution" means the alteration of the
234-22 physical, chemical, or biological quality of, or the contamination
234-23 of, any of the water in the state that renders the water harmful,
234-24 detrimental, or injurious to humans, animal life, vegetation, or
234-25 property or to public health, safety, or welfare, or impairs the
234-26 usefulness or public enjoyment of the water for any lawful or
234-27 reasonable purpose.
235-1 (3) "Person" means an individual, association,
235-2 partnership, corporation, municipality, state or federal agency, or
235-3 an agent or employee thereof.
235-4 (4) "Waste" means sewage, industrial waste, municipal
235-5 waste, recreational waste, agricultural waste, or other waste
235-6 defined in this section.
235-7 (5) "Sewage" means waterborne human or animal wastes
235-8 from residences, buildings, industrial establishments, cities,
235-9 towns, or other places together with groundwater infiltration and
235-10 surface water with which it is commingled.
235-11 (6) "Municipal waste" means waterborne liquid,
235-12 gaseous, solid, or other waste substances or a combination of these
235-13 that result from any discharge arising within or emanating from, or
235-14 subject to the control of, any municipal corporation, city, town,
235-15 village, or municipality.
235-16 (7) "Recreational waste" means waterborne liquid,
235-17 gaseous, solid, or other waste substances or a combination of these
235-18 that arise within or emanate from any public or private park,
235-19 beach, or recreational area.
235-20 (8) "Agricultural waste" means waterborne liquid,
235-21 gaseous, solid, or other waste substances that arise from any type
235-22 of public or private agricultural activity, including poisons and
235-23 insecticides used in agricultural activities.
235-24 (9) "Industrial waste" means waterborne liquid,
235-25 gaseous, solid, or other waste substances or a combination of these
235-26 that result from any process of industry, manufacturing, trade, or
235-27 business.
236-1 (10) "Other waste" means garbage, refuse, decayed
236-2 wood, sawdust, shavings, bark, sand, lime, cinders, ashes, offal,
236-3 oil, tar, dyestuffs, acids, chemicals, salt water, or any other
236-4 substance, other than sewage, industrial waste, municipal waste,
236-5 recreational waste, or agricultural waste that may cause the
236-6 quality of water in the state to be impaired.
236-7 (11) "To discharge" includes to deposit, conduct,
236-8 drain, emit, throw, run, allow to seep, or otherwise release or
236-9 dispose of. (Sec. 26.211, Water Code.)
236-10 Sec. 10.252. Criminal Offenses and Penalties. (a) A person
236-11 commits an offense if the person, acting intentionally or knowingly
236-12 with respect to the person's conduct, discharges or permits the
236-13 discharge of a waste or pollutant into or adjacent to water in the
236-14 state that causes or threatens to cause water pollution unless the
236-15 waste or pollutant is discharged in strict compliance with all
236-16 required permits or with a valid and currently effective order
236-17 issued or rule adopted by the appropriate regulatory agency.
236-18 (b) An offense under Subsection (a) is punishable for an
236-19 individual by:
236-20 (1) a fine of not less than $1,000 or more than
236-21 $25,000;
236-22 (2) confinement in jail not to exceed one year; or
236-23 (3) both fine and confinement.
236-24 (c) An offense under Subsection (a) is punishable for a
236-25 person other than an individual by a fine of not less than $1,000
236-26 or more than $50,000.
236-27 (d) A person commits an offense if the person, acting
237-1 intentionally or knowingly with respect to the person's conduct,
237-2 discharges or permits the discharge of a waste or pollutant from a
237-3 point source in violation of this chapter or of a rule, permit, or
237-4 order of the appropriate regulatory agency.
237-5 (e) An offense under Subsection (d) is punishable for an
237-6 individual by:
237-7 (1) a fine of not less than $1,000 or more than
237-8 $25,000;
237-9 (2) confinement in jail not to exceed one year; or
237-10 (3) both fine and confinement.
237-11 (f) An offense under Subsection (d) is punishable for a
237-12 person other than an individual by a fine of not less than $1,000
237-13 or more than $50,000.
237-14 (g) A person commits an offense if the person discharges or
237-15 permits the discharge of any waste or pollutant into any water in
237-16 the state that causes or threatens to cause water pollution unless
237-17 the waste or pollutant is discharged in strict compliance with all
237-18 required permits or with a valid and currently effective order
237-19 issued or rule adopted by the appropriate regulatory agency.
237-20 (h) An offense under Subsection (g) is punishable by a fine
237-21 of not less than $100 or more than $10,000.
237-22 (i) An offense under Subsection (g) may be prosecuted
237-23 without alleging or proving any culpable mental state.
237-24 (j) A person commits an offense if the person intentionally
237-25 or knowingly tampers with, modifies, disables, or fails to use
237-26 pollution control or monitoring devices, systems, methods, or
237-27 practices required by this chapter or a rule, permit, or order of
238-1 the commission or one of its predecessor agencies unless done in
238-2 strict compliance with the rule, permit, or order.
238-3 (k) An offense under Subsection (j) is punishable for an
238-4 individual by:
238-5 (1) a fine of not less than $500 or more than
238-6 $100,000;
238-7 (2) confinement in jail not to exceed one year; or
238-8 (3) both fine and confinement.
238-9 (l) An offense under Subsection (j) is punishable for a
238-10 person other than an individual by a fine of not less than $1,000
238-11 or more than $250,000.
238-12 (m) A person commits an offense if the person intentionally
238-13 or knowingly makes or causes to be made a false material statement,
238-14 representation, or certification in, or omits or causes to be
238-15 omitted material information from, an application, notice, record,
238-16 report, plan, or other document, including monitoring device data,
238-17 filed or required to be maintained by this chapter, or by a rule,
238-18 permit, or order of the appropriate regulatory agency.
238-19 (n) An offense under Subsection (m) is punishable for an
238-20 individual by:
238-21 (1) a fine of not less than $500 or more than
238-22 $100,000;
238-23 (2) confinement in jail not to exceed one year; or
238-24 (3) both fine and confinement.
238-25 (o) An offense under Subsection (m) is punishable for a
238-26 person other than an individual by a fine of not less than $1,000
238-27 or more than $250,000.
239-1 (p) A person commits an offense if the person intentionally
239-2 or knowingly fails to notify or report to the commission as
239-3 required under this chapter or by a rule, permit, or order of the
239-4 appropriate regulatory agency.
239-5 (q) An offense under Subsection (p) is punishable for an
239-6 individual by:
239-7 (1) a fine of not less than $500 or more than
239-8 $100,000;
239-9 (2) confinement in jail not to exceed one year; or
239-10 (3) both fine and confinement.
239-11 (r) An offense under Subsection (p) is punishable for a
239-12 person other than an individual by a fine of not less than $1,000
239-13 or more than $250,000.
239-14 (s) A person commits an offense if the person intentionally
239-15 or knowingly fails to pay a fee required by this chapter or by a
239-16 rule, permit, or order of the appropriate regulatory agency.
239-17 (t) An offense under Subsection (s) is punishable for an
239-18 individual by:
239-19 (1) a fine not to exceed twice the amount of the
239-20 required fee;
239-21 (2) confinement in jail not to exceed 90 days; or
239-22 (3) both fine and confinement.
239-23 (u) An offense under Subsection (s) is punishable for a
239-24 person other than an individual by a fine not to exceed twice the
239-25 amount of the required fee.
239-26 (v) If it is shown at the trial of the defendant that the
239-27 defendant has previously been convicted of the same offense under
240-1 this section, the maximum punishment is doubled with respect to
240-2 both the fine and confinement.
240-3 (w) Each day that a person engages in conduct proscribed by
240-4 this section constitutes a separate offense.
240-5 (x) A fine recovered through a prosecution brought under
240-6 this section shall be divided equally between the state and a local
240-7 government significantly involved in prosecuting the case, except
240-8 that if the court determines that the state or the local government
240-9 bore significantly more of the burden of prosecuting the case, it
240-10 may apportion up to 75 percent of the fine to the government that
240-11 predominantly prosecuted the case. (Sec. 26.2121, Water Code.)
240-12 Sec. 10.253. Endangerment Offenses. (a) A person commits
240-13 an offense if the person, acting intentionally or knowingly,
240-14 discharges or permits the discharge of a waste or pollutant into or
240-15 adjacent to water in the state and thereby knowingly places any
240-16 other person in imminent danger of death or serious bodily injury,
240-17 unless the discharge is made in strict compliance with all required
240-18 permits or with a valid and currently effective order issued or
240-19 rule adopted by the appropriate regulatory agency.
240-20 (b) An offense under Subsection (a) is punishable for an
240-21 individual by:
240-22 (1) a fine of not less than $2,500 or more than
240-23 $250,000;
240-24 (2) imprisonment not to exceed 10 years; or
240-25 (3) both fine and imprisonment.
240-26 (c) An offense under Subsection (a) is punishable for a
240-27 person other than an individual by a fine of not less than $5,000
241-1 or more than $500,000.
241-2 (d) If an offense committed by an individual under
241-3 Subsection (a) results in death or serious bodily injury to any
241-4 person, the individual may be punished by:
241-5 (1) a fine of not less than $5,000 or more than
241-6 $500,000;
241-7 (2) imprisonment for not less than five years or more
241-8 than 20 years; or
241-9 (3) both fine and imprisonment.
241-10 (e) If an offense committed by a person other than an
241-11 individual under Subsection (a) results in death or serious bodily
241-12 injury to any person, the person may be punished by a fine of not
241-13 less than $10,000 or more than $1 million.
241-14 (f) For purposes of Subsection (a), in determining whether a
241-15 defendant who is an individual knew that the violation placed
241-16 another person in imminent danger of death or serious bodily
241-17 injury, the defendant is responsible only for the defendant's
241-18 actual awareness or actual belief possessed. Knowledge possessed
241-19 by a person other than the defendant may not be attributed to the
241-20 defendant. To prove a defendant's actual knowledge, circumstantial
241-21 evidence may be used, including evidence that the defendant took
241-22 affirmative steps to be shielded from relevant information.
241-23 (g) A person commits an offense if the person, acting
241-24 intentionally or knowingly with respect to the person's conduct,
241-25 discharges or permits the discharge of a waste or pollutant into or
241-26 adjacent to water in the state, thereby placing any other person in
241-27 imminent danger of death or serious bodily injury, unless the
242-1 discharge is made in strict compliance with all required permits or
242-2 with a valid and currently effective order issued or rule adopted
242-3 by the appropriate regulatory agency.
242-4 (h) An offense under Subsection (g) is punishable for an
242-5 individual by:
242-6 (1) a fine of not less than $1,500 or more than
242-7 $150,000;
242-8 (2) imprisonment not to exceed five years; or
242-9 (3) both fine and imprisonment.
242-10 (i) An offense under Subsection (g) is punishable for a
242-11 person other than an individual by a fine of not less than $3,000
242-12 or more than $300,000.
242-13 (j) If an offense committed by an individual under
242-14 Subsection (g) results in death or serious bodily injury to any
242-15 person, the individual may be punished by:
242-16 (1) a fine of not less than $3,000 or more than
242-17 $300,000;
242-18 (2) imprisonment for not less than three years or more
242-19 than 10 years; or
242-20 (3) both fine and imprisonment.
242-21 (k) If an offense under Subsection (g) committed by a person
242-22 other than an individual results in death or serious bodily injury
242-23 to any person, the person convicted of the offense may be punished
242-24 by a fine of not less than $6,000 or more than $600,000.
242-25 (l) A person commits an offense if the person, acting
242-26 recklessly with respect to the person's conduct, discharges or
242-27 permits the discharge of a waste or pollutant into or adjacent to
243-1 water in the state, thereby placing any other person in imminent
243-2 danger of death or serious bodily injury, unless the discharge is
243-3 made in strict compliance with all required permits or with a valid
243-4 and currently effective order issued or rule adopted by the
243-5 appropriate regulatory agency.
243-6 (m) An offense under Subsection (l) is punishable for an
243-7 individual by:
243-8 (1) a fine of not less than $1,000 or more than
243-9 $100,000;
243-10 (2) confinement in jail not to exceed one year; or
243-11 (3) both fine and confinement.
243-12 (n) An offense under Subsection (l) is punishable for a
243-13 person other than an individual by a fine of not less than $2,500
243-14 or more than $250,000.
243-15 (o) If an offense committed by an individual under
243-16 Subsection (l) results in death or serious bodily injury to any
243-17 person, the individual may be punished by:
243-18 (1) a fine of not less than $2,000 or more than
243-19 $200,000;
243-20 (2) confinement of not less than one year or more than
243-21 five years; or
243-22 (3) both fine and confinement.
243-23 (p) If an offense committed by a person other than an
243-24 individual under Subsection (l) results in death or serious bodily
243-25 injury to any person, the person may be punished by a fine of not
243-26 less than $5,000 or more than $500,000.
243-27 (q) It is an affirmative defense to prosecution under this
244-1 section that the conduct charged was freely consented to by the
244-2 person endangered and that the danger and conduct charged were
244-3 reasonably foreseeable hazards of the person's occupation,
244-4 business, or profession or a medical treatment or medical or
244-5 scientific experimentation conducted by professionally approved
244-6 methods and the person endangered had been made aware of the risks
244-7 involved before giving consent.
244-8 (r) Each day that a person engages in conduct proscribed by
244-9 this section constitutes a separate offense.
244-10 (s) A fine recovered through a prosecution brought under
244-11 this subchapter shall be divided equally between the state and any
244-12 local government significantly involved in prosecuting the case,
244-13 except that if the court determines that the state or the local
244-14 government bore significantly more of the burden of prosecuting the
244-15 case, it may apportion up to 75 percent of the fine to the
244-16 government that predominantly prosecuted the case. (Sec. 26.2125,
244-17 Water Code.)
244-18 Sec. 10.254. Affirmative Defense. It is an affirmative
244-19 defense to prosecution under Sections 10.252 and 10.253 that the
244-20 person charged was an employee who was carrying out the person's
244-21 normal activities and was acting under orders from the person's
244-22 employer, unless the person charged engaged in knowing and wilful
244-23 violations. (Sec. 26.2126, Water Code.)
244-24 Sec. 10.255. Notice of Criminal Conviction. (a) In
244-25 addition to a sentence that may be imposed under this subchapter, a
244-26 person other than an individual that has been adjudged guilty of an
244-27 offense may be ordered by the court to give notice of the
245-1 conviction to any person the court considers appropriate.
245-2 (b) On conviction under this subchapter, the clerk of the
245-3 court in which the conviction is returned shall forward a copy of
245-4 the judgment to the commission. (Sec. 26.2131, Water Code.)
245-5 Sec. 10.256. Criminal Penalty for Violation of Private
245-6 Sewage Facility Order. (a) A person who violates any rule entered
245-7 by the commission under Section 10.107 or order adopted by a county
245-8 under Section 10.129 is guilty of a misdemeanor and on conviction
245-9 is punishable by a fine of not less than $10 nor more than $200.
245-10 Each day that a violation occurs constitutes a separate offense.
245-11 (b) Jurisdiction for prosecution of a suit under this
245-12 section is in the justice of the peace courts.
245-13 (c) Venue for prosecution of a suit under this section is in
245-14 the justice of the peace precinct in which the violation is alleged
245-15 to have occurred. (Sec. 26.214, Water Code.)
245-16 Sec. 10.257. PEACE OFFICERS. For purposes of this
245-17 subchapter, the authorized agents and employees of the Parks and
245-18 Wildlife Department are constituted peace officers. These agents
245-19 and employees are empowered to enforce the provisions of this
245-20 subchapter the same as any other peace officer, and for such
245-21 purpose shall have the powers and duties of peace officers as set
245-22 forth in the Code of Criminal Procedure, 1965, as amended. (Sec.
245-23 26.215, Water Code.)
245-24 Sec. 10.258. ACT OF GOD, WAR, ETC. Any waste discharge
245-25 otherwise punishable under this subchapter which is caused by an
245-26 act of God, war, riot, or other catastrophe is not a violation of
245-27 this subchapter. (Sec. 26.216, Water Code.)
246-1 Sec. 26.259. Venue. An offense under this subchapter may be
246-2 prosecuted in a county in which an element of the offense was
246-3 committed or a county to which or through which the discharge,
246-4 waste, or pollutant was transported. (Sec. 26.2171, Water Code.)
246-5 Sec. 10.260. Allegations. In alleging the name of a
246-6 defendant private corporation, it is sufficient to state in the
246-7 complaint, indictment, or information the corporate name or to
246-8 state any name or designation by which the corporation is known or
246-9 may be identified. It is not necessary to allege that the
246-10 defendant was lawfully incorporated. (Sec. 26.218, Water Code.)
246-11 Sec. 10.261. Summons and Arrest; Service. (a) After a
246-12 complaint is filed or an indictment or information presented
246-13 against a private corporation under the provisions of this
246-14 subchapter, the court or clerk shall issue a summons to the
246-15 corporation. The summons shall be in the same form as a capias
246-16 except that:
246-17 (1) it shall summon the corporation to appear before
246-18 the court named at the place stated in the summons;
246-19 (2) it shall be accompanied by a certified copy of the
246-20 complaint, indictment, or information; and
246-21 (3) it shall provide that the corporation appear
246-22 before the court named at or before 10 a.m. of the Monday next
246-23 after the expiration of 20 days after it is served with summons,
246-24 except when service is made upon the Secretary of State, in which
246-25 instance the summons shall provide that the corporation appear
246-26 before the court named at or before 10 a.m. of the Monday next
246-27 after the expiration of 30 days after the Secretary of State is
247-1 served with summons.
247-2 (b) No individual may be arrested upon a complaint,
247-3 indictment, or information against a private corporation.
247-4 (c) A peace officer shall serve a summons on a private
247-5 corporation by personally delivering a copy of it to the
247-6 corporation's registered agent for service. If a registered agent
247-7 has not been designated or cannot with reasonable diligence be
247-8 found at the registered office, the peace officer shall serve the
247-9 summons by personally delivering a copy of it to the president or a
247-10 vice-president of the corporation.
247-11 (d) If the peace officer certifies on the return that he
247-12 diligently but unsuccessfully attempted to effect service under
247-13 Subsection (c) or if the corporation is a foreign corporation that
247-14 has no certificate of authority, he shall serve the summons on the
247-15 Secretary of State by personally delivering a copy of it to him or
247-16 to the assistant secretary of state or to any clerk in charge of
247-17 the corporation department of his office. On receipt of the
247-18 summons copy, the Secretary of State shall immediately forward it
247-19 by certified or registered mail, return receipt requested,
247-20 addressed to the defendant corporation at its registered office or,
247-21 if it is a foreign corporation, at its principal office in the
247-22 state or country under whose law it was incorporated.
247-23 (e) The Secretary of State shall keep a permanent record of
247-24 the date and time of receipt and his disposition of each summons
247-25 served under Subsection (d) together with the return receipt.
247-26 (Secs. 26.219, 26.220, Water Code.)
247-27 Sec. 10.262. Arraignment and Pleadings. In all criminal
248-1 actions instituted against a private corporation under the
248-2 provisions of this subchapter:
248-3 (1) appearance is for the purpose of arraignment; and
248-4 (2) the corporation has 10 full days after the day the
248-5 arraignment takes place and before the day the trial begins to file
248-6 written pleadings. (Sec. 26.221, Water Code.)
248-7 Sec. 10.263. Appearance. (a) A defendant private
248-8 corporation appears through counsel or its representative.
248-9 (b) If a private corporation does not appear in response to
248-10 summons or appears but fails or refuses to plead, it is considered
248-11 to be present in person for all purposes, and the court shall enter
248-12 a plea of not guilty in its behalf and may proceed with trial,
248-13 judgment, and sentencing.
248-14 (c) After appearing and entering a plea in response to
248-15 summons, if a private corporation is absent without good cause at
248-16 any time during later proceedings, it is considered to be present
248-17 in person for all purposes, and the court may proceed with trial,
248-18 judgment, or sentencing. (Sec. 26.222, Water Code.)
248-19 Sec. 10.264. Fine Treated as Judgment in Civil Action. If a
248-20 person other than an individual is found guilty of a violation of
248-21 this subchapter and a fine imposed, the fine shall be entered and
248-22 docketed by the clerk of the court as a judgment against the
248-23 person, and the fine shall be of the same force and effect and be
248-24 enforced against the person in the same manner as if the judgment
248-25 were recovered in a civil action. (Sec. 26.223, Water Code.)
248-26 Sec. 10.265. Cumulative Provisions. Nothing in this
248-27 subchapter repeals or amends any of the provisions of Subchapters A
249-1 through H, Chapter 13, or Subchapter D, Chapter 91, Natural
249-2 Resource Code, but this subchapter is cumulative of those acts and
249-3 they remain in full force and effect. (Sec. 26.224, Water Code.)
249-4 Sec. 10.266. Effect on Certain Other Laws. Conduct
249-5 punishable as an offense under this subchapter that is also
249-6 punishable under another law may be prosecuted under either law.
249-7 (Sec. 26.225, Water Code.)
249-8 Sec. 10.267. Defense Excluded. It is not a defense to
249-9 prosecution under this subchapter that the person did not know or
249-10 was not aware of a rule, order, or statute. (Sec. 26.226, Water
249-11 Code.)
249-12 Sec. 10.268. Testimonial Immunity. A party to an offense
249-13 under this subchapter may be required to furnish evidence or
249-14 testify about the offense. Evidence or testimony required to be
249-15 furnished under this subchapter or information directly or
249-16 indirectly derived from that evidence or testimony may not be used
249-17 against the witness in a criminal case, except in a prosecution for
249-18 aggravated perjury or contempt. (Sec. 26.227, Water Code.)
249-19 CHAPTER 11. WATER RIGHTS
249-20 SUBCHAPTER A. GENERAL PROVISIONS
249-21 Sec. 11.001. Vested Rights Not Affected. (a) Nothing in
249-22 this code affects vested private rights to the use of water, except
249-23 to the extent that provisions of Subchapter G of this chapter might
249-24 affect these rights.
249-25 (b) This code does not recognize any riparian right in the
249-26 owner of any land the title to which passed out of the State of
249-27 Texas after July 1, 1895. (Sec. 11.001, Water Code.)
250-1 Sec. 11.002. Definitions. In this chapter:
250-2 (1) "Beneficial use" means use of the amount of water
250-3 which is economically necessary for a purpose authorized by this
250-4 chapter, when reasonable intelligence and reasonable diligence are
250-5 used in applying the water to that purpose.
250-6 (2) "Water right" means a right acquired under the
250-7 laws of this state to impound, divert, or use state water.
250-8 (3) "Appropriator" means a person who has made
250-9 beneficial use of any water in a lawful manner under the provisions
250-10 of any act of the legislature before the enactment of Chapter 171,
250-11 General Laws, Acts of the 33rd Legislature, 1913, as amended, and
250-12 who has filed with the State Board of Water Engineers a record of
250-13 his appropriation as required by the 1913 Act, as amended, or a
250-14 person who makes or has made beneficial use of any water within the
250-15 limitations of a permit lawfully issued by the commission or one of
250-16 its predecessors.
250-17 (4) "Conservation" means:
250-18 (A) the development of water resources; and
250-19 (B) those practices, techniques, and
250-20 technologies that will reduce the consumption of water, reduce the
250-21 loss or waste of water, improve the efficiency in the use of water,
250-22 or increase the recycling and reuse of water so that a water supply
250-23 is made available for future or alternative uses. (Sec. 11.002,
250-24 Water Code.)
250-25 Sec. 11.003. Streams That Form Boundaries Included. This
250-26 chapter applies to all streams or other sources of water supply
250-27 lying upon or forming a part of the boundaries of this state.
251-1 (Sec. 11.003, Water Code.)
251-2 Sec. 11.004. Commission to Receive Certified Copies of
251-3 Judgments, Etc. When any court of record renders a judgment,
251-4 decree, or order affecting the title to any water right, claim,
251-5 appropriation, or irrigation facility or affecting any matter over
251-6 which the commission is given supervision by law, the clerk of the
251-7 court shall immediately transmit to the commission a certified copy
251-8 of the judgment, decree, or order. (Sec. 11.004, Water Code.)
251-9 Sec. 11.005. Applicability to Works Under Federal
251-10 Reclamation Act. This chapter applies to the construction,
251-11 maintenance, and operation of irrigation works constructed in this
251-12 state under the federal reclamation act, as amended (43 U.S.C. Sec.
251-13 371 et seq.), to the extent that this chapter is not inconsistent
251-14 with the federal act or the regulations made under that act by the
251-15 secretary of the interior. (Sec. 11.005, Water Code.)
251-16 Sec. 11.006. Power to Condemn Works. (a) The commission
251-17 may condemn existing works if their existence or operation may, in
251-18 the judgment of the commission, become a public menace or dangerous
251-19 to life and property.
251-20 (b) In all cases of proposed condemnation, the commission
251-21 shall notify the interested party of the contemplated action and
251-22 shall specify a time for him to appear and be heard. (Sec. 12.015,
251-23 Water Code.)
251-24 Sec. 11.007. Federal Projects. (a) In this section:
251-25 (1) "Federal project" means an engineering undertaking
251-26 or work to construct, enlarge, or extend a dam, lake, reservoir, or
251-27 other water-storage or flood-control work or a drainage,
252-1 reclamation, or canalization undertaking or any combination of
252-2 these financed in whole or in part with funds of the United States.
252-3 (2) "Engineering report" means the plans, data,
252-4 profiles, maps, estimates, and drawings prepared in connection with
252-5 a federal project.
252-6 (3) "Federal agency" means the Corps of Engineers of
252-7 the United States Army, the Bureau of Reclamation of the Department
252-8 of Interior, the Soil Conservation Service of the Department of
252-9 Agriculture, the United States Section of the International
252-10 Boundary and Water Commission, or any other agency of the United
252-11 States, the function of which includes the conservation,
252-12 development, retardation by impounding, control, or study of the
252-13 water resources of Texas or the United States.
252-14 (b) When the governor receives an engineering report
252-15 submitted by a federal agency seeking the governor's approval of a
252-16 federal project, the governor shall immediately forward the report
252-17 to the board for its study concerning the feasibility of the
252-18 federal project.
252-19 (c) The board shall hold a public hearing to receive the
252-20 views of persons and groups who might be affected by the proposed
252-21 federal project. The board shall publish notice of the time, date,
252-22 place, nature, and purpose of the public hearing once each week for
252-23 two consecutive weeks before the date stated in the notice in a
252-24 newspaper having general circulation in the section of the state
252-25 where the federal project is to be located or the work done.
252-26 (d) After hearing all the evidence both for and against
252-27 approval of the federal project, the board shall enter its order
253-1 approving or disapproving the feasibility of the federal project,
253-2 and the order shall include the board's reasons for approval or
253-3 disapproval.
253-4 (e) In determining feasibility, the board shall consider,
253-5 among other relevant factors:
253-6 (1) the effect of the federal project on water users
253-7 on the stream as certified by the commission;
253-8 (2) the public interest to be served;
253-9 (3) the development of damsites to the optimum
253-10 potential for water conservation;
253-11 (4) the integration of the federal project with other
253-12 water conservation activities;
253-13 (5) the protection of the state's interests in its
253-14 water resources; and
253-15 (6) the engineering practicality of the federal
253-16 project, including cost of construction, operation, and
253-17 maintenance.
253-18 (f) The board shall forward to the governor a certified copy
253-19 of its order. The board's finding that the federal project is
253-20 either feasible or not feasible is final, and the governor shall
253-21 notify the federal agency that the federal project has been either
253-22 approved or disapproved.
253-23 (g) The provisions of this section do not apply to the state
253-24 soil conservation board as long as that board is designated by the
253-25 governor as the authorized state agency having supervisory
253-26 responsibility to approve or disapprove of projects designed to
253-27 effectuate watershed-protection and flood-prevention programs
254-1 initiated in cooperation with the United States Department of
254-2 Agriculture. (Sec. 12.051, Water Code.)
254-3 Sec. 11.008. Dam Safety. (a) The commission shall make and
254-4 enforce rules and orders and shall perform all other acts necessary
254-5 to provide for the safe construction, maintenance, repair, and
254-6 removal of dams located in this state.
254-7 (b) Rules and orders made by the commission shall be made
254-8 after proper notice and hearing as provided in the rules of the
254-9 commission.
254-10 (c) If the owner of a dam that is required to be
254-11 constructed, reconstructed, repaired, or removed in order to comply
254-12 with the rules and orders promulgated under Subsection (a) wilfully
254-13 fails or refuses to comply within the 30-day period following the
254-14 date of the commission's order to do so or if a person wilfully
254-15 fails to comply with any rule or other order issued by the
254-16 commission under this section within the 30-day period following
254-17 the effective date of the order, he is liable to a penalty of not
254-18 more than $1,000 a day for each day he continues to violate this
254-19 section. The state may recover the penalty by suit brought for
254-20 that purpose in the district court of Travis County.
254-21 (d) If the commission determines that the existing condition
254-22 of the dam is creating or will cause extensive or severe property
254-23 damage or economic loss to others or is posing an immediate and
254-24 serious threat to human life or health and that other procedures
254-25 available to the commission to remedy or prevent the occurrence of
254-26 the situation will result in unreasonable delay, the commission may
254-27 issue an emergency order, either mandatory or prohibitory in
255-1 nature, directing the owner of a dam to repair, modify, maintain,
255-2 dewater, or remove the dam which the commission determines is
255-3 unsafe. The emergency order may be issued without notice to the
255-4 dam owner or with notice the commission considers practicable under
255-5 the circumstances. The notice does not have to comply with the
255-6 Administrative Procedure and Texas Register Act, as amended
255-7 (Article 6252-13a, Vernon's Texas Civil Statutes).
255-8 (e) If the commission issues an emergency order under
255-9 authority of this section without notice to the dam owner, the
255-10 commission shall fix a time and place for a hearing which shall be
255-11 held as soon as practicable to affirm, modify, or set aside the
255-12 emergency order. The notice does not have to comply with the
255-13 Administrative Procedure and Texas Register Act, as amended
255-14 (Article 6252-13a, Vernon's Texas Civil Statutes). If the nature
255-15 of the commission's action requires further proceedings, those
255-16 proceedings shall be conducted as appropriate under the
255-17 Administrative Procedure and Texas Register Act, as amended
255-18 (Article 6252-13a, Vernon's Texas Civil Statutes).
255-19 (f) Nothing in this section or in rules or orders made by
255-20 the commission shall be construed to relieve an owner or operator
255-21 of a dam or reservoir of the legal duties, obligations, or
255-22 liabilities incident to ownership or operation. (Sec. 12.052,
255-23 Water Code.)
255-24 (Sections 11.009-11.020 reserved for expansion)
255-25 SUBCHAPTER B. RIGHTS IN STATE WATER
255-26 Sec. 11.021. State Water. (a) The water of the ordinary
255-27 flow, underflow, and tides of every flowing river, natural stream,
256-1 and lake, and of every bay or arm of the Gulf of Mexico, and the
256-2 storm water, floodwater, and rainwater of every river, natural
256-3 stream, canyon, ravine, depression, and watershed in the state is
256-4 the property of the state.
256-5 (b) Water imported from any source outside the boundaries of
256-6 the state for use in the state and which is transported through the
256-7 beds and banks of any navigable stream within the state or by
256-8 utilizing any facilities owned or operated by the state is the
256-9 property of the state. (Sec. 11.021, Water Code.)
256-10 Sec. 11.022. Acquisition of Right to Use State Water. The
256-11 right to the use of state water may be acquired by appropriation in
256-12 the manner and for the purposes provided in this chapter. When the
256-13 right to use state water is lawfully acquired, it may be taken or
256-14 diverted from its natural channel. (Sec. 11.022, Water Code.)
256-15 Sec. 11.023. Purposes for Which Water May be Appropriated.
256-16 (a) State water may be appropriated, stored, or diverted for:
256-17 (1) domestic and municipal uses, including water for
256-18 sustaining human life and the life of domestic animals;
256-19 (2) industrial uses, meaning processes designed to
256-20 convert materials of a lower order of value into forms having
256-21 greater usability and commercial value, including the development
256-22 of power by means other than hydroelectric;
256-23 (3) irrigation;
256-24 (4) mining and recovery of minerals;
256-25 (5) hydroelectric power;
256-26 (6) navigation;
256-27 (7) recreation and pleasure;
257-1 (8) stock raising;
257-2 (9) public parks; and
257-3 (10) game preserves.
257-4 (b) State water also may be appropriated, stored, or
257-5 diverted for any other beneficial use.
257-6 (c) Unappropriated storm water and floodwater may be
257-7 appropriated to recharge underground freshwater bearing sands and
257-8 aquifers in the portion of the Edwards underground reservoir
257-9 located within Kinney, Uvalde, Medina, Bexar, Comal, and Hays
257-10 counties if it can be established by expert testimony that an
257-11 unreasonable loss of state water will not occur and that the water
257-12 can be withdrawn at a later time for application to a beneficial
257-13 use. The normal or ordinary flow of a stream or watercourse may
257-14 never be appropriated, diverted, or used by a permittee for this
257-15 recharge purpose.
257-16 (d) When it is put or allowed to sink into the ground, water
257-17 appropriated under Subsection (c) loses its character and
257-18 classification as storm water or floodwater and is considered
257-19 percolating groundwater.
257-20 (e) The amount of water appropriated for each purpose
257-21 mentioned in this section shall be specifically appropriated for
257-22 that purpose, subject to the preferences prescribed in Section
257-23 11.024.
257-24 (f) The water of any arm, inlet, or bay of the Gulf of
257-25 Mexico may be changed from salt water to sweet or fresh water and
257-26 held or stored by dams, dikes, or other structures and may be taken
257-27 or diverted for any purpose authorized by this chapter.
258-1 (Sec. 11.023, Water Code.)
258-2 Sec. 11.024. Appropriation: Preferences. In order to
258-3 conserve and properly utilize state water, the public welfare
258-4 requires not only recognition of beneficial uses but also a
258-5 constructive public policy regarding the preferences between these
258-6 uses, and it is therefore declared to be the public policy of this
258-7 state that in appropriating state water preference shall be given
258-8 to the following uses in the order named:
258-9 (1) domestic and municipal uses, including water for
258-10 sustaining human life and the life of domestic animals, it being
258-11 the public policy of the state and for the benefit of the greatest
258-12 number of people that in the appropriation of water as herein
258-13 defined, the appropriation of water for domestic and municipal uses
258-14 shall be and remain superior to the rights of the state to
258-15 appropriate the same for all other purposes;
258-16 (2) industrial uses, meaning processes designed to
258-17 convert materials of a lower order of value into forms having
258-18 greater usability and commercial value, including the development
258-19 of power by means other than hydroelectric;
258-20 (3) irrigation;
258-21 (4) mining and recovery of minerals;
258-22 (5) hydroelectric power;
258-23 (6) navigation;
258-24 (7) recreation and pleasure; and
258-25 (8) other beneficial uses. (Sec. 11.024, Water Code.)
258-26 Sec. 11.025. Scope of Appropriative Right. A right to use
258-27 state water under a permit or a certified filing is limited not
259-1 only to the amount specifically appropriated but also to the amount
259-2 which is being or can be beneficially used for the purposes
259-3 specified in the appropriation, and all water not so used is
259-4 considered not appropriated. (Sec. 11.025, Water Code.)
259-5 Sec. 11.026. Perfection of an Appropriation. No right to
259-6 appropriate water is perfected unless the water has been
259-7 beneficially used for a purpose stated in the original declaration
259-8 of intention to appropriate water or stated in a permit issued by
259-9 the commission or one of its predecessors. (Sec. 11.026, Water
259-10 Code.)
259-11 Sec. 11.027. Rights Between Appropriators. As between
259-12 appropriators, the first in time is the first in right.
259-13 (Sec. 11.027, Water Code.)
259-14 Sec. 11.028. Exception. Any appropriation made after May
259-15 17, 1931, for any purpose other than domestic or municipal use is
259-16 subject to the right of any city or town to make further
259-17 appropriations of the water for domestic or municipal use without
259-18 paying for the water. However, this section does not apply to any
259-19 stream which constitutes or defines the international boundary
259-20 between the United States of America and the Republic of Mexico.
259-21 (Sec. 11.028, Water Code.)
259-22 Sec. 11.029. Title to Appropriation by Limitation. When an
259-23 appropriator from a source of water supply has used water under the
259-24 terms of a certified filing or a permit for a period of three
259-25 years, he acquires title to his appropriation by limitation against
259-26 any other claimant of water from the same source of water supply
259-27 and against any riparian owner on the same source of water supply.
260-1 (Sec. 11.029, Water Code.)
260-2 Sec. 11.030. Forfeiture of Appropriation. If any lawful
260-3 appropriation or use of state water is wilfully abandoned during
260-4 any three successive years, the right to use the water is forfeited
260-5 and the water is again subject to appropriation. (Sec. 11.030,
260-6 Water Code.)
260-7 Sec. 11.031. Annual Report. (a) Not later than March 1 of
260-8 each year, each person who has a water right issued by the
260-9 commission or who impounded, diverted, or otherwise used state
260-10 water during the preceding calendar year shall submit a written
260-11 report to the commission on a form prescribed by the commission.
260-12 The report shall contain all information required by the commission
260-13 to aid in administering the water law and in making inventory of
260-14 the state's water resources. However, with the exception of those
260-15 persons who hold water rights, no report is required of persons who
260-16 take water solely for domestic or livestock purposes.
260-17 (b) A person who fails to file an annual report with the
260-18 commission as required by this section is liable to a penalty of
260-19 $25, plus $1 per day for each day he fails to file the statement
260-20 after March 1. However, the maximum penalty under this section is
260-21 $150. The state may sue to recover the penalty.
260-22 (c) The commission may waive the requirements of Subsection
260-23 (a) for a person who has a water right or uses state water in an
260-24 area of the state where watermaster operations are established.
260-25 (Sec. 11.031, Water Code.)
260-26 Sec. 11.032. Records. (a) A person who owns and operates a
260-27 system of waterworks used for a purpose authorized by this code
261-1 shall keep a detailed record of daily operations so that the
261-2 quantity of water taken or diverted each calendar year can be
261-3 determined.
261-4 (b) If the water is used for irrigation, the record must
261-5 show the number of acres irrigated, the character of the crops
261-6 grown, and the yield per acre. No survey is required to determine
261-7 the exact number of acres irrigated. (Sec. 11.032, Water Code.)
261-8 Sec. 11.033. Eminent Domain. The right to take water
261-9 necessary for domestic and municipal supply purposes is primary and
261-10 fundamental, and the right to recover from other uses water which
261-11 is essential to domestic and municipal supply purposes is paramount
261-12 and unquestioned in the policy of the state. All political
261-13 subdivisions of the state and constitutional governmental agencies
261-14 exercising delegated legislative powers have the power of eminent
261-15 domain to be exercised as provided by law for domestic, municipal,
261-16 and manufacturing uses and for other purposes authorized by this
261-17 code, including the irrigation of land for all requirements of
261-18 agricultural employment. (Sec. 11.033, Water Code.)
261-19 Sec. 11.034. Reservoir Site: Land and Rights-of-Way. An
261-20 appropriator who is authorized to construct a dam or reservoir is
261-21 granted the right-of-way, not to exceed 100 feet wide, and the
261-22 necessary area for the site, over any public school land,
261-23 university land, or asylum land of this state and the use of the
261-24 rock, gravel, and timber on the site and right-of-way for
261-25 construction purposes, after paying compensation as determined by
261-26 the commission. An appropriator may acquire the reservoir site and
261-27 rights-of-way over private land by contract. (Sec. 11.034, Water
262-1 Code.)
262-2 Sec. 11.035. Condemnation of Private Property. (a) An
262-3 appropriator may obtain rights-of-way over private land and may
262-4 obtain the land necessary for pumping plants, intakes, headgates,
262-5 and storage reservoirs by condemnation.
262-6 (b) The party obtaining private property by condemnation
262-7 shall cause damages to be assessed and paid for as provided by the
262-8 statutes of this state relating to eminent domain.
262-9 (c) If the party exercising the power granted by this
262-10 section is not a corporation, district, city, or town, he shall
262-11 apply to the commission for the condemnation.
262-12 (d) The executive director shall have the proposed
262-13 condemnation investigated. After the investigation, the commission
262-14 may give notice to the party owning the land proposed to be
262-15 condemned and hold a hearing on the proposed condemnation.
262-16 (e) If after a hearing the commission determines that the
262-17 condemnation is necessary, the executive director may institute
262-18 condemnation proceedings in the name of the State of Texas for the
262-19 use and benefit of the party who applied for the condemnation and
262-20 all others similarly situated.
262-21 (f) The parties at whose instance a condemnation suit is
262-22 instituted shall pay the costs of the suit and condemnation in
262-23 proportion to the benefits received by each party as fixed by the
262-24 commission. Before using any of the condemned rights or property,
262-25 a party receiving the rights or property shall pay the amount of
262-26 costs fixed by the commission.
262-27 (g) If, after the costs of the condemnation proceedings have
263-1 been paid, a party seeks to take the benefits of the condemnation
263-2 proceedings, he shall apply to the commission for the benefits.
263-3 The commission may grant the application and fix the fees and
263-4 charges to be paid by the applicant. (Sec. 11.035, Water Code.)
263-5 Sec. 11.036. Conserved or Stored Water: Supply Contract.
263-6 (a) A person, association of persons, corporation, or water
263-7 improvement or irrigation district having in possession and control
263-8 any storm water, floodwater, or rainwater that is conserved or
263-9 stored as authorized by this chapter may contract to supply the
263-10 water to any person, association of persons, corporation, or water
263-11 improvement or irrigation district having the right to acquire use
263-12 of the water.
263-13 (b) The price and terms of the contract shall be just and
263-14 reasonable and without discrimination, and the contract is subject
263-15 to the same revision and control as provided in this code for other
263-16 water rates and charges. If any person uses the stored or
263-17 conserved water without first entering into a contract with the
263-18 party that conserved or stored it, the user shall pay for the use
263-19 at a rate determined by the commission to be just and reasonable,
263-20 subject to court review as in other cases. (Sec. 11.036, Water
263-21 Code.)
263-22 Sec. 11.037. Water Suppliers: Rules and Regulations.
263-23 (a) Every person, association of persons, corporation, or
263-24 irrigation district conserving or supplying water for any of the
263-25 purposes authorized by this chapter shall make and publish
263-26 reasonable rules and regulations relating to:
263-27 (1) the method of supply;
264-1 (2) the use and distribution of the water; and
264-2 (3) the procedure for applying for the water and for
264-3 paying for it.
264-4 (b) Each person, association of persons, corporation, and
264-5 district authorized by law to carry out irrigation powers that is
264-6 conserving or supplying water for any of the purposes authorized by
264-7 this chapter may make and publish reasonable rules relating to
264-8 water conservation, as defined by Section 11.002. (Sec. 11.037,
264-9 Water Code.)
264-10 Sec. 11.038. Rights of Owners of Land Adjoining Canal, Etc.
264-11 (a) A person who owns or holds a possessory interest in land
264-12 adjoining or contiguous to a canal, ditch, flume, lateral, dam,
264-13 reservoir, or lake constructed and maintained under the provisions
264-14 of this chapter and who has secured a right to the use of water in
264-15 the canal, ditch, flume, lateral, dam, reservoir, or lake is
264-16 entitled to be supplied from the canal, ditch, flume, lateral, dam,
264-17 reservoir, or lake with water for irrigation of the land and for
264-18 mining, milling, manufacturing, development of power, and stock
264-19 raising, in accordance with the terms of his contract.
264-20 (b) If the person, association of persons, or corporation
264-21 owning or controlling the water and the person who owns or holds a
264-22 possessory interest in the adjoining land cannot agree on a price
264-23 for a permanent water right or for the use of enough water for
264-24 irrigation of the person's land or for mining, milling,
264-25 manufacturing, development of power, or stock raising, then the
264-26 party owning or controlling the water, if he has any water not
264-27 contracted to others, shall furnish the water necessary for these
265-1 purposes at reasonable and nondiscriminatory prices. (Sec. 11.038,
265-2 Water Code.)
265-3 Sec. 11.039. Distribution of Water During Shortage. (a) If
265-4 a shortage of water in a water supply results from drouth,
265-5 accident, or other cause, the water to be distributed shall be
265-6 divided among all customers pro rata, according to the amount each
265-7 may be entitled to, so that preference is given to no one and
265-8 everyone suffers alike.
265-9 (b) Nothing in Subsection (a) precludes the person,
265-10 association of persons, or corporation owning or controlling the
265-11 water from supplying water to a person who has a prior vested right
265-12 to the water under the laws of this state. (Sec. 11.039, Water
265-13 Code.)
265-14 Sec. 11.040. Permanent Water Right. (a) A permanent water
265-15 right is an easement and passes with the title to land.
265-16 (b) A written instrument conveying a permanent water right
265-17 may be recorded in the same manner as any other instrument relating
265-18 to a conveyance of land.
265-19 (c) The owner of a permanent water right is entitled to use
265-20 water according to the terms of his contract. If there is no
265-21 contract, the owner is entitled to use water at a just, reasonable,
265-22 and nondiscriminatory price. (Sec. 11.040, Water Code.)
265-23 Sec. 11.041. Denial of Water: Complaint. (a) Any person
265-24 entitled to receive or use water from any canal, ditch, flume,
265-25 lateral, dam, reservoir, or lake or from any conserved or stored
265-26 supply may present to the commission a written petition showing:
265-27 (1) that he is entitled to receive or use the water;
266-1 (2) that he is willing and able to pay a just and
266-2 reasonable price for the water;
266-3 (3) that the party owning or controlling the water
266-4 supply has water not contracted to others and available for the
266-5 petitioner's use; and
266-6 (4) that the party owning or controlling the water
266-7 supply fails or refuses to supply the available water to the
266-8 petitioner, or that the price or rental demanded for the available
266-9 water is not reasonable and just or is discriminatory.
266-10 (b) If the petition is accompanied by a deposit of $25, the
266-11 executive director shall have a preliminary investigation of the
266-12 complaint made and determine whether or not there are probable
266-13 grounds for the complaint.
266-14 (c) If, after preliminary investigation, the executive
266-15 director determines that probable grounds exist for the complaint,
266-16 the commission shall enter an order setting a time and place for a
266-17 hearing on the petition.
266-18 (d) The commission may require the complainant to make an
266-19 additional deposit or execute a bond satisfactory to the commission
266-20 in an amount fixed by the commission conditioned on the payment of
266-21 all costs of the proceeding.
266-22 (e) At least 20 days before the date set for the hearing,
266-23 the commission shall transmit by registered mail a certified copy
266-24 of the petition and a certified copy of the hearing order to the
266-25 person against whom the complaint is made.
266-26 (f) The commission shall hold a hearing on the complaint at
266-27 the time and place stated in the order. It may hear evidence
267-1 orally or by affidavit in support of or against the complaint, and
267-2 it may hear arguments. On completion of the hearing, the
267-3 commission shall render a written decision.
267-4 (g) If, after the preliminary investigation, the executive
267-5 director determines that no probable grounds exist for the
267-6 complaint, the executive director shall dismiss the complaint. The
267-7 commission may either return the deposit or pay it into the state
267-8 treasury. (Sec. 11.041, Water Code.)
267-9 Sec. 11.042. Delivering Water Down Banks and Beds. Under
267-10 rules prescribed by the commission, a person, association of
267-11 persons, corporation, or water improvement or irrigation district
267-12 supplying stored or conserved water under contract as provided in
267-13 this chapter may use the bank and bed of any flowing natural stream
267-14 in the state to convey the water from the place of storage to the
267-15 place of use or to the diversion plant of the appropriator. The
267-16 commission shall prescribe rules for this purpose. (Sec. 11.042,
267-17 Water Code.)
267-18 Sec. 11.043. Recordation of Conveyance of Irrigation Work.
267-19 (a) A conveyance of a ditch, canal, or reservoir or other
267-20 irrigation work or an interest in such an irrigation work must be
267-21 executed and acknowledged in the same manner as a conveyance of
267-22 real estate. Such a conveyance must be recorded in the deed
267-23 records of the county in which the ditch, canal, or reservoir is
267-24 located.
267-25 (b) If a conveyance of property covered by Subsection (a)
267-26 is not made in the prescribed manner, it is null and void against
267-27 subsequent purchasers in good faith and for valuable consideration.
268-1 (Sec. 11.043, Water Code.)
268-2 Sec. 11.044. Roads and Highways. (a) An appropriator has
268-3 the right to construct ditches, canals, or pipelines along or
268-4 across all roads and highways necessary for the construction of
268-5 waterworks. Bridges, culverts, or siphons shall be constructed at
268-6 all road and highway crossings as necessary to prevent any
268-7 impairment of the uses of the road or highway. Approval of the
268-8 construction plans and specifications shall be obtained from the
268-9 owner of the road or highway prior to the installation of
268-10 conveyance facilities.
268-11 (b) If any public road, highway, or public bridge is located
268-12 on the ground necessary for a damsite, reservoir, or lake, the
268-13 commissioners court shall change the road and remove the bridge so
268-14 that it does not interfere with the construction of the proposed
268-15 dam, reservoir, or lake. The party desiring to construct the dam,
268-16 reservoir, or lake shall pay the expense of moving the bridge or
268-17 roadway. (Sec. 11.044, Water Code.)
268-18 Sec. 11.045. Ditches and Canals. An appropriator is
268-19 entitled to construct ditches and canals along or across any stream
268-20 of water. (Sec. 11.045, Water Code.)
268-21 Sec. 11.046. Return Unused Water. A person who takes or
268-22 diverts water from a running stream for the purposes authorized by
268-23 this code shall conduct surplus water back to the stream from which
268-24 it was taken if the water can be returned by gravity flow and it is
268-25 reasonably practicable to do so. (Sec. 11.046, Water Code.)
268-26 Sec. 11.047. Failure to Fence. If a person, association of
268-27 persons, corporation, or water improvement or irrigation district
269-1 that owns or controls a ditch, canal, reservoir, dam, or lake does
269-2 not keep it securely fenced, there is no cause of action against
269-3 the owner of livestock that trespass. (Sec. 11.047, Water Code.)
269-4 Sec. 11.048. Cost of Maintaining Irrigation Ditch. (a) If
269-5 an irrigation ditch is owned or used by two or more persons, mutual
269-6 or cooperative companies, or corporations, each party who has an
269-7 interest in the ditch shall pay his proportionate share of the cost
269-8 of operating and maintaining the ditch.
269-9 (b) If a person who owns a joint interest in a ditch refuses
269-10 to do or to pay for his proportionate share of the work that is
269-11 reasonably necessary for the proper maintenance and operation of
269-12 the ditch, the other owners may, after giving him 10 days' written
269-13 notice, proceed themselves to do his share of the necessary work
269-14 and recover from him the reasonable expense or value of the work or
269-15 labor performed. The action for the cost of the work may be
269-16 brought in any court having jurisdiction over the amount in
269-17 controversy. (Sec. 11.048, Water Code.)
269-18 Sec. 11.049. Examination and Survey. A person may make any
269-19 necessary examination and survey in order to select the most
269-20 advantageous sites for a reservoir and rights-of-way to be used for
269-21 any of the purposes authorized by this chapter, and for this
269-22 purpose a person may enter the land or water of any other person.
269-23 (Sec. 11.049, Water Code.)
269-24 Sec. 11.050. Tidewater Gates, Etc. (a) An appropriator
269-25 authorized to take water for irrigation, subject to the laws of the
269-26 United States and the regulations made under its authority, may
269-27 construct gates or breakwaters, dams, or dikes with gates, in
270-1 waters wholly in this state, as necessary to prevent pollution of
270-2 the fresh water of any river, bayou, or stream due to the ebb and
270-3 flow of the tides of the Gulf of Mexico.
270-4 (b) The work shall be done in such a manner that navigation
270-5 of vessels on the stream is not obstructed, and where any gate is
270-6 used, the appropriator shall at all times keep a competent person
270-7 at the gate to allow free navigation.
270-8 (c) A dam, dike, or breakwater constructed under this
270-9 section may not be placed at any point except where Gulf tides ebb
270-10 and flow and may not be constructed so as to obstruct the flow of
270-11 fresh water to any appropriator or riparian owner downstream.
270-12 (Sec. 11.050, Water Code.)
270-13 Sec. 11.051. Irrigation: Lien on Crops. (a) A person who
270-14 constructs a ditch, canal, dam, lake, or reservoir for the purpose
270-15 of irrigation and who leases, rents, furnishes, or supplies water
270-16 to any person for irrigation, with or without a contract, has a
270-17 preference lien superior to every other lien on the irrigated
270-18 crops. However, when any irrigation district or conservation and
270-19 reclamation district obtains a water supply under contract with the
270-20 United States, the board of directors of the district, by
270-21 resolution entered in its minutes, with the consent of the
270-22 secretary of the interior, may waive the preference lien in whole
270-23 or in part.
270-24 (b) To enforce the lien, the lienholder has all the rights
270-25 and remedies prescribed by Subchapters A and B, Chapter 54, and
270-26 Sections 91.004 and 91.005, Property Code. (Sec. 11.051, Water
270-27 Code.)
271-1 Sec. 11.052. Activities Under the Federal Reclamation Act.
271-2 The Secretary of the Interior of the United States is authorized to
271-3 conduct any activities in this state necessary to perform his
271-4 duties under the federal reclamation act, as amended (43 U.S.C.
271-5 Section 371 et seq.). (Sec. 11.052, Water Code.)
271-6 (Sections 11.053-11.080 reserved for expansion)
271-7 SUBCHAPTER C. UNLAWFUL USE, DIVERSION, WASTE, ETC.
271-8 Sec. 11.081. Unlawful Use of State Water. (a) No person
271-9 may wilfully take, divert, or appropriate any state water for any
271-10 purpose without first complying with all applicable requirements of
271-11 this chapter.
271-12 (b) A person who violates any provision of this section is
271-13 guilty of a misdemeanor and upon conviction is punishable by a fine
271-14 of not more than $100 or by confinement in the county jail for not
271-15 more than six months or by both.
271-16 (c) A person commits a separate offense each day he
271-17 continues to take, divert, or appropriate water in violation of
271-18 this section.
271-19 (d) Possession of state water when the right to its use has
271-20 not been acquired according to the provisions of this chapter is
271-21 prima facie evidence of a violation of this section. (Sec. 11.081,
271-22 Water Code.)
271-23 Sec. 11.082. Unlawful Use: Civil Penalty. (a) A person
271-24 who wilfully takes, diverts, or appropriates state water without
271-25 complying with the applicable requirements of this chapter is also
271-26 liable to a civil penalty of not more than $1,000 for each day he
271-27 continues the taking, diversion, or appropriation.
272-1 (b) The state may recover the penalties prescribed in
272-2 Subsection (a) by suit brought for that purpose in a court of
272-3 competent jurisdiction.
272-4 (c) An action to collect the penalty provided in this
272-5 section must be brought within two years from the date of the
272-6 alleged violation. (Sec. 11.082, Water Code.)
272-7 Sec. 11.083. Other Unlawful Taking. (a) No person may
272-8 wilfully open, close, change, or interfere with any headgate or
272-9 water box without lawful authority.
272-10 (b) No person may wilfully use water or conduct water
272-11 through his ditch or upon his land unless he is entitled to do so.
272-12 (c) A person who violates any provision of this section is
272-13 guilty of a misdemeanor and upon conviction is punishable by a fine
272-14 of not less than $10 nor more than $1,000 or by confinement in the
272-15 county jail for not more than six months.
272-16 (d) The possession or use of water on his land by a person
272-17 not entitled to the water by the provisions of this code is prima
272-18 facie evidence of a violation of this section. (Sec. 11.083, Water
272-19 Code.)
272-20 Sec. 11.084. Sale of Permanent Water Right Without a Permit.
272-21 (a) No person may sell or offer to sell a permanent water right
272-22 unless he has perfected a right to appropriate state water by a
272-23 certified filing, or unless he has obtained a permit from the
272-24 commission, authorizing the use of the water for the purposes for
272-25 which the permanent water right is conveyed.
272-26 (b) A person who violates Subsection (a) is guilty of a
272-27 misdemeanor and upon conviction is punishable by a fine of not less
273-1 than $100 nor more than $1,000 or by confinement in the county jail
273-2 for not more than one year or by both. (Sec. 11.084, Water Code.)
273-3 Sec. 11.085. Interwatershed Transfers. (a) No person may
273-4 take or divert any of the water of the ordinary flow, underflow, or
273-5 storm flow of any stream, watercourse, or watershed in this state
273-6 into any other natural stream, watercourse, or watershed to the
273-7 prejudice of any person or property situated within the watershed
273-8 from which the water is proposed to be taken or diverted.
273-9 (b) No person may transfer water from one watershed to
273-10 another without first applying for and receiving a permit from the
273-11 commission to do so. Before issuing such a permit, the commission
273-12 shall hold a hearing to determine the rights that might be affected
273-13 by the transfer. The commission shall give notice and hold the
273-14 hearing in the manner prescribed by its procedural rules.
273-15 (c) A person who takes or diverts water in violation of this
273-16 section is guilty of a misdemeanor and upon conviction is
273-17 punishable by a fine of not less than $100 nor more than $500 or by
273-18 confinement in the county jail for not more than six months.
273-19 (d) A person commits a separate offense each day he
273-20 continues to take or divert water in violation of this section.
273-21 (Sec. 11.085, Water Code.)
273-22 Sec. 11.086. Overflow Caused by Diversion of Water. (a) No
273-23 person may divert or impound the natural flow of surface waters in
273-24 this state, or permit a diversion or impounding by him to continue,
273-25 in a manner that damages the property of another by the overflow of
273-26 the water diverted or impounded.
273-27 (b) A person whose property is injured by an overflow of
274-1 water caused by an unlawful diversion or impounding has remedies at
274-2 law and in equity and may recover damages occasioned by the
274-3 overflow.
274-4 (c) The prohibition of Subsection (a) does not in any way
274-5 affect the construction and maintenance of levees and other
274-6 improvements to control floods, overflows, and freshets in rivers,
274-7 creeks, and streams or the construction of canals for conveying
274-8 water for irrigation or other purposes authorized by this code.
274-9 However, this subsection does not authorize any person to construct
274-10 a canal, lateral canal, or ditch that obstructs a river, creek,
274-11 bayou, gully, slough, ditch, or other well-defined natural
274-12 drainage.
274-13 (d) Where gullies or sloughs have cut away or intersected
274-14 the banks of a river or creek to allow floodwaters from the river
274-15 or creek to overflow the land nearby, the owner of the flooded land
274-16 may fill the mouth of the gullies or sloughs up to the height of
274-17 the adjoining banks of the river or creek without liability to
274-18 other property owners. (Sec. 11.086, Water Code.)
274-19 Sec. 11.087. Diversion of Water on International Stream.
274-20 (a) When storm water or floodwater is released from a dam or
274-21 reservoir on an international stream and the water is designated
274-22 for use or storage downstream by a specified user who is legally
274-23 entitled to receive it, no other person may store, divert,
274-24 appropriate, or use the water or interfere with its passage
274-25 downstream.
274-26 (b) The commission may make and enforce rules and orders to
274-27 implement the provisions of this section, including rules and
275-1 orders designed to:
275-2 (1) establish an orderly system for water releases and
275-3 diversions in order to protect vested rights and to avoid the loss
275-4 of released water;
275-5 (2) prescribe the time that releases of water may
275-6 begin and end;
275-7 (3) determine the proportionate quantities of the
275-8 released water in transit and the water that would have been
275-9 flowing in the stream without the addition of the released water;
275-10 (4) require each owner or operator of a dam or
275-11 reservoir on the stream between the point of release and the point
275-12 of destination to allow free passage of the released water in
275-13 transit; and
275-14 (5) establish other requirements the commission
275-15 considers necessary to effectuate the purposes of this section.
275-16 (c) Orders made by the commission to effectuate its rules
275-17 under this section need not be published, but the commission shall
275-18 transmit a copy of every such order by certified mail to each
275-19 diverter of water and to each reservoir owner on the stream between
275-20 the point of release and the point of destination of the released
275-21 water as shown by the records of the commission.
275-22 (d) A person who violates any provision of this section is
275-23 guilty of a misdemeanor and upon conviction is punishable by a fine
275-24 of not more than $100 or by confinement in the county jail for not
275-25 more than six months or by both. A person commits a separate
275-26 offense each day he continues to violate this section.
275-27 (Sec. 11.087, Water Code.)
276-1 Sec. 11.0871. Temporary Diversion of Water on International
276-2 Stream. (a) The commission may authorize, under conditions stated
276-3 in an order, a watermaster to provide for the temporary diversion
276-4 and use by holders of water rights of storm water or floodwater
276-5 that spills from dams and reservoirs on an international stream and
276-6 otherwise would flow into the Gulf of Mexico without opportunity
276-7 for beneficial use.
276-8 (b) In an order made by the commission under this section,
276-9 the commission may not discriminate between holders of water rights
276-10 from an international stream except to the extent necessary to
276-11 protect the holders of water rights from the same source of supply.
276-12 (c) The commission shall give notice by mail to holders of
276-13 water rights from an international stream and shall hold an
276-14 evidentiary hearing before entry of an order under this section.
276-15 (Sec. 11.0871, Water Code.)
276-16 Sec. 11.088. Destruction of Waterworks. (a) No person may
276-17 wilfully cut, dig, break down, destroy, or injure or open a gate,
276-18 bank, embankment, or side of any ditch, canal, reservoir, flume,
276-19 tunnel or feeder, pump or machinery, building, structure, or other
276-20 work which is the property of another, or in which another owns an
276-21 interest, or which is lawfully possessed or being used by another,
276-22 and which is used for irrigation, milling, mining, manufacturing,
276-23 the development of power, domestic purposes, or stock raising, with
276-24 intent to:
276-25 (1) maliciously injure a person, association,
276-26 corporation, water improvement or irrigation district;
276-27 (2) gain advantage for himself; or
277-1 (3) take or steal water or cause water to run out or
277-2 waste out of the ditch, canal, or reservoir, feeder, or flume for
277-3 his own advantage or to the injury of a person lawfully entitled to
277-4 the use of the water or the use or management of the ditch, canal,
277-5 tunnel, reservoir, feeder, flume, machine, structure, or other
277-6 irrigation work.
277-7 (b) A person who violates any provision of this section is
277-8 guilty of a misdemeanor and upon conviction is punishable by a fine
277-9 of not less than $10 nor more than $1,000 or by confinement in the
277-10 county jail for not more than two years or by both. (Sec. 11.088,
277-11 Water Code.)
277-12 Sec. 11.089. Johnson Grass or Russian Thistle. (a) No
277-13 person who owns, leases, or operates a ditch, canal, or reservoir
277-14 or who cultivates land abutting a reservoir, ditch, flume, canal,
277-15 wasteway, or lateral may permit Johnson grass or Russian thistle to
277-16 go to seed on the waterway within 10 feet of the high-water line if
277-17 the waterway crosses or lies on the land owned or controlled by
277-18 him.
277-19 (b) A person who violates any provision of this section is
277-20 guilty of a misdemeanor and upon conviction is punishable by a fine
277-21 of not less than $25 nor more than $500 or by confinement in the
277-22 county jail for not less than 30 days nor more than six months or
277-23 by both.
277-24 (c) The provisions of this section are not applicable in Tom
277-25 Green, Sterling, Irion, Schleicher, McCullough, Brewster, Menard,
277-26 Maverick, Kinney, Val Verde, and San Saba counties. (Sec. 11.089,
277-27 Water Code.)
278-1 Sec. 11.090. Polluting and Littering. (a) No person may
278-2 deposit in any canal, lateral, reservoir, or lake, used for a
278-3 purpose named in this chapter, the carcass of any dead animal, tin
278-4 cans, discarded buckets or pails, garbage, ashes, bailing or barbed
278-5 wire, earth, offal, or refuse of any character or any other article
278-6 which might pollute the water or obstruct the flow of a canal or
278-7 similar structure.
278-8 (b) A person who violates any provision of this section is
278-9 guilty of a misdemeanor and upon conviction is punishable by a fine
278-10 of not less than $10 nor more than $100 or by confinement in the
278-11 county jail for not more than six months or by both. (Sec. 11.090,
278-12 Water Code.)
278-13 Sec. 11.091. Interference With Delivery of Water Under
278-14 Contract. (a) No person may wilfully take, divert, appropriate,
278-15 or interfere with the delivery of conserved or stored water under
278-16 Section 11.042.
278-17 (b) A person who violates any provision of this section is
278-18 guilty of a misdemeanor and upon conviction is punishable by a fine
278-19 of not more than $100 or by confinement in the county jail for not
278-20 more than six months or by both.
278-21 (c) A person commits a separate offense each day he
278-22 continues to violate this section.
278-23 (d) On the petition of any interested party, the district
278-24 court of any county through which the water may pass shall enjoin
278-25 any actual or threatened act prohibited by this section.
278-26 (Sec. 11.091, Water Code.)
278-27 Sec. 11.092. Wasteful Use of Water. A person who owns or
279-1 has a possessory right to land contiguous to a canal or irrigation
279-2 system and who acquires the right by contract to use the water from
279-3 it commits waste if he:
279-4 (1) permits the excessive or wasteful use of water by
279-5 any of his agents or employees; or
279-6 (2) permits the water to be applied to anything but a
279-7 beneficial use. (Sec. 11.092, Water Code.)
279-8 Sec. 11.093. Abatement of Waste as Public Nuisance. (a) A
279-9 person who permits an unreasonable loss of water through faulty
279-10 design or negligent operation of any waterworks using water for a
279-11 purpose named in this chapter commits waste, and the commission may
279-12 declare the works causing the waste to be a public nuisance. The
279-13 commission may take the necessary action to abate the nuisance.
279-14 Also, any person who may be injured by the waste may sue in the
279-15 district court having jurisdiction over the works causing the waste
279-16 to have the operation of the works abated as a public nuisance.
279-17 (b) In case of a wasteful use of water defined by Section
279-18 11.092, the commission shall declare the use to be a public
279-19 nuisance and shall act to abate the nuisance by directing the
279-20 person supplying the water to close the water gates of the person
279-21 wasting the water and to keep them closed until the commission
279-22 determines that the unlawful use of water is corrected.
279-23 (Sec. 11.093, Water Code.)
279-24 Sec. 11.094. Penalty for Use of Works Declared Public
279-25 Nuisance. (a) No person may operate or attempt to operate any
279-26 waterworks or irrigation system or use any water under contract
279-27 with any waterworks or irrigation system that has been previously
280-1 declared to be a public nuisance.
280-2 (b) A person who violates any provision of this section is
280-3 guilty of a misdemeanor and on conviction is punishable by a fine
280-4 of not more than $1,000 or by confinement in the county jail for
280-5 not more than one year or by both. (Sec. 11.094, Water Code.)
280-6 Sec. 11.095. Penalty for Waste. A person who wilfully or
280-7 knowingly commits waste as provided in Section 11.092 or 11.093(a)
280-8 is guilty of a misdemeanor and upon conviction is punishable by a
280-9 fine of not more than $500 or by confinement in the county jail for
280-10 not more than 90 days or by both. (Sec. 11.095, Water Code.)
280-11 Sec. 11.096. Obstruction of Navigable Streams. (a) No
280-12 person may obstruct the navigation of any stream which can be
280-13 navigated by steamboats, keelboats, or flatboats by cutting and
280-14 felling trees or by building on or across the stream any dike,
280-15 milldam, bridge, or other obstruction.
280-16 (b) A person who violates any provision of this section is
280-17 guilty of a misdemeanor and upon conviction is punishable by a fine
280-18 of not less than $50 nor more than $500. (Sec. 11.096, Water
280-19 Code.)
280-20 Sec. 11.097. Removal of Obstructions from Navigable Streams.
280-21 (a) On its own motion or on written request from a commissioners
280-22 court, the commission shall investigate a reported natural
280-23 obstruction in a navigable stream caused by the accumulation of
280-24 limbs, logs, leaves, other tree parts, or other debris. If making
280-25 the investigation on request of a commissioners court, the
280-26 commission must make its investigation not later than the 30th day
280-27 after the date on which it receives the written request from the
281-1 commissioners court.
281-2 (b) On completion of the investigation, if the commission
281-3 determines that the obstruction is creating a hazard or is having
281-4 other detrimental effect on the navigable stream, the commission
281-5 shall initiate action to remove the obstruction.
281-6 (c) In removing an obstruction, the commission may solicit
281-7 the assistance of federal and state agencies including the Corps of
281-8 Engineers, Texas National Guard, the Parks and Wildlife Department,
281-9 and districts and authorities created under Article III, Sections
281-10 52(b)(1) and (2), or Article XVI, Section 59, of the Texas
281-11 Constitution. Also, the commission may enter into contracts for
281-12 services required to remove an obstruction. However, no river
281-13 authority may require the removal, relocation, or reconfiguration
281-14 of a floating structure which was in place before September 1,
281-15 1987, and the effective date of any ordinance, rule, resolution, or
281-16 other act of the river authority mandating such action unless the
281-17 commission determines the structure is an obstruction to
281-18 navigation. (Sec. 11.097, Water Code.)
281-19 Sec. 11.098. Use of Commission Surveys; Policy. The
281-20 commission shall make use of surveys, studies, and investigations
281-21 conducted by the staff of the commission in order to ascertain the
281-22 character of the principal requirements of the district regional
281-23 division of the watershed areas of the state for beneficial uses of
281-24 water, to the end that distribution of the right to take and use
281-25 state water may be more equitably administered in the public
281-26 interest, that privileges granted for recognized uses may be
281-27 economically coordinated so as to achieve the maximum of public
282-1 value from the state's water resources, and that the distinct
282-2 regional necessities for water control and conservation and for
282-3 control of harmful floods may be recognized. (Sec. 12.014, Water
282-4 Code.)
282-5 (Sections 11.099-11.120 reserved for expansion)
282-6 SUBCHAPTER D. PERMITS TO USE STATE WATER
282-7 Sec. 11.121. Permit Required. Except as provided in
282-8 Sections 11.142 and 11.1421, no person may appropriate any state
282-9 water or begin construction of any work designed for the storage,
282-10 taking, or diversion of water without first obtaining a permit from
282-11 the commission to make the appropriation. (Sec. 11.121, Water
282-12 Code.)
282-13 Sec. 11.122. Amendments to Water Rights Required. (a) All
282-14 holders of permits, certified filings, and certificates of
282-15 adjudication issued under Section 11.323 shall obtain from the
282-16 commission authority to change the place of use, purpose of use,
282-17 point of diversion, rate of diversion, acreage to be irrigated, or
282-18 otherwise alter a water right.
282-19 (b) The commission shall adopt rules to effectuate the
282-20 provisions of this section. (Sec. 11.122, Water Code.)
282-21 Sec. 11.123. Permit Preferences. The commission shall give
282-22 preference to applications in the order declared in Section 11.024
282-23 and to applications which will effectuate the maximum utilization
282-24 of water and are calculated to prevent the escape of water without
282-25 contribution to a beneficial public service. (Sec. 11.123, Water
282-26 Code.)
282-27 Sec. 11.124. Application for Permit. (a) An application to
283-1 appropriate unappropriated state water must:
283-2 (1) be in writing and sworn to;
283-3 (2) contain the name and post-office address of the
283-4 applicant;
283-5 (3) identify the source of water supply;
283-6 (4) state the nature and purposes of the proposed use
283-7 and the amount of water to be used for each purpose;
283-8 (5) state the location and describe the proposed
283-9 facilities;
283-10 (6) state the time within which the proposed
283-11 construction is to begin; and
283-12 (7) state the time required for the application of
283-13 water to the proposed use.
283-14 (b) If the proposed use is irrigation, the application must
283-15 also contain:
283-16 (1) a description of the land proposed to be
283-17 irrigated; and
283-18 (2) an estimate of the total acreage to be irrigated.
283-19 (c) If the application is for a seasonal permit, under the
283-20 provisions of Section 11.137, the application must also state the
283-21 months or seasons of the year the water is to be used.
283-22 (d) If the application is for a temporary permit under the
283-23 provisions of Section 11.138, the application must also state the
283-24 period of the proposed temporary use.
283-25 (e) If the application is for a term permit, the application
283-26 form used must also state that on expiration of a term permit the
283-27 applicant does not have an automatic right to renew the permit.
284-1 (Sec. 11.124, Water Code.)
284-2 Sec. 11.125. Map or Plat. (a) The application must be
284-3 accompanied by a map or plat drawn on tracing linen on a scale not
284-4 less than one inch equals 2,000 feet.
284-5 (b) The map or plat must show substantially:
284-6 (1) the location and extent of the proposed
284-7 facilities;
284-8 (2) the location of the headgate, intake, pumping
284-9 plant, or point of diversion by course and distance from permanent
284-10 natural objects or landmarks;
284-11 (3) the location of the main ditch or canal and the
284-12 locations of the laterals or branches of the main ditch or canal;
284-13 (4) the course of the water supply;
284-14 (5) the position, waterline, and area of all lakes,
284-15 reservoirs, or basins intended to be used or created;
284-16 (6) the point of intersection of the proposed
284-17 facilities with any other ditch, canal, lateral, lake, or
284-18 reservoir; and
284-19 (7) the location of any ditch, canal, lateral,
284-20 reservoir, lake, dam, or other similar facility already existing in
284-21 the area, drawn in a different colored ink than that used to
284-22 represent the proposed facilities, and the name of the owner of the
284-23 existing facility.
284-24 (c) The map or plat must also contain:
284-25 (1) the name of the proposed facility or enterprise;
284-26 (2) the name of the applicant; and
284-27 (3) a certificate of the surveyor, giving the date of
285-1 his survey, his name and post-office address, and the date of the
285-2 application which the certificate accompanies. (Sec. 11.125, Water
285-3 Code.)
285-4 Sec. 11.126. Commission Requirements. (a) If the proposed
285-5 taking or diversion of water for irrigation exceeds nine cubic feet
285-6 per second, the executive director may require additional
285-7 information as prescribed by this section.
285-8 (b) The executive director may require a continuous
285-9 longitudinal profile, cross sections of the proposed channel, and
285-10 the detail plans of any proposed structure, on any scales and with
285-11 any definition the executive director considers necessary or
285-12 expedient.
285-13 (c) If the application proposes construction of a dam
285-14 greater than six feet in height either for diversion or storage,
285-15 the executive director may also require filing a copy of all plans
285-16 and specifications and a copy of the engineer's field notes of any
285-17 survey of the lake or reservoir. No work on the project shall
285-18 proceed until approval of the plans is obtained from the executive
285-19 director.
285-20 (d) If the applicant is a corporation, the commission may
285-21 require filing a certified copy of its articles of incorporation, a
285-22 statement of the names and addresses of its directors and officers,
285-23 and a statement of the amount of its authorized capital stock and
285-24 its paid-up capital stock.
285-25 (e) If the applicant is not a corporation, the commission
285-26 may require filing a sworn statement showing the name and address
285-27 of each person interested in the appropriation, the extent of his
286-1 interest, and his financial condition. (Sec. 11.126, Water Code.)
286-2 Sec. 11.127. Additional Requirements: Drainage Plans. If
286-3 the commission believes that the efficient operation of any
286-4 existing or proposed irrigation system may be adversely affected by
286-5 lack of adequate drainage facilities incident to the work proposed
286-6 to be done by an applicant, the commission may require the
286-7 applicant to submit to the executive director for approval plans
286-8 for drainage adequate to guard against any injury which the
286-9 proposed work may entail. (Sec. 11.127, Water Code.)
286-10 Sec. 11.1271. Additional Requirements: Water Conservation
286-11 Plans. The commission may require the formulation and submission
286-12 of a water conservation plan and the adoption of reasonable water
286-13 conservation measures, as defined by Section 11.002.
286-14 (Sec. 11.1271, Water Code.)
286-15 Sec. 11.128. Payment of Fee. If the applicant is not
286-16 exempted from payment of the filing fee under Section 2.172(r), he
286-17 shall pay the filing fee prescribed by Section 2.172(b) at the time
286-18 he files the application. The commission shall not record, file,
286-19 or consider the application until the executive director certifies
286-20 to the commission that the fee is paid. (Sec. 11.128, Water Code.)
286-21 Sec. 11.129. Review of Application; Amendment. The
286-22 commission shall determine whether the application, maps, and other
286-23 materials comply with the requirements of this chapter and the
286-24 rules of the commission. The commission may require amendment of
286-25 the application, maps, or other materials to achieve necessary
286-26 compliance. (Sec. 11.129, Water Code.)
286-27 Sec. 11.130. Recording Applications. (a) The executive
287-1 director shall have all applications for appropriations recorded in
287-2 a well-bound book kept for that purpose in the commission office.
287-3 (b) The executive director shall have the applications
287-4 indexed alphabetically in the name of:
287-5 (1) the applicant;
287-6 (2) the stream or source from which the appropriation
287-7 is sought to be made; and
287-8 (3) the county in which the appropriation is sought to
287-9 be made. (Sec. 11.130, Water Code.)
287-10 Sec. 11.131. Examination and Denial of Application Without
287-11 Hearing. (a) The commission shall make a preliminary examination
287-12 of the application, and if it appears that there is no
287-13 unappropriated water in the source of supply or that the proposed
287-14 appropriation should not be allowed for other reasons, the
287-15 commission may deny the application.
287-16 (b) If the commission denies the application under this
287-17 section and the applicant elects not to proceed further, the
287-18 commission may order any part of the fee submitted with the
287-19 application returned to the applicant. (Sec. 11.131, Water Code.)
287-20 Sec. 11.132. Notice. (a) Notice shall be given to the
287-21 persons who in the judgment of the commission may be affected by an
287-22 application, including those persons listed in Subsection (d)(2).
287-23 The commission, on the motion of a commissioner or on the request
287-24 of the executive director or any affected person, shall hold a
287-25 public hearing on the application.
287-26 (b) If the proposed use is for irrigation, the commission
287-27 shall include in the notice a general description of the location
288-1 and area of the land to be irrigated.
288-2 (c) In the notice, the commission shall:
288-3 (1) state the name and address of the applicant;
288-4 (2) state the date the application was filed;
288-5 (3) state the purpose and extent of the proposed
288-6 appropriation of water;
288-7 (4) identify the source of supply and the place where
288-8 the water is to be stored or taken or diverted from the source of
288-9 supply;
288-10 (5) specify the time and location where the commission
288-11 will consider the application; and
288-12 (6) give any additional information the commission
288-13 considers necessary.
288-14 (d) The commission may act on the application without
288-15 holding a public hearing if:
288-16 (1) not less than 30 days before the date of action on
288-17 the application by the commission, the applicant has published the
288-18 commission's notice of the application at least once in a newspaper
288-19 regularly published or circulated within the section of the state
288-20 where the source of water is located;
288-21 (2) not less than 30 days before the date of action on
288-22 the application by the commission, the commission mails a copy of
288-23 the notice by first-class mail, postage prepaid, to:
288-24 (A) each claimant or appropriator of water from
288-25 the source of water supply, the record of whose claim or
288-26 appropriation has been filed with the commission; and
288-27 (B) all navigation districts within the river
289-1 basin concerned; and
289-2 (3) within 30 days after the date of the newspaper
289-3 publication of the commission's notice, a public hearing has not
289-4 been requested in writing by a commissioner, the executive
289-5 director, or an affected person who objects to the application.
289-6 (e) The inadvertent failure of the commission to mail a
289-7 notice under Subsection (d)(2) to a navigation district that is not
289-8 a claimant or appropriator of water does not prevent the
289-9 commission's consideration of the application.
289-10 (f) If, on the date specified in the notice prescribed by
289-11 Subsection (c), the commission determines that a public hearing
289-12 must be held, the matter shall be remanded for hearing without the
289-13 necessity of issuing further notice other than advising all parties
289-14 of the time and place where the hearing is to convene.
289-15 (Sec. 11.132, Water Code.)
289-16 Sec. 11.133. Hearing. At the time and place stated in the
289-17 notice, the commission shall hold a hearing on the application.
289-18 Any person may appear at the hearing in person or by attorney or
289-19 may enter his appearance in writing. Any person who appears may
289-20 present objection to the issuance of the permit. The commission
289-21 may receive evidence, orally or by affidavit, in support of or in
289-22 opposition to the issuance of the permit, and it may hear
289-23 arguments. (Sec. 11.133, Water Code.)
289-24 Sec. 11.134. Action on Application. (a) After the hearing,
289-25 the commission shall make a written decision granting or denying
289-26 the application. The application may be granted or denied in whole
289-27 or in part.
290-1 (b) The commission shall grant the application only if:
290-2 (1) the application conforms to the requirements
290-3 prescribed by this chapter and is accompanied by the prescribed
290-4 fee;
290-5 (2) unappropriated water is available in the source of
290-6 supply;
290-7 (3) the proposed appropriation:
290-8 (A) contemplates the application of water to any
290-9 beneficial use;
290-10 (B) does not impair existing water rights or
290-11 vested riparian rights; and
290-12 (C) is not detrimental to the public welfare;
290-13 and
290-14 (4) the applicant has provided evidence that
290-15 reasonable diligence will be used to avoid waste and achieve water
290-16 conservation as defined by Section 11.002. (Sec. 11.134, Water
290-17 Code.)
290-18 Sec. 11.135. Issuance of Permit. (a) On approval of an
290-19 application, the commission shall issue a permit to the applicant.
290-20 The applicant's right to take and use water is limited to the
290-21 extent and purposes stated in the permit.
290-22 (b) The permit shall be in writing and attested by the seal
290-23 of the commission, and it shall contain substantially the following
290-24 information:
290-25 (1) the name of the person to whom the permit is
290-26 issued;
290-27 (2) the date the permit is issued;
291-1 (3) the date the original application was filed;
291-2 (4) the use or purpose for which the appropriation is
291-3 to be made;
291-4 (5) the amount or volume of water authorized to be
291-5 appropriated for each purpose;
291-6 (6) a general description of the source of supply from
291-7 which the appropriation is proposed to be made;
291-8 (7) the time within which construction or work must
291-9 begin and the time within which it must be completed; and
291-10 (8) any other information the commission prescribes.
291-11 (c) If the appropriation is for irrigation, the commission
291-12 shall also place in the permit a description and statement of the
291-13 approximate area of the land to be irrigated. (Sec. 11.135, Water
291-14 Code.)
291-15 Sec. 11.1351. Permit Restrictions. In granting an
291-16 application, the commission may direct that stream flow
291-17 restrictions and other conditions and restrictions be placed in the
291-18 permit being issued to protect the priority of senior water rights.
291-19 (Sec. 11.1351, Water Code.)
291-20 Sec. 11.136. Recording of Permit. (a) The commission shall
291-21 transmit the permit by registered mail to the county clerk of the
291-22 county in which the appropriation is to be made.
291-23 (b) When the county clerk receives the permit and is paid
291-24 the recording fee prescribed by Subchapter B, Chapter 118, Local
291-25 Government Code, he shall file and record the permit in a
291-26 well-bound book kept for that purpose. He shall index the permit
291-27 alphabetically in the name of the applicant and of the stream or
292-1 source of water supply. After he has recorded the permit, the
292-2 county clerk shall deliver the permit, on demand, to the applicant.
292-3 (c) When the permit is filed in the office of the county
292-4 clerk, it is constructive notice of:
292-5 (1) the filing of the application;
292-6 (2) the issuance of the permit; and
292-7 (3) all the rights arising under the filing of the
292-8 application and the issuance of the permit. (Sec. 11.136, Water
292-9 Code.)
292-10 Sec. 11.137. Seasonal Permits. (a) The commission may
292-11 issue seasonal permits in the same manner that it issues regular
292-12 permits. The provisions of this chapter governing issuance of
292-13 regular permits apply to issuance of seasonal permits.
292-14 (b) The right to take, use, or divert water under seasonal
292-15 permit is limited to the portion or portions of the calendar year
292-16 stated in the permit.
292-17 (c) In a seasonal permit, the commission shall specify the
292-18 conditions necessary to fully protect prior appropriations or
292-19 vested rights on the stream. (Sec. 11.137, Water Code.)
292-20 Sec. 11.138. Temporary Permits. (a) The commission may
292-21 issue temporary permits for beneficial purposes to the extent that
292-22 they do not interfere with or adversely affect prior appropriations
292-23 or vested rights on the stream from which water is to be diverted
292-24 under such temporary permit. The commission may, by appropriate
292-25 order, authorize any member of the commission to approve and issue
292-26 temporary permits without notice and hearing if it appears to such
292-27 issuing party that sufficient water is available at the proposed
293-1 point of diversion to satisfy the requirements of the temporary
293-2 permit as well as all existing rights. No temporary permit issued
293-3 without notice and hearing shall authorize more than 10 acre-feet
293-4 of water, nor may it be for a term in excess of one year.
293-5 (b) The commission may prescribe rules governing notice and
293-6 procedure for the issuance of temporary permits.
293-7 (c) As between temporary permits, the one applied for first
293-8 has priority.
293-9 (d) The commission may not issue a temporary permit for a
293-10 period exceeding three calendar years.
293-11 (e) A temporary permit does not vest in its holder a
293-12 permanent right to the use of water.
293-13 (f) A temporary permit expires and shall be cancelled by the
293-14 commission in accordance with the terms of the permit.
293-15 (g) The commission may prescribe by rule the fees to be paid
293-16 for issuance of temporary permits, but no fee for issuance or
293-17 extension of a temporary permit shall exceed $500. (Sec. 11.138,
293-18 Water Code.)
293-19 Sec. 11.1381. Term Permits. (a) Until a water right is
293-20 perfected to the full extent provided by Section 11.026, the
293-21 commission may issue permits for a term of years for use of state
293-22 water to which a senior water right has not been perfected.
293-23 (b) The commission shall refuse to grant an application for
293-24 a permit under this section if the commission finds that there is a
293-25 substantial likelihood that the issuance of the permit will
293-26 jeopardize financial commitments made for water projects that have
293-27 been built or that are being built to optimally develop the water
294-1 resources of the area.
294-2 (c) The commission shall refuse to grant an application for
294-3 a term permit if the holder of the senior appropriative water right
294-4 can demonstrate that the issuance of the term permit would prohibit
294-5 the senior appropriative water right holder from beneficially using
294-6 the senior rights during the term of the term permit. Such
294-7 demonstration will be made using reasonable projections based on
294-8 accepted methods.
294-9 (d) A permit issued under this section is subordinate to any
294-10 senior appropriative water rights. (Sec. 11.1381, Water Code.)
294-11 Sec. 11.139. Emergency Permits. (a) The commission may
294-12 grant an emergency permit for the diversion and use of water for a
294-13 period of not more than 30 days if it finds that emergency
294-14 conditions exist which threaten the public health, safety, and
294-15 welfare and which override the necessity to comply with established
294-16 statutory procedures.
294-17 (b) An emergency permit may be granted for a period of not
294-18 more than 30 days, and no extension or additional emergency permit
294-19 may be granted at the expiration of the original permit.
294-20 (c) An emergency permit may be granted under this section
294-21 without the necessity to comply with statutory and other procedures
294-22 required for granting other permits issued by the commission.
294-23 (d) The commission may prescribe rules and adopt fees which
294-24 are necessary to carry out the provisions of this section.
294-25 (e) An emergency permit does not vest in the permittee any
294-26 right to the diversion and use of water and shall expire and be
294-27 cancelled in accordance with its terms. (Sec. 11.139, Water Code.)
295-1 Sec. 11.140. Permits for Storage for Project Development.
295-2 The commission may issue permits for storage solely for the purpose
295-3 of optimum development of projects. The commission may convert
295-4 these permits to permits for beneficial use if application to have
295-5 them converted is made to the commission. (Sec. 11.140, Water
295-6 Code.)
295-7 Sec. 11.141. Date of Priority. When the commission issues a
295-8 permit, the priority of the appropriation of water and the
295-9 claimant's right to use the water date from the date of filing of
295-10 the application. (Sec. 11.141, Water Code.)
295-11 Sec. 11.142. Permit Exemptions. (a) Without obtaining a
295-12 permit, a person may construct on his own property a dam or
295-13 reservoir to impound or contain not more than 200 acre-feet of
295-14 water for domestic and livestock purposes.
295-15 (b) Without obtaining a permit, a person who is drilling and
295-16 producing petroleum and conducting operations associated with
295-17 drilling and producing petroleum may take for those purposes state
295-18 water from the Gulf of Mexico and adjacent bays and arms of the
295-19 Gulf of Mexico in an amount not to exceed one acre-foot during each
295-20 24-hour period. (Sec. 11.142, Water Code.)
295-21 Sec. 11.1421. Permit Exemption for Mariculture Activities.
295-22 (a) In this section, "mariculture" means the propagation and
295-23 rearing of aquatic species, including shrimp, other crustaceans,
295-24 finfish, mollusks, and other similar creatures in a controlled
295-25 environment using brackish or marine water.
295-26 (b) Without obtaining a permit and subject to the
295-27 requirements and limitations provided by Subsections (c) through
296-1 (e), a person who is engaged in mariculture operations on land may
296-2 take for that purpose state water from the Gulf of Mexico and
296-3 adjacent bays and arms of the Gulf of Mexico in an amount
296-4 appropriate to those mariculture activities.
296-5 (c) Before a person first takes water under Subsection (b),
296-6 the person must give notice to the commission of the proposed
296-7 appropriation.
296-8 (d) Each appropriation of water made under Subsection (b)
296-9 shall be reported to the commission in the manner provided by the
296-10 commission's rules.
296-11 (e) After notice and hearing, if the commission determines
296-12 that as a result of low freshwater inflows appropriation of water
296-13 under Subsection (b) would interfere with natural productivity of
296-14 bays and estuaries, the commission shall issue an order requiring
296-15 interruption or reduction of the appropriation. (Sec. 11.1421,
296-16 Water Code.)
296-17 Sec. 11.143. Domestic and Livestock Reservoir--Use for Other
296-18 Purposes. (a) The owner of a dam or reservoir exempted under
296-19 Section 11.142 who desires to use water from the dam or reservoir
296-20 for purposes other than domestic or livestock use shall obtain a
296-21 permit to do so. He may obtain a regular permit, a seasonal
296-22 permit, or a permit for a term of years. He may elect to obtain
296-23 the permit by proceeding under this section or under the other
296-24 provisions of this chapter governing issuance of permits.
296-25 (b) If the applicant elects to proceed under this section,
296-26 he shall submit to the commission a sworn application, on a form
296-27 furnished by the commission, containing the following information:
297-1 (1) the name and post-office address of the applicant;
297-2 (2) the nature and purpose of the use and the amount
297-3 of water to be used annually for each purpose;
297-4 (3) the major watershed and the tributary (named or
297-5 unnamed) on which the dam or reservoir is located;
297-6 (4) the county in which the dam or reservoir is
297-7 located;
297-8 (5) the approximate distance and direction from the
297-9 county seat of the county to the location of the dam or reservoir;
297-10 (6) the survey or the portion of the survey on which
297-11 the dam or reservoir is located and, to the best of the applicant's
297-12 knowledge and belief, the distance and direction of the midpoint of
297-13 the dam or reservoir from a corner of the survey, which information
297-14 the executive director may require to be marked on an aerial
297-15 photograph or map furnished by the commission;
297-16 (7) the approximate surface area, to the nearest acre,
297-17 of the reservoir when it is full and the average depth in feet when
297-18 it is full; and
297-19 (8) the approximate number of square miles in the
297-20 drainage area above the dam or reservoir.
297-21 (c) If the permit is sought for irrigation, the application
297-22 must also specify:
297-23 (1) the total number of irrigable acres in the area;
297-24 (2) the number of acres to be irrigated within the
297-25 area in any one year; and
297-26 (3) the approximate distance and direction of the land
297-27 to be irrigated from the midpoint of the dam or reservoir.
298-1 (d) Except as otherwise specifically provided by this
298-2 subsection, before the commission may approve the application and
298-3 issue the permit, it shall give notice and hold a hearing as
298-4 prescribed by this section. The commission may act on the
298-5 application without holding a public hearing if:
298-6 (1) not less than 30 days before the date of action on
298-7 the application by the commission, the applicant has published the
298-8 commission's notice of the application at least once in a newspaper
298-9 regularly published or circulated within the section of the state
298-10 where the source of water is located;
298-11 (2) not less than 30 days before the date of action on
298-12 the application by the commission, the commission mails a copy of
298-13 the notice by first-class mail, postage prepaid, to each person
298-14 whose claim or appropriation has been filed with the commission and
298-15 whose diversion point is downstream from that described in the
298-16 application; and
298-17 (3) within 30 days after the date of the newspaper
298-18 publication of the commission's notice, a public hearing is not
298-19 requested in writing by a commissioner, the executive director, or
298-20 an affected person who objects to the application.
298-21 (e) In the notice, the commission shall:
298-22 (1) state the name and post-office address of the
298-23 applicant;
298-24 (2) state the date the application was filed;
298-25 (3) state the purpose and extent of the proposed
298-26 appropriation of water;
298-27 (4) identify the source of supply and the place where
299-1 the water is stored; and
299-2 (5) specify the time and place of the hearing.
299-3 (f) The notice shall be published only once, at least 20
299-4 days before the date stated in the notice for the hearing on the
299-5 application, in a newspaper having general circulation in the
299-6 county where the dam or reservoir is located. At least 15 days
299-7 before the date set for the hearing, the commission shall transmit
299-8 a copy of the notice by first-class mail to each person whose claim
299-9 or appropriation has been filed with the commission and whose
299-10 diversion point is downstream from that described in the
299-11 application.
299-12 (g) If on the date specified in the notice prescribed by
299-13 Subsection (d), the commission determines that a public hearing
299-14 must be held, the matter shall be remanded for hearing without the
299-15 necessity of issuing further notice other than advising all parties
299-16 of the time and place where the hearing is to convene.
299-17 (h) The applicant shall pay the filing fee prescribed by
299-18 Section 2.172(a)-(n) at the time he files the application.
299-19 (i) The commission shall approve the application and issue
299-20 the permit as applied for in whole or part if it determines that:
299-21 (1) there is unappropriated water in the source of
299-22 supply;
299-23 (2) the applicant has met the requirements of this
299-24 section;
299-25 (3) the water is to be used for a beneficial purpose;
299-26 (4) the proposed use is not detrimental to the public
299-27 welfare or to the welfare of the locality; and
300-1 (5) the proposed use will not impair existing water
300-2 rights. (Sec. 11.143, Water Code.)
300-3 Sec. 11.144. Approval for Alterations. All holders of
300-4 permits and certified filings shall obtain the approval of the
300-5 commission before making any alterations, enlargements, extensions,
300-6 or other changes to any reservoir, dam, main canal, or diversion
300-7 work on which a permit has been granted or a certified filing
300-8 recorded. A detailed statement and plans for alterations or
300-9 changes shall be filed with the commission and approved by the
300-10 executive director before the alterations or changes are made.
300-11 This section does not apply to the ordinary maintenance or
300-12 emergency repair of the facility. (Sec. 11.144, Water Code.)
300-13 Sec. 11.145. When Construction Must Begin. (a) If a permit
300-14 is for appropriation by direct diversion, construction of the
300-15 proposed facilities shall begin within the time fixed by the
300-16 commission, which shall not exceed two years after the date the
300-17 permit is issued. The appropriator shall work diligently and
300-18 continuously to the completion of the construction. The commission
300-19 may, by entering an order of record, extend the time for beginning
300-20 construction. The commission may establish fees, not to exceed
300-21 $1,000, for extending the time to begin construction of the
300-22 proposed facilities.
300-23 (b) If the permit contemplates construction of a storage
300-24 reservoir, construction shall begin within the time fixed by the
300-25 commission, not to exceed two years after the date the permit is
300-26 issued. The commission, by entering an order of record, may extend
300-27 the time for beginning construction. The commission may fix fees,
301-1 not to exceed $1,000, for extending the time to begin construction
301-2 of reservoirs. (Sec. 11.145, Water Code.)
301-3 Sec. 11.146. Forfeitures and Cancellation of Permit for
301-4 Inaction. (a) If a permittee fails to begin construction within
301-5 the time specified in Section 11.145, he forfeits all rights to the
301-6 permit, subject to notice and hearing as prescribed by this
301-7 section.
301-8 (b) After beginning construction if the appropriator fails
301-9 to work diligently and continuously to the completion of the work,
301-10 the appropriation is subject to cancellation in whole or part,
301-11 subject to notice and hearing as prescribed by this section.
301-12 (c) If the commission believes that an appropriation or
301-13 permit should be declared forfeited under this section or any other
301-14 sections of this code, it should give the appropriator or permittee
301-15 30 days notice and provide him with an opportunity to be heard.
301-16 (d) After the hearing, the commission by entering an order
301-17 of record may cancel the appropriation in whole or part. The
301-18 commission shall immediately transmit a certified copy of the
301-19 cancellation order by certified mail to the county clerk of the
301-20 county in which the permit is recorded. The county clerk shall
301-21 record the cancellation order.
301-22 (e) Except as provided by Section 11.1381, if a permit has
301-23 been issued for the use of water, the water is not subject to a new
301-24 appropriation until the permit has been cancelled in whole or part
301-25 as provided by this section.
301-26 (f) Except as provided by Subchapter E, none of the
301-27 provisions of this code may be construed as intended to impair,
302-1 cause, or authorize or may impair, cause, or authorize the
302-2 forfeiture of any rights acquired by any declaration of
302-3 appropriation or by any permit if the appropriator has begun or
302-4 begins the work and development contemplated by his declaration of
302-5 appropriation or permit within the time provided by the law under
302-6 which the declaration of appropriation was made or the permit was
302-7 granted and has prosecuted or continues to prosecute it with all
302-8 reasonable diligence toward completion. (Sec. 11.146, Water Code.)
302-9 Sec. 11.147. Effects of Permit on Bays and Estuaries and
302-10 Instream Uses. (a) In this section, "beneficial inflows" means a
302-11 salinity, nutrient, and sediment loading regime adequate to
302-12 maintain an ecologically sound environment in the receiving bay and
302-13 estuary system that is necessary for the maintenance of
302-14 productivity of economically important and ecologically
302-15 characteristic sport or commercial fish and shellfish species and
302-16 estuarine life upon which such fish and shellfish are dependent.
302-17 (b) In its consideration of an application for a permit to
302-18 store, take, or divert water, the commission shall assess the
302-19 effects, if any, of the issuance of the permit on the bays and
302-20 estuaries of Texas. For permits issued within an area that is 200
302-21 river miles of the coast, to commence from the mouth of the river
302-22 thence inland, the commission shall include in the permit, to the
302-23 extent practicable when considering all public interests, those
302-24 conditions considered necessary to maintain beneficial inflows to
302-25 any affected bay and estuary system.
302-26 (c) For the purposes of making a determination under
302-27 Subsection (b), the commission shall consider among other factors:
303-1 (1) the need for periodic freshwater inflows to supply
303-2 nutrients and modify salinity to preserve the sound environment of
303-3 the bay or estuary, using any available information, including
303-4 studies and plans specified in Section 11.149 and other studies
303-5 considered by the commission to be reliable; together with existing
303-6 circumstances, natural or otherwise, that might prevent the
303-7 conditions imposed from producing benefits;
303-8 (2) the ecology and productivity of the affected bay
303-9 and estuary system;
303-10 (3) the expected effects on the public welfare of not
303-11 including in the permit some or all of the conditions considered
303-12 necessary to maintain the beneficial inflows to the affected bay or
303-13 estuary system;
303-14 (4) the quantity of water requested and the proposed
303-15 use of water by the applicant, as well as the needs of those who
303-16 would be served by the applicant;
303-17 (5) the expected effects on the public welfare of the
303-18 failure to issue all or part of the permit being considered; and
303-19 (6) for purposes of this section, the declarations as
303-20 to preferences for competing uses of water as found in Sections
303-21 11.024 and 11.033, as well as the public policy statement in
303-22 Section 1.002.
303-23 (d) In its consideration of an application to store, take,
303-24 or divert water, the commission shall consider the effect, if any,
303-25 of the issuance of the permit on existing instream uses and water
303-26 quality of the stream or river to which the application applies.
303-27 (e) The commission shall also consider the effect, if any,
304-1 of the issuance of the permit on fish and wildlife habitats.
304-2 (f) On receipt of an application for a permit to store,
304-3 take, or divert water, the commission shall send a copy of the
304-4 permit application and any subsequent amendments to the Parks and
304-5 Wildlife Department. At its option, the Parks and Wildlife
304-6 Department may be a party in hearings on applications for permits
304-7 to store, take, or divert water. In making a final decision on any
304-8 application for a permit, the commission, in addition to other
304-9 information, evidence, and testimony presented, shall consider all
304-10 information, evidence, and testimony presented by the Parks and
304-11 Wildlife Department and the board.
304-12 (g) The failure of the Parks and Wildlife Department to
304-13 appear as a party does not relieve the commission of the
304-14 requirements of this section. (Sec. 11.147, Water Code.)
304-15 Sec. 11.148. Emergency Suspension of Permit Conditions.
304-16 (a) Permit conditions relating to beneficial inflows to affected
304-17 bays and estuaries and instream uses may be suspended by the
304-18 commission if the commission finds that an emergency exists and
304-19 cannot practically be resolved in other ways.
304-20 (b) Before the commission suspends a permit under Subsection
304-21 (a), it must give written notice to the Parks and Wildlife
304-22 Department of the proposed suspension. The commission shall give
304-23 the Parks and Wildlife Department an opportunity to submit comments
304-24 on the proposed suspension within 72 hours after such time and the
304-25 commission shall consider those comments before issuing its order
304-26 imposing the suspension.
304-27 (c) The commission may suspend the permit without notice to
305-1 any interested party other than the Parks and Wildlife Department
305-2 as provided by Subsection (b). However, all affected persons shall
305-3 be notified immediately by publication, and a hearing to determine
305-4 whether the suspension should be continued shall be held within 15
305-5 days of the date on which the order to suspend is issued.
305-6 (Sec. 11.148, Water Code.)
305-7 Sec. 11.149. Evaluation of Bays and Estuaries Data.
305-8 (a) The Parks and Wildlife Department and the commission shall
305-9 have joint responsibility to review the studies prepared under
305-10 Section 16.058, Water Code, to determine inflow conditions
305-11 necessary for the bays and estuaries, and to provide information
305-12 necessary for water resources management. Each agency shall
305-13 designate an employee to share equally in the oversight of the
305-14 program. Other responsibilities shall be divided between the Parks
305-15 and Wildlife Department and the commission to maximize present
305-16 in-house capabilities of personnel and to minimize costs to the
305-17 state. Each agency shall have reasonable access to all information
305-18 produced by the other agency. Publication of reports completed
305-19 under this section shall be submitted for comment to both the
305-20 commission and the Parks and Wildlife Department.
305-21 (b) For purposes of guiding data collection and studies
305-22 specified under Subsection (a), an advisory council may be
305-23 established by the executive directors of the commission and the
305-24 Parks and Wildlife Department and the executive administrator of
305-25 the board for each principal bay and estuary. Each advisory
305-26 council shall be composed of representatives of the commission,
305-27 board, Parks and Wildlife Department, Texas Department of Health,
306-1 General Land Office, one representative of commercial fishing
306-2 groups, one representative of recreational fishing and hunting
306-3 groups, one representative of conservation groups, and
306-4 representatives of conservation and reclamation districts or river
306-5 authorities having responsibilities and operations in river basins
306-6 or watersheds contributing to the bay or estuary. The advisory
306-7 councils may develop recommendations to the executive directors and
306-8 to entities and organizations having operational responsibilities
306-9 or holding major water rights in the contributing watersheds
306-10 regarding alternative water management methods that may be used in
306-11 maintaining the sound environment of the bays and estuaries.
306-12 (c) The board may authorize the use of money from the
306-13 research and planning fund established by Chapter 15, Water Code,
306-14 to accomplish the purposes of this section. These funds shall be
306-15 used by the commission in cooperation with the Parks and Wildlife
306-16 Department for interagency contracts with cooperating agencies and
306-17 universities, and contracts with private sector establishments, as
306-18 necessary, to accomplish the purposes of this section.
306-19 (Sec. 11.1491, Water Code.)
306-20 Sec. 11.150. Effects of Permits on Water Quality. In
306-21 consideration of an application for a permit under this subchapter,
306-22 the commission shall assess the effects, if any, of the issuance of
306-23 the permit on water quality in this state. (Sec. 11.150, Water
306-24 Code.)
306-25 Sec. 11.151. Effects of Permits on Fish and Wildlife
306-26 Habitats. In its consideration of an application for a permit to
306-27 store, take, or divert water in excess of 5,000 acre feet per year,
307-1 the commission shall assess the effects, if any, on the issuance of
307-2 the permit on fish and wildlife habitats and may require the
307-3 applicant to take reasonable actions to mitigate adverse impacts on
307-4 such habitat. In determining whether to require an applicant to
307-5 mitigate adverse impacts on a habitat, the commission may consider
307-6 any net benefit to the habitat produced by the project. The
307-7 commission shall offset against any mitigation required by the U.S.
307-8 Fish and Wildlife Service pursuant to 33 C.F.R. Sections 320-330
307-9 any mitigation authorized by this section. (Sec. 11.152, Water
307-10 Code.)
307-11 Sec. 11.152. Permit Applications. The commission shall
307-12 receive, administer, and act on all applications for permits and
307-13 permit amendments:
307-14 (1) to appropriate public water for beneficial use or
307-15 storage; or
307-16 (2) to construct works for the impoundment, storage,
307-17 diversion, or transportation of public water. (Sec. 12.011, Water
307-18 Code.)
307-19 Sec. 11.153. Evaluation of Outstanding Permits. The
307-20 commission shall actively and continually evaluate outstanding
307-21 permits and certified filings and shall carry out measures to
307-22 cancel wholly or partially the certified filings and permits that
307-23 are subject to cancellation. (Sec. 12.012, Water Code.)
307-24 (Sections 11.154-11.170 reserved for expansion)
307-25 SUBCHAPTER E. CANCELLATION OF PERMITS, CERTIFIED FILINGS,
307-26 AND CERTIFICATES OF ADJUDICATION FOR NONUSE
307-27 Sec. 11.171. Definitions. As used in this subchapter:
308-1 (1) "Other interested person" means any person other
308-2 than a record holder who is interested in the permit or certified
308-3 filing or any person whose direct interest would be served by the
308-4 cancellation of the permit or certified filing in whole or part.
308-5 (2) "Certified filing" means a declaration of
308-6 appropriation or affidavit that was filed with the State Board of
308-7 Water Engineers under the provisions of Section 14, Chapter 171,
308-8 General Laws, Acts of the 33rd Legislature, 1913, as amended.
308-9 (3) "Certificate of adjudication" means a certificate
308-10 issued by the commission under Section 11.323.
308-11 (4) "Permit" means an authorization by the commission
308-12 granting a person the right to use water. (Sec. 11.171, Water
308-13 Code.)
308-14 Sec. 11.172. General Principle. A permit, certified filing,
308-15 or certificate of adjudication is subject to cancellation in whole
308-16 or part for 10 years nonuse as provided by this subchapter.
308-17 (Sec. 11.172, Water Code.)
308-18 Sec. 11.173. Cancellation in Whole or in Part. (a) Except
308-19 as provided by Subsection (b), if all or part of the water
308-20 authorized to be appropriated under a permit, certified filing, or
308-21 certificate of adjudication has not been put to beneficial use at
308-22 any time during the 10-year period immediately preceding the
308-23 cancellation proceedings authorized by this subchapter, then the
308-24 permit, certified filing, or certificate of adjudication is subject
308-25 to cancellation in whole or in part, as provided by this
308-26 subchapter, to the extent of the 10 years' nonuse.
308-27 (b) A permit, certified filing, or certificate of
309-1 adjudication or a portion of a permit, certified filing, or
309-2 certificate of adjudication is exempt from cancellation under
309-3 Subsection (a):
309-4 (1) to the extent of the owner's participation in the
309-5 Conservation Reserve Program authorized by the Food Security Act,
309-6 Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514
309-7 (1985) or a similar governmental program; or
309-8 (2) if any portion of the water authorized to be used
309-9 pursuant to a permit, certified filing, or certificate of
309-10 adjudication has been used in accordance with a water management
309-11 plan approved by the commission. (Sec. 11.173, Water Code.)
309-12 Sec. 11.174. Commission May Initiate Proceedings. When the
309-13 commission finds that its records do not show that some portion of
309-14 the water has been used during the past 10 years, the executive
309-15 director may initiate proceedings, terminated by public hearing, to
309-16 cancel the permit, certified filing, or certificate of adjudication
309-17 in whole or in part. (Sec. 11.174, Water Code.)
309-18 Sec. 11.175. Notice. (a) At least 45 days before the date
309-19 of the hearing, the commission shall send notice of the hearing to
309-20 the holder of the permit, certified filing, or certificate of
309-21 adjudication being considered for cancellation in whole or in part.
309-22 Notice shall be sent by certified mail, return receipt requested,
309-23 to the last address shown by the records of the commission. The
309-24 commission shall also send notice by regular mail to all other
309-25 holders of permits, certified filings, certificates of
309-26 adjudication, and claims of unadjudicated water rights filed
309-27 pursuant to Section 11.303 in the same watershed.
310-1 (b) The commission shall also have the notice of the hearing
310-2 published once a week for two consecutive weeks, at least 30 days
310-3 before the date of the hearing, in a newspaper published in each
310-4 county in which diversion of water from the source of supply was
310-5 authorized or proposed to be made and in each county in which the
310-6 water was authorized or proposed to be used, as shown by the
310-7 records of the commission. If in any such county no newspaper is
310-8 published, then the notice may be published in a newspaper having
310-9 general circulation in the county. (Sec. 11.175, Water Code.)
310-10 Sec. 11.176. Hearing. The commission shall hold a hearing
310-11 and shall give the holder of the permit, certified filing, or
310-12 certificate of adjudication and other interested persons an
310-13 opportunity to be heard and to present evidence on any matter
310-14 pertinent to the questions at issue. (Sec. 11.176, Water Code.)
310-15 Sec. 11.177. Commission Finding; Action. (a) At the
310-16 conclusion of the hearing, the commission shall cancel the permit,
310-17 certified filing, or certificate of adjudication in whole or in
310-18 part to the extent that it finds that:
310-19 (1) the water or any portion of the water appropriated
310-20 under the permit, certified filing, or certificate of adjudication
310-21 has not been put to an authorized beneficial use during the 10-year
310-22 period;
310-23 (2) the holder has not used reasonable diligence in
310-24 applying the water or the unused portion of the water to an
310-25 authorized beneficial use; and
310-26 (3) the holder has not been justified in the nonuse or
310-27 does not then have a bona fide intention of putting the water or
311-1 the unused portion of the water to an authorized beneficial use
311-2 within a reasonable time after the hearing.
311-3 (b) In determining what constitutes a justified nonuse and a
311-4 reasonable time as used in Subsection (a)(3), the commission shall
311-5 give consideration to:
311-6 (1) the expenditures made or obligations incurred by
311-7 the holder in connection with the permit, certified filing, or
311-8 certificate of adjudication;
311-9 (2) the purpose to which the water is to be applied;
311-10 (3) the priority of the purpose;
311-11 (4) the amount of time usually necessary to put water
311-12 to a beneficial use for the same purpose when diligently developed;
311-13 and
311-14 (5) whether at all times during the 10-year period
311-15 there was rainfall adequate to enable the use of all or part of the
311-16 water authorized to be appropriated under the permit, certified
311-17 filing, or certificate of adjudication. (Sec. 11.177, Water Code.)
311-18 Sec. 11.178. Reservoir. If the holder of a permit,
311-19 certified filing, or certificate of adjudication has facilities for
311-20 the storage of water in a reservoir, the commission may allow him
311-21 to retain the impoundment to the extent of the conservation storage
311-22 capacity of the reservoir for domestic, livestock, or recreation
311-23 purposes. (Sec. 11.183, Water Code.)
311-24 Sec. 11.179. Municipal Certified Filing. Regardless of
311-25 other provisions of this subchapter, no portion of a certified
311-26 filing held by a city, town, village, or municipal water district,
311-27 authorizing the use of water for municipal purposes, shall be
312-1 cancelled if water has been put to use under the certified filing
312-2 for municipal purposes at any time during the 10-year period
312-3 immediately preceding the institution of cancellation proceedings.
312-4 (Sec. 11.184, Water Code.)
312-5 Sec. 11.180. Effect of Inaction. Failure to initiate
312-6 cancellation proceedings under this subchapter does not validate or
312-7 improve the status of any permit, certified filing, or certificate
312-8 of adjudication in whole or in part. (Sec. 11.185, Water Code.)
312-9 Sec. 11.181. Subsequent Proceedings on Same Water Right.
312-10 Once cancellation proceedings have been initiated against a
312-11 particular permit, certified filing, or certificate of adjudication
312-12 and a hearing has been held, further cancellation proceedings shall
312-13 not be initiated against the same permit, certified filing, or
312-14 certificate of adjudication within the five-year period immediately
312-15 following the date of the hearing. (Sec. 11.186, Water Code.)
312-16 (Sections 11.182-11.200 reserved for expansion)
312-17 SUBCHAPTER F. WETLANDS
312-18 Sec. 11.201. Short Title. This subchapter may be cited as
312-19 the Wetlands Act. (Sec. 11.501, Water Code.)
312-20 Sec. 11.202. Definitions. In this subchapter:
312-21 (1) "Wetlands" within the State of Texas, for purposes
312-22 of the Clean Water Act, 33 U.S.C. 1311, 1344; the Erodible Land and
312-23 Wetland Conservation and Reserve Program, 16 U.S.C. 3801-3845; the
312-24 Emergency Wetlands Resources Act of 1986, 16 U.S.C. 3901-3932; the
312-25 National Environmental Policy Act of 1969, 42 U.S.C. 4321-4370a,
312-26 all statutory foundation for the Federal Wildlife Service's
312-27 National Wetlands Inventory mapping, including the Water Bank
313-1 Program for Wetlands Preservation, 16 U.S.C. 1301-1311; the Water
313-2 Resources development project (wetland areas), 42 U.S.C. 1962d-5e;
313-3 and the Migratory Bird Conservation Act, 16 U.S.C. 715-715r; and
313-4 all Texas laws, rules, and regulations adopted pursuant to the
313-5 Administrative Procedure and Texas Register Act (Article 6252-13a,
313-6 Vernon's Texas Civil Statutes) and interpretation and
313-7 implementation of any kind whatsoever of both federal and state
313-8 laws by agencies of the state, including any amendment or revision
313-9 thereto, relating to wetlands, means an area, including a swamp,
313-10 marsh, bog, prairie pothole, or similar area, having a predominance
313-11 of hydric soils that are inundated or saturated by surface or
313-12 groundwater at a frequency and duration sufficient to support and
313-13 that under normal circumstances supports the growth and
313-14 regeneration of hydrophytic vegetation.
313-15 (2) "Hydric soil" means soil that, in its undrained
313-16 condition, is saturated, flooded, or ponded long enough during a
313-17 growing season to develop an anaerobic condition that supports the
313-18 growth and regeneration of hydrophytic vegetation.
313-19 (3) "Hydrophytic vegetation" means a plant growing in:
313-20 water or a substrate that is at least periodically deficient in
313-21 oxygen during a growing season as a result of excessive water
313-22 content.
313-23 (4) "Wetlands" does not include:
313-24 (A) irrigated acreage used as farmland;
313-25 (B) man-made wetlands of less than one acre; or
313-26 (C) man-made wetlands not constructed with
313-27 wetland creation as a stated objective, including but not limited
314-1 to impoundments made for the purpose of soil and water conservation
314-2 which have been approved or requested by soil and water
314-3 conservation districts. (Sec. 11.502, Water Code.)
314-4 Sec. 11.203. Applicability to Man-Made Wetlands. Section
314-5 11.202(4)(C) applies only to man-made wetlands the construction or
314-6 creation of which commences on or after August 28, 1989.
314-7 (Sec. 11.503, Water Code.)
314-8 Sec. 11.204. Applicability to Surface Mining and
314-9 Reclamation. This subchapter shall not apply to surface mining and
314-10 reclamation. (Sec. 11.504, Water Code.)
314-11 Sec. 11.205. Applicability to State Revolving Loan Fund
314-12 Program. This subchapter shall not apply to the state revolving
314-13 loan fund program. (Sec. 11.505, Water Code.)
314-14 Sec. 11.206. Conflict Between State and Federal Definitions.
314-15 If the state definition conflicts with the federal definition in
314-16 any manner, the federal definition prevails. (Sec. 11.506, Water
314-17 Code.)
314-18 (Sections 11.207-11.300 reserved for expansion)
314-19 SUBCHAPTER G. WATER RIGHTS ADJUDICATION ACT
314-20 Sec. 11.301. Short Title. This subchapter may be cited as
314-21 the Water Rights Adjudication Act. (Sec. 11.301, Water Code.)
314-22 Sec. 11.302. Declaration of Policy. The conservation and
314-23 best utilization of the water resources of this state are a public
314-24 necessity, and it is in the interest of the people of the state to
314-25 require recordation with the commission of claims of water rights
314-26 which are presently unrecorded, to limit the exercise of these
314-27 claims to actual use, and to provide for the adjudication and
315-1 administration of water rights to the end that the surface-water
315-2 resources of the state may be put to their greatest beneficial use.
315-3 Therefore, this subchapter is in furtherance of the public rights,
315-4 duties, and functions mentioned in this section and in response to
315-5 the mandate expressed in Article XVI, Section 59, of the Texas
315-6 Constitution and is in the exercise of the police powers of the
315-7 state in the interest of the public welfare. (Sec. 11.302, Water
315-8 Code.)
315-9 Sec. 11.303. Recordation and Limitation of Certain Water
315-10 Rights Claims. (a) This section applies to:
315-11 (1) claims of riparian water rights;
315-12 (2) claims under Section 11.143 to impound, divert, or
315-13 use state water for other than domestic or livestock purposes, for
315-14 which no permit has been issued;
315-15 (3) claims of water rights under the Irrigation Acts
315-16 of 1889 and 1895 which were not filed with the State Board of
315-17 Water Engineers in accordance with the Irrigation Act of 1913, as
315-18 amended; and
315-19 (4) other claims of water rights except claims under
315-20 permits or certified filings.
315-21 (b) Any claim to which this section applies shall be
315-22 recognized only if valid under existing law and only to the extent
315-23 of the maximum actual application of water to beneficial use
315-24 without waste during any calendar year from 1963 to 1967,
315-25 inclusive. However, in any case where a claimant of a riparian
315-26 right has prior to August 28, 1967, commenced or completed the
315-27 construction of works designed to apply a greater quantity of water
316-1 to beneficial use, the right shall be recognized to the extent of
316-2 the maximum amount of water actually applied to beneficial use
316-3 without waste during any calendar year from 1963 to 1970,
316-4 inclusive.
316-5 (c) On or before September 1, 1969, every person claiming a
316-6 water right to which this section applies shall file with the
316-7 commission a statement setting forth:
316-8 (1) the name and address of the claimant;
316-9 (2) the location and the nature of the right claimed;
316-10 (3) the stream or watercourse and the river basin in
316-11 which the right is claimed;
316-12 (4) the date of commencement of works;
316-13 (5) the dates and volumes of use of water; and
316-14 (6) other information the commission may require to
316-15 show the nature and extent of the claim.
316-16 (d) A person who files a statement as provided in this
316-17 section shall certify under oath that the statements made in
316-18 support of his claim are true and correct to the best of his
316-19 knowledge and belief.
316-20 (e) A claimant who desires recognition of a right based on
316-21 use from 1968 to 1970, inclusive, as provided in Subsection (b)
316-22 shall file an additional sworn statement on or before July 1, 1971.
316-23 (f) The commission shall prescribe forms for the sworn
316-24 statements required by this section, but use of the commission
316-25 forms is not mandatory.
316-26 (g) On or before January 1, 1968, and June 1, 1969, the
316-27 commission shall cause notice of the requirements of this section
317-1 to be published once each week for two consecutive weeks in
317-2 newspapers having general circulation in each county of the state
317-3 and by first-class mail to each user of surface water who has filed
317-4 a report of water use with the commission.
317-5 (h) On sworn petition, notice, and hearing as prescribed for
317-6 applications for permits and upon finding of extenuating
317-7 circumstances and good cause shown for failure to timely file, the
317-8 commission may authorize the filing of the sworn statement or
317-9 statements required by this section until entry of a preliminary
317-10 determination of claims of water rights in accordance with Section
317-11 11.309 which includes the area described in the petition or, if a
317-12 preliminary determination has not been entered, until September 1,
317-13 1974.
317-14 (i) Since the filing of all claims to use public water is
317-15 necessary for the conservation and best utilization of the water
317-16 resources of the state, failure to file a sworn statement in
317-17 substantial compliance with this section extinguishes and bars any
317-18 claim of water rights to which this section applies.
317-19 (j) A sworn statement submitted under this section is
317-20 binding on the person submitting it and his successors in interest,
317-21 but is not binding on the commission or any other person in
317-22 interest.
317-23 (k) Nothing in this section shall be construed to recognize
317-24 any water right which did not exist before August 28, 1967.
317-25 (l) This section does not apply to use of water for domestic
317-26 or livestock purposes. (Sec. 11.303, Water Code.)
317-27 Sec. 11.304. Adjudication of Water Rights. The water rights
318-1 in any stream or segment of a stream may be adjudicated as provided
318-2 in this subchapter:
318-3 (1) on the commission's own motion;
318-4 (2) on petition to the commission signed by 10 or more
318-5 claimants of water rights from the source of supply; or
318-6 (3) on petition of the executive director.
318-7 (Sec. 11.304, Water Code.)
318-8 Sec. 11.305. Investigation. (a) Promptly after a petition
318-9 is filed under Section 11.304, the commission shall consider
318-10 whether the adjudication would be in the public interest. If the
318-11 commission finds that an adjudication would be in the public
318-12 interest, it shall enter an order to that effect, designating the
318-13 stream or segment to be adjudicated. The executive director shall
318-14 have an investigation made of the area involved in order to gather
318-15 relevant data and information essential to the proper understanding
318-16 of the claims of water rights involved. The results of the
318-17 investigation shall be reduced to writing and made a matter of
318-18 record in the commission office.
318-19 (b) In connection with the investigation, the executive
318-20 director shall have a map or plat made showing with substantial
318-21 accuracy the course of the stream or segment and the location of
318-22 reservoirs, diversion works, and places of use, including lands
318-23 which are being irrigated or have facilities for irrigation.
318-24 (Sec. 11.305, Water Code.)
318-25 Sec. 11.306. Notice of Adjudication. (a) The commission
318-26 shall prepare a notice of adjudication which describes the stream
318-27 or segment to be adjudicated and the date by which all claims of
319-1 water rights in the stream or segment shall be filed with the
319-2 commission. The date shall not be less than 90 days after the date
319-3 the notice is issued.
319-4 (b) The notice shall be published once a week for two
319-5 consecutive weeks in one or more newspapers having general
319-6 circulation in the counties in which the stream or segment is
319-7 located.
319-8 (c) The notice shall also be sent by first-class mail to
319-9 each claimant of water rights whose diversion is within the stream
319-10 or segment to be adjudicated, to the extent that the claimants can
319-11 reasonably be ascertained from the records of the commission.
319-12 (Sec. 11.306, Water Code.)
319-13 Sec. 11.307. Filing of Sworn Claims. (a) Every person
319-14 claiming a water right of any nature, except for domestic or
319-15 livestock purposes, from the stream or segment under adjudication
319-16 shall file a sworn claim with the commission within the time
319-17 prescribed in the notice of adjudication, including any extensions
319-18 of the prescribed time, setting forth:
319-19 (1) the name and post-office address of the claimant;
319-20 (2) the location and nature of the right claimed,
319-21 including a description of any permit or certified filing under
319-22 which the claim is made;
319-23 (3) the purpose of the use;
319-24 (4) a description of works and irrigated land; and
319-25 (5) all other information necessary to show the nature
319-26 and extent of the claim.
319-27 (b) The commission shall prescribe forms for claims, but use
320-1 of the commission forms is not mandatory. (Sec. 11.307, Water
320-2 Code.)
320-3 Sec. 11.308. Hearings on Claims; Notice. The commission
320-4 shall set a time and a place for hearing all claims. Not less than
320-5 30 days before commencement of the hearings, the commission shall
320-6 give notice of the hearings by certified mail to all persons who
320-7 have filed claims in accordance with Section 11.307, or this notice
320-8 may be included in the notice of adjudication provided in Section
320-9 11.306. The hearings shall be conducted as provided in Section
320-10 11.337. (Sec. 11.308, Water Code.)
320-11 Sec. 11.309. Preliminary Determination of Claims. (a) On
320-12 completion of the hearings, the commission shall make a preliminary
320-13 determination of the claims to water rights under adjudication.
320-14 (b) One copy of the preliminary determination shall be
320-15 furnished without charge to each person who filed a claim in
320-16 accordance with Section 11.307. Additional copies of the
320-17 preliminary determination shall be made available for public
320-18 inspection at convenient locations throughout the river basin, as
320-19 designated by the commission. Copies shall also be made available
320-20 to other interested persons at a reasonable price, based on the
320-21 cost of reproduction. (Sec. 11.309, Water Code.)
320-22 Sec. 11.310. Evidence Open to Inspection. All evidence
320-23 presented to or considered by the commission shall be open to
320-24 public inspection for a period of not less than 60 days, as fixed
320-25 by the commission, after the notice prescribed in Section 11.312 is
320-26 issued. (Sec. 11.310, Water Code.)
320-27 Sec. 11.311. Date for Filing Contests. The commission shall
321-1 set a date for filing contests on the preliminary determination,
321-2 which date shall not be less than 30 days after the period for
321-3 public inspection of the evidence has closed. (Sec. 11.311, Water
321-4 Code.)
321-5 Sec. 11.312. Notice of Preliminary Determination; Copies.
321-6 (a) Promptly after the preliminary determination is made as
321-7 provided in Section 11.309, the commission shall publish notice of
321-8 the determination once a week for two consecutive weeks in one or
321-9 more newspapers having general circulation in the river basin in
321-10 which the stream or segment that is the subject of the adjudication
321-11 is located.
321-12 (b) The commission shall also send notice by first-class
321-13 mail to each claimant of water rights within the river basin in
321-14 which the stream or segment is located, to the extent that the
321-15 claimants can be reasonably ascertained from the records of the
321-16 commission.
321-17 (c) Each notice shall state:
321-18 (1) the place and the period of time that the
321-19 preliminary determination and evidence presented to or considered
321-20 by the commission will be open for public inspection;
321-21 (2) the locations throughout the river basin where
321-22 copies of the preliminary determination will be available for
321-23 public inspection;
321-24 (3) the method of ordering copies of the preliminary
321-25 determination and the charge for copies;
321-26 (4) the date by which contests on the preliminary
321-27 determination must be filed. (Sec. 11.312, Water Code.)
322-1 Sec. 11.313. Filing Contests. (a) Any water right claimant
322-2 affected by the preliminary determination, including any claimant
322-3 to water rights within the river basin but outside the stream or
322-4 segment under adjudication, who disputes the preliminary
322-5 determination may within the time for filing contests prescribed by
322-6 the commission in the notice, including any extension of the time,
322-7 file a written contest with the commission, stating with reasonable
322-8 certainty the grounds of his contest.
322-9 (b) The statement filed to contest a preliminary
322-10 determination must be verified by an affidavit of the contestant,
322-11 his agent, or his attorney.
322-12 (c) If the contest is directed against the preliminary
322-13 determination of the water rights of other claimants, a copy shall
322-14 be served on each of these claimants or his attorney by certified
322-15 mail, and proof of service shall be filed with the commission.
322-16 (Sec. 11.313, Water Code.)
322-17 Sec. 11.314. Hearing on Contest; Notice. After the time for
322-18 filing contests has expired, the commission shall prepare a notice
322-19 setting forth the part of the preliminary determination to which
322-20 each contest is directed and the time and place of a hearing on the
322-21 contest. The notice shall be sent to each claimant of water rights
322-22 within the river basin in which the stream or segment is located,
322-23 to the extent that the claimants can be reasonably ascertained from
322-24 the records of the commission. The hearing shall be conducted as
322-25 provided in Section 11.337. (Sec. 11.314, Water Code.)
322-26 Sec. 11.315. Final Determination. On completion of the
322-27 hearings on all contests, the commission shall make a final
323-1 determination of the claims to water rights under adjudication.
323-2 The commission shall send a copy of the final determination and any
323-3 modification of the final determination to each claimant whose
323-4 rights are adjudicated and to each contesting party. (Sec. 11.315,
323-5 Water Code.)
323-6 Sec. 11.316. Application for Rehearing. Within 30 days from
323-7 the date of the final determination, any affected party may apply
323-8 to the commission for a rehearing. Applications for rehearing
323-9 which in the opinion of the commission are without merit may be
323-10 denied without notice to other parties, but no application for
323-11 rehearing shall be granted without notice to each claimant whose
323-12 rights are adjudicated and to each contesting party. (Sec. 11.316,
323-13 Water Code.)
323-14 Sec. 11.317. Filing Final Determination With District Court.
323-15 (a) As soon as practicable after the disposition of all
323-16 applications for rehearing, the commission shall file a certified
323-17 copy of the final determination, together with all evidence
323-18 presented to or considered by the commission, in a district court
323-19 of any county in which the stream or segment under adjudication is
323-20 located. However, if the stream or segment under adjudication
323-21 includes all or parts of three or more counties and if 10 or more
323-22 affected persons who appeared in the proceedings petition the
323-23 commission to do so, the commission shall file the action in a
323-24 convenient district court of a judicial district which is not
323-25 within the river basin of the stream or segment under adjudication.
323-26 (b) The commission shall obtain an order from the court
323-27 fixing a time not less than 30 days from the date of the order for
324-1 the filing of exceptions to the final determination and also fixing
324-2 a time not less than 60 days from the date of the order for the
324-3 commencement of hearings on exceptions.
324-4 (c) The commission shall immediately give written notice of
324-5 the court order by certified mail to all parties who appeared in
324-6 the proceedings before the commission. The commission shall file
324-7 proof of the service with the court. (Sec. 11.317, Water Code.)
324-8 Sec. 11.318. Exceptions to Final Determination. (a) Any
324-9 affected person who appeared in the proceeding before the
324-10 commission may file exceptions to the final determination. An
324-11 exception must state with a reasonable degree of certainty the
324-12 grounds for the exception and must specify the particular
324-13 paragraphs and pages of the determination to which the exception is
324-14 taken.
324-15 (b) Three copies of the exceptions shall be filed in court,
324-16 and a copy shall be served on the commission. The commission shall
324-17 make copies of all exceptions available at a reasonable price,
324-18 based on the cost of reproduction. (Sec. 11.318, Water Code.)
324-19 Sec. 11.319. Hearings on Exceptions. (a) The court shall
324-20 hear any exceptions that have been filed. The commission and all
324-21 affected persons who appeared in the proceedings before the
324-22 commission are entitled to appear and be heard on the exceptions.
324-23 The court may permit other parties in interest to appear and be
324-24 heard for good cause shown.
324-25 (b) The court may conduct nonjury hearings and proceedings
324-26 at any convenient location within the state. Actual expenses
324-27 incurred by the court outside its judicial district shall be taxed
325-1 as costs. (Sec. 11.319, Water Code.)
325-2 Sec. 11.320. Scope of Judicial Review. (a) In passing on
325-3 exceptions, the court shall determine all issues of law and fact
325-4 independently of the commission's determination. The substantial
325-5 evidence rule shall not be used. The court shall not consider any
325-6 exception which was not brought to the commission's attention by
325-7 application for rehearing. The court shall not consider any issue
325-8 of fact raised by an exception unless the record of evidence before
325-9 the commission reveals that the question was genuinely in issue
325-10 before the commission.
325-11 (b) A party in interest may demand a jury trial of any issue
325-12 of fact, but the court may in its discretion have a separate trial
325-13 with a separate jury of any such issue.
325-14 (c) The legislature declares that the provisions of this
325-15 section are not severable from the remainder of this subchapter and
325-16 that this subchapter would not have been passed without the
325-17 inclusion of this section. If this section is for any reason held
325-18 invalid, unconstitutional, or inoperative in any way, the holding
325-19 applies to the entire subchapter so that the entire subchapter is
325-20 null and void. (Sec. 11.320, Water Code.)
325-21 Sec. 11.321. Evidence. Any exception heard by the court
325-22 without a jury may be resolved on the record of evidence before the
325-23 commission, or the court may take additional evidence or direct
325-24 that additional evidence be heard by the commission. (Sec. 11.321,
325-25 Water Code.)
325-26 Sec. 11.322. Final Decree. (a) After the final hearing,
325-27 the court shall enter a decree affirming or modifying the order of
326-1 the commission.
326-2 (b) The court may assess the costs as it deems just.
326-3 (c) An appeal may be taken from the decree of the court in
326-4 the same manner and with the same effect as in other civil cases.
326-5 (d) The final decree in every water right adjudication is
326-6 final and conclusive as to all existing and prior rights and claims
326-7 to the water rights in the adjudicated stream or segment of a
326-8 stream. The decree is binding on all claimants to water rights
326-9 outside the adjudicated stream or segment of a stream.
326-10 (e) Except for domestic and livestock purposes or rights
326-11 subsequently acquired by permit, a water right is not recognized in
326-12 the adjudicated stream or segment of a stream unless the right is
326-13 included in the final decree of the court. (Sec. 11.322, Water
326-14 Code.)
326-15 Sec. 11.323. Certificate of Adjudication. (a) When a final
326-16 determination of the rights to the waters of a stream has been made
326-17 in accordance with the procedure provided in this subchapter and
326-18 the time for a rehearing has expired, the commission shall issue to
326-19 each person adjudicated a water right a certificate of
326-20 adjudication, signed by the chairman and bearing the seal of the
326-21 commission.
326-22 (b) In the certificate, the commission shall include:
326-23 (1) a reference to the final decree;
326-24 (2) the name and post-office address of the holder of
326-25 the adjudicated right;
326-26 (3) the priority, extent, and purpose of the
326-27 adjudicated right and, if the right is for irrigation, a
327-1 description of the irrigated land; and
327-2 (4) all other information in the decree relating to
327-3 the adjudicated right. (Sec. 11.323, Water Code.)
327-4 Sec. 11.324. Recordation of Certificate. (a) The
327-5 commission shall transmit the certificate of adjudication or a true
327-6 copy to the county clerk of each county in which the appropriation
327-7 is made.
327-8 (b) On receipt of the recording fee from the holder of the
327-9 certificate, the county clerk shall file and record the certificate
327-10 in a well-bound book provided and kept for that purpose only. The
327-11 clerk shall index the certificate alphabetically under the name of
327-12 the holder of the certificate of adjudication and under the name of
327-13 the stream or source of water supply.
327-14 (c) When a certificate of adjudication is filed and recorded
327-15 as provided in this section, the county clerk shall deliver the
327-16 certificate on demand to the holder. (Sec. 11.324, Water Code.)
327-17 Sec. 11.325. Water Divisions. The commission shall divide
327-18 the state into water divisions for the purpose of administering
327-19 adjudicated water rights. Water divisions may be created from time
327-20 to time as the necessity arises. The divisions shall be
327-21 constituted to secure the best protection to the holders of water
327-22 rights and the most economical supervision on the part of the
327-23 state. (Sec. 11.325, Water Code.)
327-24 Sec. 11.326. Appointment of Watermaster. (a) The executive
327-25 director may appoint one watermaster for each water division.
327-26 (b) A watermaster holds office until a successor is
327-27 appointed. The executive director may remove a watermaster at any
328-1 time.
328-2 (c) The executive director may employ assistant watermasters
328-3 and other employees necessary to aid a watermaster in the discharge
328-4 of his duties.
328-5 (d) In a water division in which the office of watermaster
328-6 is vacant, the executive director has the powers of a watermaster.
328-7 (e) The executive director shall supervise and generally
328-8 direct the watermaster in the performance of his duties. A
328-9 watermaster is responsible to the executive director for the proper
328-10 performance of his duties.
328-11 (f) A person dissatisfied with any action of a watermaster
328-12 may apply to the executive director for relief. (Sec. 11.326,
328-13 Water Code.)
328-14 Sec. 11.327. Duties of Watermaster. (a) A watermaster
328-15 shall divide the water of the streams or other sources of supply of
328-16 his division in accordance with the adjudicated water rights.
328-17 (b) A watermaster shall regulate or cause to be regulated
328-18 the controlling works of reservoirs and diversion works in time of
328-19 water shortage, as is necessary because of the rights existing in
328-20 the streams of his division, or as is necessary to prevent the
328-21 waste of water or its diversion, taking, storage, or use in excess
328-22 of the quantities to which the holders of water rights are lawfully
328-23 entitled.
328-24 (c) A watermaster may regulate the distribution of water
328-25 from any system of works that serves users whose rights have been
328-26 separately determined. (Sec. 11.327, Water Code.)
328-27 Sec. 11.328. Watermaster's Notice Posted. If, in the
329-1 performance of his duties, a watermaster regulates diversion works
329-2 or the controlling works of reservoirs, he shall attach to the
329-3 works a written notice, properly dated and signed, stating that the
329-4 works have been properly regulated and are wholly under his
329-5 control. The notice is legal notice to all parties interested in
329-6 the diversion and distribution of the water served by the diversion
329-7 works or reservoir. (Sec. 11.328, Water Code.)
329-8 Sec. 11.329. Compensation and Expenses of Watermaster.
329-9 (a) The commission shall pay the compensation and necessary
329-10 expenses of a watermaster, assistant watermasters, and other
329-11 necessary employees, but the holders of water rights that have been
329-12 determined or adjudicated and are to be administered by the
329-13 watermaster shall reimburse the commission for the compensation and
329-14 expenses. Necessary expenses may include costs associated with
329-15 streamflow measurement and monitoring, water accounting, assessment
329-16 billing and collection, and any other duties a watermaster may be
329-17 required to perform under this subchapter.
329-18 (b) After the adjudication decree becomes final, the
329-19 executive director shall notify each holder of water rights under
329-20 the decree of the amount of compensation and expenses that will be
329-21 required annually for the administration of the water rights so
329-22 determined.
329-23 (c) The commission shall hold a public hearing to determine
329-24 the apportionment of the costs of administration of adjudicated
329-25 water rights among the holders of the rights. After a public
329-26 hearing, the commission shall issue an order assessing the annual
329-27 cost against the holders of water rights to whom the water will be
330-1 distributed under the final decree. The commission shall equitably
330-2 apportion the costs. The executive director may provide for
330-3 payments in installments and shall specify the dates by which
330-4 payments shall be made to the commission.
330-5 (d) The executive director shall transmit all collections
330-6 under this section to the state treasurer.
330-7 (e) No water shall be diverted, taken, or stored by, or
330-8 delivered to, any person while he is delinquent in the payment of
330-9 his assessed costs.
330-10 (f) An order of the commission assessing costs remains in
330-11 effect until the commission issues a further order. The commission
330-12 may modify, revoke, or supersede an order assessing costs with a
330-13 subsequent order. The commission may issue supplementary orders
330-14 from time to time to apply to new diversions. (Sec. 11.329, Water
330-15 Code.)
330-16 Sec. 11.330. Outlet for Free Passage of Water. The owner of
330-17 any works for the diversion or storage of water shall maintain a
330-18 substantial headgate at the point of diversion, or a gate on each
330-19 discharge pipe of a pumping plant, constructed so that it can be
330-20 locked at the proper place by the watermaster, or a suitable outlet
330-21 in a dam to allow the free passage of water that the owner of the
330-22 dam is not entitled to divert or impound. The commission shall
330-23 adopt rules, and the executive director shall enforce the rules,
330-24 governing the type and location of the headgates or gates and the
330-25 outlets to allow the free passage of water. (Sec. 11.330, Water
330-26 Code.)
330-27 Sec. 11.331. Measuring Devices. The commission, by rule,
331-1 may require the owner of any works for the diversion, taking,
331-2 storage, or distribution of water to construct and maintain
331-3 suitable measuring devices at points that will enable the
331-4 watermaster to determine the quantities of water to be diverted,
331-5 taken, stored, released, or distributed in order to satisfy the
331-6 rights of the respective users. (Sec. 11.331, Water Code.)
331-7 Sec. 11.332. Installation of Flumes. The commission, by
331-8 rule, may require flumes to be installed along the line of any
331-9 ditch if necessary for the protection of water rights or other
331-10 property. (Sec. 11.332, Water Code.)
331-11 Sec. 11.333. Failure to Comply With Commission Rules. If
331-12 the owner of waterworks using state water refuses or neglects to
331-13 comply with the rules adopted pursuant to Section 11.330, 11.331,
331-14 or 11.332, the executive director, after 10 days' notice or after a
331-15 period of additional time that is reasonable under the
331-16 circumstances, may direct the watermaster to make adjustments of
331-17 the control works to prevent the owner of the works from diverting,
331-18 taking, storing, or distributing any water until he has fully
331-19 complied with the rules. (Sec. 11.333, Water Code.)
331-20 Sec. 11.334. Suit Against Commission for Injury. Any person
331-21 who is injured by an act of the commission under this subchapter
331-22 may bring suit against the commission to review the action or to
331-23 obtain an injunction. If the water right involved has been
331-24 adjudicated as provided in this subchapter, the court shall issue
331-25 an injunction only if it is shown that the commission has failed to
331-26 carry into effect the decree adjudicating the water right.
331-27 (Sec. 11.334, Water Code.)
332-1 Sec. 11.335. Administration of Water Rights Not Adjudicated.
332-2 (a) If any area in which water rights of record in the office of
332-3 the commission have not been adjudicated, the claimants of the
332-4 rights and the commission may enter into a written agreement for
332-5 their administration.
332-6 (b) An agreement made under authority of this section shall
332-7 provide:
332-8 (1) the basis and manner of distribution of the water
332-9 to which the agreement relates;
332-10 (2) the services of a special watermaster, and
332-11 assistants if necessary, to carry out the agreement; and
332-12 (3) the allocation, collection, and payment of the
332-13 annual costs of administration.
332-14 (c) An agreement to administer unadjudicated water rights
332-15 shall be recorded in the offices of the commission and of the
332-16 county clerk of each county in which any of the works or lands
332-17 affected by the agreement are located.
332-18 (d) The administration of water rights by agreement is
332-19 governed by the provisions of this subchapter except as regards
332-20 allocation and payment of the expenses of the administration.
332-21 (e) No agreement authorized by this section impairs any
332-22 vested right to the use of water or creates any additional rights
332-23 to the use of water. (Sec. 11.335, Water Code.)
332-24 Sec. 11.336. Administration of Permits Issued After
332-25 Adjudication. Permits, other than temporary permits, that are
332-26 issued by the commission to appropriate water from an adjudicated
332-27 stream or segment are subject to administration in the same manner
333-1 as is provided in this subchapter for adjudicated water rights.
333-2 (Sec. 11.336, Water Code.)
333-3 Sec. 11.337. Hearings: Notice and Procedure. (a) The
333-4 commission shall give notice of a hearing or other proceeding it
333-5 orders under this subchapter in the manner prescribed in the
333-6 procedural rules of the commission, unless this subchapter
333-7 specifically provides otherwise.
333-8 (b) In any proceeding in any part of the state, the
333-9 commission may:
333-10 (1) take evidence, including the testimony of
333-11 witnesses;
333-12 (2) administer oaths;
333-13 (3) issue subpoenas and compel the attendance of
333-14 witnesses in the same manner as subpoenas are issued out of the
333-15 courts of the state;
333-16 (4) compel witnesses to testify and give evidence; and
333-17 (5) order the taking of depositions and issue
333-18 commissions for the taking of depositions in the same manner as
333-19 depositions are obtained in civil actions.
333-20 (c) Evidence may be taken by a duly appointed reporter
333-21 before the commission or before an authorized representative who
333-22 has the power to administer oaths.
333-23 (d) If a person neglects or refuses to comply with an order
333-24 or subpoena issued by the commission or refuses to testify on any
333-25 matter about which he may be lawfully interrogated, the commission
333-26 may apply to a district court of the county in which the proceeding
333-27 is held to punish him in the manner provided by law for such
334-1 disobedience in civil actions.
334-2 (e) The commission may adjourn its proceedings from time to
334-3 time and from place to place.
334-4 (f) When a proceeding before the commission is concluded,
334-5 the commission shall render a decision as to the matters concerning
334-6 which the proceeding was held. (Sec. 11.337, Water Code.)
334-7 Sec. 11.338. Cancellation of Water Rights. Nothing in this
334-8 subchapter recognizes any abandoned or cancelled water right or
334-9 impairs in any way the power of the commission under general law to
334-10 forfeit, cancel, or find abandoned any water right, including
334-11 adjudicated water rights. (Sec. 11.338, Water Code.)
334-12 Sec. 11.339. Underground Water Not Affected. This
334-13 subchapter does not apply to underground water as defined in
334-14 Chapter 52, Water Code. (Sec. 11.339, Water Code.)
334-15 Sec. 11.340. Abatement of Certain Civil Suits. (a) Nothing
334-16 in this subchapter prevents or precludes a person who claims the
334-17 right to divert water from a stream from filing and prosecuting to
334-18 a conclusion a suit against other claimants of the right to divert
334-19 or use water from the same stream. However, if the commission has
334-20 ordered a determination of water rights as provided in this
334-21 subchapter or if the commission orders such a determination within
334-22 90 days after notice of the filing of a suit, the suit shall be
334-23 abated on the motion of the commission or any party in interest as
334-24 to any issues involved in the water rights determination.
334-25 (b) If a suit is abated as provided in Subsection (a), the
334-26 court may grant or continue any temporary relief necessary to
334-27 preserve the status quo pending a final determination of the water
335-1 rights involved. (Sec. 11.340, Water Code.)
335-2 Sec. 11.341. Limitation on Actions. This subchapter does
335-3 not affect any action or proceeding instituted before August 28,
335-4 1967, or any right accrued before that date except those
335-5 specifically provided for in this subchapter. (Sec. 11.341, Water
335-6 Code.)
335-7 (Sections 11.342-11.400 reserved for expansion)
335-8 SUBCHAPTER H. COURT-APPOINTED WATERMASTER
335-9 Sec. 11.401. Scope of Subchapter. The provisions of this
335-10 subchapter apply to a suit if:
335-11 (1) the state is a party;
335-12 (2) the purpose of the suit is to determine the right
335-13 of the parties to divert or use water of a surface stream; and
335-14 (3) rights are asserted to use water in, or divert
335-15 water to, not more than four counties. (Sec. 11.401, Water Code.)
335-16 Sec. 11.402. Appointment and Authority of Watermaster.
335-17 (a) A court having jurisdiction over a suit described in Section
335-18 11.401 may appoint a watermaster with power to allocate and
335-19 distribute, under the supervision of the court, the water taken
335-20 into judicial custody.
335-21 (b) The court may not appoint a watermaster with authority
335-22 to act both upstream and downstream from an existing reservoir on
335-23 any surface stream of the state. However, once a watermaster is
335-24 appointed, the construction of a new reservoir does not invalidate
335-25 his appointment or restrict his authority over that portion of the
335-26 stream contemplated by the original order of appointment.
335-27 (c) Under terms and conditions prescribed by the court, the
336-1 watermaster may incur necessary expenses, appoint necessary
336-2 deputies and assistants, and perform duties and assume
336-3 responsibilities delegated to him by the court. (Sec. 11.402,
336-4 Water Code.)
336-5 Sec. 11.403. Compensation of Watermaster. The court shall
336-6 fix the compensation of the watermaster and his staff.
336-7 (Sec. 11.403, Water Code.)
336-8 Sec. 11.404. Expenses and Assessment of Costs of
336-9 Watermaster. (a) The trial court shall assess the costs and
336-10 expenses of the watermaster and his staff against all persons
336-11 receiving an allocation of the water in judicial custody. The
336-12 court shall assess the costs and expenses monthly or at other time
336-13 intervals ordered by the court.
336-14 (b) The court shall assess the costs and expenses on the
336-15 basis of:
336-16 (1) acreage;
336-17 (2) acre-feet of allocated water;
336-18 (3) per capita; or
336-19 (4) any other formula the court, after notice and
336-20 hearing, determines to be the most equitable.
336-21 (c) During the pendency of an appeal, the trial court, in
336-22 its discretion, may assess costs against some parties on one basis
336-23 and against other parties on another basis.
336-24 (d) The costs and expenses are not to be taxed as ordinary
336-25 court costs, but are to be considered costs necessary to protect
336-26 the rights and privileges of the parties receiving allocations of
336-27 water during the litigation and are to be paid by those parties.
337-1 (Sec. 11.404, Water Code.)
337-2 Sec. 11.405. Failure to Pay Assessed Costs. If the costs
337-3 and expenses assessed are not paid within the time prescribed by
337-4 the court, the court after notice and hearing may withdraw or limit
337-5 allocations of water to any party failing or refusing to pay his
337-6 share until all costs and expenses assessed against him are paid in
337-7 full. (Sec. 11.405, Water Code.)
337-8 Sec. 11.406. Judicial Custody of Water During Appeal. If a
337-9 party appeals the judgment of the trial court, that court may
337-10 retain custody of the water which it has previously taken into
337-11 judicial custody and over which it has appointed a watermaster.
337-12 Until final judgment is entered in the case, the trial court has
337-13 exclusive jurisdiction to administer, allocate, and distribute the
337-14 water retained in its custody, as provided in Section 11.407.
337-15 (Sec. 11.406, Water Code.)
337-16 Sec. 11.407. Allocation and Distribution of Water During
337-17 Appeal. During the pendency of an appeal, the trial court shall
337-18 limit the allocation and distribution of the water in its custody
337-19 to the parties adjudicated to have a valid right to use the water.
337-20 However, if any party prosecutes an appeal and files a supersedeas
337-21 bond, the trial court shall make any necessary adjustments in the
337-22 water allocations and allocate to that party the same amount of
337-23 water that he received during the proceedings in the trial court.
337-24 (Sec. 11.407, Water Code.)
337-25 Sec. 11.408. Retention of Watermaster During Appeal. During
337-26 the pendency of an appeal, the trial court may retain the
337-27 watermaster in office with the same authority he had during the
338-1 trial proceedings. (Sec. 11.408, Water Code.)
338-2 Sec. 11.409. Violations of Court Orders. If a party
338-3 violates any order of the trial court either during trial
338-4 proceedings or during an appeal, the trial court may limit or
338-5 withdraw his allocation of water until he corrects the violation to
338-6 the satisfaction of the court. (Sec. 11.409, Water Code.)
338-7 (Sections 11.410-11.450 reserved for expansion)
338-8 SUBCHAPTER I. COMMISSION-APPOINTED WATERMASTER
338-9 Sec. 11.451. Commission Authority. On petition of 25 or
338-10 more holders of water rights in a river basin or segment of a river
338-11 basin or on its own motion the commission may authorize the
338-12 executive director to appoint a watermaster for a river basin or
338-13 segment of a river basin if the commission finds that the rights of
338-14 senior water rights holders in the basin or segment of the basin
338-15 are threatened. (Sec. 11.451, Water Code.)
338-16 Sec. 11.452. Procedure for Determination. (a) On receiving
338-17 a petition for appointment of a watermaster or on its own motion,
338-18 the commission shall call and hold a hearing to determine if a need
338-19 exists for appointment of a watermaster for the river basin or
338-20 segment of the river basin.
338-21 (b) At the hearing persons who hold water rights in the
338-22 river basin or segment of the river basin may appear before the
338-23 commission and submit testimony and evidence relating to the need
338-24 for appointment of a watermaster.
338-25 (c) After the hearing, the commission shall make a written
338-26 determination as to whether a threat exists to the rights of senior
338-27 water rights holders in the river basin or segment of the river
339-1 basin and shall issue an order either finding that a threat exists
339-2 and directing appointment of a watermaster or denying appointment
339-3 of a watermaster. (Sec. 11.452, Water Code.)
339-4 Sec. 11.453. Appointment of Watermaster. (a) On issuance
339-5 of an order under Section 11.452 directing appointment of a
339-6 watermaster, the executive director shall appoint a watermaster for
339-7 the river basin or segment of the river basin covered by the
339-8 commission order.
339-9 (b) A person appointed as a watermaster under this section
339-10 may not be:
339-11 (1) the holder of a water right in the river basin or
339-12 segment of the river basin to be under his jurisdiction as
339-13 watermaster;
339-14 (2) a purchaser of water from the holder of a water
339-15 right in the river basin or segment of the river basin under his
339-16 jurisdiction as watermaster; or
339-17 (3) a landowner of any land adjacent to the river or
339-18 segment of the river under his jurisdiction as watermaster.
339-19 (c) A watermaster holds office until a successor is
339-20 appointed. The executive director may remove a watermaster at any
339-21 time.
339-22 (d) The executive director may employ assistant watermasters
339-23 and other employees necessary to aid a watermaster in the discharge
339-24 of his duties.
339-25 (e) In a segment or basin in which the office of watermaster
339-26 is vacant, the executive director has the powers of a watermaster.
339-27 (f) The executive director shall supervise and generally
340-1 direct the watermaster in the performance of his duties. A
340-2 watermaster is responsible to the executive director for the proper
340-3 performance of his duties.
340-4 (g) A person dissatisfied with any action of a watermaster
340-5 may apply to the executive director for relief. (Sec. 11.453,
340-6 Water Code.)
340-7 Sec. 11.454. Duties and Authority of the Watermaster. A
340-8 watermaster as the agent of the commission and under the executive
340-9 director's supervision shall:
340-10 (1) divide the water of the streams or other sources
340-11 of supply of his segment or basin in accordance with the authorized
340-12 water rights;
340-13 (2) regulate or cause to be regulated the controlling
340-14 works of reservoirs and diversion works in time of water shortage,
340-15 as is necessary because of the rights existing in the streams of
340-16 his segment or basin, or as is necessary to prevent the waste of
340-17 water or its diversion, taking, storage, or use in excess of the
340-18 quantities to which the holders of water rights are lawfully
340-19 entitled; and
340-20 (3) perform any other duties and exercise any
340-21 authority directed by the commission. (Sec. 11.454, Water Code.)
340-22 Sec. 11.455. Assessments. The commission may assess the
340-23 costs of the watermaster against all persons who hold water rights
340-24 in the river basin or segment of the river basin under the
340-25 watermaster's jurisdiction in accordance with Section 11.329.
340-26 (Sec. 11.455, Water Code.)
340-27 Sec. 11.456. Maintaining Current Status. (a) To protect
341-1 water rights holders in a river basin or segment of a river basin
341-2 during the proceedings under Section 11.452, the commission may
341-3 issue an order or orders at the beginning of the proceedings under
341-4 Section 11.452 or may request the attorney general to seek
341-5 injunctive relief to protect the water rights holders during the
341-6 proceedings.
341-7 (b) On request of the commission, the attorney general shall
341-8 seek injunctive relief to carry out the purpose of Subsection (a).
341-9 (c) The commission is not required to comply with the
341-10 requirements of the Administrative Procedure and Texas Register Act
341-11 (Article 6252-13a, Vernon's Texas Civil Statutes) in issuing orders
341-12 under Subsection (a) and there is no right of appeal from those
341-13 orders. (Sec. 11.456, Water Code.)
341-14 Sec. 11.457. Assistance to Watermaster. The executive
341-15 director shall provide the watermaster with such staff and
341-16 facilities as are necessary to carry out this subchapter.
341-17 (Sec. 11.457, Water Code.)
341-18 Sec. 11.458. Application of Subchapter. This subchapter
341-19 shall not apply to any river basin or segment of a river basin in
341-20 which a watermaster has been appointed pursuant to Subchapter G or
341-21 H of this chapter. (Sec. 11.458, Water Code.)
341-22 CHAPTER 12. WATER RATES AND SERVICES
341-23 SUBCHAPTER A. GENERAL PROVISIONS
341-24 Sec. 12.001. Legislative Policy and Purpose. (a) This
341-25 chapter is adopted to protect the public interest inherent in the
341-26 rates and services of retail public utilities.
341-27 (b) The legislature finds that:
342-1 (1) retail public utilities are by definition
342-2 monopolies in the areas they serve;
342-3 (2) the normal forces of competition that operate to
342-4 regulate prices in a free enterprise society do not operate for the
342-5 reason stated in Subdivision (1); and
342-6 (3) retail public utility rates, operations, and
342-7 services are regulated by public agencies, with the objective that
342-8 this regulation will operate as a substitute for competition.
342-9 (c) The purpose of this chapter is to establish a
342-10 comprehensive regulatory system that is adequate to the task of
342-11 regulating retail public utilities to assure rates, operations, and
342-12 services that are just and reasonable to the consumers and to the
342-13 retail public utilities. (Sec. 13.001, Water Code.)
342-14 Sec. 12.002. Definitions. In this chapter:
342-15 (1) "Affected person" means any retail public utility
342-16 affected by any action of the regulatory authority, any person or
342-17 corporation whose utility service or rates are affected by any
342-18 proceeding before the regulatory authority, or any person or
342-19 corporation that is a competitor of a retail public utility with
342-20 respect to any service performed by the retail public utility or
342-21 that desires to enter into competition.
342-22 (2) "Affiliated interest" or "affiliate" means:
342-23 (A) any person or corporation owning or holding
342-24 directly or indirectly five percent or more of the voting
342-25 securities of a utility;
342-26 (B) any person or corporation in any chain of
342-27 successive ownership of five percent or more of the voting
343-1 securities of a utility;
343-2 (C) any corporation five percent or more of the
343-3 voting securities of which is owned or controlled directly or
343-4 indirectly by a utility;
343-5 (D) any corporation five percent or more of the
343-6 voting securities of which is owned or controlled directly or
343-7 indirectly by any person or corporation that owns or controls
343-8 directly or indirectly five percent or more of the voting
343-9 securities of any utility or by any person or corporation in any
343-10 chain of successive ownership of five percent of those utility
343-11 securities;
343-12 (E) any person who is an officer or director of
343-13 a utility or of any corporation in any chain of successive
343-14 ownership of five percent or more of voting securities of a public
343-15 utility;
343-16 (F) any person or corporation that the
343-17 commission, after notice and hearing, determines actually exercises
343-18 any substantial influence or control over the policies and actions
343-19 of a utility or over which a utility exercises such control or that
343-20 is under common control with a utility, such control being the
343-21 possession directly or indirectly of the power to direct or cause
343-22 the direction of the management and policies of another, whether
343-23 that power is established through ownership or voting of securities
343-24 or by any other direct or indirect means; or
343-25 (G) any person or corporation that the
343-26 commission, after notice and hearing, determines is exercising
343-27 substantial influence over the policies and actions of the utility
344-1 in conjunction with one or more persons or corporations with which
344-2 they are related by ownership or blood relationship, or by action
344-3 in concert, that together they are affiliated within the meaning of
344-4 this section, even though no one of them alone is so affiliated.
344-5 (3) "Allocations" means, for all retail public
344-6 utilities, the division of plant, revenues, expenses, taxes and
344-7 reserves between municipalities or between municipalities and
344-8 unincorporated areas, where those items are used for providing
344-9 water or sewer utility service in a municipality or for a
344-10 municipality and unincorporated areas.
344-11 (4) "Commissioner" means a member of the commission.
344-12 (5) "Corporation" means any corporation, joint-stock
344-13 company, or association, domestic or foreign, and its lessees,
344-14 assignees, trustees, receivers, or other successors in interest,
344-15 having any of the powers or privileges of corporations not
344-16 possessed by individuals or partnerships but does not include
344-17 municipal corporations unless expressly provided in this chapter.
344-18 (6) "Facilities" means all the plant and equipment of
344-19 a retail public utility, including all tangible and intangible real
344-20 and personal property without limitation, and any and all means and
344-21 instrumentalities in any manner owned, operated, leased, licensed,
344-22 used, controlled, furnished, or supplied for, by, or in connection
344-23 with the business of any retail public utility.
344-24 (7) "Incident of tenancy" means water or sewer
344-25 service, provided to tenants of rental property, for which no
344-26 separate or additional service fee is charged other than the rental
344-27 payment.
345-1 (8) "Member" means a person who holds a membership in
345-2 a water supply or sewer service corporation and who is a record
345-3 owner of a fee simple title to property in an area served by a
345-4 water supply or sewer service corporation. The term does not
345-5 include a person or entity that holds an interest in property
345-6 solely as security for the performance of an obligation, or that
345-7 only builds on or develops the property for sale to others. In
345-8 determining member control of a water supply or sewer service
345-9 corporation, a person is entitled to only one vote regardless of
345-10 the number of memberships the person owns.
345-11 (9) "Municipality" means cities existing, created, or
345-12 organized under the general, home-rule, or special laws of this
345-13 state.
345-14 (10) "Municipally owned utility" means any utility
345-15 owned, operated, and controlled by a municipality or by a nonprofit
345-16 corporation whose directors are appointed by one or more
345-17 municipalities.
345-18 (11) "Order" means the whole or a part of the final
345-19 disposition, whether affirmative, negative, injunctive, or
345-20 declaratory in form, of the regulatory authority in a matter other
345-21 than rulemaking, but including issuance of certificates of
345-22 convenience and necessity and rate setting.
345-23 (12) "Person" includes natural persons, partnerships
345-24 of two or more persons having a joint or common interest, mutual or
345-25 cooperative associations, water supply or sewer service
345-26 corporations, and corporations.
345-27 (13) "Proceeding" means any hearing, investigation,
346-1 inquiry, or other fact-finding or decision-making procedure under
346-2 this chapter and includes the denial of relief or the dismissal of
346-3 a complaint.
346-4 (14) "Rate" means every compensation, tariff, charge,
346-5 fare, toll, rental, and classification or any of those items
346-6 demanded, observed, charged, or collected whether directly or
346-7 indirectly by any retail public utility for any service, product,
346-8 or commodity described in Subdivision (20) and any rules,
346-9 regulations, practices, or contracts affecting that compensation,
346-10 tariff, charge, fare, toll, rental, or classification.
346-11 (15) "Regulatory authority" means, in accordance with
346-12 the context in which it is found, either the commission or the
346-13 governing body of a municipality.
346-14 (16) "Retail public utility" means any person,
346-15 corporation, public utility, water supply or sewer service
346-16 corporation, municipality, political subdivision or agency
346-17 operating, maintaining, or controlling in this state facilities for
346-18 providing potable water service or sewer service, or both, for
346-19 compensation.
346-20 (17) "Retail water or sewer utility service" means
346-21 potable water service or sewer service, or both, provided by a
346-22 retail public utility to the ultimate consumer for compensation.
346-23 (18) "Service" means any act done, rendered, or
346-24 performed, anything furnished or supplied, and any facility used,
346-25 furnished, or supplied by a utility in the performance of its
346-26 duties under this chapter to its patrons, employees, other
346-27 utilities, and the public, as well as the interchange of facilities
347-1 between two or more utilities.
347-2 (19) "Test year" means the most recent 12-month period
347-3 for which representative operating data for a retail public utility
347-4 are available. A utility rate filing must be based on a test year
347-5 that ended less than 12 months before the date on which the utility
347-6 made the rate filing.
347-7 (20) "Water and sewer utility," "public utility," or
347-8 "utility" means any person, corporation, cooperative corporation,
347-9 or any combination of these persons or entities, other than a
347-10 municipal corporation, water supply or sewer service corporation,
347-11 or a political subdivision of the state, or their lessees,
347-12 trustees, and receivers, owning or operating for, compensation in
347-13 this state, equipment or facilities for the transmission, storage,
347-14 distribution, sale, or provision of potable water to the public or
347-15 for the resale of potable water to the public for any use or for
347-16 the collection, transportation, treatment, or disposal of sewage or
347-17 other operation of a sewage disposal service for the public, other
347-18 than equipment or facilities owned and operated for either purpose
347-19 by a municipality or other political subdivision of this state or a
347-20 water supply or sewer service corporation, but does not include any
347-21 person or corporation not otherwise a public utility that furnishes
347-22 the services or commodity only to itself or its employees or
347-23 tenants as an incident of that employee service or tenancy when
347-24 that service or commodity is not resold to or used by others.
347-25 (21) "Water supply or sewer service corporation" means
347-26 a nonprofit, member-owned, member-controlled corporation organized
347-27 and operating under Chapter 76, Acts of the 43rd Legislature, 1st
348-1 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
348-2 Statutes), that provides potable water service or sewer service for
348-3 compensation.
348-4 (22) "Wholesale water or sewer service" means potable
348-5 water or sewer service, or both, provided to a person, political
348-6 subdivision, or municipality who is not the ultimate consumer of
348-7 the service. (Sec. 13.002, Water Code.)
348-8 Sec. 12.003. Applicability of Administrative Procedure and
348-9 Texas Register Act. The Administrative Procedure and Texas
348-10 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)
348-11 applies to all proceedings under this chapter except to the extent
348-12 inconsistent with this chapter. (Sec. 13.003, Water Code.)
348-13 (Sections 12.004-12.040 reserved for expansion)
348-14 SUBCHAPTER B. JURISDICTION AND JUDICIAL REVIEW
348-15 Sec. 12.041. General Power; Rules; Hearings. (a) The
348-16 commission may regulate and supervise the business of every water
348-17 and sewer utility within its jurisdiction and may do all things,
348-18 whether specifically designated in this chapter or implied in this
348-19 chapter, necessary and convenient to the exercise of this power and
348-20 jurisdiction.
348-21 (b) The commission shall adopt and enforce rules reasonably
348-22 required in the exercise of its powers and jurisdiction, including
348-23 rules governing practice and procedure before the commission.
348-24 (c) The commission may call and hold hearings, administer
348-25 oaths, receive evidence at hearings, issue subpoenas to compel the
348-26 attendance of witnesses and the production of papers and documents,
348-27 and make findings of fact and decisions with respect to
349-1 administering this chapter or the rules, orders, or other actions
349-2 of the commission.
349-3 (d) The commission may issue emergency orders, with or
349-4 without a hearing:
349-5 (1) to compel a water or sewer service provider that
349-6 has obtained or is required to obtain a certificate of public
349-7 convenience and necessity to provide continuous and adequate water
349-8 service, sewer service, or both, if the discontinuance of the
349-9 service is imminent or has occurred because of the service
349-10 provider's actions or failure to act; and
349-11 (2) to compel a retail public utility to provide an
349-12 emergency interconnection with a neighboring retail public utility
349-13 for the provision of temporary water or sewer service, or both, for
349-14 not more than 90 days if service discontinuance or serious
349-15 impairment in service is imminent or has occurred.
349-16 (e) The commission may establish reasonable compensation for
349-17 the temporary service required under Subsection (d)(2) and may
349-18 allow the retail public utility receiving the service to make a
349-19 temporary adjustment to its rate structure to ensure proper
349-20 payment.
349-21 (f) If an order is issued under Subsection (d) without a
349-22 hearing, the order shall fix a time, as soon after the emergency
349-23 order is issued as is practicable, and place for a hearing to be
349-24 held before the commission.
349-25 (g) The regulatory assessment required by Section 2.172(n)
349-26 is not a rate and is not reviewable by the commission under Section
349-27 12.043. The commission has the authority to enforce payment and
350-1 collection of the regulatory assessment. (Sec. 13.041, Water
350-2 Code.)
350-3 Sec. 12.042. Jurisdiction of Municipality; Original and
350-4 Appellate Jurisdiction of Commission. (a) Subject to the
350-5 limitations imposed in this chapter and for the purpose of
350-6 regulating rates and services so that those rates may be fair,
350-7 just, and reasonable and the services adequate and efficient, the
350-8 governing body of each municipality has exclusive original
350-9 jurisdiction over all water and sewer utility rates, operations,
350-10 and services provided by a water and sewer utility within its
350-11 corporate limits.
350-12 (b) The governing body of a municipality by ordinance may
350-13 elect to have the commission exercise exclusive original
350-14 jurisdiction over the utility rates, operation, and services of
350-15 utilities, within the incorporated limits of the municipality.
350-16 (c) The governing body of a municipality that surrenders its
350-17 jurisdiction to the commission may reinstate its jurisdiction by
350-18 ordinance at any time after the second anniversary of the date on
350-19 which the municipality surrendered its jurisdiction to the
350-20 commission, except that the municipality may not reinstate its
350-21 jurisdiction during the pendency of a rate proceeding before the
350-22 commission. The municipality may not surrender its jurisdiction
350-23 again until the second anniversary of the date on which the
350-24 municipality reinstates jurisdiction.
350-25 (d) The commission shall have exclusive appellate
350-26 jurisdiction to review orders or ordinances of those municipalities
350-27 as provided in this chapter.
351-1 (e) The commission shall have exclusive original
351-2 jurisdiction over water and sewer utility rates, operations, and
351-3 services not within the incorporated limits of a municipality
351-4 exercising exclusive original jurisdiction over those rates,
351-5 operations, and services as provided in this chapter.
351-6 (f) This subchapter does not give the commission power or
351-7 jurisdiction to regulate or supervise the rates or service of a
351-8 utility owned and operated by a municipality, directly or through a
351-9 municipally owned corporation, within its corporate limits or to
351-10 affect or limit the power, jurisdiction, or duties of a
351-11 municipality that regulates land and supervises water and sewer
351-12 utilities within its corporate limits, except as provided by this
351-13 code. (Sec. 13.042, Water Code.)
351-14 Sec. 12.0421. Rates Charged by Certain Municipally Owned
351-15 Utilities. (a) This section applies to a municipally owned water
351-16 and sewer utility that on January 1, 1989, required some or all of
351-17 its wholesale customers to assess a surcharge for service against
351-18 residential customers who reside outside the municipality's
351-19 municipal boundaries.
351-20 (b) A municipality may not require a municipal utility
351-21 district to assess a surcharge against users of water or sewer
351-22 service prior to the annexation of the municipal utility district.
351-23 (Sec. 13.0421, Water Code.)
351-24 Sec. 12.043. Appellate Jurisdiction. (a) Any party to a
351-25 rate proceeding before the governing body of a municipality may
351-26 appeal the decision of the governing body to the commission. This
351-27 subsection does not apply to a municipally owned utility. An
352-1 appeal under this subsection must be initiated within 90 days after
352-2 the date of notice of the final decision by the governing body by
352-3 filing a petition for review with the commission and by serving
352-4 copies on all parties to the original rate proceeding. The
352-5 commission shall hear the appeal de novo and shall fix in its final
352-6 order the rates the governing body should have fixed in the action
352-7 from which the appeal was taken and may include reasonable expenses
352-8 incurred in the appeal proceedings. The commission may establish
352-9 the effective date for the commission's rates at the original
352-10 effective date as proposed by the utility provider and may order
352-11 refunds or allow a surcharge to recover lost revenues. The
352-12 commission may consider only the information that was available to
352-13 the governing body at the time the governing body made its decision
352-14 and evidence of reasonable expenses incurred in the appeal
352-15 proceedings.
352-16 (b) Ratepayers of the following entities may appeal the
352-17 decision of the governing body of the entity affecting their water,
352-18 drainage, or sewer rates to the commission:
352-19 (1) a nonprofit water supply or sewer service
352-20 corporation created and operating under Chapter 76, Acts of the
352-21 43rd Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's
352-22 Texas Civil Statutes);
352-23 (2) a utility under the jurisdiction of a municipality
352-24 inside the corporate limits of the municipality;
352-25 (3) a municipally owned utility, if the ratepayers
352-26 reside outside the corporate limits of the municipality; and
352-27 (4) a district or authority created under Article III,
353-1 Section 52, or Article XVI, Section 59, of the Texas Constitution
353-2 that provides water or sewer service to household users. For the
353-3 purposes of this section ratepayers who reside outside the
353-4 boundaries of the district or authority shall be considered a
353-5 separate class from ratepayers who reside inside those boundaries.
353-6 (c) An appeal under Subsection (b) must be initiated by
353-7 filing a petition for review with the commission and the entity
353-8 providing service within 90 days after the effective day of the
353-9 rate change or, if appealing under Subdivision (b)(2), within 90
353-10 days after the date on which the governing body of the municipality
353-11 makes a final decision. The petition must be signed by the lesser
353-12 of 10,000 or 10 percent of those ratepayers whose rates have been
353-13 changed and who are eligible to appeal under Subsection (b) of this
353-14 section.
353-15 (d) In an appeal under Subsection (b), each person receiving
353-16 a separate bill is considered a ratepayer, but one person may not
353-17 be considered more than one ratepayer regardless of the number of
353-18 bills the person receives. The petition for review is considered
353-19 properly signed if signed by a person, or the spouse of a person,
353-20 in whose name utility service is carried.
353-21 (e) In an appeal under Subsection (b), the commission shall
353-22 hear the appeal de novo and shall fix in its final order the rates
353-23 the governing body should have fixed in the action from which the
353-24 appeal was taken. The commission may establish the effective date
353-25 for the commission's rates at the original effective date as
353-26 proposed by the service provider, may order refunds or allow a
353-27 surcharge to recover lost revenues, and may allow recovery of
354-1 reasonable expenses incurred by the retail public utility in the
354-2 appeal proceedings. The commission may consider only the
354-3 information that was available to the governing body at the time
354-4 the governing body made its decision and evidence of reasonable
354-5 expenses incurred by the retail public utility in the appeal
354-6 proceedings. The rates established by the commission in an appeal
354-7 under Subsection (b) remain in effect until the first anniversary
354-8 of the effective date proposed by the retail public utility for the
354-9 rates being appealed or until changed by the service provider,
354-10 whichever date is later, unless the commission determines that a
354-11 financial hardship exists.
354-12 (f) A retail public utility that receives water or sewer
354-13 service from another retail public utility or political subdivision
354-14 of the state may appeal to the commission a decision of the
354-15 provider of water or sewer service affecting the amount paid for
354-16 water or sewer service. An appeal under this subsection must be
354-17 initiated within 90 days after the date of notice of the decision
354-18 is received from the provider of water or sewer service by the
354-19 filing of a petition by the retail public utility.
354-20 (g) An applicant for service from a water supply or sewer
354-21 service corporation may appeal to the commission a decision of the
354-22 water supply or sewer service corporation affecting the amount to
354-23 be paid to obtain service in addition to the regular membership or
354-24 tap fees. If the commission finds the amount charged to be
354-25 unreasonable, it shall establish the fee to be paid for that
354-26 applicant. An appeal under this subsection must be initiated
354-27 within 90 days after the date written notice is provided to the
355-1 applicant or member of the water supply or sewer service
355-2 corporation's decision relating to the applicant's initial request
355-3 for that service.
355-4 (h) The commission may, on a motion by the executive
355-5 director or by the appellant under Subsection (a), (b), or (f) of
355-6 this section, establish interim rates to be in effect until a final
355-7 decision is made.
355-8 (i) The governing body of a municipally owned utility or a
355-9 political subdivision, within 30 days after the date of a final
355-10 decision on a rate change, shall provide individual written notice
355-11 to each ratepayer eligible to appeal who resides outside the
355-12 boundaries of the municipality or the political subdivision. The
355-13 notice must include, at a minimum, the effective date of the new
355-14 rates, the new rates, and the location where additional information
355-15 on rates can be obtained.
355-16 (j) In an appeal under this section, the commission shall
355-17 ensure that every rate made, demanded, or received by any retail
355-18 public utility or by any two or more retail public utilities
355-19 jointly shall be just and reasonable. Rates shall not be
355-20 unreasonably preferential, prejudicial, or discriminatory but shall
355-21 be sufficient, equitable, and consistent in application to each
355-22 class of customers. The commission shall use a methodology that
355-23 preserves the financial integrity of the retail public utility.
355-24 (Sec. 13.043, Water Code.)
355-25 Sec. 12.0435. Effect of New Tax Exemption on Rates of
355-26 Nonprofit Water and Sewer Corporation. (a) A nonprofit water
355-27 supply or sewer service corporation that in 1992 receives an
356-1 exemption from ad valorem taxes under Section 11.30, Tax Code, on
356-2 property of the corporation that was taxable in 1991 shall before
356-3 January 1, 1993, change its rates so that revenue for the
356-4 corporation is reduced by the amount of the value of the tax
356-5 exemption.
356-6 (b) The customers of a corporation to which this section
356-7 applies may appeal a decision of the corporation that affects their
356-8 water or sewer rates to the commission under Section 12.043(b), and
356-9 the commission shall determine whether the corporation has made the
356-10 rate changes required by Subsection (a).
356-11 (c) This section expires January 1, 1997. (Sec. 13.0435,
356-12 Water Code.)
356-13 Sec. 12.044. Rates Charged by Municipality to District. (a)
356-14 This section applies to rates charged by a municipality for water
356-15 or sewer service to a district created pursuant to Article XVI,
356-16 Section 59, of the Texas Constitution, or to the residents of such
356-17 district, which district is located within the corporate limits or
356-18 the extraterritorial jurisdiction of the municipality and the
356-19 resolution, ordinance, or agreement of the municipality consenting
356-20 to the creation of the district requires the district to purchase
356-21 water or sewer service from the municipality.
356-22 (b) Notwithstanding the provisions of any resolution,
356-23 ordinance, or agreement, a district may appeal the rates imposed by
356-24 the municipality by filing a petition with the commission. The
356-25 commission shall hear the appeal de novo and the municipality shall
356-26 have the burden of proof to establish that the rates are just and
356-27 reasonable. The commission shall fix the rates to be charged by
357-1 the municipality and the municipality may not increase such rates
357-2 without the approval of the commission. (Sec. 13.044, Water Code.)
357-3 Sec. 12.045. Right to Judicial Review; Evidence. Any party
357-4 to a proceeding before the commission is entitled to judicial
357-5 review under the substantial evidence rule. (Sec. 13.381, Water
357-6 Code.)
357-7 Sec. 12.046. Costs and Attorney's Fees. (a) Any party
357-8 represented by counsel who alleges that existing rates are
357-9 excessive or that rates prescribed by the commission are excessive
357-10 and who is a prevailing party in proceedings for review of a
357-11 commission order or decision may in the same action recover against
357-12 the regulation fund reasonable fees for attorneys and expert
357-13 witnesses and other costs incurred by him before the commission and
357-14 the court. The amount of the attorney's fees shall be fixed by the
357-15 court.
357-16 (b) On a finding by the court that an action under this
357-17 subchapter was groundless and brought in bad faith and for the
357-18 purpose of harassment, the court may award to the defendant retail
357-19 public utility reasonable attorney's fees. (Sec. 13.382, Water
357-20 Code.)
357-21 Sec. 12.047. Rate-Fixing Power. (a) The commission shall
357-22 fix reasonable rates for the furnishing of raw or treated water for
357-23 any purpose mentioned in Chapter 11 of this code.
357-24 (b) The term "political subdivision" when used in this
357-25 section means incorporated cities, towns or villages, counties,
357-26 river authorities, water districts, and other special purpose
357-27 districts.
358-1 (c) The commission in reviewing and fixing reasonable rates
358-2 for furnishing water under this section may use any reasonable
358-3 basis for fixing rates as may be determined by the commission to be
358-4 appropriate under the circumstances of the case being reviewed;
358-5 provided, however, the commission may not fix a rate which a
358-6 political subdivision may charge for furnishing water which is less
358-7 than the amount required to meet the debt service and bond coverage
358-8 requirements of that political subdivision's outstanding debt.
358-9 (d) The commission's jurisdiction under this section
358-10 relating to incorporated cities, towns, or villages shall be
358-11 limited to water furnished by such city, town, or village to
358-12 another political subdivision on a wholesale basis.
358-13 (e) The commission may establish interim rates and compel
358-14 continuing service during the pendency of any rate proceeding.
358-15 (f) The commission may order a refund or assess additional
358-16 charges from the date a petition for rate review is received by the
358-17 commission of the difference between the rate actually charged and
358-18 the rate fixed by the commission, plus interest at the statutory
358-19 rate.
358-20 (g) No action or proceeding commenced prior to January 1,
358-21 1977, before the Texas Water Rights Commission shall be affected by
358-22 the enactment of this section.
358-23 (h) Nothing herein contained shall affect the jurisdiction
358-24 of the Public Utility Commission of Texas. (Sec. 12.013, Water
358-25 Code.)
358-26 (Sections 12.048-12.080 reserved for expansion)
358-27 SUBCHAPTER C. MUNICIPALITIES
359-1 Sec. 12.081. Franchises. This chapter may not be construed
359-2 as in any way limiting the rights and powers of a municipality to
359-3 grant or refuse franchises to use the streets and alleys within its
359-4 limits and to make the statutory charges for their use, but no
359-5 provision of any franchise agreement may limit or interfere with
359-6 any power conferred on the commission by this chapter. If a
359-7 municipality performs regulatory functions under this chapter, it
359-8 may make such other charges as may be provided in the applicable
359-9 franchise agreement, together with any other charges permitted by
359-10 this chapter. (Sec. 13.081, Water Code.)
359-11 Sec. 12.082. Local Utility Service; Exempt and Nonexempt
359-12 Areas. (a) Notwithstanding any other provision of this section,
359-13 municipalities shall continue to regulate each kind of local
359-14 utility service inside their boundaries until the commission has
359-15 assumed jurisdiction over the respective utility pursuant to this
359-16 chapter.
359-17 (b) If a municipality does not surrender its jurisdiction,
359-18 local utility service within the boundaries of the municipality
359-19 shall be exempt from regulation by the commission under this
359-20 chapter to the extent that this chapter applies to local service,
359-21 and the municipality shall have, regarding service within its
359-22 boundaries, the right to exercise the same regulatory powers under
359-23 the same standards and rules as the commission or other standards
359-24 and rules not inconsistent with them. The commission's rules
359-25 relating to service and response to requests for service for
359-26 utilities operating within a municipality's corporate limits apply
359-27 unless the municipality adopts its own rules.
360-1 (c) Notwithstanding any election, the commission may
360-2 consider water and sewer utilities' revenues and return on
360-3 investment in exempt areas in fixing rates and charges in nonexempt
360-4 areas and may also exercise the powers conferred necessary to give
360-5 effect to orders under this chapter for the benefit of nonexempt
360-6 areas. Likewise, in fixing rates and charges in the exempt area,
360-7 the governing body may consider water and sewer utilities' revenues
360-8 and return on investment in nonexempt areas.
360-9 (d) Utilities serving exempt areas are subject to the
360-10 reporting requirements of this chapter. Those reports and tariffs
360-11 shall be filed with the governing body of the municipality as well
360-12 as with the commission.
360-13 (e) This section does not limit the duty and power of the
360-14 commission to regulate service and rates of municipally regulated
360-15 water and sewer utilities for service provided to other areas in
360-16 Texas. (Sec. 13.082, Water Code.)
360-17 Sec. 12.083. Rate Determination. A municipality regulating
360-18 its water and sewer utilities under this chapter shall require from
360-19 those utilities all necessary data to make a reasonable
360-20 determination of rate base, expenses, investment, and rate of
360-21 return within the municipal boundaries. The standards for this
360-22 determination shall be based on the procedures and requirements of
360-23 this chapter, and the municipality shall retain any personnel
360-24 necessary to make the determination of reasonable rates required
360-25 under this chapter. (Sec. 13.083, Water Code.)
360-26 Sec. 12.084. Authority of Governing Body; Cost
360-27 Reimbursement. The governing body of any municipality shall have
361-1 the right to select and engage rate consultants, accountants,
361-2 auditors, attorneys, engineers, or any combination of these experts
361-3 to conduct investigations, present evidence, advise and represent
361-4 the governing body, and assist with litigation on water and sewer
361-5 utility ratemaking proceedings. The water and sewer utility
361-6 engaged in those proceedings shall be required to reimburse the
361-7 governing body for the reasonable costs of those services and shall
361-8 be allowed to recover those expenses through its rates with
361-9 interest during the period of recovery. (Sec. 13.084, Water Code.)
361-10 Sec. 12.085. Assistance by Commission. On request, the
361-11 commission may advise and assist municipalities in connection with
361-12 questions and proceedings arising under this chapter. This
361-13 assistance may include aid to municipalities in connection with
361-14 matters pending before the commission, the courts, or the governing
361-15 body of any municipality, including making members of the staff
361-16 available to them as witnesses and otherwise providing evidence.
361-17 (Sec. 13.085, Water Code.)
361-18 (Sections 12.086-12.130 reserved for expansion)
361-19 SUBCHAPTER D. RECORDS, REPORTS, INSPECTIONS, RATES, AND SERVICES
361-20 Sec. 12.131. Records of Utility; Rates, Methods, and
361-21 Accounts. (a) Every water and sewer utility shall keep and render
361-22 to the regulatory authority in the manner and form prescribed by
361-23 the commission uniform accounts of all business transacted. The
361-24 commission may also prescribe forms of books, accounts, records,
361-25 and memoranda to be kept by those utilities, including the books,
361-26 accounts, records, and memoranda of the rendition of and capacity
361-27 for service as well as the receipts and expenditures of money, and
362-1 any other forms, records, and memoranda that in the judgment of the
362-2 commission may be necessary to carry out this chapter.
362-3 (b) In the case of a utility subject to regulation by a
362-4 federal regulatory agency, compliance with the system of accounts
362-5 prescribed for the particular class of utilities by that agency may
362-6 be considered a sufficient compliance with the system prescribed by
362-7 the commission. However, the commission may prescribe forms of
362-8 books, accounts, records, and memoranda covering information in
362-9 addition to that required by the federal agency. The system of
362-10 accounts and the forms of books, accounts, records, and memoranda
362-11 prescribed by the commission for a utility or class of utilities
362-12 may not conflict or be inconsistent with the systems and forms
362-13 established by a federal agency for that utility or class of
362-14 utilities.
362-15 (c) The commission shall fix proper and adequate rates and
362-16 methods of depreciation, amortization, or depletion of the several
362-17 classes of property of each utility and shall require every utility
362-18 to carry a proper and adequate depreciation account in accordance
362-19 with those rates and methods and with any other rules the
362-20 commission prescribes. Those rates, methods, and accounts shall be
362-21 utilized uniformly and consistently throughout the rate-setting and
362-22 appeal proceedings.
362-23 (d) Every utility shall keep separate accounts to show all
362-24 profits or losses resulting from the sale or lease of appliances,
362-25 fixtures, equipment, or other merchandise. A profit or loss may
362-26 not be taken into consideration by the regulatory authority in
362-27 arriving at any rate to be charged for service by a utility to the
363-1 extent that the merchandise is not integral to the provision of
363-2 utility service.
363-3 (e) Every utility is required to keep and render its books,
363-4 accounts, records, and memoranda accurately and faithfully in the
363-5 manner and form prescribed by the commission and to comply with all
363-6 directions of the regulatory authority relating to those books,
363-7 accounts, records, and memoranda. The regulatory authority may
363-8 require the examination and audit of all accounts.
363-9 (f) In determining the allocation of tax savings derived
363-10 from application of methods such as liberalized depreciation and
363-11 amortization and the investment tax credit, the regulatory
363-12 authority shall equitably balance the interests of present and
363-13 future customers and shall apportion those benefits between
363-14 consumers and the utilities accordingly. If any portion of the
363-15 investment tax credit has been retained by a utility, that amount
363-16 shall be deducted from the original cost of the facilities or other
363-17 addition to the rate base to which the credit applied to the extent
363-18 allowed by the Internal Revenue Code. (Sec. 13.131, Water Code.)
363-19 Sec. 12.132. Powers of Commission. (a) The commission may:
363-20 (1) require that water and sewer utilities report to
363-21 it any information relating to themselves and affiliated interests
363-22 both inside and outside this state that it considers useful in the
363-23 administration of this chapter;
363-24 (2) establish forms for all reports;
363-25 (3) determine the time for reports and the frequency
363-26 with which any reports are to be made;
363-27 (4) require that any reports be made under oath;
364-1 (5) require that a copy of any contract or arrangement
364-2 between any utility and any affiliated interest be filed with it
364-3 and require that such a contract or arrangement that is not in
364-4 writing be reduced to writing;
364-5 (6) require that a copy of any report filed with any
364-6 federal agency or any governmental agency or body of any other
364-7 state be filed with it; and
364-8 (7) require that a copy of annual reports showing all
364-9 payments of compensation, other than salary or wages subject to the
364-10 withholding of federal income tax, made to residents of Texas, or
364-11 with respect to legal, administrative, or legislative matters in
364-12 Texas, or for representation before the Texas Legislature or any
364-13 governmental agency or body be filed with it.
364-14 (b) On the request of the governing body of any
364-15 municipality, the commission may provide sufficient staff members
364-16 to advise and consult with the municipality on any pending matter.
364-17 (Sec. 13.132, Water Code.)
364-18 Sec. 12.133. Inspections; Examination Under Oath; Compelling
364-19 Production of Records; Inquiry into Management and Affairs. (a)
364-20 Any regulatory authority and, when authorized by the regulatory
364-21 authority, its counsel, agents, and employees may, at reasonable
364-22 times and for reasonable purposes, inspect and obtain copies of the
364-23 papers, books, accounts, documents, and other business records and
364-24 inspect the plant, equipment, and other property of any utility
364-25 within its jurisdiction. The regulatory authority may examine
364-26 under oath or may authorize the person conducting the investigation
364-27 to examine under oath any officer, agent, or employee of any
365-1 utility in connection with the investigation.
365-2 (b) The regulatory authority may require, by order or
365-3 subpoena served on any utility, the production within this state at
365-4 the time and place it may designate of any books, accounts, papers,
365-5 or records kept by that utility outside the state or verified
365-6 copies of them if the commission so orders. A utility failing or
365-7 refusing to comply with such an order or subpoena violates this
365-8 chapter.
365-9 (c) A member, agent, or employee of the regulatory authority
365-10 may enter the premises occupied by a utility to make inspections,
365-11 examinations, and tests and to exercise any authority provided by
365-12 this chapter.
365-13 (d) A member, agent, or employee of the regulatory authority
365-14 may act under this section only during reasonable hours and after
365-15 giving reasonable notice to the utility.
365-16 (e) The utility is entitled to be represented when
365-17 inspections, examinations, and tests are made on its premises.
365-18 Reasonable time for the utility to secure a representative shall be
365-19 allowed before beginning an inspection, examination, or test.
365-20 (f) The regulatory authority may inquire into the management
365-21 and affairs of all utilities and shall keep itself informed as to
365-22 the manner and method in which they are conducted and may obtain
365-23 all information to enable it to perform management audits. The
365-24 utility shall report to the regulatory authority on the status of
365-25 the implementation of the recommendations of the audit and shall
365-26 file subsequent reports at the times the regulatory authority
365-27 considers appropriate. (Sec. 13.133, Water Code.)
366-1 Sec. 12.134. Report of Advertising or Public Relations
366-2 Expenses. (a) The regulatory authority may require an annual
366-3 report from each utility company of all its expenditures for
366-4 business gifts and entertainment and institutional,
366-5 consumption-inducing, and other advertising or public relations
366-6 expenses.
366-7 (b) The regulatory authority shall not allow as costs or
366-8 expenses for ratemaking purposes any of the expenditures that the
366-9 regulatory authority determines not to be in the public interest.
366-10 The cost of legislative advocacy expenses shall not in any case be
366-11 allowed as costs or expenses for ratemaking purposes.
366-12 (c) Reasonable charitable or civic contributions may be
366-13 allowed not to exceed the amount approved by the regulatory
366-14 authority. (Sec. 13.134, Water Code.)
366-15 Sec. 12.135. Unlawful Rates, Rules, and Regulations. A
366-16 utility may not charge, collect, or receive any rate for utility
366-17 service or impose any rule or regulation other than as provided in
366-18 this chapter. (Sec. 13.135, Water Code.)
366-19 Sec. 12.136. Filing Tariffs of Rates, Rules, and
366-20 Regulations; Annual Financial Report. (a) Every utility shall
366-21 file with each regulatory authority tariffs showing all rates that
366-22 are subject to the original or appellate jurisdiction of the
366-23 regulatory authority and that are in force at the time for any
366-24 utility service, product, or commodity offered. Every utility
366-25 shall file with and as a part of those tariffs all rules and
366-26 regulations relating to or affecting the rates, utility service,
366-27 product, or commodity furnished.
367-1 (b) Each utility annually shall file a service and financial
367-2 report in a form and at times specified by commission rule.
367-3 (c) Every water supply or sewer service corporation shall
367-4 file with the commission tariffs showing all rates that are subject
367-5 to the appellate jurisdiction of the commission and that are in
367-6 force at the time for any utility service, product, or commodity
367-7 offered. Every water supply or sewer service corporation shall
367-8 file with and as a part of those tariffs all rules and regulations
367-9 relating to or affecting the rates, utility service, product, or
367-10 commodity furnished. The filing required under this subsection
367-11 shall be for informational purposes only. (Sec. 13.136, Water
367-12 Code.)
367-13 Sec. 12.137. Office of Utility; Records; Removal From State.
367-14 (a) Every utility shall have an office in a county of this state
367-15 or in the immediate area in which its property or some part of its
367-16 property is located in which it shall keep all books, accounts,
367-17 records, and memoranda required by the commission to be kept in
367-18 this state.
367-19 (b) Books, accounts, records, or memoranda required by the
367-20 regulatory authority to be kept in the state may not be removed
367-21 from the state, except on conditions prescribed by the commission.
367-22 (Sec. 13.137, Water Code.)
367-23 Sec. 12.138. Communications by Utilities With Regulatory
367-24 Authority; Regulations and Records. The regulatory authority may
367-25 prescribe regulations governing communications by utilities and
367-26 their affiliates and their representatives with the regulatory
367-27 authority or any member or employee of the regulatory authority.
368-1 (Sec. 13.138, Water Code.)
368-2 Sec. 12.139. Standards of Service. (a) Every retail public
368-3 utility that possesses or is required to possess a certificate of
368-4 public convenience and necessity and every district that furnishes
368-5 retail water or sewer utility service, shall furnish the service,
368-6 instrumentalities, and facilities as are safe, adequate, efficient,
368-7 and reasonable.
368-8 (b) The governing body of a municipality, as the regulatory
368-9 authority for public utilities operating within its corporate
368-10 limits, and the commission as the regulatory authority for public
368-11 utilities operating outside the corporate limits of any
368-12 municipality, after reasonable notice and hearing on its own
368-13 motion, may:
368-14 (1) ascertain and fix just and reasonable standards,
368-15 classifications, regulations, service rules, minimum service
368-16 standards or practices to be observed and followed with respect to
368-17 the service to be furnished;
368-18 (2) ascertain and fix adequate and reasonable
368-19 standards for the measurement of the quantity, quality, pressure,
368-20 or other condition pertaining to the supply of the service;
368-21 (3) prescribe reasonable regulations for the
368-22 examination and testing of the service and for the measurement of
368-23 service; and
368-24 (4) establish or approve reasonable rules,
368-25 regulations, specifications, and standards to secure the accuracy
368-26 of all meters, instruments, and equipment used for the measurement
368-27 of any utility service.
369-1 (c) Any standards, classifications, regulations, or
369-2 practices observed or followed by any utility may be filed by it
369-3 with the regulatory authority and shall continue in force until
369-4 amended by the utility or until changed by the regulatory authority
369-5 in accordance with this section.
369-6 (d) Not later than the 90th day after the date on which a
369-7 retail public utility that has a certificate of public convenience
369-8 and necessity reaches 85 percent of its capacity, as compared to
369-9 the Texas Department of Health's minimum capacity requirements for
369-10 a public drinking water system, the retail public utility shall
369-11 submit to the executive director a planning report that includes
369-12 details on how the retail public utility will provide the expected
369-13 service to the remaining areas within the boundaries of its
369-14 certificated area. The executive director may waive the reporting
369-15 requirement if the executive director finds that the projected
369-16 growth of the area will not require the utility to exceed its
369-17 capacity. The commission by rule may require the submission of
369-18 revised reports at specified intervals. (Sec. 13.139, Water Code.)
369-19 Sec. 12.140. Examination and Test of Equipment. (a) The
369-20 regulatory authority may examine and test any meter, instrument, or
369-21 equipment used for the measurement of service of any utility and
369-22 may enter any premises occupied by any utility for the purpose of
369-23 making the examinations and tests and exercising any power provided
369-24 for in this chapter and may set up and use on those premises any
369-25 apparatus and appliances necessary for those purposes. The utility
369-26 may be represented at the making of the examinations, tests, and
369-27 inspections.
370-1 (b) The utility and its officers and employees shall
370-2 facilitate the examinations, tests, and inspections by giving every
370-3 reasonable aid to the regulatory authority and any person or
370-4 persons designated by the regulatory authority for those duties.
370-5 (c) Any consumer or user may have a meter or measuring
370-6 device tested by the utility once without charge after a reasonable
370-7 period to be fixed by the regulatory authority by rule and at
370-8 shorter intervals on payment of reasonable fees fixed by the
370-9 regulatory authority. The regulatory authority shall declare and
370-10 establish reasonable fees to be paid for other examining and
370-11 testing of those meters and other measuring devices on the request
370-12 of the consumer.
370-13 (d) If the test is requested to be made within the period of
370-14 presumed accuracy as fixed by the regulatory authority since the
370-15 last test of the same meter or other measuring device, the fee to
370-16 be paid by the consumer or user at the time of his request shall be
370-17 refunded to the consumer or user if the meter or measuring device
370-18 is found unreasonably defective or incorrect to the substantial
370-19 disadvantage of the consumer or user. If the consumer's request is
370-20 made at a time beyond the period of presumed accuracy fixed by the
370-21 regulatory authority since the last test of the same meter or
370-22 measuring device, the utility shall make the test without charge to
370-23 the consumer or user. (Sec. 13.140, Water Code.)
370-24 (Sections 12.141-12.180 reserved for expansion)
370-25 SUBCHAPTER E. PROCEEDINGS BEFORE COMMISSION
370-26 Sec. 12.181. Power to Ensure Compliance; Rate Regulation.
370-27 Subject to this chapter, the commission has all authority and power
371-1 of the state to ensure compliance with the obligations of utilities
371-2 under this chapter. For this purpose the regulatory authority may
371-3 fix and regulate rates of utilities, including rules and
371-4 regulations for determining the classification of customers and
371-5 services and for determining the applicability of rates. A rule or
371-6 order of the regulatory authority may not conflict with the rulings
371-7 of any federal regulatory body. Except Section 12.191, this
371-8 subchapter shall apply only to a utility and shall not be applied
371-9 to municipalities, districts, or water supply or sewer service
371-10 corporations. (Sec. 13.181, Water Code.)
371-11 Sec. 12.182. Just and Reasonable Rates. The regulatory
371-12 authority shall ensure that every rate made, demanded, or received
371-13 by any utility or by any two or more utilities jointly shall be
371-14 just and reasonable. Rates shall not be unreasonably preferential,
371-15 prejudicial, or discriminatory but shall be sufficient, equitable,
371-16 and consistent in application to each class of consumers. For
371-17 ratemaking purposes, the commission may treat two or more
371-18 municipalities served by a utility as a single class wherever the
371-19 commission considers that treatment to be appropriate. (Sec.
371-20 13.182, Water Code.)
371-21 Sec. 12.183. Fixing Overall Revenues. (a) In fixing the
371-22 rates for water and sewer services, the regulatory authority shall
371-23 fix its overall revenues at a level that will:
371-24 (1) permit the utility a reasonable opportunity to
371-25 earn a reasonable return on its invested capital used and useful in
371-26 rendering service to the public over and above its reasonable and
371-27 necessary operating expenses; and
372-1 (2) preserve the financial integrity of the utility.
372-2 (b) In a rate proceeding, the regulatory authority may
372-3 authorize collection of additional revenues from the customers to
372-4 provide funds for capital improvements necessary to provide
372-5 facilities capable of providing adequate and continuous utility
372-6 service if an accurate accounting of the collection and use of
372-7 those funds is provided to the regulatory authority. A facility
372-8 constructed with surcharge funds is considered customer contributed
372-9 capital or contributions in aid of construction and may not be
372-10 included in invested capital, and depreciation expense is not
372-11 allowed. (Sec. 13.183, Water Code.)
372-12 Sec. 12.184. Fair Return; Burden of Proof. (a) The
372-13 regulatory authority may not prescribe any rate that will yield
372-14 more than a fair return on the invested capital used and useful in
372-15 rendering service to the public.
372-16 (b) In fixing a reasonable return on invested capital, the
372-17 regulatory authority shall consider, in addition to other
372-18 applicable factors, the efforts and achievements of the utility in
372-19 the conservation of resources, the quality of the utility's
372-20 services, the efficiency of the utility's operations, and the
372-21 quality of the utility's management.
372-22 (c) In any proceeding involving any proposed change of
372-23 rates, the burden of proof shall be on the utility to show that the
372-24 proposed change, if proposed by the utility, or that the existing
372-25 rate, if it is proposed to reduce the rate, is just and reasonable.
372-26 (Sec. 13.184, Water Code.)
372-27 Sec. 12.185. Components of Invested Capital and Net Income.
373-1 (a) The components of invested capital and net income shall be
373-2 determined according to the rules stated in this section.
373-3 (b) Utility rates shall be based on the original cost of
373-4 property used by and useful to the utility in providing service,
373-5 including, if necessary to the financial integrity of the utility,
373-6 construction work in progress at cost as recorded on the books of
373-7 the utility. The inclusion of construction work in progress is an
373-8 exceptional form of rate relief to be granted only on the
373-9 demonstration by the utility by clear and convincing evidence that
373-10 the inclusion is in the ratepayers' best interest and is necessary
373-11 to the financial integrity of the utility. Construction work in
373-12 progress may not be included in the rate base for major projects
373-13 under construction to the extent that those projects have been
373-14 inefficiently or imprudently planned or managed. Original cost is
373-15 the actual money cost or the actual money value of any
373-16 consideration paid, other than money, of the property at the time
373-17 it shall have been dedicated to public use, whether by the utility
373-18 that is the present owner or by a predecessor, less depreciation.
373-19 Utility property funded by explicit customer agreements or customer
373-20 contributions in aid of construction such as surcharges may not be
373-21 included in invested capital.
373-22 (c) Cost of facilities, revenues, expenses, taxes, and
373-23 reserves shall be separated or allocated as prescribed by the
373-24 regulatory authority.
373-25 (d) Net income is the total revenues of the utility less all
373-26 reasonable and necessary expenses as determined by the regulatory
373-27 authority. The regulatory authority shall determine expenses and
374-1 revenues in a manner consistent with Subsections (e) through (h).
374-2 (e) Payment to affiliated interests for costs of any
374-3 services, or any property, right or thing, or for interest expense
374-4 may not be allowed either as capital cost or as expense except to
374-5 the extent that the regulatory authority finds that payment to be
374-6 reasonable and necessary. A finding of reasonableness and
374-7 necessity must include specific statements setting forth the cost
374-8 to the affiliate of each item or class of items in question and a
374-9 finding that the price to the utility is no higher than prices
374-10 charged by the supplying affiliate to its other affiliates or
374-11 divisions for the same item or items, or to unaffiliated persons or
374-12 corporations.
374-13 (f) If the utility is a member of an affiliated group that
374-14 is eligible to file a consolidated income tax return and if it is
374-15 advantageous to the utility to do so, income taxes shall be
374-16 computed as though a consolidated return had been filed and the
374-17 utility had realized its fair share of the savings resulting from
374-18 the consolidated return, unless it is shown to the satisfaction of
374-19 the regulatory authority that it was reasonable to choose not to
374-20 consolidate returns. The amounts of income taxes saved by a
374-21 consolidated group of which a utility is a member due to the
374-22 elimination in the consolidated return of the intercompany profit
374-23 on purchases by the utility from an affiliate shall be applied to
374-24 reduce the cost of those purchases. The investment tax credit
374-25 allowed against federal income taxes to the extent retained by the
374-26 utility shall be applied as a reduction in the rate-based
374-27 contribution of the assets to which the credit applies to the
375-1 extent and at the rate as allowed by the Internal Revenue Code.
375-2 (g) The regulatory authority may promulgate reasonable rules
375-3 and regulations with respect to the allowance or disallowance of
375-4 certain expenses for ratemaking purposes.
375-5 (h) The regulatory authority may not include for ratemaking
375-6 purposes:
375-7 (1) legislative advocacy expenses, whether made
375-8 directly or indirectly, including legislative advocacy expenses
375-9 included in trade association dues;
375-10 (2) costs of processing a refund or credit under
375-11 Section 12.187; or
375-12 (3) any expenditure found by the regulatory authority
375-13 to be unreasonable, unnecessary, or not in the public interest,
375-14 including executive salaries, advertising expenses, legal expenses,
375-15 and civil penalties or fines.
375-16 (i) Water and sewer utility property in service that was
375-17 acquired from an affiliate or developer before September 1, 1976,
375-18 and that is included by the utility in its rate base shall be
375-19 included in all ratemaking formulas at the installed cost of the
375-20 property rather than the price set between the entities. Unless
375-21 the funds for this property are provided by explicit customer
375-22 agreements, the property is considered invested capital and not
375-23 contributions in aid of construction or customer-contributed
375-24 capital.
375-25 (j) Depreciation expense included in the cost of service
375-26 includes depreciation on all currently used, depreciable utility
375-27 property owned by the utility except for property provided by
376-1 explicit customer agreements or funded by customer contributions in
376-2 aid of construction. Depreciation on all currently used and useful
376-3 developer or governmental entity contributed property shall be
376-4 allowed in the cost of service. (Sec. 13.185, Water Code.)
376-5 Sec. 12.186. Unreasonable or Violative Existing Rates;
376-6 Investigating Costs of Obtaining Service From Another Source.
376-7 (a) If the regulatory authority, after reasonable notice and
376-8 hearing, on its own motion or on complaint by any affected person,
376-9 finds that the existing rates of any utility for any service are
376-10 unreasonable or in any way in violation of any law, the regulatory
376-11 authority shall determine the just and reasonable rates, including
376-12 maximum or minimum rates, to be observed and in force, and shall
376-13 fix the same by order to be served on the utility. Those rates
376-14 constitute the legal rates of the utility until changed as provided
376-15 in this chapter.
376-16 (b) If a utility does not itself produce that which it
376-17 distributes, transmits, or furnishes to the public for
376-18 compensation, but obtains it from another source, the regulatory
376-19 authority may investigate the cost of that production in any
376-20 investigation of the reasonableness of the rates of the utility.
376-21 (Sec. 13.186, Water Code.)
376-22 Sec. 12.187. Statement of Intent to Change Rates; Hearing;
376-23 Determination of Rate Level. (a) A utility may not make changes
376-24 in its rates except by delivering a statement of intent to each
376-25 ratepayer and with the regulatory authority having original
376-26 jurisdiction at least 30 days before the effective date of the
376-27 proposed change. The effective date of the new rates must be the
377-1 first day of a billing period, and the new rates may not apply to
377-2 service received before the effective date of the new rates. The
377-3 statement of intent must include the information required by the
377-4 regulatory authority's rules. A copy of the statement of intent
377-5 shall be mailed or delivered to the appropriate offices of each
377-6 affected municipality, and to any other affected persons as
377-7 required by the regulatory authority's rules. When the statement
377-8 of intent is delivered, the utility shall file with the regulatory
377-9 authority an application to change rates. The application must
377-10 include information the regulatory authority requires by rule. If
377-11 the utility fails to provide within a reasonable time after the
377-12 application is filed the necessary documentation or other evidence
377-13 that supports the costs and expenses that are shown in the
377-14 application, the regulatory authority may disallow the nonsupported
377-15 expenses. If the application or the statement of intent is not
377-16 substantially complete or does not comply with the regulatory
377-17 authority's rules, it may be rejected and the effective date of the
377-18 rate change may be suspended until a properly completed application
377-19 is accepted by the regulatory authority and a proper statement of
377-20 intent is provided. The commission may also suspend the effective
377-21 date of any rate change if the utility does not have a certificate
377-22 of public convenience and necessity or a completed application for
377-23 a certificate or to transfer a certificate pending before the
377-24 commission or if the utility is delinquent in paying the assessment
377-25 and any applicable penalties or interest required by Section
377-26 2.172(n).
377-27 (b) If, within 60 days after the effective date of the rate
378-1 change, the regulatory authority receives a complaint from any
378-2 affected municipality, or from the lesser of 1,000 or 10 percent of
378-3 the ratepayers of the utility over whose rates the regulatory
378-4 authority has original jurisdiction, the regulatory authority shall
378-5 set the matter for hearing. The regulatory authority may set the
378-6 matter for hearing on its own motion at any time within 120 days
378-7 after the effective date of the rate change. The hearing may be
378-8 informal. If, after hearing, the regulatory authority finds the
378-9 rates currently being charged or those proposed to be charged are
378-10 unreasonable or in violation of law, the regulatory authority shall
378-11 determine the rates to be charged by the utility and shall fix the
378-12 rates by order served on the utility.
378-13 (c) The regulatory authority, pending final action in a rate
378-14 proceeding, may order the utility to deposit all or part of the
378-15 rate increase received or to be received into an escrow account
378-16 with a financial institution approved by the regulatory authority.
378-17 Unless otherwise agreed to by the parties to the rate proceeding,
378-18 the utility shall refund or credit against future bills all sums
378-19 collected during the pendency of the rate proceeding in excess of
378-20 the rate finally ordered plus interest as determined by the
378-21 regulatory authority. For good cause shown, the regulatory
378-22 authority may authorize the release of funds to the utility from
378-23 the escrow account during the pendency of the proceeding. At any
378-24 time during the pendency of the rate proceeding the regulatory
378-25 authority may fix interim rates to remain in effect until a final
378-26 determination is made. If the regulatory authority sets a final
378-27 rate that is higher than the interim rate, the utility shall be
379-1 allowed to collect the difference between the interim rate and
379-2 final rate unless otherwise agreed to by the parties to the rate
379-3 proceeding. If the regulatory authority establishes interim rates
379-4 or an escrow account, the regulatory authority must make a final
379-5 determination on the rates within 335 days after the effective date
379-6 of the interim rates or escrowed rates or the rates are
379-7 automatically approved as requested by the utility.
379-8 (d) Except to implement an approved purchased water pass
379-9 through adjustment provision or to adjust the rates of a newly
379-10 acquired utility system, a utility or two or more utilities under
379-11 common control and ownership may not file a statement of intent to
379-12 increase its rates more than once in a 12-month period, unless the
379-13 regulatory authority determines that a financial hardship exists.
379-14 If the regulatory authority requires the utility to deliver a
379-15 corrected statement of intent, the utility is not considered to be
379-16 in violation of the 12-month filing requirement. (Sec. 13.187,
379-17 Water Code.)
379-18 Sec. 12.188. Unreasonable Preference or Prejudice as to
379-19 Rates or Services. (a) A water and sewer utility as to rates or
379-20 services may not make or grant any unreasonable preference or
379-21 advantage to any corporation or person within any classification or
379-22 subject any corporation or person within any classification to any
379-23 unreasonable prejudice or disadvantage.
379-24 (b) A utility may not establish and maintain any
379-25 unreasonable differences as to rates of service either as between
379-26 localities or as between classes of service. (Sec. 13.189, Water
379-27 Code.)
380-1 Sec. 12.189. Equality of Rates and Services. (a) A water
380-2 and sewer utility may not directly or indirectly by any device or
380-3 in any manner charge, demand, collect, or receive from any person a
380-4 greater or lesser compensation for any service rendered or to be
380-5 rendered by the utility than that prescribed in the schedule of
380-6 rates of the utility applicable to that service when filed in the
380-7 manner provided in this chapter, and a person may not knowingly
380-8 receive or accept any service from a utility for a compensation
380-9 greater or less than that prescribed in the schedules, provided
380-10 that all rates being charged and collected by a utility on the
380-11 effective date of this chapter may be continued until schedules are
380-12 filed.
380-13 (b) This chapter does not prevent a cooperative corporation
380-14 from returning to its members the whole or any part of the net
380-15 earnings resulting from its operations in proportion to their
380-16 purchases from or through the corporation. (Sec. 13.190, Water
380-17 Code.)
380-18 Sec. 12.190. Discrimination; Restriction on Competition. A
380-19 water and sewer utility may not discriminate against any person or
380-20 corporation that sells or leases equipment or performs services in
380-21 competition with the utility, and a utility may not engage in any
380-22 other practice that tends to restrict or impair that competition.
380-23 (Sec. 13.191, Water Code.)
380-24 Sec. 12.191. Payments in Lieu of Taxes. Payments made in
380-25 lieu of taxes by a water and sewer utility to the municipality by
380-26 which it is owned may not be considered an expense of operation for
380-27 the purpose of determining, fixing, or regulating the rates to be
381-1 charged for the provision of utility service to a school district
381-2 or hospital district. No rates received by a utility from a
381-3 school district or hospital district may be used to make or to
381-4 cover the cost of making payments in lieu of taxes to the
381-5 municipality by which the utility is owned. (Sec. 13.192, Water
381-6 Code.)
381-7 (Sections 12.192-12.200 reserved for expansion)
381-8 SUBCHAPTER F. PROCEEDINGS BEFORE COMMISSION
381-9 Sec. 12.201. Informal Proceeding. A proceeding involving a
381-10 retail public utility may be an informal proceeding, except that
381-11 the proceeding is subject to the public notice requirements of this
381-12 chapter and the rules and orders of the regulatory authority
381-13 involved. (Sec. 13.015, Water Code.)
381-14 Sec. 12.202. Record of Proceedings; Right to Hearing. A
381-15 record shall be kept of all proceedings before the regulatory
381-16 authority, unless all parties waive the keeping of the record, and
381-17 all the parties are entitled to be heard in person or by attorney.
381-18 (Sec. 13.016, Water Code.)
381-19 (Sections 12.203-12.210 reserved for expansion)
381-20 SUBCHAPTER G. VIOLATIONS AND ENFORCEMENT
381-21 Sec. 12.211. Action to Enjoin or Require Compliance. If it
381-22 appears to the commission that any retail public utility or any
381-23 other person or corporation is engaged in or is about to engage in
381-24 any act in violation of this chapter or of any order or rule of the
381-25 commission entered or adopted under this chapter or that any retail
381-26 public utility or any other person or corporation is failing to
381-27 comply with this chapter or with any rule or order, the attorney
382-1 general on request of the commission, in addition to any other
382-2 remedies provided in this chapter, shall bring an action in a court
382-3 of competent jurisdiction in the name of and on behalf of the
382-4 commission against the retail public utility or other person or
382-5 corporation to enjoin the commencement or continuation of any act
382-6 or to require compliance with this chapter or the rule or order.
382-7 (Sec. 13.411, Water Code.)
382-8 Sec. 12.212. Receivership. (a) At the request of the
382-9 commission, the attorney general shall bring suit for the
382-10 appointment of a receiver to collect the assets and carry on the
382-11 business of a water or sewer utility that has abandoned operation
382-12 of its facilities or violates a final order of the commission or
382-13 allows any property owned or controlled by it to be used in
382-14 violation of a final order of the commission.
382-15 (b) The court shall appoint a receiver if an appointment is
382-16 necessary:
382-17 (1) to guarantee the collection of assessments, fees,
382-18 penalties, or interest;
382-19 (2) to guarantee continued service to the customers of
382-20 the utility; or
382-21 (3) to prevent continued or repeated violation of the
382-22 final order.
382-23 (c) The receiver shall execute a bond to assure the proper
382-24 performance of the receiver's duties in an amount to be set by the
382-25 court.
382-26 (d) After appointment and execution of bond, the receiver
382-27 shall take possession of the assets of the utility specified by the
383-1 court. Until discharged by the court, the receiver shall perform
383-2 the duties that the court directs to preserve the assets and carry
383-3 on the business of the utility and shall strictly observe the final
383-4 order involved.
383-5 (e) On a showing of good cause by the utility, the court may
383-6 dissolve the receivership and order the assets and control of the
383-7 business returned to the utility. (Sec. 13.412, Water Code.)
383-8 Sec. 12.213. Payment of Costs of Receivership. The receiver
383-9 may, subject to the approval of the court and after giving notice
383-10 to all interested parties, sell or otherwise dispose of all or part
383-11 of the real or personal property of a water or sewer utility
383-12 against which a proceeding has been brought under this subchapter
383-13 to pay the costs incurred in the operation of the receivership.
383-14 The costs include:
383-15 (1) payment of fees to the receiver for his services;
383-16 (2) payment of fees to attorneys, accountants,
383-17 engineers, or any other person or entity that provides goods or
383-18 services necessary to the operation of the receivership; and
383-19 (3) payment of costs incurred in ensuring that any
383-20 property owned or controlled by a water or sewer utility is not
383-21 used in violation of a final order of the commission. (Sec.
383-22 13.413, Water Code.)
383-23 Sec. 12.214. Supervision of Certain Utilities. (a) The
383-24 commission, after providing to the utility notice and an
383-25 opportunity for a hearing, may place a utility under supervision
383-26 for gross or continuing mismanagement, gross or continuing
383-27 noncompliance with this chapter or commission rules, or
384-1 noncompliance with commission orders.
384-2 (b) While supervising a utility, the commission may require
384-3 the utility to abide by conditions and requirements prescribed by
384-4 the commission, including:
384-5 (1) management requirements;
384-6 (2) additional reporting requirements;
384-7 (3) restrictions on hiring, salary or benefit
384-8 increases, capital investment, borrowing, stock issuance or
384-9 dividend declarations, and liquidation of assets; and
384-10 (4) a requirement that the utility place the utility's
384-11 funds into an account in a financial institution approved by the
384-12 commission and use of those funds shall be restricted to reasonable
384-13 and necessary utility expenses.
384-14 (c) While supervising a utility, the commission may require
384-15 that the utility obtain commission approval before taking any
384-16 action that may be restricted under Subsection (b). Any action or
384-17 transaction which occurs without commission approval may be voided
384-18 by the commission. (Sec. 13.4131, Water Code.)
384-19 Sec. 12.215. Operation of Utility That Discontinues
384-20 Operation or is Referred for Appointment of Receiver. (a) The
384-21 commission, after providing to the utility notice and an
384-22 opportunity for a hearing, may authorize a willing person to
384-23 temporarily manage and operate a utility that has discontinued or
384-24 abandoned operations or the provision of services or is being
384-25 referred to the attorney general for the appointment of a receiver
384-26 under Section 12.212.
384-27 (b) The commission may appoint a person under this section
385-1 by emergency order, and notice of the action is adequate if the
385-2 notice is mailed or hand-delivered to the last known address of the
385-3 utility's headquarters.
385-4 (c) A person appointed under this section has the powers and
385-5 duties necessary to ensure the continued operation of the utility
385-6 and the provision of continuous and adequate services to customers,
385-7 including the power and duty to:
385-8 (1) read meters;
385-9 (2) bill for utility services;
385-10 (3) collect revenues;
385-11 (4) disburse funds; and
385-12 (5) request rate increases.
385-13 (d) This section does not affect the authority of the
385-14 commission to pursue an enforcement claim against a utility or an
385-15 affiliated interest. (Sec. 13.4132, Water Code.)
385-16 Sec. 12.216. Emergency Rate Increase in Certain
385-17 Circumstances. (a) Notwithstanding the requirements of Section
385-18 12.189, the commission may authorize an emergency rate increase for
385-19 a utility for which a person has been appointed under Section
385-20 12.215 or for which a receiver has been appointed under Section
385-21 12.212 if the increase is necessary to ensure the provision of
385-22 continuous and adequate services to the utility's customers.
385-23 (b) A utility that receives an emergency rate increase under
385-24 this section shall provide to each ratepayer notice of the increase
385-25 as soon as possible, but not later than the first utility bill
385-26 issued at the new rate.
385-27 (c) The commission shall schedule a hearing to establish a
386-1 final rate within 15 months after the date on which an emergency
386-2 rate increase takes effect. The commission shall require the
386-3 utility to provide notice of the hearing to each customer. The
386-4 additional revenues collected under an emergency rate increase are
386-5 subject to refund if the commission finds that the rate increase
386-6 was larger than necessary to ensure continuous and adequate
386-7 service. (Sec. 13.4133, Water Code.)
386-8 Sec. 12.217. Penalty Against Retail Public Utility or
386-9 Affiliated Interest. (a) Any retail public utility or affiliated
386-10 interest that violates this chapter, fails to perform a duty
386-11 imposed on it, or fails, neglects, or refuses to obey an order,
386-12 rule, direction, or requirement of the commission or decree or
386-13 judgment of a court is subject to a civil penalty of not less than
386-14 $100 nor more than $5,000 for each violation.
386-15 (b) A retail public utility or affiliated interest commits a
386-16 separate violation each day it continues to violate Subsection (a).
386-17 (c) The attorney general shall institute suit on his own
386-18 initiative or at the request of, in the name of, and on behalf of
386-19 the commission in a court of competent jurisdiction to recover the
386-20 penalty under this section. (Sec. 13.414, Water Code.)
386-21 Sec. 12.218. Personal Penalty. Any person who wilfully and
386-22 knowingly violates this chapter is guilty of a third degree felony.
386-23 (Sec. 13.415, Water Code.)
386-24 Sec. 12.219. Administrative Penalty. (a) If a person,
386-25 affiliated interest, or entity subject to the jurisdiction of the
386-26 commission violates this chapter or a rule or order adopted under
386-27 this chapter, the commission may assess a penalty against that
387-1 person, affiliated interest, or entity as provided by this section.
387-2 The penalty may be in an amount not to exceed $500 a day. Each day
387-3 a violation continues may be considered a separate violation.
387-4 (b) In determining the amount of the penalty, the commission
387-5 shall consider:
387-6 (1) the nature, circumstances, extent, duration, and
387-7 gravity of the prohibited acts or omissions;
387-8 (2) with respect to the alleged violator:
387-9 (A) the history and extent of previous
387-10 violations;
387-11 (B) the degree of culpability, including whether
387-12 the violation was attributable to mechanical or electrical failures
387-13 and whether the violation could have been reasonably anticipated
387-14 and avoided;
387-15 (C) the demonstrated good faith, including
387-16 actions taken by the person, affiliated interest, or entity to
387-17 correct the cause of the violation;
387-18 (D) any economic benefit gained through the
387-19 violation; and
387-20 (E) the amount necessary to deter future
387-21 violations; and
387-22 (3) any other matters that justice requires.
387-23 (c) If, after examination of a possible violation and the
387-24 facts surrounding that possible violation, the executive director
387-25 concludes that a violation has occurred, the executive director may
387-26 issue a preliminary report stating the facts on which that
387-27 conclusion is based, recommending that a penalty under this section
388-1 be imposed on the person, affiliated interest, or retail public
388-2 utility charged, and recommending the amount of that proposed
388-3 penalty. The executive director shall base the recommended amount
388-4 of the proposed penalty on the factors provided by Subsection (b),
388-5 and shall analyze each factor for the benefit of the commission.
388-6 (d) Not later than the 10th day after the date on which the
388-7 report is issued, the executive director shall give written notice
388-8 of the report to the person, affiliated interest, or retail public
388-9 utility charged with the violation. The notice shall include a
388-10 brief summary of the charges, a statement of the amount of the
388-11 penalty recommended, and a statement of the right of the person,
388-12 affiliated interest, or retail public utility charged to a hearing
388-13 on the occurrence of the violation, the amount of the penalty, or
388-14 both.
388-15 (e) Not later than the 20th day after the date on which
388-16 notice is received, the person, affiliated interest, or retail
388-17 public utility charged may give the commission written consent to
388-18 the executive director's report, including the recommended penalty,
388-19 or may make a written request for a hearing.
388-20 (f) If the person, affiliated interest, or retail public
388-21 utility charged with the violation consents to the penalty
388-22 recommended by the executive director or fails to timely respond to
388-23 the notice, the commission by order shall assess that penalty or
388-24 order a hearing to be held on the findings and recommendations in
388-25 the executive director's report. If the commission assesses the
388-26 penalty recommended by the report, the commission shall give
388-27 written notice to the person, affiliated interest, or retail public
389-1 utility charged of its decision.
389-2 (g) If the person, affiliated interest, or retail public
389-3 utility charged requests or the commission orders a hearing, the
389-4 commission shall call a hearing and give notice of the hearing. As
389-5 a result of the hearing, the commission by order may find that a
389-6 violation has occurred and may assess a civil penalty, may find
389-7 that a violation has occurred but that no penalty should be
389-8 assessed, or may find that no violation has occurred. All
389-9 proceedings under this subsection are subject to the Administrative
389-10 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
389-11 Civil Statutes). In making any penalty decision, the commission
389-12 shall analyze each of the factors provided by Subsection (b).
389-13 (h) The commission shall give notice of its decision to the
389-14 person, affiliated interest, or retail public utility charged, and
389-15 if the commission finds that a violation has occurred and has
389-16 assessed a penalty, the commission shall give written notice to the
389-17 person, affiliated interest, or retail public utility charged of
389-18 its findings, of the amount of the penalty, and of the person's,
389-19 affiliated interest's, or retail public utility's right to judicial
389-20 review of the commission's order. If the commission is required to
389-21 give notice of a penalty under this subsection or Subsection (f),
389-22 the commission shall file notice of its decision in the Texas
389-23 Register not later than the 10th day after the date on which the
389-24 decision is adopted.
389-25 (i) Within the 30-day period immediately following the day
389-26 on which the commission's order is final, as provided by Section
389-27 16(c), Administrative Procedure and Texas Register Act (Article
390-1 6252-13a, Vernon's Texas Civil Statutes), the person, affiliated
390-2 interest, or retail public utility charged with the penalty shall:
390-3 (1) pay the penalty in full; or
390-4 (2) if the person, affiliated interest, or retail
390-5 public utility seeks judicial review of the fact of the violation,
390-6 the amount of the penalty, or both:
390-7 (A) forward the amount of the penalty to the
390-8 commission for placement in an escrow account; or
390-9 (B) post with the commission a supersedeas bond
390-10 in a form approved by the commission for the amount of the penalty
390-11 to be effective until all judicial review of the order or decision
390-12 is final.
390-13 (j) Failure to forward the money to or to post the bond with
390-14 the commission within the time provided by Subsection (i)
390-15 constitutes a waiver of all legal rights to judicial review. If
390-16 the person, affiliated interest, or retail public utility charged
390-17 fails to forward the money or post the bond as provided by
390-18 Subsection (i), the commission or the executive director may
390-19 forward the matter to the attorney general for enforcement.
390-20 (k) Judicial review of the order or decision of the
390-21 commission assessing the penalty shall be under the substantial
390-22 evidence rule and may be instituted by filing a petition with a
390-23 district court in Travis County, as provided by Section 19,
390-24 Administrative Procedure and Texas Register Act (Article 6252-13a,
390-25 Vernon's Texas Civil Statutes).
390-26 (l) A penalty collected under this section shall be
390-27 deposited in the state treasury to the credit of the general
391-1 revenue fund.
391-2 (m) Notwithstanding any other provision of law, the
391-3 commission may compromise, modify, extend the time for payment of,
391-4 or remit, with or without condition, any penalty imposed under this
391-5 section.
391-6 (n) Payment of a penalty under this section is full and
391-7 complete satisfaction of the violation for which the penalty is
391-8 assessed and precludes any other civil or criminal penalty for the
391-9 same violation. (Sec. 13.4151, Water Code.)
391-10 Sec. 12.220. Penalties cumulative. All penalties accruing
391-11 under this chapter are cumulative and a suit for the recovery of
391-12 any penalty does not bar or affect the recovery of any other
391-13 penalty or bar any criminal prosecution against any retail public
391-14 utility or any officer, director, agent, or employee or any other
391-15 corporation or person. (Sec. 13.416, Water Code.)
391-16 Sec. 12.221. Contempt Proceedings. If any person or retail
391-17 public utility fails to comply with any lawful order of the
391-18 commission or with any subpoena or subpoena duces tecum or if any
391-19 witness refuses to testify about any matter on which he may be
391-20 lawfully interrogated, the commission may apply to any court of
391-21 competent jurisdiction to compel obedience by proceedings for
391-22 contempt. (Sec. 13.417, Water Code.)
391-23 Sec. 12.222. Disposition of Fines and Penalties. Fines and
391-24 penalties collected under this chapter in other than criminal
391-25 proceedings shall be paid to the commission and deposited in the
391-26 general revenue fund. (Sec. 13.418, Water Code.)
391-27 Sec. 12.223. Venue. Suits for injunction or penalties under
392-1 this chapter may be brought in Travis County, in any county where
392-2 this violation is alleged to have occurred, or in the county or
392-3 residence of any defendant. (Sec. 13.419, Water Code.)
392-4 (Sections 12.224-12.240 reserved for expansion)
392-5 SUBCHAPTER H. CERTIFICATES OF CONVENIENCE AND NECESSITY
392-6 Sec. 12.241. Certificate Required. (a) Unless otherwise
392-7 specified, a utility or water supply or sewer service corporation
392-8 may not in any way render retail water or sewer utility service
392-9 directly or indirectly to the public without first having obtained
392-10 from the commission a certificate that the present or future public
392-11 convenience and necessity require or will require that
392-12 installation, operation, or extension, and except as otherwise
392-13 provided by this subchapter, a retail public utility may not
392-14 furnish, make available, render, or extend retail water or sewer
392-15 utility service to any area to which retail water or sewer utility
392-16 service is being lawfully furnished by another retail public
392-17 utility without first having obtained a certificate of public
392-18 convenience and necessity that includes the area in which the
392-19 consuming facility is located.
392-20 (b) A person that is not a retail public utility may not
392-21 construct facilities to provide water or sewer service to more than
392-22 one service connection not on the property owned by the person and
392-23 that are within the certificated service area of a retail public
392-24 utility without first obtaining written consent from the retail
392-25 public utility. A person that violates this section or the
392-26 reasonable and legal terms and conditions of any written consent is
392-27 subject to the administrative penalties prescribed by Section
393-1 12.219.
393-2 (c) Not later than September 1, 1990, a utility or water
393-3 supply or sewer service corporation that has been previously
393-4 exempted from the certificate requirements because of operations,
393-5 extensions, or service in progress on September 1, 1975, shall
393-6 submit to the commission a completed application to obtain a
393-7 certificate of public convenience and necessity for the service
393-8 being provided on September 1, 1975. The commission shall grant a
393-9 certificate of public convenience and necessity to the customer
393-10 locations currently being served by the utility or water supply or
393-11 sewer service corporation that were also being served on September
393-12 1, 1975. (Sec. 13.242, Water Code.)
393-13 Sec. 12.242. Exceptions for Extension of Service. A retail
393-14 public utility is not required to secure a certificate of public
393-15 convenience and necessity for:
393-16 (1) an extension into territory contiguous to that
393-17 already served by it, if the point of ultimate use is within
393-18 one-quarter mile of the boundary of the certificated area, and not
393-19 receiving similar service from another retail public utility and
393-20 not within the area of public convenience and necessity of another
393-21 retail public utility; or
393-22 (2) an extension within or to territory already served
393-23 by it or to be served by it under a certificate of public
393-24 convenience and necessity. (Sec. 13.243, Water Code.)
393-25 Sec. 12.243. Application; Maps; Evidence and Consent. (a)
393-26 A public utility or water supply or sewer service corporation shall
393-27 submit to the commission an application to obtain a certificate of
394-1 public convenience and necessity or an amendment of a certificate.
394-2 (b) On request by the commission, each public utility and
394-3 water supply or sewer service corporation shall file with the
394-4 commission a map or maps showing all its facilities and
394-5 illustrating separately facilities for production, transmission,
394-6 and distribution of its services, and each certificated retail
394-7 public utility shall file with the commission a map or maps showing
394-8 any facilities, customers, or area currently being served outside
394-9 its certificated areas.
394-10 (c) Each applicant for a certificate shall file with the
394-11 commission evidence required by the commission to show that the
394-12 applicant has received the required consent, franchise, or permit
394-13 of the proper municipality, Texas Department of Health, or other
394-14 public authority. (Sec. 13.244, Water Code.)
394-15 Sec. 12.244. Notice and Hearing; Issuance or Refusal;
394-16 Factors Considered. (a) If an application for a certificate of
394-17 public convenience and necessity is filed, the commission shall
394-18 cause notice of the application to be given to affected parties
394-19 and, if requested, shall fix a time and place for a hearing and
394-20 give notice of the hearing. Any person affected by the application
394-21 may intervene at the hearing.
394-22 (b) The commission may grant applications and issue
394-23 certificates only if the commission finds that a certificate is
394-24 necessary for the service, accommodation, convenience, or safety of
394-25 the public. The commission may issue a certificate as requested,
394-26 or refuse to issue it, or issue it for the construction of only a
394-27 portion of the contemplated system or facility or extension, or for
395-1 the partial exercise only of the right or privilege.
395-2 (c) Certificates of convenience and necessity shall be
395-3 granted on a nondiscriminatory basis after consideration by the
395-4 commission of the adequacy of service currently provided to the
395-5 requested area, the need for additional service in the requested
395-6 area, the effect of the granting of a certificate on the recipient
395-7 of the certificate and on any retail public utility of the same
395-8 kind already serving the proximate area, the ability of the
395-9 applicant to provide adequate service, the feasibility of obtaining
395-10 service from an adjacent retail public utility, the financial
395-11 stability of the applicant, including, if applicable, the adequacy
395-12 of the applicant's debt-equity ratio, environmental integrity, and
395-13 the probable improvement of service or lowering of cost to
395-14 consumers in that area resulting from the granting of the
395-15 certificate. (Sec. 13.246, Water Code.)
395-16 Sec. 12.245. Area Included Within City, Town, or Village.
395-17 (a) If an area has been or is included within the boundaries of a
395-18 city as the result of annexation, incorporation, or otherwise, all
395-19 retail public utilities certified or entitled to certification
395-20 under this chapter to provide service or operate facilities in that
395-21 area before the inclusion may continue and extend service in its
395-22 area of public convenience and necessity within the annexed or
395-23 incorporated area pursuant to the rights granted by its certificate
395-24 and this chapter. Except as provided by Section 12.253, a
395-25 municipally owned or operated utility may not provide retail water
395-26 and sewer utility service within the area certificated to another
395-27 retail public utility without first having obtained from the
396-1 commission a certificate of public convenience and necessity that
396-2 includes the areas to be served.
396-3 (b) Notwithstanding any other provision of law, a retail
396-4 public utility may continue and extend service within its area of
396-5 public convenience and necessity and utilize the roads, streets,
396-6 highways, alleys, and public property to furnish retail utility
396-7 service, subject to the authority of the governing body of a
396-8 municipality to require any retail public utility, at its own
396-9 expense, to relocate its facilities to permit the widening or
396-10 straightening of streets, by giving to the retail public utility 30
396-11 days' notice and specifying the new location for the facilities
396-12 along the right-of-way of the street or streets.
396-13 (c) This section may not be construed as limiting the power
396-14 of cities to incorporate or extend their boundaries by annexation,
396-15 or as prohibiting any city from levying taxes and other special
396-16 charges for the use of the streets as are authorized by Section
396-17 182.025, Tax Code. (Sec. 13.247, Water Code.)
396-18 Sec. 12.246. Contracts Valid and Enforceable. Contracts
396-19 between retail public utilities designating areas to be served and
396-20 customers to be served by those retail public utilities, when
396-21 approved by the commission after public notice and hearing, are
396-22 valid and enforceable and are incorporated into the appropriate
396-23 areas of public convenience and necessity. (Sec. 13.248, Water
396-24 Code.)
396-25 Sec. 12.247. Continuous and Adequate Service;
396-26 Discontinuance, Reduction, or Impairment of Service. (a) Except
396-27 as provided by this section or Section 12.248, any retail public
397-1 utility that possesses or is required to possess a certificate of
397-2 public convenience and necessity shall serve every consumer within
397-3 its certified area and shall render continuous and adequate service
397-4 within the area or areas.
397-5 (b) Unless the commission issues a certificate that neither
397-6 the present nor future convenience and necessity will be adversely
397-7 affected, the holder of a certificate or a person who possesses
397-8 facilities used to provide utility service shall not discontinue,
397-9 reduce, or impair service to a certified service area or part of a
397-10 certified service area except for:
397-11 (1) nonpayment of charges for services provided by the
397-12 certificate holder or a person who possesses facilities used to
397-13 provide utility service;
397-14 (2) nonpayment of charges for sewer service provided
397-15 by another retail public utility under an agreement between the
397-16 retail public utility and the certificate holder or a person who
397-17 possesses facilities used to provide utility service or under a
397-18 commission order;
397-19 (3) nonuse; or
397-20 (4) other similar reasons in the usual course of
397-21 business.
397-22 (c) Any discontinuance, reduction, or impairment of service,
397-23 whether with or without approval of the commission, shall be in
397-24 conformity with and subject to conditions, restrictions, and
397-25 limitations that the commission prescribes.
397-26 (d) A retail public utility that has not been granted but is
397-27 required by law to possess a certificate of public convenience and
398-1 necessity may not discontinue, reduce, or impair retail water or
398-2 sewer service to any ratepayer without approval of the regulatory
398-3 authority except for:
398-4 (1) nonpayment of charges;
398-5 (2) nonuse; or
398-6 (3) other similar reasons in the usual course of
398-7 business.
398-8 (e) Not later than the 48th hour after the hour in which a
398-9 utility files a bankruptcy petition, the utility shall report this
398-10 fact to the commission in writing. (Sec. 13.250, Water Code.)
398-11 Sec. 12.248. Conditions Requiring Refusal of Service. The
398-12 holder of a certificate of public convenience and necessity shall
398-13 refuse to serve a customer within its certified area if the holder
398-14 of the certificate is prohibited from providing the service under
398-15 Section 212.012 or 232.0047, Local Government Code. (Sec. 13.2501,
398-16 Water Code.)
398-17 Sec. 12.249. Sale, Assignment, or Lease of Certificate.
398-18 Except as provided by Section 12.253, a utility or a water supply
398-19 or sewer service corporation may not sell, assign, or lease a
398-20 certificate of public convenience and necessity or any right
398-21 obtained under a certificate unless the commission has determined
398-22 that the purchaser, assignee, or lessee is capable of rendering
398-23 adequate and continuous service to every consumer within the
398-24 certified area, after considering the factors under Section
398-25 12.244(c). The sale, assignment, or lease shall be on the
398-26 conditions prescribed by the commission. (Sec. 13.251, Water
398-27 Code.)
399-1 Sec. 12.250. Interference With Other Retail Public Utility.
399-2 If a retail public utility in constructing or extending a line,
399-3 plant, or system interferes or attempts to interfere with the
399-4 operation of a line, plant, or system of any other retail public
399-5 utility, or furnishes, makes available, renders, or extends retail
399-6 water or sewer utility service to any portion of the service area
399-7 of another retail public utility that has been granted or is not
399-8 required to possess a certificate of public convenience and
399-9 necessity, the commission may issue an order prohibiting the
399-10 construction, extension, or provision of service or prescribing
399-11 terms and conditions for locating the line, plant, or system
399-12 affected or for the provision of the service. (Sec. 13.252, Water
399-13 Code.)
399-14 Sec. 12.251. Improvements in Service; Interconnecting
399-15 Service. After notice and hearing, the commission may:
399-16 (1) order any retail public utility that is required
399-17 by law to possess a certificate of public convenience and necessity
399-18 to provide specified improvements in its service in a defined area
399-19 if service in that area is inadequate or is substantially inferior
399-20 to service in a comparable area and it is reasonable to require the
399-21 retail public utility to provide the improved service;
399-22 (2) order two or more public utilities or water supply
399-23 or sewer service corporations to establish specified facilities for
399-24 the interconnecting service; or
399-25 (3) issue an emergency order, with or without a
399-26 hearing, under Section 12.041. (Sec. 13.253, Water Code.)
399-27 Sec. 12.252. Revocation or Amendment of Certificate. (a)
400-1 The commission at any time after notice and hearing may revoke or
400-2 amend any certificate of public convenience and necessity with the
400-3 written consent of the certificate holder or if it finds that the
400-4 certificate holder has never provided, is no longer providing, or
400-5 has failed to provide continuous and adequate service in the area,
400-6 or part of the area, covered by the certificate.
400-7 (b) If the certificate of any public utility is revoked or
400-8 amended, the commission may require one or more public utilities to
400-9 provide service in the area in question. (Sec. 13.254, Water
400-10 Code.)
400-11 Sec. 12.253. Single Certification in Incorporated or Annexed
400-12 Areas. (a) In the event that an area is incorporated or annexed
400-13 by a municipality, either before or after the effective date of
400-14 this section, the municipality and a retail public utility that
400-15 provides water or sewer service to all or part of the area pursuant
400-16 to a certificate of convenience and necessity may agree in writing
400-17 that all or part of the area may be served by a municipally owned
400-18 utility, by a franchised utility, or by the retail public utility.
400-19 In this section, the phrase "franchised utility" shall mean a
400-20 retail public utility that has been granted a franchise by a
400-21 municipality to provide water or sewer service inside municipal
400-22 boundaries. The agreement may provide for single or dual
400-23 certification of all or part of the area, for the purchase of
400-24 facilities or property, and for such other or additional terms that
400-25 the parties may agree on. If a franchised utility is to serve the
400-26 area, the franchised utility shall also be a party to the
400-27 agreement. The executed agreement shall be filed with the
401-1 commission, and the commission, on receipt of the agreement, shall
401-2 incorporate the terms of the agreement into the respective
401-3 certificates of convenience and necessity of the parties to the
401-4 agreement.
401-5 (b) If an agreement is not executed within 180 days after
401-6 the municipality, in writing, notifies the retail public utility of
401-7 its intent to provide service to the incorporated or annexed area,
401-8 and if the municipality desires and intends to provide retail
401-9 utility service to the area, the municipality, prior to providing
401-10 service to the area, shall file an application with the commission
401-11 to grant single certification to the municipally owned water or
401-12 sewer utility or to a franchised utility. If an application for
401-13 single certification is filed, the commission shall fix a time and
401-14 place for a hearing and give notice of the hearing to the
401-15 municipality and franchised utility, if any, and notice of the
401-16 application and hearing to the retail public utility.
401-17 (c) The commission shall grant single certification to the
401-18 municipality. The commission shall also determine whether single
401-19 certification as requested by the municipality would result in
401-20 property of a retail public utility being rendered useless or
401-21 valueless to the retail public utility, and shall determine in its
401-22 order the monetary amount that is adequate and just to compensate
401-23 the retail public utility for such property. If the municipality
401-24 in its application has requested the transfer of specified property
401-25 of the retail public utility to the municipality or to a franchised
401-26 utility, the commission shall also determine in its order the
401-27 adequate and just compensation to be paid for such property
402-1 pursuant to the provisions of this section, including an award for
402-2 damages to property remaining in the ownership of the retail public
402-3 utility after single certification. The order of the commission
402-4 shall not be effective to transfer property. A transfer of
402-5 property may only be obtained under this section by a court
402-6 judgment rendered pursuant to Subsection (d) or (e). The grant of
402-7 single certification by the commission shall go into effect on the
402-8 date the municipality or franchised utility, as the case may be,
402-9 pays adequate and just compensation pursuant to court order, or
402-10 pays an amount into the registry of the court or to the retail
402-11 public utility under Subsection (f). If the court judgment
402-12 provides that the retail public utility is not entitled to any
402-13 compensation, the grant of single certification shall go into
402-14 effect when the court judgment becomes final. The municipality or
402-15 franchised utility must provide to each customer of the retail
402-16 public utility being acquired an individual written notice within
402-17 60 days after the effective date for the transfer specified in the
402-18 court judgment. The notice must clearly advise the customer of the
402-19 identity of the new service provider, the reason for the transfer,
402-20 the rates to be charged by the new service provider, and the
402-21 effective date of those rates.
402-22 (d) In the event the final order of the commission is not
402-23 appealed within 30 days, the municipality may request the district
402-24 court of Travis County to enter a judgment consistent with the
402-25 order of the commission. In such event, the court shall render a
402-26 judgment that:
402-27 (1) transfers to the municipally owned utility or
403-1 franchised utility title to property to be transferred to the
403-2 municipally owned utility or franchised utility as delineated by
403-3 the commission's final order and property determined by the
403-4 commission to be rendered useless or valueless by the granting of
403-5 single certification; and
403-6 (2) orders payment to the retail public utility of
403-7 adequate and just compensation for the property as determined by
403-8 the commission in its final order.
403-9 (e) Any party that is aggrieved by a final order of the
403-10 commission under this section may file an appeal with the district
403-11 court of Travis County within 30 days after the order becomes
403-12 final. The hearing in such an appeal before the district court
403-13 shall be by trial de novo on all issues. After the hearing, if the
403-14 court determines that the municipally owned utility or franchised
403-15 utility is entitled to single certification under the provisions of
403-16 this section, the court shall enter a judgment that:
403-17 (1) transfers to the municipally owned utility or
403-18 franchised utility title to property requested by the municipality
403-19 to be transferred to the municipally owned utility or franchised
403-20 utility and located within the singly certificated area and
403-21 property determined by the court or jury to be rendered useless or
403-22 valueless by the granting of single certification; and
403-23 (2) orders payment in accordance with Subsection (g)
403-24 to the retail public utility of adequate and just compensation for
403-25 the property transferred and for the property damaged as determined
403-26 by the court or jury.
403-27 (f) Transfer of property shall be effective on the date the
404-1 judgment becomes final. However, after the judgment of the court
404-2 is entered, the municipality or franchised utility may take
404-3 possession of condemned property pending appeal if the municipality
404-4 or franchised utility pays the retail public utility or pays into
404-5 the registry of the court, subject to withdrawal by the retail
404-6 public utility, the amount, if any, established in the court's
404-7 judgment as just and adequate compensation. To provide security in
404-8 the event an appellate court, or the trial court in a new trial or
404-9 on remand, awards compensation in excess of the original award, the
404-10 municipality or franchised utility, as the case may be, shall
404-11 deposit in the registry of the court an additional sum in the
404-12 amount of the award, or a surety bond in the same amount issued by
404-13 a surety company qualified to do business in this state,
404-14 conditioned to secure the payment of an award of damages in excess
404-15 of the original award of the trial court. On application by the
404-16 municipality or franchised utility, the court shall order that
404-17 funds deposited in the registry of the court be deposited in an
404-18 interest-bearing account, and that interest accruing prior to
404-19 withdrawal of the award by the retail public utility be paid to the
404-20 municipality or to the franchised utility. In the event the
404-21 municipally owned utility or franchised utility takes possession of
404-22 property or provides utility service in the singly certificated
404-23 area pending appeal, and a court in a final judgment in an appeal
404-24 under this section holds that the grant of single certification was
404-25 in error, the retail public utility is entitled to seek
404-26 compensation for any damages sustained by it in accordance with
404-27 Subsection (g).
405-1 (g) For the purpose of implementing this section, the value
405-2 of real property shall be determined by the commission, the court,
405-3 or both the commission and the court according to the standards set
405-4 forth in Chapter 21, Property Code, governing actions in eminent
405-5 domain; the value of personal property shall be determined
405-6 according to the rules to be promulgated by the commission pursuant
405-7 to the factors in this subsection. Such rules shall assure that
405-8 compensation to a retail public utility for the taking and damaging
405-9 of personal property, including the retail public utility's
405-10 business, is just and adequate, and shall take into account the
405-11 following factors: impact on the existing indebtedness of the
405-12 retail public utility and its ability to repay that debt, the value
405-13 of the personal and real property of the retail public utility
405-14 located within the area in question, the impact on future revenues
405-15 and expenses of the retail public utility, and other relevant
405-16 factors.
405-17 (h) A municipality or a franchised utility may dismiss an
405-18 application for single certification without prejudice at any time
405-19 before a judgment becomes final provided the municipality or the
405-20 franchised public utility has not taken physical possession of
405-21 property of the retail public utility or made payment for such
405-22 right pursuant to Subsection (f).
405-23 (i) In the event that a municipality files an application
405-24 for single certification on behalf of a franchised utility, the
405-25 municipality shall be joined in such application by such franchised
405-26 utility, and the franchised utility shall make all payments
405-27 required in the court's judgment to adequately and justly
406-1 compensate the retail public utility for any taking or damaging of
406-2 property and for the transfer of property to such franchised
406-3 utility.
406-4 (j) This section shall apply only in a case where:
406-5 (1) the retail public utility that is authorized to
406-6 serve in the certificated area that is annexed or incorporated by
406-7 the municipality is a nonprofit water supply or sewer service
406-8 corporation; or
406-9 (2) the retail public utility that is authorized to
406-10 serve in the certificated area that is annexed or incorporated by
406-11 the municipality is a retail public utility, other than a nonprofit
406-12 water supply or sewer service corporation, and whose service area
406-13 is located entirely within the boundaries of a municipality with a
406-14 population of 1.7 million or more according to the most recent
406-15 federal census.
406-16 (k) The following conditions apply when a municipality or
406-17 franchised utility makes an application to acquire the service area
406-18 or facilities of a retail public utility described in Subsection
406-19 (j)(2):
406-20 (1) the commission or court must determine that the
406-21 service provided by the retail public utility is substandard or its
406-22 rates are unreasonable in view of the reasonable expenses of the
406-23 utility;
406-24 (2) if the municipality abandons its application, the
406-25 court or the commission is authorized to award to the retail public
406-26 utility its reasonable expenses related to the proceeding
406-27 hereunder, including attorney fees; and
407-1 (3) unless otherwise agreed by the retail public
407-2 utility, the municipality must take the entire utility property of
407-3 the retail public utility in a proceeding hereunder. (Sec. 13.255,
407-4 Water Code.)
407-5 (Sections 12.254-12.270 reserved for expansion)
407-6 SUBCHAPTER I. SANITARY STANDARDS OF DRINKING WATER; PROTECTION
407-7 OF PUBLIC WATER SUPPLIES AND BODIES OF WATER
407-8 Sec. 12.271. Public Drinking Water. (a) Public drinking
407-9 water must be free from deleterious matter and must comply with the
407-10 standards established by the board or the United States Public
407-11 Health Service.
407-12 (b) In a public place or an establishment catering to the
407-13 public, a common drinking cup may not be used.
407-14 (c) Drinking water may not be served except in sanitary
407-15 containers or through other sanitary mediums.
407-16 (d) In this section, "common drinking cup" means a water or
407-17 other beverage receptacle used for serving more than one person.
407-18 The term does not include a water or other beverage receptacle that
407-19 is properly washed and sterilized after each use. (Sec. 341.031,
407-20 Health and Safety Code.)
407-21 Sec. 12.272. Drinking Water Provided by Common Carrier. (a)
407-22 Drinking water provided by a common carrier or the common carrier's
407-23 agent shall be taken only from supplies certified as meeting the
407-24 standards established by the commission. The drinking water shall
407-25 be kept and dispensed in a sanitary manner.
407-26 (b) A watering point must meet the standards of sanitation
407-27 and water-handling practices established for those purposes by the
408-1 board. The commission shall certify each watering point that meets
408-2 those standards.
408-3 (c) If a sanitary defect exists at the watering point, the
408-4 commission shall issue a supplemental certification showing that
408-5 the watering point is only provisionally approved. If a sanitary
408-6 defect continues after the expiration of a reasonable time provided
408-7 to correct the defect, the commission shall notify the common
408-8 carrier not to receive drinking water at the watering point
408-9 involved.
408-10 (d) In this section:
408-11 (1) "Common carrier" means a licensed firm,
408-12 corporation, or establishment that solicits and operates public
408-13 freight or passenger transportation service, including a vehicle
408-14 employed in that transportation service.
408-15 (2) "Watering point" means a place where drinking
408-16 water is placed aboard a vehicle operated as a common carrier.
408-17 (Sec. 341.032, Health and Safety Code.)
408-18 Sec. 12.273. Protection of Public Water Supplies. (a) A
408-19 person may not furnish drinking water to the public for a charge
408-20 unless the production, processing, treatment, and distribution are
408-21 at all times under the supervision of a water supply system
408-22 operator holding a valid certificate of competency issued under
408-23 Section 12.274.
408-24 (b) An owner, agent, manager, operator, or other person in
408-25 charge of a water supply system that furnishes water for public or
408-26 private use may not knowingly furnish contaminated drinking water
408-27 to a person or allow the appliances of the water supply system to
409-1 become unsanitary.
409-2 (c) The owner or manager of a water supply system furnishing
409-3 drinking water to at least 25,000 persons shall have the water
409-4 tested at least once daily to determine its sanitary quality and
409-5 shall submit monthly reports of the tests to the commission.
409-6 (d) The owner or manager of a water supply system furnishing
409-7 drinking water to less than 25,000 persons shall submit to the
409-8 commission during each monthly period of the system's operation at
409-9 least one specimen of water taken from the supply for
409-10 bacteriological analysis. The population under this subsection
409-11 shall be determined according to the most recent federal census or
409-12 other population-determining methods if a federal census is not
409-13 taken for the area served by the water supply system.
409-14 (e) The distribution system of a public drinking water
409-15 supply and that of any other water supply may not be physically
409-16 connected unless the other water is of a safe and sanitary quality
409-17 and the commission approves the connection.
409-18 (f) A public drinking water supply may not be connected to a
409-19 sprinkling, condensing, cooling, plumbing, or other system unless
409-20 the connection is designed to ensure against a backflow or
409-21 siphonage of sewage or contaminated water into the drinking water
409-22 supply.
409-23 (g) On discovery of a connection in violation of Subsection
409-24 (e) or (f), the local health authority shall give written notice to
409-25 the owner or agent maintaining the condition. The owner or agent
409-26 shall make the necessary corrections to eliminate the condition.
409-27 (h) Subsections (a)-(d) do not apply to the production,
410-1 distribution, or sale of raw, untreated surface water. (Sec.
410-2 341.033, Health and Safety Code.)
410-3 Sec. 12.274. Water Supply System Operator: Certificate of
410-4 Competency. (a) The commission shall adopt rules establishing
410-5 classes of certificates, duration of certificates, and fees.
410-6 (b) Before a certificate of competency is issued or renewed,
410-7 an applicant for or holder of a certificate must pay an annual $10
410-8 fee. On receipt of the required fee, the commission shall issue to
410-9 a qualified person a certificate of competency. (Sec. 341.034,
410-10 Health and Safety Code.)
410-11 Sec. 12.275. Approved Plans Required for Public Water
410-12 Supplies. (a) A person contemplating establishing a drinking
410-13 water supply system for public use must submit completed plans and
410-14 specifications to the commission before construction of the system.
410-15 The commission shall approve plans that conform to the state's
410-16 water safety laws. The water supply system may be established only
410-17 on the commission's approval.
410-18 (b) Any agency, including a municipality, supplying a
410-19 drinking water service to the public that intends to make a
410-20 material or major change in a water supply system that may affect
410-21 the sanitary features of that utility must give written notice of
410-22 that intention to the commission before making the change.
410-23 (c) A water supply system owner, manager, or operator or an
410-24 agent of a water supply system owner, manager, or operator may not
410-25 advertise or announce a water supply as being of a quality other
410-26 than the quality that is disclosed by the commission's latest
410-27 rating.
411-1 (d) The commission shall assemble and tabulate all necessary
411-2 data relating to public drinking water supplies at least once each
411-3 year and as often during the year as conditions demand or justify.
411-4 The data forms the basis of an official comparative rating of
411-5 public drinking water supply systems.
411-6 (e) A water supply system that attains an approved rating is
411-7 entitled to erect signs of a design approved by the commission on
411-8 highways approaching the municipality in which the water supply
411-9 system is located. The signs shall be immediately removed on
411-10 notice from the commission if the water supply system does not
411-11 continue to meet the specified standards. (Sec. 341.035, Health
411-12 and Safety Code.)
411-13 Sec. 12.276. Sanitary Defects at Public Drinking Water
411-14 Supply Systems. (a) A sanitary defect at a public drinking water
411-15 supply system that obtains its water supply from underground
411-16 sources shall be immediately corrected.
411-17 (b) A public drinking water supply system furnishing
411-18 drinking water from underground sources may not be established in a
411-19 place subject to possible pollution by floodwaters unless the
411-20 system is adequately protected against flooding.
411-21 (c) Suction wells or suction pipes used in a public drinking
411-22 water supply system must be constantly protected by practical
411-23 safeguards against surface and subsurface pollution.
411-24 (d) Livestock may not be permitted to enter or remain in the
411-25 wellhouse enclosure of a public drinking water supply system.
411-26 (e) Public drinking water distribution lines must be
411-27 constructed of impervious materials with tight joints and must be a
412-1 reasonably safe distance from sewer lines.
412-2 (f) Water from a surface public drinking water supply may
412-3 not be made accessible or delivered to a consumer for drinking
412-4 purposes unless the water has been treated to make it safe for
412-5 human consumption. Water treatment plants, including aeration,
412-6 coagulation, mixing, settling, filtration, and chlorinating units,
412-7 shall be of a size and type prescribed by good public health
412-8 engineering practices.
412-9 (g) A clear water reservoir shall be covered and be of a
412-10 type and construction that prevents the entrance of dust, insects,
412-11 and surface seepage. (Sec. 341.036, Health and Safety Code.)
412-12 Sec. 12.277. Protection of Bodies of Water From Sewage. The
412-13 commission shall enforce state laws and take other necessary action
412-14 to protect a spring, well, pond, lake, reservoir, or other stream
412-15 in this state from any condition or pollution that results from
412-16 sewage and that may endanger the public health. (Sec. 341.037,
412-17 Health and Safety Code.)
412-18 Sec. 12.278. Protection of Impounded Water From
412-19 Disease-Bearing Mosquitoes. A person that impounds water for
412-20 public use shall cooperate with the commission and local
412-21 departments of health to control disease-bearing mosquitoes on the
412-22 impounded area. (Sec. 341.038, Health and Safety Code.)
412-23 (Sections 12.279-12.300 reserved for expansion)
412-24 SUBCHAPTER J. SALE OF PROPERTY AND MERGERS
412-25 Sec. 12.301. Report of Sale, Merger, Etc.; Investigation;
412-26 Disallowance of Transaction. (a) A utility or a water supply or
412-27 sewer service corporation shall notify the commission and give
413-1 public notice unless public notice is waived by the executive
413-2 director for good cause shown at least 120 days before the
413-3 effective date of any sale, acquisition, lease, or rental of any
413-4 water or sewer system required by law to possess a certificate of
413-5 public convenience and necessity or of any merger or consolidation
413-6 with such a utility or water supply or sewer service corporation.
413-7 (b) The commission shall with or without a public hearing,
413-8 investigate the sale, acquisition, lease, or rental to determine
413-9 whether the transaction will serve the public interest.
413-10 (c) Before the expiration of the 120-day notification
413-11 period, the executive director shall notify all known parties to
413-12 the transaction of the executive director's decision whether to
413-13 request that the commission hold a public hearing to determine if
413-14 the transaction will serve the public interest. The executive
413-15 director may request a hearing if:
413-16 (1) the notification to the commission or the public
413-17 notice was improper;
413-18 (2) the person purchasing or acquiring the water or
413-19 sewer system is inexperienced as a utility service provider;
413-20 (3) the person or an affiliated interest of the person
413-21 purchasing or acquiring the water or sewer system has a history of
413-22 noncompliance with the requirements of the commission or the Texas
413-23 Department of Health or of continuing mismanagement or misuse of
413-24 revenues as a utility service provider; or
413-25 (4) the person purchasing or acquiring the water or
413-26 sewer system cannot demonstrate the financial ability to provide
413-27 the necessary capital investment to ensure the provision of
414-1 continuous and adequate service to the customers of the water or
414-2 sewer system.
414-3 (d) Unless the executive director requests that a public
414-4 hearing be held, the sale, acquisition, lease, or rental may be
414-5 completed as proposed at the end of the 120-day period or may be
414-6 completed at any time after the executive director notifies the
414-7 utility or water supply or sewer service corporation that a hearing
414-8 will not be requested. If a hearing is requested or if the utility
414-9 or water supply or sewer service corporation fails to provide the
414-10 required notification or public notice, the sale, acquisition,
414-11 lease, or rental may not be completed unless the commission
414-12 determines that the proposed transaction serves the public
414-13 interest. A sale, acquisition, lease, or rental of any water or
414-14 sewer system required by law to possess a certificate of public
414-15 convenience and necessity that is not completed in accordance with
414-16 the provisions of this section is void.
414-17 (e) This section does not apply to the purchase of
414-18 replacement property or to a transaction under Section 12.253.
414-19 (f) If a public utility facility or system is sold and the
414-20 facility or system was partially or wholly constructed with
414-21 customer contributions in aid of construction derived from specific
414-22 surcharges approved by the regulatory authority over and above
414-23 revenues required for normal operating expenses and return, the
414-24 public utility may not sell or transfer any of its assets, its
414-25 certificate of convenience and necessity, or controlling interest
414-26 in an incorporated utility, unless the utility provides to the
414-27 purchaser or transferee before the date of the sale or transfer a
415-1 written disclosure relating to the contributions. The disclosure
415-2 must contain, at a minimum, the total dollar amount of the
415-3 contributions and a statement that the contributed property or
415-4 capital may not be included in invested capital or allowed
415-5 depreciation expense by the regulatory authority in rate-making
415-6 proceedings.
415-7 (g) A utility or a water supply or sewer service corporation
415-8 that proposes to sell, assign, lease, or rent its facilities shall
415-9 notify the other party to the transaction of the requirements of
415-10 this section before signing an agreement to sell, assign, lease, or
415-11 rent its facilities. (Sec. 13.301, Water Code.)
415-12 Sec. 12.302. Purchase of Voting Stock in Another Public
415-13 Utility: Report. (a) A utility may not purchase voting stock in
415-14 another utility doing business in this state and a person may not
415-15 acquire a controlling interest in a utility doing business in this
415-16 state unless the person or utility notifies the commission of the
415-17 proposed purchase or acquisition not later than the 61st day before
415-18 the date on which the transaction is to occur.
415-19 (b) The executive director may request that the commission
415-20 hold a public hearing on the transaction if the executive director
415-21 believes that a criterion prescribed by Section 12.301(c) applies.
415-22 (c) Unless the executive director requests that a public
415-23 hearing be held, the purchase or acquisition may be completed as
415-24 proposed at the end of the 60-day period or may be completed at any
415-25 time after the executive director notifies the person or utility
415-26 that a hearing will not be requested. If a hearing is requested or
415-27 if the person or utility fails to provide the required notification
416-1 to the commission, the purchase or acquisition may not be completed
416-2 unless the commission determines that the proposed transaction
416-3 serves the public interest. A purchase or acquisition that is not
416-4 completed in accordance with the provisions of this section is
416-5 void. (Sec. 13.302, Water Code.)
416-6 Sec. 12.303. Loans to Stockholders: Report. A utility may
416-7 not loan money, stocks, bonds, notes, or other evidences of
416-8 indebtedness to any corporation or person owning or holding
416-9 directly or indirectly any stock of the utility unless the utility
416-10 reports the transaction to the commission within 60 days after the
416-11 date of the transaction. (Sec. 13.303, Water Code.)
416-12 Sec. 12.304. Foreclosure Report. A utility that receives
416-13 notice that all or a portion of the utility's facilities or
416-14 property used to provide utility service are being posted for
416-15 foreclosure shall notify the commission in writing of that fact not
416-16 later than the 10th day after the date on which the utility
416-17 receives the notice. (Sec. 13.304, Water Code.)
416-18 (Sections 12.305-12.340 reserved for expansion)
416-19 SUBCHAPTER K. RELATIONS WITH AFFILIATED INTERESTS
416-20 Sec. 12.341. Jurisdiction over Affiliated Interests. The
416-21 commission has jurisdiction over affiliated interests having
416-22 transactions with utilities under the jurisdiction of the
416-23 commission to the extent of access to all accounts and records of
416-24 those affiliated interests relating to such transactions, including
416-25 but in no way limited to accounts and records of joint or general
416-26 expenses, any portion of which may be applicable to those
416-27 transactions. (Sec. 13.341, Water Code.)
417-1 Sec. 12.342. Disclosure of Substantial Interest in Voting
417-2 Securities. The commission may require the disclosure of the
417-3 identity and respective interests of every owner of any substantial
417-4 interest in the voting securities of any utility or its affiliated
417-5 interest. One percent or more is a substantial interest within the
417-6 meaning of this section. (Sec. 13.342, Water Code.)
417-7 (Sections 12.343-12.500 reserved for expansion)
417-8 SUBCHAPTER L. SUBMETERING IN MULTIPLE USE FACILITIES
417-9 Sec. 12.501. Definitions. In this subchapter:
417-10 (1) "Apartment house" means one or more buildings
417-11 containing five or more dwelling units which are occupied primarily
417-12 for nontransient use, including a residential condominium whether
417-13 rented or owner occupied, and having rental paid, if a dwelling
417-14 unit is rented, at intervals of one month or longer.
417-15 (2) "Dwelling unit" means:
417-16 (A) one or more rooms in an apartment house or
417-17 condominium, suitable for occupancy as a residence, and containing
417-18 kitchen and bathroom facilities; or
417-19 (B) a mobile home in a mobile home park.
417-20 (3) "Customer" means the individual, firm, or
417-21 corporation in whose name a master meter has been connected by the
417-22 utility service provider.
417-23 (4) "Nonsubmetered master metered utility service"
417-24 means water utility service that is master metered for the
417-25 apartment house but not submetered, and wastewater utility service
417-26 based on master metered water utility service.
417-27 (5) "Owner" means the legal titleholder of an
418-1 apartment house, mobile home park, or multiple use facility and any
418-2 individual, firm, or corporation that purports to be the landlord
418-3 of tenants in the apartment house, mobile home park, or multiple
418-4 use facility.
418-5 (6) "Tenant" means a person who is entitled to occupy
418-6 a dwelling unit or multiple use facility unit to the exclusion of
418-7 others and who is obligated to pay for the occupancy under a
418-8 written or oral rental agreement.
418-9 (7) "Multiple use facility" means commercial or
418-10 industrial parks, office complexes, marinas, and others
418-11 specifically identified in commission rules with five or more
418-12 units.
418-13 (8) "Mobile home park" means a property on which
418-14 parking spaces are rented to mobile dwelling units primarily for
418-15 nontransient use and for which rental is paid at intervals of one
418-16 month or longer. (Sec. 13.501, Water Code.)
418-17 Sec. 12.502. Submetering. An apartment house owner, mobile
418-18 home park owner, multiple use facility owner, or condominium
418-19 manager may provide for submetering of each dwelling unit or rental
418-20 unit for the measurement of the quantity of water, if any, consumed
418-21 by the occupants of that unit. (Sec. 13.502, Water Code.)
418-22 Sec. 12.503. Submetering Rules. Notwithstanding any other
418-23 law, the commission shall adopt rules and standards under which an
418-24 owner, operator, or manager of an apartment house, mobile home
418-25 park, or multiple use facility that is not individually metered for
418-26 water for each rental or dwelling unit may install submetering
418-27 equipment for each individual rental or dwelling unit for the
419-1 purpose of fairly allocating the cost of each individual rental or
419-2 dwelling unit's water consumption, including wastewater charges
419-3 based on water consumption. In addition to other appropriate
419-4 safeguards for the tenant, the rules shall require that an
419-5 apartment house owner, mobile home park owner, multiple use
419-6 facility owner, or condominium manager may not impose on the tenant
419-7 any extra charges, over and above the cost per gallon that is
419-8 charged by the retail public utility to the owner or manager, and
419-9 that the rental unit or apartment house owner or manager shall
419-10 maintain adequate records regarding submetering and make the
419-11 records available for inspection by the tenant during reasonable
419-12 business hours. All submetering equipment is subject to the rules
419-13 and standards established by the commission for accuracy, testing,
419-14 and record keeping of meters installed by utilities and to the
419-15 meter-testing requirements of Section 12.140. (Sec. 13.503, Water
419-16 Code.)
419-17 Sec. 12.5031. Nonsubmetering Rules. Notwithstanding any
419-18 other law, the commission shall adopt rules and standards governing
419-19 billing systems or methods used by apartment house owners,
419-20 condominium managers, or owners of other multiple use facilities
419-21 for prorating or allocating among tenants nonsubmetered master
419-22 metered utility service costs. In addition to other appropriate
419-23 safeguards for the tenant, those rules shall require that:
419-24 (1) the rental agreement contain a clear written
419-25 description of the method of calculation of the allocation of
419-26 nonsubmetered master metered utilities for the apartment house or
419-27 multiple use facility;
420-1 (2) the rental agreement contain a statement of the
420-2 average apartment or multiple use facility unit monthly bill for
420-3 all units for any allocation of those utilities for the previous
420-4 calendar year;
420-5 (3) an owner or condominium manager may not impose
420-6 additional charges on a tenant in excess of the actual charges
420-7 imposed on the owner or condominium manager for utility consumption
420-8 by the apartment house or multiple use facility;
420-9 (4) the owner or condominium manager shall maintain
420-10 adequate records regarding the utility consumption of the apartment
420-11 house or multiple use facility, the charges assessed by the retail
420-12 public utility, and the allocation of the utility costs to the
420-13 tenants; and
420-14 (5) the owner or condominium manager shall maintain
420-15 all necessary records concerning utility allocations, including the
420-16 retail public utility's bills, and shall make the records available
420-17 for inspection by the tenants during normal business hours. (Sec.
420-18 13.5031, Water Code.)
420-19 Sec. 12.504. Improper Rental Rate Increase. If, during the
420-20 90-day period preceding the installation of individual meters or
420-21 submeters, an owner, operator, or manager of an apartment house,
420-22 mobile home park or other multiple use facility has increased
420-23 rental rates and the increase is attributable to increased costs of
420-24 utilities, the owner, operator, or manager shall immediately reduce
420-25 the rental rate by the amount of the increase and refund all of the
420-26 increase that has previously been collected within the 90-day
420-27 period. (Sec. 13.504, Water Code.)
421-1 Sec. 12.505. Enforcement. In addition to the enforcement
421-2 provisions contained in Subchapter G, if an apartment house owner,
421-3 condominium manager, mobile home park owner, or other multiple use
421-4 facility owner violates a rule of the commission regarding
421-5 submetering of utility service consumed exclusively within the
421-6 tenant's dwelling unit or multiple use facility unit or
421-7 nonsubmetered master metered utility costs, the tenant may recover
421-8 three times the amount of any overcharge, a civil penalty equal to
421-9 one month's rent, reasonable attorney's fees, and court costs from
421-10 the owner or condominium manager. However, an owner of an
421-11 apartment house, mobile home park, or other multiple use facility
421-12 or condominium manager is not liable for a civil penalty if the
421-13 owner or condominium manager proves the violation was a good faith,
421-14 unintentional mistake. (Sec. 13.505, Water Code.)
421-15 (Sections 12.506-12.510 reserved for expansion)
421-16 SUBCHAPTER M. PRIVATIZATION CONTRACTS
421-17 Sec. 12.511. Definitions. In this subchapter:
421-18 (1) "Eligible city" means any municipality whose
421-19 waterworks and sewer system is operated by a board of utility
421-20 trustees pursuant to provisions of a home-rule charter.
421-21 (2) "Privatization contract" means any contract,
421-22 agreement, or letter of intent or group of the same by which any
421-23 eligible city contracts with a service provider to provide for the
421-24 financing, acquisition, improvement, or construction of sewage
421-25 treatment and disposal facilities pursuant to which such service
421-26 provider or its assignee or subcontractor will own, operate, and
421-27 maintain such facilities and provide sewage treatment and disposal
422-1 services to the eligible city or any contract pursuant to which
422-2 such service provider agrees to operate and maintain, or have its
422-3 subcontractor operate and maintain all or any part of the eligible
422-4 city's sewage treatment and disposal facilities.
422-5 (3) "Service provider" means any person or group of
422-6 persons who is a party to a privatization contract which thereby
422-7 contracts to provide sewage treatment and disposal services to an
422-8 eligible city. (Sec. 13.511, Water Code.)
422-9 Sec. 12.512. Authority to Enter Into Privatization
422-10 Contracts. Any eligible city is authorized to enter into
422-11 privatization contracts if such action is recommended by the board
422-12 of utility trustees and authorized by the governing body of the
422-13 eligible city pursuant to an ordinance. Any privatization contract
422-14 entered into prior to the effective date of this Act is validated,
422-15 ratified, and approved. Each eligible city shall file a copy of
422-16 its privatization contract with the commission, for information
422-17 purposes only, within 60 days of execution or the effective date of
422-18 this Act, whichever is later. (Sec. 13.512, Water Code.)
422-19 Sec. 12.513. Election by Eligible City to Exempt Service
422-20 Provider From Commission Jurisdiction. A service provider shall
422-21 not constitute a "water and sewer utility," a "public utility," a
422-22 "utility," or a "retail public utility" within the meaning of this
422-23 chapter as a result of entering into or performing a privatization
422-24 contract, if the governing body of the eligible city shall so elect
422-25 by ordinance and provide notice thereof in writing to the
422-26 commission; provided, however, this provision shall not affect the
422-27 application of this chapter to an eligible city itself.
423-1 Notwithstanding anything contained in this section, any service
423-2 provider who seeks to extend or render sewer service to any person
423-3 or municipality other than, or in addition to, an eligible city may
423-4 be a "public utility" for the purposes of this chapter with respect
423-5 to such other person or municipality. (Sec. 13.513, Water Code.)
423-6 Sec. 12.514. Term and Provisions of a Privatization
423-7 Contract. A privatization contract may be for a term and contain
423-8 provisions that the governing body of an eligible city determines
423-9 are in the best interests of the eligible city, including
423-10 provisions relating to allocation of liabilities, indemnification,
423-11 and purchase of all or a portion of the facilities. (Sec. 13.514,
423-12 Water Code.)
423-13 Sec. 12.515. Payments Under a Privatization Contract.
423-14 Payments by an eligible city under a privatization contract shall,
423-15 if so provided, constitute an operating expense of the eligible
423-16 city's sanitary sewer system or combined waterworks and sanitary
423-17 sewer system, except that any payment for purchase of the
423-18 facilities is payable from a pledge and lien on the net revenues of
423-19 the eligible city's sanitary sewer system or combined waterworks
423-20 and sanitary sewer system. (Sec. 13.515, Water Code.)
423-21 CHAPTER 13. UNDERGROUND INJECTION CONTROL
423-22 SUBCHAPTER A. GENERAL PROVISIONS
423-23 Sec. 13.001. Short Title. This chapter may be cited as the
423-24 Injection Well Act. (Sec. 27.001, Water Code.)
423-25 Sec. 13.002. Definitions. In this chapter:
423-26 (1) "Railroad commission" means the Railroad
423-27 Commission of Texas.
424-1 (2) "Pollution" means the alteration of the physical,
424-2 chemical, or biological quality of, or the contamination of, water
424-3 that makes it harmful, detrimental, or injurious to humans, animal
424-4 life, vegetation, or property or to public health, safety, or
424-5 welfare, or impairs the usefulness or the public enjoyment of the
424-6 water for any lawful or reasonable purpose.
424-7 (3) "Industrial and municipal waste" means any liquid,
424-8 gaseous, solid, or other waste substance, or combination of these
424-9 substances, which may cause or might reasonably be expected to
424-10 cause pollution of fresh water and which result from:
424-11 (A) processes of industry, manufacturing, trade,
424-12 or business;
424-13 (B) development or recovery of natural resources
424-14 other than oil or gas; or
424-15 (C) disposal of sewage or other wastes of
424-16 cities, towns, villages, communities, water districts, and other
424-17 municipal corporations.
424-18 (4) "Oil and gas waste" means waste arising out of or
424-19 incidental to drilling for or producing of oil, gas, or geothermal
424-20 resources, waste arising out of or incidental to the underground
424-21 storage of hydrocarbons other than storage in artificial tanks or
424-22 containers, or waste arising out of or incidental to the operation
424-23 of gasoline plants, natural gas processing plants, or pressure
424-24 maintenance or repressurizing plants. The term includes but is not
424-25 limited to salt water, brine, sludge, drilling mud, and other
424-26 liquid or semi-liquid waste material.
424-27 (5) "Fluid" means a material or substance that flows
425-1 or moves in a liquid, gaseous, solid, semi-solid, sludge, or other
425-2 form or state.
425-3 (6) "Fresh water" means water having bacteriological,
425-4 physical, and chemical properties which make it suitable and
425-5 feasible for beneficial use for any lawful purpose.
425-6 (7) "Casing" means material lining used to seal off
425-7 strata at and below the earth's surface.
425-8 (8) "Disposal well" means an injection well that is
425-9 used for the injection of industrial and municipal waste or oil and
425-10 gas waste.
425-11 (9) "Injection well" means an artificial excavation or
425-12 opening in the ground made by digging, boring, drilling, jetting,
425-13 driving, or some other method, and used to inject, transmit, or
425-14 dispose of industrial and municipal waste or oil and gas waste into
425-15 a subsurface stratum; or a well initially drilled to produce oil
425-16 and gas which is used to transmit, inject, or dispose of industrial
425-17 and municipal waste or oil and gas waste into a subsurface stratum;
425-18 or a well used for the injection of any other fluid; but the term
425-19 does not include any surface pit, surface excavation, or natural
425-20 depression used to dispose of industrial and municipal waste or oil
425-21 and gas waste.
425-22 (10) "Extraction of minerals" means the use of an
425-23 injection well for the development or recovery of natural resources
425-24 other than resources subject to the jurisdiction of the railroad
425-25 commission, and includes solution mining of minerals, in situ
425-26 uranium mining, and mining of sulfur by the Frasch process, but
425-27 does not include the solution mining of salt when leaching a cavern
426-1 for the storage of hydrocarbons.
426-2 (11) "Hazardous waste" has the meaning assigned to
426-3 that term by Section 20.003. (Sec. 27.002, Water Code.)
426-4 Sec. 13.003. Policy and Purpose. It is the policy of this
426-5 state and the purpose of this chapter to maintain the quality of
426-6 fresh water in the state to the extent consistent with the public
426-7 health and welfare, the operation of existing industries, and the
426-8 economic development of the state, to prevent underground injection
426-9 that may pollute fresh water, and to require the use of all
426-10 reasonable methods to implement this policy. (Sec. 27.003, Water
426-11 Code.)
426-12 (Sections 13.004-13.010 reserved for expansion)
426-13 SUBCHAPTER B. JURISDICTION OF COMMISSION
426-14 Sec. 13.011. Permit From Commission. Unless the activity is
426-15 subject to the jurisdiction of the railroad commission or
426-16 authorized by a rule of the commission, no person may continue
426-17 utilizing an injection well or begin drilling an injection well or
426-18 converting an existing well into an injection well to dispose of
426-19 industrial and municipal waste, to extract minerals, or to inject a
426-20 fluid without first obtaining a permit from the commission.
426-21 (Sec. 27.011, Water Code.)
426-22 Sec. 13.012. Application for Permit. The commission shall
426-23 prescribe forms for application for a permit and shall make the
426-24 forms available on request without charge. (Sec. 27.012, Water
426-25 Code.)
426-26 Sec. 13.013. Information Required of Applicant. An
426-27 applicant shall furnish any information the executive director
427-1 considers necessary to discharge his duties under this chapter and
427-2 the rules of the commission. (Sec. 27.013, Water Code.)
427-3 Sec. 13.014. Letter From Railroad Commission. A person
427-4 making application to the commission for a disposal well permit
427-5 under this chapter shall submit with the application a letter from
427-6 the railroad commission stating that drilling or using the disposal
427-7 well and injecting industrial and municipal waste into the
427-8 subsurface stratum will not endanger or injure any oil or gas
427-9 formation. (Sec. 27.015, Water Code.)
427-10 Sec. 13.015. LETTER PREREQUISITE TO HEARING. In a hearing
427-11 on an application for a disposal well permit under this chapter,
427-12 the commission may not proceed to hearing on any issues other than
427-13 preliminary matters such as notice until the letter required from
427-14 the railroad commission under Subsection (a) is provided to the
427-15 commission. (Sec. 27.015, Water Code.)
427-16 Sec. 13.016. Inspection of Well Location. On receiving an
427-17 application for a permit, the executive director shall have an
427-18 inspection made of the location of the proposed disposal well to
427-19 determine the local conditions and the probable effect of the well
427-20 and shall determine the requirements for the setting of casing, as
427-21 provided in Sections 13.051, 13.056, and 13.057. (Sec. 27.016,
427-22 Water Code.)
427-23 Sec. 13.017. Recommendations From Other Agencies. The
427-24 executive director shall submit to the Texas Department of Health,
427-25 and to other persons that the commission may designate, copies of
427-26 every application received in proper form. These agencies,
427-27 persons, and divisions may make recommendations to the commission
428-1 concerning any aspect of the application within 30 days.
428-2 (Sec. 27.017, Water Code.)
428-3 Sec. 13.018. Hearing on Permit Application. (a) If it is
428-4 considered necessary and in the public interest, the commission may
428-5 hold a public hearing on the application. The commission shall
428-6 hold a hearing on a permit application for an injection well to
428-7 dispose of industrial and municipal waste if a hearing is requested
428-8 by a local government located in the county of the proposed
428-9 disposal well site or by an affected person. In this subsection,
428-10 "local government" has the meaning provided for that term by
428-11 Chapter 10.
428-12 (b) The commission by rule shall provide for giving notice
428-13 of the opportunity to request a public hearing on a permit
428-14 application. The rules for notice shall include provisions for
428-15 giving notice to local governments and affected persons. The
428-16 commission shall define "affected person" by rule.
428-17 (c) Before the commission begins to hear testimony in a
428-18 contested case as defined by the Administrative Procedure and Texas
428-19 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes),
428-20 evidence must be placed in the record to demonstrate that proper
428-21 notice regarding the hearing was given to affected persons. If
428-22 mailed notice to an affected person is required, the commission or
428-23 other party to the hearing shall place evidence in the record that
428-24 notice was mailed to the address of the affected person included in
428-25 the appropriate county tax rolls at the time of mailing. For the
428-26 purposes of this subsection, the affidavit of the commission
428-27 employee responsible for the mailing of the notice, attesting to
429-1 the fact that notice was mailed to the address included in the tax
429-2 rolls at the time of mailing, shall be prima facie evidence of
429-3 proper mailing. The commission may not proceed with receipt of
429-4 testimony in a contested case until there is compliance with this
429-5 subsection.
429-6 (d) An application for an injection well to dispose of
429-7 hazardous waste shall be subject to the pre-application local
429-8 review process established by Section 20.063 and to the
429-9 requirements of Section 20.074. (Sec. 27.018, Water Code.)
429-10 Sec. 13.019. Rules, Etc. (a) The commission shall adopt
429-11 rules and procedures reasonably required for the performance of its
429-12 powers, duties, and functions under this chapter.
429-13 (b) Copies of any rules under this chapter proposed by the
429-14 commission shall before their adoption be sent to the railroad
429-15 commission, the Texas Department of Health, and any other persons
429-16 the commission may designate. Any agency or person to whom the
429-17 copies of proposed rules are sent may submit comments and
429-18 recommendations to the commission and shall have reasonable time to
429-19 do so as the commission may prescribe. (Sec. 27.019, Water Code.)
429-20 Sec. 13.020. Mining of Sulfur. The commission is authorized
429-21 to develop a regulatory program with respect to the injection of
429-22 fluid associated with the mining of sulfur by the Frasch process in
429-23 accordance with the provisions of this chapter. The commission may
429-24 not impose any requirements more stringent than those promulgated
429-25 by the administrator of the United States Environmental Protection
429-26 Agency pursuant to the federal Safe Drinking Water Act, 42 U.S.C.
429-27 300h et seq., as amended, unless the commission determines that
430-1 more stringent regulations are necessary to protect human health or
430-2 the environment. (Sec. 27.020, Water Code.)
430-3 (Sections 13.021-13.050 reserved for expansion)
430-4 SUBCHAPTER C. PERMITS; TERMS AND CONDITIONS
430-5 Sec. 13.051. Issuance of Permit. (a) The commission may
430-6 grant an application in whole or part and may issue the permit if
430-7 it finds:
430-8 (1) that the use or installation of the injection well
430-9 is in the public interest;
430-10 (2) that no existing rights, including, but not
430-11 limited to, mineral rights, will be impaired;
430-12 (3) that, with proper safeguards, both ground and
430-13 surface fresh water can be adequately protected from pollution;
430-14 (4) that the applicant has made a satisfactory showing
430-15 of financial responsibility if required by Section 13.058;
430-16 (5) that the applicant has provided for the proper
430-17 operation of the proposed hazardous waste injection well;
430-18 (6) that the applicant for a hazardous waste injection
430-19 well not located in an area of industrial land use has made a
430-20 reasonable effort to ensure that the burden, if any, imposed by the
430-21 proposed hazardous waste injection well on local law enforcement,
430-22 emergency medical or fire-fighting personnel, or public roadways,
430-23 will be reasonably minimized or mitigated; and
430-24 (7) that the applicant owns or has made a good faith
430-25 claim to, or has the consent of the owner to utilize, or has an
430-26 option to acquire, or has the authority to acquire through eminent
430-27 domain, the property or portions of the property where the
431-1 hazardous waste injection well will be constructed.
431-2 (b) The railroad commission may grant an application in
431-3 whole or part and may issue the permit if it finds:
431-4 (1) that the use or installation of the injection well
431-5 is in the public interest;
431-6 (2) that the use or installation of the injection well
431-7 will not endanger or injure any oil, gas, or other mineral
431-8 formation;
431-9 (3) that, with proper safeguards, both ground and
431-10 surface fresh water can be adequately protected from pollution; and
431-11 (4) that the applicant has made a satisfactory showing
431-12 of financial responsibility if required by Section 13.058.
431-13 (c) In the permit, the commission or railroad commission
431-14 shall impose terms and conditions reasonably necessary to protect
431-15 fresh water from pollution, including the necessary casing.
431-16 (d) The commission, in determining if the use or
431-17 installation of an injection well for the disposal of hazardous
431-18 waste is in the public interest under Subsection (a)(1), shall
431-19 consider, but shall not be limited to the consideration of:
431-20 (1) compliance history of the applicant in accordance
431-21 with the provisions of Subsection (e);
431-22 (2) whether there is a practical, economic, and
431-23 feasible alternative to an injection well reasonably available to
431-24 manage the types and classes of hazardous waste; and
431-25 (3) whether the applicant will maintain sufficient
431-26 public liability insurance for bodily injury and property damage to
431-27 third parties that is caused by sudden and non-sudden accidents or
432-1 will otherwise demonstrate financial responsibility in a manner
432-2 adopted by the commission in lieu of public liability insurance. A
432-3 liability insurance policy which satisfies the policy limits
432-4 required by the hazardous waste management regulations of the
432-5 commission for the applicant's proposed pre-injection facilities
432-6 shall be deemed "sufficient" under this subdivision if the policy:
432-7 (A) covers the injection well; and
432-8 (B) is issued by a company that is authorized to
432-9 do business and to write that kind of insurance in this state and
432-10 is solvent and not currently under supervision or in
432-11 conservatorship or receivership in this state or any other state.
432-12 (e) The commission shall establish a procedure by rule for
432-13 its preparation of compliance summaries relating to the history of
432-14 compliance and noncompliance by the applicant with the rules
432-15 adopted or orders or permits issued by the commission under this
432-16 chapter for any injection well for which a permit has been issued
432-17 under this chapter. The compliance summaries shall be made
432-18 available to the applicant and any interested person after the
432-19 commission has completed its technical review of the permit
432-20 application and prior to the promulgation of the public notice
432-21 relating to the issuance of the permit. Evidence of compliance or
432-22 noncompliance by an applicant for an injection well for the
432-23 disposal of hazardous waste with the rules adopted or orders or
432-24 permits issued by the commission under this chapter may be offered
432-25 by any party at a hearing on the applicant's application and
432-26 admitted into evidence subject to applicable rules of evidence.
432-27 All evidence admitted, including compliance history, shall be
433-1 considered by the commission in determining whether to issue,
433-2 amend, extend or renew a permit.
433-3 (f) In the issuance of a permit for a hazardous waste
433-4 injection well into a salt dome, the commission shall consider the
433-5 location of any geologic fault in the salt dome in the immediate
433-6 proximity of the injection well bore, the presence of an
433-7 underground water aquifer, and the presence of sulfur mines or oil
433-8 and gas wells in the area.
433-9 (g)(1) The commission may not issue a permit for a hazardous
433-10 waste injection well in a solution-mined salt dome cavern unless
433-11 the United States Environmental Protection Agency and the
433-12 commission determine that sufficient rules are in place to regulate
433-13 that activity.
433-14 (2) Before issuing a permit for a hazardous waste
433-15 injection well in a solution-mined salt dome cavern, the commission
433-16 by order must find that there is an urgent public necessity for the
433-17 hazardous waste injection well. The commission, in determining
433-18 whether an urgent public necessity exists for the permitting of the
433-19 hazardous waste injection well in a solution-mined salt dome
433-20 cavern, must find that:
433-21 (A) the injection well will be designed,
433-22 constructed, and operated in a manner that provides at least the
433-23 same degree of safety as required of other currently operating
433-24 hazardous waste disposal technologies;
433-25 (B) consistent with the need and desire to
433-26 manage within the state hazardous wastes generated in the state,
433-27 there is a substantial or obvious public need for additional
434-1 hazardous waste disposal capacity and the hazardous waste injection
434-2 well will contribute additional capacity toward servicing that
434-3 need;
434-4 (C) the injection well will be constructed and
434-5 operated in a manner so as to safeguard public health and welfare
434-6 and protect physical property and the environment;
434-7 (D) the applicant has demonstrated that
434-8 groundwater and surface waters, including public water supplies,
434-9 will be protected from the release of hazardous waste from the
434-10 salt-dome waste containment cavern; and
434-11 (E) any other criteria required by the
434-12 commission to satisfy that the test of urgency has been met.
434-13 (Sec. 27.051, Water Code.)
434-14 Sec. 13.052. Conditions of Certain Permits. (a) If the
434-15 railroad commission receives an application for an injection well
434-16 permit for a well that is to be used for enhanced recovery of oil,
434-17 before a permit for the well may be granted, the railroad
434-18 commission shall require the applicant for the permit to provide
434-19 written information relating to the material that the applicant
434-20 plans to inject into the well for enhanced recovery purposes and to
434-21 other material available to the applicant that might be used to
434-22 inject into the well for enhanced recovery and shall make the
434-23 determination required by Subsection (c).
434-24 (b) At the time the railroad commission receives an
434-25 application under Subsection (a), it shall give notice to the
434-26 commission that an application covered by this section is being
434-27 considered and shall supply the commission with a copy of the
435-1 application and a request for commission comment on the
435-2 application. On receiving the information requested under
435-3 Subsection (a), the railroad commission shall notify the commission
435-4 that the information has been received and make the information
435-5 available for the commission's inspection. The commission shall
435-6 examine the application and information. Before the railroad
435-7 commission considers the application, the commission shall submit
435-8 to the railroad commission written comments regarding the use of
435-9 fresh water under the permit and any problems that the commission
435-10 anticipates will result from the use of fresh water under the
435-11 permit. However, if the commission does not submit its written
435-12 comments within 30 days after the request, the railroad commission
435-13 may consider the application without the commission comments.
435-14 (c) On receiving the information required by Subsection (a),
435-15 the railroad commission shall consider the information at the same
435-16 time it considers whether or not to grant the permit, and if the
435-17 applicant proposes to inject fresh water into the injection well
435-18 for enhanced recovery, the railroad commission shall consider
435-19 whether or not there is some other solid, liquid, or gaseous
435-20 substance that is available to the applicant and that is
435-21 economically and technically feasible for the applicant to use for
435-22 enhanced recovery purposes.
435-23 (d) If the railroad commission finds that there is a solid,
435-24 liquid, or gaseous substance other than fresh water available and
435-25 economically and technically feasible for use in enhanced recovery
435-26 under the permit, the railroad commission shall include as a
435-27 condition of the permit, if granted, that the permittee use the
436-1 other substance found to be available and economically and
436-2 technically feasible and that the applicant not use fresh water or
436-3 that the applicant use fresh water only to the extent specifically
436-4 stated in the permit.
436-5 (e) This section does not apply to injection well permits
436-6 that are in effect on September 1, 1983. If fresh water is being
436-7 injected into an injection well in an enhanced recovery program
436-8 that is in effect on September 1, 1983, and after that time,
436-9 another substance or material is used for injection for a period of
436-10 time, the injection well permit is not canceled, and a new permit
436-11 under this chapter is not required if the operator plans at a later
436-12 date to resume the use of fresh water for injection in that
436-13 enhanced recovery program.
436-14 (f) Injection well permits for wells that are used for
436-15 enhanced recovery remain in force until canceled by the railroad
436-16 commission.
436-17 (g) No person may continue utilizing or begin utilizing
436-18 industrial or municipal waste as an injection fluid for enhanced
436-19 recovery purposes without first obtaining a permit from the
436-20 commission. (Sec. 27.0511, Water Code.)
436-21 Sec. 13.053. Copies of Permit; Filing Requirements.
436-22 (a) The commission shall furnish the railroad commission and the
436-23 Texas Department of Health with a copy of each permit the
436-24 commission issues. The railroad commission shall furnish the
436-25 commission with a copy of each permit the railroad commission
436-26 issues and the executive director shall in turn forward copies to
436-27 the Texas Department of Health.
437-1 (b) Before beginning injection operations, a person
437-2 receiving a permit to inject industrial and municipal waste shall
437-3 file a copy of the permit with the health authorities of the
437-4 county, city, and town where the well is located. (Sec. 27.052,
437-5 Water Code.)
437-6 Sec. 13.054. Record of Strata. The commission or railroad
437-7 commission may require a person receiving a permit or authorization
437-8 by rule under this chapter to keep and furnish a complete and
437-9 accurate record of the depth, thickness, and character of the
437-10 different strata penetrated in drilling the injection well.
437-11 (Sec. 27.053, Water Code.)
437-12 Sec. 13.055. Electric or Drilling Log. If an existing well
437-13 is to be converted to an injection well, the commission or railroad
437-14 commission may require the applicant to furnish an electric log or
437-15 a drilling log of the existing well. (Sec. 27.054, Water Code.)
437-16 Sec. 13.056. Casing Requirements. The casing shall be set
437-17 at the depth, with the materials, and in the manner required by the
437-18 commission or railroad commission. (Sec. 27.055, Water Code.)
437-19 Sec. 13.057. Factors in Setting Casing Depth. Before
437-20 setting the depth to which casing shall be installed, the
437-21 commission or railroad commission shall consider:
437-22 (1) known geological and hydrological conditions and
437-23 relationships;
437-24 (2) foreseeable future economic development in the
437-25 area; and
437-26 (3) foreseeable future demand for the use of fresh
437-27 water in the locality. (Sec. 27.056, Water Code.)
438-1 Sec. 13.058. Financial Responsibility. (a) A person to
438-2 whom an injection well permit is issued may be required by the
438-3 commission or railroad commission to maintain a performance bond or
438-4 other form of financial security to ensure that an abandoned well
438-5 is properly plugged.
438-6 (b) Each state agency is authorized to receive funds as the
438-7 beneficiary of a financial responsibility mechanism established
438-8 under this section for the proper plugging of an injection well.
438-9 Each state agency is authorized to expend such funds from a
438-10 financial responsibility mechanism for the plugging of wells
438-11 covered by that mechanism.
438-12 (c) If liability insurance is required of an applicant, the
438-13 applicant may not use a claims made policy as security unless:
438-14 (1) the policy provides for a right of extension by
438-15 the insured upon cancellation or nonrenewal of the policy by the
438-16 insurance company;
438-17 (2) the applicant places in escrow as provided by the
438-18 commission an amount sufficient to enable the commission to
438-19 exercise the right under the policy to purchase an extension of the
438-20 policy from the date of cancellation or expiration of the policy
438-21 that is reasonable in light of the degree and duration of the
438-22 risks; and
438-23 (3) the applicant provides the commission with a
438-24 limited power of attorney by which the commission is given an
438-25 irrevocable power to exercise the applicant's right under the
438-26 policy to purchase such an extension of the policy.
438-27 (d) In addition to other forms of financial security
439-1 authorized by the rules of the commission, the commission may
439-2 authorize an applicant to use the letter of credit form of
439-3 financial security if either the issuing institution or another
439-4 institution which guarantees payment under the letter:
439-5 (1) is a bank chartered by the state or by the federal
439-6 government;
439-7 (2) is federally insured and its financial practices
439-8 are regulated by the state or federal government; and
439-9 (3) is solvent and is not in receivership or owned or
439-10 controlled by an entity that is insolvent or in receivership.
439-11 (Sec. 27.073, Water Code.)
439-12 (Sections 13.058-13.100 reserved for expansion)
439-13 SUBCHAPTER D. CIVIL AND CRIMINAL REMEDIES
439-14 Sec. 13.101. Civil Penalty. (a) A person who violates any
439-15 provision of this chapter, any rule of the commission or the
439-16 railroad commission made under this chapter, or any term,
439-17 condition, or provision of a permit issued under this chapter shall
439-18 be subject to a civil penalty in any sum not exceeding $5,000 for
439-19 each day of noncompliance and for each act of noncompliance.
439-20 (b) The action may be brought by the executive director or
439-21 the railroad commission in any court of competent jurisdiction in
439-22 the county where the offending activity is occurring or where the
439-23 defendant resides. (Sec. 27.101, Water Code.)
439-24 Sec. 13.102. Administrative Penalty. (a) If a person
439-25 violates the provisions of this chapter or a rule, order, license,
439-26 permit, or certificate issued under this chapter, the person may be
439-27 assessed a civil penalty by the railroad commission.
440-1 (b) The penalty may not exceed $10,000 a day for each
440-2 violation. Each day a violation continues may be considered a
440-3 separate violation for purposes of penalty assessments.
440-4 (c) In determining the amount of the penalty, the railroad
440-5 commission shall consider the permittee's history of previous
440-6 violations of this chapter, the seriousness of the violation, any
440-7 hazard to the health or safety of the public, and the demonstrated
440-8 good faith of the permittee or person charged. (Sec. 27.1011,
440-9 Water Code.)
440-10 Sec. 13.103. Penalty Assessment Procedure. (a) A civil
440-11 penalty may be assessed only after the person charged with a
440-12 violation described under Section 13.102 has been given an
440-13 opportunity for a public hearing.
440-14 (b) If a public hearing has been held, the railroad
440-15 commission shall make findings of fact, and it shall issue a
440-16 written decision as to the occurrence of the violation and the
440-17 amount of the penalty that is warranted, incorporating, when
440-18 appropriate, an order requiring that the penalty be paid.
440-19 (c) If appropriate, the railroad commission shall
440-20 consolidate the hearings with other proceedings under this chapter.
440-21 (d) If the person charged with the violation fails to avail
440-22 himself of the opportunity for a public hearing, a civil penalty
440-23 may be assessed by the railroad commission after it has determined
440-24 that a violation did occur and the amount of the penalty that is
440-25 warranted.
440-26 (e) The railroad commission shall then issue an order
440-27 requiring that the penalty be paid. (Sec. 27.1012, Water Code.)
441-1 Sec. 13.104. Payment of Penalty; Refund. (a) On the
441-2 issuance of an order finding that a violation has occurred, the
441-3 railroad commission shall inform the permittee and any other person
441-4 charged within 30 days of the amount of the penalty.
441-5 (b) Within the 30-day period immediately following the day
441-6 on which the decision or order is final as provided in Section
441-7 16(c), Administrative Procedure and Texas Register Act (Article
441-8 6252-13a, Vernon's Texas Civil Statutes), the person charged with
441-9 the penalty shall:
441-10 (1) pay the penalty in full; or
441-11 (2) if the person seeks judicial review of either the
441-12 amount of the penalty or the fact of the violation, or both:
441-13 (A) forward the amount to the railroad
441-14 commission for placement in an escrow account; or
441-15 (B) in lieu of payment into escrow, post with
441-16 the railroad commission a supersedeas bond in a form approved by
441-17 the railroad commission for the amount of the penalty, such bond to
441-18 be effective until all judicial review of the order or decision is
441-19 final.
441-20 (c) If through judicial review of the decision or order it
441-21 is determined that no violation occurred or that the amount of the
441-22 penalty should be reduced or not assessed, the railroad commission
441-23 shall, within the 30-day period immediately following that
441-24 determination, if the penalty has been paid to the railroad
441-25 commission, remit the appropriate amount to the person, with
441-26 accrued interest, or where a supersedeas bond has been posted, the
441-27 railroad commission shall execute a release of such bond.
442-1 (d) Failure to forward the money to the railroad commission
442-2 within the time provided by Subsection (b) results in a waiver of
442-3 all legal rights to contest the violation or the amount of the
442-4 penalty.
442-5 (e) Judicial review of the order or decision of the railroad
442-6 commission assessing the penalty shall be under the substantial
442-7 evidence rule and shall be instituted by filing a petition with the
442-8 district court of Travis County, Texas, and not elsewhere, as
442-9 provided for in Section 19, Administrative Procedure and Texas
442-10 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
442-11 (Sec. 27.1013, Water Code.)
442-12 Sec. 13.105. Recovery of Penalty. Civil penalties owed
442-13 under Sections 13.102-13.104 of this code may be recovered in a
442-14 civil action brought by the attorney general at the request of the
442-15 railroad commission. (Sec. 27.1014, Water Code.)
442-16 Sec. 13.106. Administrative Penalty. (a) If a person
442-17 violates the provisions of this chapter under the jurisdiction of
442-18 the commission, a rule adopted by the commission, or an order
442-19 adopted or permit issued by the commission under this chapter, the
442-20 commission may assess a civil penalty against that person as
442-21 provided by this section.
442-22 (b) The penalty may be in an amount not to exceed $10,000 a
442-23 day for a person who violates this chapter or a rule, order, or
442-24 permit. Each day a violation continues may be considered a
442-25 separate violation for purposes of penalty assessment.
442-26 (c) In determining the amount of the penalty, the commission
442-27 shall consider:
443-1 (1) the nature, circumstances, extent, duration, and
443-2 gravity of the prohibited acts with special emphasis on the hazard
443-3 or potential hazard created to the health or safety of the public;
443-4 (2) the impact of the violation on a receiving stream
443-5 or underground water reservoir, on the property owners along a
443-6 receiving stream or underground water reservoir, and on water users
443-7 of a receiving stream or underground water reservoir;
443-8 (3) with respect to the alleged violator:
443-9 (A) the history and extent of previous
443-10 violations;
443-11 (B) the degree of culpability, including whether
443-12 the violation was attributable to mechanical or electrical failures
443-13 and whether the violation could have been reasonably anticipated
443-14 and avoided;
443-15 (C) the demonstrated good faith, including
443-16 actions taken by the alleged violator to rectify the cause of the
443-17 violation;
443-18 (D) any economic benefit gained through the
443-19 violation; and
443-20 (E) the amount necessary to deter future
443-21 violations; and
443-22 (4) any other matters that justice may require.
443-23 (d) If, after examination of a possible violation and the
443-24 facts surrounding that possible violation, the executive director
443-25 concludes that a violation has occurred, the executive director may
443-26 issue a preliminary report stating the facts on which he based that
443-27 conclusion, recommending that a civil penalty under this section be
444-1 imposed on the person charged, and recommending the amount of that
444-2 proposed penalty. The executive director shall base the
444-3 recommended amount of the proposed penalty on the factors provided
444-4 by Subsection (c), and the executive director shall analyze each
444-5 factor for the benefit of the commission.
444-6 (e) Not later than the 10th day after the date on which the
444-7 report is issued, the executive director shall give written notice
444-8 of the report to the person charged with the violation. The notice
444-9 shall include a brief summary of the charges, a statement of the
444-10 amount of the penalty recommended, and a statement of the right of
444-11 the person charged to a hearing on the occurrence of the violation
444-12 or the amount of the penalty or both the occurrence of the
444-13 violation and the amount of the penalty.
444-14 (f) Not later than the 20th day after the date on which
444-15 notice is received, the person charged either may give to the
444-16 commission written consent to the executive director's report,
444-17 including the recommended penalty, or may make a written request
444-18 for a hearing.
444-19 (g) If the person charged with the violation consents to the
444-20 penalty recommended by the executive director or fails to timely
444-21 respond to the notice, the commission by order shall either assess
444-22 that penalty or order a hearing to be held on the findings and
444-23 recommendations in the executive director's report. If the
444-24 commission assesses the penalty recommended by the report, the
444-25 commission shall give written notice to the person charged of its
444-26 decision.
444-27 (h) If the person charged requests, or the commission
445-1 orders, a hearing, the commission shall call a hearing and give
445-2 notice of the hearing. As a result of the hearing, the commission
445-3 by order either may find that a violation has occurred and may
445-4 assess a civil penalty, may find that a violation has occurred but
445-5 that no penalty should be assessed, or may find that no violation
445-6 has occurred. All proceedings under this subsection are subject to
445-7 the Administrative Procedure and Texas Register Act (Article
445-8 6252-13a, Vernon's Texas Civil Statutes). In making any penalty
445-9 decision, the commission shall analyze each of the factors provided
445-10 by Subsection (c).
445-11 (i) The commission shall give notice of its decision to the
445-12 person charged, and if the commission finds that a violation has
445-13 occurred and has assessed a civil penalty, the commission shall
445-14 give written notice to the person charged of its findings, of the
445-15 amount of the penalty, and of his right to judicial review of the
445-16 commission's order. If the commission is required to give notice
445-17 of a civil penalty under this subsection or Subsection (g), the
445-18 commission shall file notice of its decision in the Texas Register
445-19 not later than the 10th day after the date on which the decision is
445-20 adopted.
445-21 (j) Within the 30-day period immediately following the day
445-22 on which the commission's order is final, as provided by Section
445-23 16(c), Administrative Procedure and Texas Register Act (Article
445-24 6252-13a, Vernon's Texas Civil Statutes), the person charged with
445-25 the penalty shall:
445-26 (1) pay the penalty in full; or
445-27 (2) if the person seeks judicial review of either the
446-1 fact of the violation or the amount of the penalty or of both the
446-2 fact of the violation and the amount of the penalty:
446-3 (A) forward the amount of the penalty to the
446-4 commission for placement in an escrow account; or
446-5 (B) instead of payment into an escrow account,
446-6 post with the commission a supersedeas bond in a form approved by
446-7 the commission for the amount of the penalty to be effective until
446-8 all judicial review of the order or decision is final.
446-9 (k) Failure to forward the money to or to post the bond with
446-10 the commission within the time provided by Subsection (j) results
446-11 in a waiver of all legal rights to judicial review. Also, if the
446-12 person charged fails to forward the money or post the bond as
446-13 provided by Subsection (j), the commission or the executive
446-14 director may forward the matter to the attorney general for
446-15 enforcement.
446-16 (l) Judicial review of the order or decision of the
446-17 commission assessing the penalty shall be under the substantial
446-18 evidence rule and shall be instituted by filing a petition with a
446-19 district court in Travis County, as provided by Section 19,
446-20 Administrative Procedure and Texas Register Act (Article 6252-13a,
446-21 Vernon's Texas Civil Statutes).
446-22 (m) A penalty collected under this section shall be
446-23 deposited in the state treasury to the credit of the general
446-24 revenue fund.
446-25 (n) Notwithstanding any other provision to the contrary, the
446-26 commission may compromise, modify, or remit, with or without
446-27 condition, any civil penalty imposed under this section.
447-1 (o) Payment of an administrative penalty under this section
447-2 shall be full and complete satisfaction of the violation for which
447-3 the administrative penalty is assessed and shall preclude any other
447-4 civil or criminal penalty for the same violation. (Sec. 27.1015,
447-5 Water Code.)
447-6 Sec. 13.107. Injunction, Etc. The executive director or the
447-7 railroad commission may enforce this chapter, any valid rule made
447-8 under this chapter, or any term, condition, or provision of a
447-9 permit issued by the commission or railroad commission under this
447-10 chapter by injunction or other appropriate remedy. The suit shall
447-11 be brought in a court of competent jurisdiction in the county where
447-12 the offending activity is occurring. (Sec. 27.102, Water Code.)
447-13 Sec. 13.108. Procedure. (a) At the request of the
447-14 executive director or the railroad commission, the attorney general
447-15 shall institute and conduct a suit in the name of the State of
447-16 Texas for injunctive relief or to recover the civil penalty, or for
447-17 both the injunctive relief and civil penalty, authorized in
447-18 Sections 13.101 and 13.107.
447-19 (b) Any party to a suit may appeal from a final judgment as
447-20 in other civil cases. (Sec. 27.103, Water Code.)
447-21 Sec. 13.109. Effect of Permit on Civil Liability. The fact
447-22 that a person has a permit issued under this chapter does not
447-23 relieve him from any civil liability. (Sec. 27.104, Water Code.)
447-24 Sec. 13.110. Criminal Fines. (a) A person who knowingly or
447-25 intentionally violates this chapter, a rule of the commission or
447-26 railroad commission, or a term, condition, or provision of a permit
447-27 issued under this chapter is subject to a fine of not more than
448-1 $5,000 for each violation and for each day of violation.
448-2 (b) Venue for prosecution of an alleged violation is in the
448-3 county in which the violation is alleged to have occurred or where
448-4 the defendant resides. (Sec. 27.105, Water Code.)
448-5 CHAPTER 14. WATER WELLS AND DRILLED OR MINED SHAFTS
448-6 SUBCHAPTER A. GENERAL PROVISIONS
448-7 Sec. 14.001. Groundwater Quality. The executive director
448-8 shall have investigated all matters concerning the quality of
448-9 groundwater in the state. (Sec. 26.128, Water Code.)
448-10 Sec. 14.002. Definitions. In this chapter:
448-11 (1) "Shaft" means any vertically oriented excavation,
448-12 whether constructed by drilling or mining techniques, where the
448-13 depth of the excavation is greater than its diameter, the
448-14 excavation penetrates into or through the base of the uppermost
448-15 water-bearing strata, and the primary purpose of the excavation is
448-16 the transport of workers and materials to and from a destination,
448-17 at depth, for purposes of geological studies, access to existing
448-18 and planned subsurface mine workings, or for ventilation of those
448-19 workings.
448-20 (2) "Water" or "water in the state" means groundwater,
448-21 percolating or otherwise, lakes, bays, ponds, impounding
448-22 reservoirs, springs, rivers, streams, creeks, estuaries, marshes,
448-23 inlets, canals, the Gulf of Mexico inside the territorial limits of
448-24 the state, and all other bodies of natural and artificial surface
448-25 water that is inland or coastal, fresh or salt, and navigable or
448-26 nonnavigable, and includes the beds and banks of all watercourses
448-27 and bodies of surface water, that are wholly or partially inside or
449-1 bordering the state or inside the jurisdiction of the state.
449-2 (3) "Surface facilities" means the on-site
449-3 above-ground appurtenances, structures, equipment, and other
449-4 fixtures that are or will be used for storage or processing or in
449-5 conjunction with the shaft operation. (Sec. 28.001, Water Code.)
449-6 (Sections 14.003-14.010 reserved for expansion)
449-7 SUBCHAPTER B. WATER WELLS
449-8 Sec. 14.011. Underground Water: Regulations. The
449-9 commission shall make and enforce rules and regulations for
449-10 conserving, protecting, preserving, and distributing underground,
449-11 subterranean, and percolating water located in this state and shall
449-12 do all other things necessary for these purposes. (Sec. 28.011,
449-13 Water Code.)
449-14 Sec. 14.012. Certain Wells to be Plugged or Cased. The
449-15 owner of a water well which encounters salt water or water
449-16 containing mineral or other substances injurious to vegetation or
449-17 agriculture shall securely plug or case the well in a manner that
449-18 will effectively prevent the water from escaping from the stratum
449-19 in which it is found into another water-bearing stratum or onto the
449-20 surface of the ground. (Sec. 28.012, Water Code.)
449-21 Sec. 14.013. Penalty. If the owner of a well that is
449-22 required to be cased or plugged by this chapter fails or refuses to
449-23 case or plug the well within the 30-day period following the date
449-24 of the commission's order to do so or if a person fails to comply
449-25 with any other order issued by the commission under this chapter
449-26 within the 30-day period following the date of the order, he is
449-27 guilty of a misdemeanor and upon conviction is punishable by a fine
450-1 of not less than $10 nor more than $500. He commits a separate
450-2 offense each day the failure or refusal continues after the 30-day
450-3 period. (Sec. 28.013, Water Code.)
450-4 (Sections 14.014-14.020 reserved for expansion)
450-5 SUBCHAPTER C. DRILLED OR MINED SHAFTS
450-6 Sec. 14.021. Financial Responsibility. (a) The commission
450-7 may require in a shaft permit that the permittee reimburse the
450-8 commission for reasonable costs of monitoring and on-site,
450-9 full-time surveillance to determine compliance with a rule, permit,
450-10 or other order of the commission.
450-11 (b) A person to whom a shaft permit is issued may be
450-12 required by the commission to maintain a performance bond or other
450-13 form of financial security to ensure payment of costs that may
450-14 become due in accord with Subsection (a) or to ensure that an
450-15 abandoned shaft is safely and properly sealed and plugged.
450-16 (Sec. 28.053, Water Code.)
450-17 Sec. 14.022. Permit From Commission. No person desiring to
450-18 drill, excavate, or otherwise construct a shaft as defined in this
450-19 chapter may commence construction without first obtaining a permit
450-20 for such work from the commission. (Sec. 28.021, Water Code.)
450-21 Sec. 14.023. Application for Permit. The commission shall
450-22 prescribe forms for application for a permit and shall make the
450-23 forms available on request without charge. (Sec. 28.022, Water
450-24 Code.)
450-25 Sec. 14.024. Information Required of Applicant. An
450-26 applicant shall furnish any information the commission considers
450-27 necessary to discharge its duties under this chapter and the rules
451-1 of the commission. (Sec. 28.023, Water Code.)
451-2 Sec. 14.025. Application Fee. With each application for a
451-3 shaft permit, the commission shall collect a fee as set by the
451-4 executive director to reasonably offset the costs to the commission
451-5 for processing the application. The fee may not be less than
451-6 $10,000. (Sec. 28.024, Water Code.)
451-7 Sec. 14.026. Letter From Railroad Commission. A person
451-8 making application to the commission for a shaft permit shall
451-9 submit with the application a letter from the railroad commission
451-10 stating that such shaft construction will not endanger or injure
451-11 any oil or gas formation or significantly limit the potential for
451-12 future recovery of or exploration for oil or gas. (Sec. 28.025,
451-13 Water Code.)
451-14 Sec. 14.027. Inspection of Shaft Location. On receiving an
451-15 application for a permit, the executive director shall have an
451-16 inspection made of the location of the proposed shaft to determine
451-17 the local conditions and probable effect of the shaft on water in
451-18 the state and shall determine the requirements for setting of
451-19 casing, liners, and seals as provided in Sections 14.031, 14.037,
451-20 and 14.038. (Sec. 28.026, Water Code.)
451-21 Sec. 14.028. Recommendations From Other Agencies. The
451-22 executive director shall submit to such state agencies and other
451-23 persons that the commission may designate copies of every
451-24 application received in proper form. These agencies, persons, and
451-25 divisions may make recommendations to the commission concerning any
451-26 aspect of the application and shall have reasonable time to do so
451-27 as the commission may prescribe. (Sec. 28.027, Water Code.)
452-1 Sec. 14.029. Hearing on Permit Application. (a) The
452-2 commission shall hold an adjudicatory hearing on the application.
452-3 (b) The commission by rule shall provide for giving notice
452-4 of a public hearing on a permit application. The rules for notice
452-5 shall include provisions for giving notice to local governments and
452-6 interested persons.
452-7 (c) The hearing required in Subsection (a) shall be
452-8 conducted in accordance with rules for contested cases under the
452-9 Administrative Procedure and Texas Register Act, as amended
452-10 (Article 6252-13a, Vernon's Texas Civil Statutes). Any person,
452-11 corporation, partnership, association, local government, government
452-12 agency, or other entity shall be allowed to participate in a
452-13 hearing as a party under this section upon a showing of sufficient
452-14 interest or of an ability to contribute to the resolution of
452-15 relevant issues. (Sec. 28.028, Water Code.)
452-16 Sec. 14.030. Delegation of Hearing Powers. (a) The
452-17 commission may authorize the chief hearing examiner to call and
452-18 hold hearings on any subject on which the commission may hold a
452-19 hearing.
452-20 (b) The commission may also authorize the chief hearing
452-21 examiner to delegate to one or more hearing examiners the authority
452-22 to hold any hearing called by him.
452-23 (c) At any hearing called by the chief hearing examiner, he
452-24 or the person delegated the authority by him to hold the hearing is
452-25 empowered to administer oaths and receive evidence.
452-26 (d) The individual or individuals holding a hearing under
452-27 the authority of this section shall report the hearing in the
453-1 manner prescribed by the commission. (Sec. 28.029, Water Code.)
453-2 Sec. 14.031. Rules, Etc. (a) The commission shall adopt
453-3 rules reasonably required for the performance of the powers,
453-4 duties, and functions of the commission under this chapter.
453-5 (b) No shaft permit shall be issued by the commission
453-6 pursuant to this chapter nor shall a permit hearing be held on a
453-7 shaft application until the commission has adopted rules for the
453-8 issuance of such shaft permit.
453-9 (c) The commission may refuse to accept a shaft permit
453-10 application or hold a shaft permit application hearing if the
453-11 planned siting of the shaft is the subject of litigation.
453-12 (Sec. 28.030, Water Code.)
453-13 Sec. 14.032. Issuance of Permit. (a) The commission may
453-14 grant an application in whole or part and may issue the shaft
453-15 permit if it finds:
453-16 (1) that the use or installation of the shaft is in
453-17 the public interest and that after consideration of all siting
453-18 alternatives there is a public need for construction of the shaft
453-19 at the location for which the application is made;
453-20 (2) that no existing rights, including but not limited
453-21 to mineral rights and water rights, will be impaired;
453-22 (3) that, with proper safeguards, both ground and
453-23 surface water can be adequately protected from pollution; and
453-24 (4) that the applicant has made a satisfactory showing
453-25 of financial responsibility if required by Section 14.021(b).
453-26 (b) In the permit the commission shall impose terms and
453-27 conditions reasonably necessary to protect all water from
454-1 pollution, including the necessary casing, liners, seals and
454-2 surface facilities.
454-3 (c) In the permit the commission shall impose terms and
454-4 conditions for final closure of surface facilities and plugging and
454-5 sealing of the shaft reasonably necessary to protect all water
454-6 penetrated from pollution. (Sec. 28.031, Water Code.)
454-7 Sec. 14.033. Copies of Permit; Filing Requirements.
454-8 (a) The commission shall furnish the railroad commission with a
454-9 copy of each shaft permit the commission issues.
454-10 (b) Before beginning shaft construction, a person receiving
454-11 a shaft permit shall file a copy of the permit with the
454-12 commissioners court of the county in which the shaft is to be
454-13 located. (Sec. 28.032, Water Code.)
454-14 Sec. 14.034. Record of Strata. (a) The commission shall
454-15 require a person applying for a shaft permit to drill or have
454-16 drilled a test hole on center or offset to the shaft and provide
454-17 the following to the commission and the railroad commission in the
454-18 application:
454-19 (1) a description of the lithology into or through the
454-20 lower confining strata;
454-21 (2) results of rock testing;
454-22 (3) geophysical logs; and
454-23 (4) other information that may be required by the
454-24 commission.
454-25 (b) The commission shall require a person receiving a shaft
454-26 permit to keep and furnish to the commission and the railroad
454-27 commission a complete and accurate record of the depth, thickness,
455-1 and character of the different strata or rock units penetrated in
455-2 constructing the shaft. (Sec. 28.033, Water Code.)
455-3 Sec. 14.035. Geophysical and Drilling Log. If the shaft is
455-4 to be constructed over, around, or within 2,000 feet of an existing
455-5 drilled borehole or boreholes, the commission shall require the
455-6 applicant for a shaft permit to furnish such geophysical logs as
455-7 may be required by the commission, including electric logs, and the
455-8 drilling log and well completion record of all existing boreholes
455-9 to the commission, along with a complete and accurate core data
455-10 record of the depth, thickness, and character of the different
455-11 strata or rock units penetrated as a part of the shaft application.
455-12 (Sec. 28.034, Water Code.)
455-13 Sec. 14.036. Seismic Reflection Survey. The commission
455-14 shall require as a part of any shaft application a seismic
455-15 reflection survey and velocity control data conforming, at minimum,
455-16 to specifications established by the commission in the rules
455-17 provided for in Section 14.031(a). (Sec. 28.035, Water Code.)
455-18 Sec. 14.037. Casing, Liner, and Seal Requirements. (a) The
455-19 casing and each liner and seal shall be set at the depth, with the
455-20 materials, and in the manner required by the commission.
455-21 (b) The permittee shall provide records as required by the
455-22 executive director to indicate compliance with Subsection (a).
455-23 (Sec. 28.036, Water Code.)
455-24 Sec. 14.038. Factors in Setting Casing, Liner, and Seal
455-25 Requirements. Before setting the casing, liner, and seal
455-26 requirements, the commission shall consider:
455-27 (1) known geological and hydrological conditions and
456-1 relationships;
456-2 (2) foreseeable future economic development in the
456-3 area; and
456-4 (3) foreseeable future demand for the use of fresh
456-5 water in the locality. (Sec. 28.037, Water Code.)
456-6 Sec. 14.039. Environmental Report. If an environmental
456-7 report, environmental assessment, or environmental impact statement
456-8 of any kind that includes an analysis of the environmental impacts
456-9 of the shaft construction or operation is required by any federal
456-10 or state agency before approval to construct the shaft, the
456-11 environmental document, along with evidence of the needed approvals
456-12 that have been granted, must be submitted to the commission as part
456-13 of the shaft permit application, and the commission shall make the
456-14 environmental document available for public review and comment for
456-15 a period of not less than 30 days before the application for the
456-16 shaft permit is considered. (Sec. 28.038, Water Code.)
456-17 (Sections 14.040-14.050 reserved for expansion)
456-18 SUBCHAPTER D. ARTESIAN WELLS
456-19 Sec. 14.051. Artesian Well Defined. An artesian well is an
456-20 artificial water well in which the water, when properly cased, will
456-21 rise by natural pressure above the first impervious stratum below
456-22 the surface of the ground. (Sec. 11.201, Water Code.)
456-23 Sec. 14.052. Right to Drill Artesian Well. (a) Except as
456-24 provided by this section, a person is entitled to drill an artesian
456-25 well for domestic purposes or for stock raising without complying
456-26 with the general provisions of this code regulating the use of
456-27 water.
457-1 (b) The artesian well must be on that person's own land and
457-2 must be properly and securely cased.
457-3 (c) When water is reached containing mineral or other
457-4 substances injurious to vegetation or agriculture, the artesian
457-5 well must be securely capped or its flow controlled so as not to
457-6 injure another person's land or properly plugged so as to prevent
457-7 the water from rising above the first impervious stratum below the
457-8 surface of the ground.
457-9 (d) Except as provided by Subsection (e), after September 1,
457-10 1991, and before January 1, 1994, a person may not drill and
457-11 operate a free-flowing artesian well in a sole or principal source
457-12 aquifer as designated by 40 C.F.R., Part 149, pursuant to Section
457-13 1424(e), Safe Drinking Water Act (42 U.S.C. 300h-3(e)) that will
457-14 result in a flow of more than 5,000 gallons per minute or that is
457-15 within 1,000 feet of another well if the combined flows would
457-16 exceed 5,000 gallons per minute.
457-17 (e) The commission may grant for a well an exemption from
457-18 the prohibition provided by Subsection (d) for any beneficial use
457-19 that does not waste water. The commission by rule may delegate the
457-20 authority to grant exemptions under this subsection to a local
457-21 water district. (Sec. 11.202, Water Code.)
457-22 Sec. 14.053. Artesian Well: Drilling Record. (a) A person
457-23 who drills an artesian well or has one drilled shall keep a
457-24 complete and accurate record of the depth, thickness, and character
457-25 of the different strata penetrated and when the well is completed
457-26 shall transmit a copy of the record to the commission by registered
457-27 mail.
458-1 (b) A person who violates any provision of this section is
458-2 guilty of a misdemeanor and on conviction is punishable by a fine
458-3 of not less than $10 nor more than $100. (Sec. 11.203, Water
458-4 Code.)
458-5 Sec. 14.054. Report of New Artesian Well. Within one year
458-6 after an artesian well is drilled, the owner or operator shall
458-7 transmit to the commission a sworn report stating the result of the
458-8 drilling operation, the use to which the water will be applied, and
458-9 the contemplated extent of the use. (Sec. 11.204, Water Code.)
458-10 Sec. 14.055. Wasting Water From Artesian Well. (a) Unless
458-11 the water from an artesian well is used for a purpose and in a
458-12 manner in which it may be lawfully used on the owner's land, it is
458-13 waste to wilfully cause or knowingly permit the water to run off
458-14 the owner's land or to percolate through the stratum above which
458-15 the water is found.
458-16 (b) A person who commits waste as defined in this section is
458-17 guilty of a misdemeanor and on conviction is punishable by a fine
458-18 of not more than $500 or by confinement in the county jail for not
458-19 more than 90 days or by both. (Sec. 11.205, Water Code.)
458-20 Sec. 14.056. Improperly Cased Well: Nuisance. An artesian
458-21 well that is not tightly cased, capped, and furnished with
458-22 mechanical appliances that readily and effectively prevent water
458-23 from flowing out of the well and running over the surface of the
458-24 ground above the well or wasting through the strata through which
458-25 it passes is a public nuisance and subject to abatement by the
458-26 executive director. (Sec. 11.206, Water Code.)
458-27 Sec. 14.057. Annual Report. (a) Not later than March 1 of
459-1 each year, a person who during any part of the preceding calendar
459-2 year owned or operated an artesian well for any purpose other than
459-3 domestic use shall file a report to the commission on a form
459-4 supplied by the commission.
459-5 (b) The report shall state:
459-6 (1) the quantity of water which was obtained from the
459-7 well;
459-8 (2) the nature of the uses to which the water was
459-9 applied;
459-10 (3) the change in the level of the well's water table;
459-11 and
459-12 (4) other information required by the commission.
459-13 (c) If water from the well was used for irrigation, the
459-14 report shall also state the acreage and yield of each crop
459-15 irrigated. (Sec. 11.207, Water Code.)
459-16 Sec. 14.058. PROVISIONS NOT APPLICABLE TO THIS SUBCHAPTER.
459-17 The following do not apply to this subchapter:
459-18 (1) Section 14.013;
459-19 (2) Section 14.024;
459-20 (3) Section 14.031(a); and
459-21 (4) Subchapter E.
459-22 (Sections 14.059-14.060 reserved for expansion)
459-23 SUBCHAPTER E. ENFORCEMENT
459-24 Sec. 14.061. Civil Penalty. (a) A person who violates any
459-25 provision of this chapter, any rule of the commission made under
459-26 this chapter, or any term, condition, or provision of a permit
459-27 issued under this chapter shall be subject to a civil penalty in a
460-1 sum not exceeding $10,000 for each day of noncompliance and for
460-2 each act of noncompliance.
460-3 (b) The action may be brought either in the county in which
460-4 the defendant resides or in the county in which the violation or
460-5 threat of violation occurs. (Sec. 28.061, Water Code.)
460-6 Sec. 14.062. Injunction, Etc. (a) The executive director
460-7 may enforce this chapter, any valid rule made under this chapter,
460-8 or any term, condition, or provision of a permit issued by the
460-9 commission under this chapter by injunction or other appropriate
460-10 remedy. The suit shall be brought either in the county in which
460-11 the defendant resides or in the county in which the violation or
460-12 threat of violation occurs.
460-13 (b) In any suit brought to enjoin a violation or threat of
460-14 violation of this chapter or any rule, permit, or order of the
460-15 commission, the court may grant the commission, without bond or
460-16 other undertaking, any prohibitory or mandatory injunction the
460-17 facts may warrant, including temporary restraining orders, after
460-18 notice and hearing, temporary injunctions, and permanent
460-19 injunctions. (Sec. 28.062, Water Code.)
460-20 Sec. 14.063. Procedure. (a) At the request of the
460-21 executive director, the attorney general shall institute and
460-22 conduct a suit in the name of the State of Texas for injunctive
460-23 relief or to recover the civil penalty or for both the injunctive
460-24 relief and civil penalty authorized in Sections 14.061 and 14.062.
460-25 (b) Any party to a suit may appeal from a final judgment as
460-26 in other civil cases. (Sec. 28.063, Water Code.)
460-27 Sec. 14.064. Effect of Permit on Civil Liability. The fact
461-1 that a person has a permit issued under this chapter does not
461-2 relieve him from any civil liability. (Sec. 28.064, Water Code.)
461-3 Sec. 14.065. Criminal Penalties. (a) A person who
461-4 knowingly or intentionally violates this chapter, a rule of the
461-5 commission, or a term, condition, or provision of a permit issued
461-6 under this chapter is subject to a fine of not more than $10,000
461-7 for each violation and for each day of violation.
461-8 (b) Venue for prosecution of an alleged violation is in
461-9 either the county in which the defendant resides or in which the
461-10 violation occurs. (Sec. 28.065, Water Code.)
461-11 Sec. 14.066. Enforcement by Local Governments and Others.
461-12 (a) If a local government is denied access to property or records
461-13 as provided in this Act, the local government may bring suit in a
461-14 district court in the county in which the violation occurs for an
461-15 appropriate order to obtain access to the property or records or to
461-16 recover civil penalties or for both an order and the penalties
461-17 provided by Subsection (b). Civil penalties recovered in a suit
461-18 under this subsection shall be paid to the local government.
461-19 (b) A permittee who denies access to property or records to
461-20 a local government as provided by this Act is liable to a civil
461-21 penalty of not less than $100 and not more than $1,000 for each
461-22 violation.
461-23 (c) A local government or any person may file a written
461-24 complaint with the commission and request an investigation of an
461-25 alleged violation by a permittee under this Act. The commission
461-26 shall reply to the complaint in writing within 30 days after
461-27 receipt of the complaint and shall provide a copy of any
462-1 investigation reports relevant to the complaint together with a
462-2 determination of whether or not the alleged violation was
462-3 committed.
462-4 (d) If the commission does not have a suit brought in court
462-5 under this Act within 60 days after the written complaint is filed
462-6 under Subsection (c), the local government or person may bring suit
462-7 in the appropriate court in the county in which the alleged
462-8 violation occurred or is about to occur in the manner provided for
462-9 suits by the commission under Sections 14.061 and 14.062.
462-10 Penalties collected in a suit under this subsection shall be paid
462-11 to the state. In a suit brought by a local government or person
462-12 under this subsection, the court shall include in any final
462-13 judgment in favor of the local government or person an award to
462-14 cover reasonable court costs and attorney's fees. (Sec. 28.066,
462-15 Water Code.)
462-16 Sec. 14.067. Administrative Penalty. (a) If a person
462-17 violates this chapter or a rule or order adopted or a permit issued
462-18 under this chapter, the commission may assess a civil penalty
462-19 against that person as provided by this section.
462-20 (b) The penalty may be in an amount not to exceed $10,000 a
462-21 day for a person who knowingly violates this chapter or a rule,
462-22 order, or permit. For all other violations, the penalty may be in
462-23 an amount not to exceed $5,000 a day. Each day a violation
462-24 continues may be considered a separate violation for purposes of
462-25 penalty assessment.
462-26 (c) In determining the amount of the penalty, the commission
462-27 shall consider:
463-1 (1) the nature, circumstances, extent, duration, and
463-2 gravity of the prohibited acts with special emphasis on the hazard
463-3 created to the health or safety of the public;
463-4 (2) the impact of the violation on a receiving stream
463-5 or underground water reservoir, on the property owners along a
463-6 receiving stream or underground water reservoir, and on water users
463-7 of a receiving stream or underground water reservoir;
463-8 (3) with respect to the alleged violator:
463-9 (A) the history and extent of previous
463-10 violations;
463-11 (B) the degree of culpability, including whether
463-12 the violation was attributable to mechanical or electrical failures
463-13 and whether the violation could have been reasonably anticipated
463-14 and avoided;
463-15 (C) the demonstrated good faith, including
463-16 actions taken by the violator to rectify the cause of the
463-17 violation;
463-18 (D) any economic benefit gained through the
463-19 violation; and
463-20 (E) the amount necessary to deter future
463-21 violations; and
463-22 (4) any other matters that justice may require.
463-23 (d) If, after examination of a possible violation and the
463-24 facts surrounding that possible violation, the executive director
463-25 concludes that a violation has occurred, the executive director may
463-26 issue a preliminary report stating the facts on which he based that
463-27 conclusion, recommending that a civil penalty under this section be
464-1 imposed on the person charged, and recommending the amount of that
464-2 proposed penalty. The executive director shall base the
464-3 recommended amount of the proposed penalty on the factors set forth
464-4 in Subsection (c), and the executive director shall analyze each
464-5 factor for the benefit of the commission.
464-6 (e) Not later than the 10th day after the date on which the
464-7 report is issued, the executive director shall give written notice
464-8 of the report to the person charged with the violation. The notice
464-9 shall include a brief summary of the charges, a statement of the
464-10 amount of the penalty recommended, and a statement of the right of
464-11 the person charged to a hearing on the occurrence of the violation,
464-12 or the amount of the penalty, or both the occurrence of the
464-13 violation and the amount of the penalty.
464-14 (f) Not later than the 20th day after the date on which
464-15 notice is received, the person charged either may give to the
464-16 commission written consent to the executive director's report,
464-17 including the recommended penalty, or may make a written request
464-18 for a hearing.
464-19 (g) If the person charged with the violation consents to the
464-20 penalty recommended by the executive director or fails to timely
464-21 respond to the notice, the commission by order shall either assess
464-22 that penalty or order a hearing to be held on the findings and
464-23 recommendations in the executive director's report. If the
464-24 commission assesses the penalty recommended by the report, the
464-25 commission shall give written notice to the person charged of its
464-26 decision.
464-27 (h) If the person charged requests, or the commission
465-1 orders, a hearing, the commission shall call a hearing and give
465-2 notice of the hearing. As a result of the hearing, the commission
465-3 by order either may find that no violation has occurred, that a
465-4 violation has occurred but no penalty should be assessed, or that a
465-5 violation has occurred and a penalty should be assessed. All
465-6 proceedings under this subsection are subject to the Administrative
465-7 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
465-8 Civil Statutes). In making any penalty decision, the commission
465-9 shall analyze each of the factors set forth in Subsection (c).
465-10 (i) The commission shall give notice of its decision to the
465-11 person charged, and if the commission finds that a violation has
465-12 occurred and has assessed a civil penalty, the commission shall
465-13 give written notice to the person charged of its findings, of the
465-14 amount of the penalty, and of his right to judicial review of the
465-15 commission's order. If the commission is required to give notice
465-16 of a civil penalty under this subsection or Subsection (g), the
465-17 commission shall file notice of its decision in the Texas Register
465-18 not later than the 10th day after the date on which the decision is
465-19 adopted.
465-20 (j) Within the 30-day period immediately following the day
465-21 on which the commission's order is final, as provided by Section
465-22 16(c), Administrative Procedure and Texas Register Act (Article
465-23 6252-13a, Vernon's Texas Civil Statutes), the person charged with
465-24 the penalty shall:
465-25 (1) pay the penalty in full; or
465-26 (2) if the person seeks judicial review of either the
465-27 fact of the violation or the amount of the penalty or of both the
466-1 fact of the violation and the amount of the penalty:
466-2 (A) forward the amount of the penalty to the
466-3 commission for placement in an escrow account; or
466-4 (B) instead of payment into an escrow account,
466-5 post with the commission a supersedeas bond in a form approved by
466-6 the commission for the amount of the penalty to be effective until
466-7 all judicial review of the order or decision is final.
466-8 (k) Failure to forward the money to or to post the bond with
466-9 the commission within the time provided by Subsection (j) results
466-10 in a waiver of all legal rights to judicial review. Also, if the
466-11 person charged fails to forward the money or post the bond as
466-12 provided by Subsection (j), the commission or the executive
466-13 director may forward the matter to the attorney general for
466-14 enforcement.
466-15 (l) Judicial review of the order or decision of the
466-16 commission assessing the penalty shall be under the substantial
466-17 evidence rule and shall be instituted by filing a petition with a
466-18 district court in Travis County, as provided by Section 19,
466-19 Administrative Procedure and Texas Register Act (Article 6252-13a,
466-20 Vernon's Texas Civil Statutes).
466-21 (m) A penalty collected under this section shall be
466-22 deposited in the state treasury to the credit of the general
466-23 revenue fund.
466-24 (n) Notwithstanding anything to the contrary, the commission
466-25 may compromise, modify, or remit, with or without condition, any
466-26 civil penalty imposed under this section.
466-27 (o) Payment of an administrative penalty under this section
467-1 shall be full and complete satisfaction of the violations for which
467-2 the administrative penalty is assessed and shall preclude any other
467-3 civil or criminal penalty for the same violation. (Sec. 28.067,
467-4 Water Code.)
467-5 CHAPTER 15. ON-SITE SEWAGE DISPOSAL SYSTEMS
467-6 SUBCHAPTER A. GENERAL PROVISIONS
467-7 Sec. 15.001. Policy and Purpose. It is the public policy of
467-8 this state and the purpose of this chapter to:
467-9 (1) eliminate and prevent health hazards by regulating
467-10 and properly planning the location, design, construction,
467-11 installation, operation, and maintenance of on-site sewage disposal
467-12 systems;
467-13 (2) authorize the commission or authorized agent to
467-14 impose and collect a permit fee for:
467-15 (A) construction, installation, alteration,
467-16 repair, or extension of on-site sewage disposal systems; and
467-17 (B) tests, designs, and inspections of those
467-18 systems;
467-19 (3) authorize the commission or authorized agent to
467-20 impose a penalty for a violation of this chapter or a rule adopted
467-21 under this chapter;
467-22 (4) require an on-site sewage disposal system
467-23 installer to register with the commission; and
467-24 (5) allow the individual owner of a disposal system to
467-25 install and repair the system in accordance with this chapter.
467-26 (Sec. 366.001, Health and Safety Code.)
467-27 Sec. 15.002. Definitions. In this chapter:
468-1 (1) "Authorized agent" means a political subdivision
468-2 authorized by the commission to implement and enforce rules under
468-3 this chapter.
468-4 (2) "Designated representative" means a person who is
468-5 designated by the commission or an authorized agent to make
468-6 percolation tests, system designs, and inspections subject to the
468-7 department's or authorized agent's approval.
468-8 (3) "Installer" means a person who is compensated by
468-9 another to construct, install, alter, or repair an on-site sewage
468-10 disposal system.
468-11 (4) "Political subdivision" means a municipality,
468-12 county, river authority, or special district, including an
468-13 underground water district and a soil and water conservation
468-14 district.
468-15 (5) "Nuisance" means:
468-16 (A) sewage, human excreta, or other organic
468-17 waste discharged or exposed in a manner that makes it a potential
468-18 instrument or medium in the transmission of disease to or between
468-19 persons; or
468-20 (B) an overflowing septic tank or similar
468-21 device, including surface discharge from or groundwater
468-22 contamination by a component of an on-site sewage disposal system,
468-23 or a blatant discharge from an on-site sewage disposal system.
468-24 (6) "On-site sewage disposal system" means one or more
468-25 systems of treatment devices and disposal facilities that are not
468-26 regulated by the commission and that:
468-27 (A) produce not more than 5,000 gallons of waste
469-1 each day; and
469-2 (B) are used only for disposal of sewage
469-3 produced on the site where the system is located.
469-4 (7) "Owner" means a person who owns a building or
469-5 other property served by an on-site sewage disposal system.
469-6 (8) "Sewage" means waste that:
469-7 (A) is primarily organic and biodegradable or
469-8 decomposable; and
469-9 (B) generally originates as human, animal, or
469-10 plant waste from certain activities, including the use of toilet
469-11 facilities, washing, bathing, and preparing food. (Sec. 366.002,
469-12 Health and Safety Code.)
469-13 Sec. 15.003. Immunity. The commission, an authorized agent,
469-14 or a designated representative is not liable for damages resulting
469-15 from the commission's or authorized agent's approval of the
469-16 installation and operation of an on-site sewage disposal system.
469-17 (Sec. 366.003, Health and Safety Code.)
469-18 Sec. 15.004. Compliance Required. A person may not
469-19 construct, alter, repair, or extend, or cause to be constructed,
469-20 altered, repaired, or extended, an on-site sewage disposal system
469-21 that does not comply with this chapter and applicable rules.
469-22 (Sec. 366.004, Health and Safety Code.)
469-23 (Sections 15.005-15.010 reserved for expansion)
469-24 SUBCHAPTER B. GENERAL POWERS AND DUTIES OF COMMISSION
469-25 AND AUTHORIZED AGENTS
469-26 Sec. 15.011. General Supervision and Authority. The
469-27 commission or authorized agents:
470-1 (1) have general authority over the location, design,
470-2 construction, installation, and proper functioning of on-site
470-3 sewage disposal systems; and
470-4 (2) shall administer this chapter and the rules
470-5 adopted under this chapter. (Sec. 366.011, Health and Safety
470-6 Code.)
470-7 Sec. 15.012. Rules Concerning On-Site Sewage Disposal
470-8 Systems. (a) To assure the effective and efficient administration
470-9 of this chapter, the commission shall:
470-10 (1) adopt rules governing the installation of on-site
470-11 sewage disposal systems, including rules concerning the:
470-12 (A) review and approval of on-site sewage
470-13 disposal systems;
470-14 (B) registration of installers; and
470-15 (C) temporary waiver of a permit for an
470-16 emergency repair; and
470-17 (2) adopt rules under this chapter that encourage the
470-18 use of economically feasible alternative techniques and
470-19 technologies for on-site sewage disposal systems that can be used
470-20 in soils not suitable for conventional on-site sewage disposal.
470-21 (b) In rules adopted under this chapter, the commission
470-22 shall include definitions and detailed descriptions of good
470-23 management practices and procedures for the construction of on-site
470-24 sewage disposal systems that:
470-25 (1) justify variation in field size or in other
470-26 standard requirements;
470-27 (2) promote the use of good management practices or
471-1 procedures in the construction of on-site sewage disposal systems;
471-2 (3) require the use of one or more specific management
471-3 practices or procedures as a condition of approval of a standard
471-4 on-site sewage disposal system if, in the opinion of the commission
471-5 or authorized agent, site conditions or other problems require the
471-6 use of additional management practices or procedures to ensure the
471-7 proper operation of an on-site sewage disposal system; and
471-8 (4) make available general, operational information to
471-9 the public. (Sec. 366.012, Health and Safety Code.)
471-10 Sec. 15.013. Training Program. (a) The commission shall
471-11 establish a training program specifically developed for installers,
471-12 authorized agents, and designated representatives.
471-13 (b) The commission may charge a program participant a
471-14 reasonable fee to cover the cost of the training. (Sec. 366.013,
471-15 Health and Safety Code.)
471-16 Sec. 15.014. Designated Representative. (a) The commission
471-17 or an authorized agent may designate a person to make percolation
471-18 tests, systems designs, and inspections subject to the approval of
471-19 the commission or agent.
471-20 (b) To qualify as a designated representative, a person
471-21 must:
471-22 (1) demonstrate to the commission's or authorized
471-23 agent's satisfaction the person's competency to make percolation
471-24 tests, designs, and inspections for on-site sewage disposal systems
471-25 in accordance with this chapter and rules adopted under this
471-26 chapter; and
471-27 (2) successfully complete the training program
472-1 provided by the commission. (Sec. 366.014, Health and Safety
472-2 Code.)
472-3 Sec. 15.015. Enforcement. The commission shall enforce this
472-4 chapter and rules adopted under this chapter. (Sec. 366.015,
472-5 Health and Safety Code.)
472-6 Sec. 15.016. Emergency Orders. (a) If the commission or an
472-7 authorized agent determines that an emergency exists and that the
472-8 public health or safety is endangered because of the operation of
472-9 an on-site sewage disposal system that does not comply with this
472-10 chapter or a rule adopted under this chapter, the commission or
472-11 authorized agent by order may:
472-12 (1) suspend the registration of the installer;
472-13 (2) regulate the on-site sewage disposal system; or
472-14 (3) both suspend the registration and regulate the
472-15 system.
472-16 (b) The order may be issued without notice and hearing.
472-17 (c) If the emergency order is issued without a hearing, the
472-18 commission or authorized agent shall set a time and place for a
472-19 hearing to affirm, modify, or set aside the emergency order to be
472-20 held not later than the 30th day after the date on which the
472-21 emergency order is issued.
472-22 (d) General notice of the hearing shall be given in
472-23 accordance with the laws of this state and rules adopted by the
472-24 commission or authorized agent.
472-25 (e) The hearing shall be conducted in accordance with the
472-26 commission's rules or laws and rules governing the authorized
472-27 agent. (Sec. 366.016, Health and Safety Code.)
473-1 Sec. 15.017. Required Repairs; Penalty. (a) The commission
473-2 or an authorized agent may require a property owner to repair a
473-3 malfunctioning on-site sewage disposal system on the owner's
473-4 property not later than the 30th day after the date on which the
473-5 owner is notified by the commission or authorized agent of the
473-6 malfunctioning system.
473-7 (b) The property owner must take adequate measures as soon
473-8 as practicable to abate an immediate health hazard.
473-9 (c) The property owner may be assessed a penalty under
473-10 Chapter 341, Health and Safety Code, for each day that the on-site
473-11 sewage disposal system remains unrepaired. (Sec. 366.017, Health
473-12 and Safety Code.)
473-13 (Sections 15.018-15.030 reserved for expansion)
473-14 SUBCHAPTER C. DESIGNATION OF POLITICAL SUBDIVISION
473-15 AS AUTHORIZED AGENT
473-16 Sec. 15.031. Designation. (a) The commission shall
473-17 designate a political subdivision as an authorized agent if the
473-18 political subdivision:
473-19 (1) notifies the commission that the political
473-20 subdivision wants to regulate the use of on-site sewage disposal
473-21 systems in its jurisdiction;
473-22 (2) in accordance with commission procedures, holds a
473-23 public hearing and adopts an order or resolution that complies with
473-24 Section 15.032; and
473-25 (3) submits the order or resolution to the department.
473-26 (b) The commission in writing may approve the political
473-27 subdivision's order or resolution, and the designation takes effect
474-1 only when the order or resolution is approved. (Sec. 366.031,
474-2 Health and Safety Code.)
474-3 Sec. 15.032. Order or Resolution; Requirements. (a) The
474-4 political subdivision's order or resolution must:
474-5 (1) incorporate the commission's rules on abatement or
474-6 prevention of pollution and the prevention of injury to the public
474-7 health;
474-8 (2) meet the commission's minimum requirements for
474-9 on-site sewage disposal systems; and
474-10 (3) include a written enforcement plan.
474-11 (b) If the order or resolution adopts more stringent
474-12 standards for on-site sewage disposal systems than this chapter or
474-13 the commission's standards and provides greater public health and
474-14 safety protection, the authorized agent's order or resolution
474-15 prevails over this chapter or the standards.
474-16 (c) An authorized agent must obtain the commission's
474-17 approval of substantive amendments to the agent's order or
474-18 resolution. (Sec. 366.032, Health and Safety Code.)
474-19 Sec. 15.033. DELEGATION TO LOCAL GOVERNMENTAL ENTITIES. The
474-20 commission shall delegate to political subdivisions responsibility
474-21 for the implementation and enforcement of applicable rules, subject
474-22 to the commission's approval. (Sec. 366.033, Health and Safety
474-23 Code.)
474-24 Sec. 15.034. Investigation of Authorized Agents. (a) The
474-25 commission shall:
474-26 (1) conduct not more often than once a year an
474-27 investigation of each authorized agent to determine the authorized
475-1 agent's compliance with this chapter; and
475-2 (2) prepare an annual report concerning the status of
475-3 the political subdivision's regulatory program.
475-4 (b) If the commission determines that an authorized agent
475-5 does not consistently enforce the commission's minimum requirements
475-6 for on-site sewage disposal systems, the commission shall hold a
475-7 hearing and determine whether to continue the designation as an
475-8 authorized agent. (Sec. 366.034, Health and Safety Code.)
475-9 Sec. 15.035. Mandatory Application for and Maintenance of
475-10 Designation. A political subdivision that applies to the Texas
475-11 Water Development Board for financial assistance under a program
475-12 for economically distressed areas must take all actions necessary
475-13 to receive and maintain a designation as an authorized agent.
475-14 (Sec. 366.035, Health and Safety Code.)
475-15 Sec. 15.036. County Map. (a) If the commission designates
475-16 a political subdivision as its authorized agent and if the
475-17 political subdivision intends to apply to the Texas Water
475-18 Development Board for financial assistance under a program for
475-19 economically distressed areas, the commissioners court of the
475-20 county in which the political subdivision is located shall prepare
475-21 a map of the county area outside the limits of municipalities. The
475-22 political subdivision shall give to the commissioners court a
475-23 written notice of the political subdivision's intention to apply
475-24 for the assistance. The map must show the parts of the area in
475-25 which the different types of on-site sewage disposal systems may be
475-26 appropriately located and the parts in which the different types of
475-27 systems may not be appropriately located.
476-1 (b) The commissioners court shall file the map in the office
476-2 of the county clerk.
476-3 (c) The commissioners court, at least every five years,
476-4 shall review the map and make changes to it as necessary to keep
476-5 the map accurate. (Sec. 366.036, Health and Safety Code.)
476-6 (Sections 15.037-15.050 reserved for expansion)
476-7 SUBCHAPTER D. PERMITS
476-8 Sec. 15.051. Permits. (a) A person must hold a permit and
476-9 an approved plan to construct, alter, repair, extend, or operate an
476-10 on-site sewage disposal system.
476-11 (b) If the on-site sewage disposal system is located in the
476-12 jurisdiction of an authorized agent, the permit is issued by the
476-13 authorized agent; otherwise, the permit is issued by the
476-14 commission.
476-15 (c) A person may not begin to construct, alter, repair, or
476-16 extend an on-site sewage disposal system that is owned by another
476-17 person unless the owner or owner's representative shows proof of a
476-18 permit and approved plan from the commission or authorized agent.
476-19 (Sec. 366.051, Health and Safety Code.)
476-20 Sec. 15.052. Permit Not Required for On-Site Sewage Disposal
476-21 on Certain Single Residences. (a) Sections 15.051, 15.053,
476-22 15.054, and 15.057 do not apply to an on-site sewage disposal
476-23 system of a single residence that is located on a land tract that
476-24 is 10 acres or larger in which the field line or sewage disposal
476-25 line is not closer than 100 feet of the property line.
476-26 (b) Effluent from the on-site sewage disposal system on a
476-27 single residence:
477-1 (1) must be retained in the specified limits;
477-2 (2) may not create a nuisance; and
477-3 (3) may not pollute groundwater. (Sec. 366.052,
477-4 Health and Safety Code.)
477-5 Sec. 15.053. Permit Application. (a) Application for a
477-6 permit must:
477-7 (1) be made on a form provided by the commission or
477-8 authorized agent; and
477-9 (2) include information required by the commission or
477-10 authorized agent to establish that the individual sewage disposal
477-11 system complies with this chapter and rules adopted under this
477-12 chapter.
477-13 (b) The commission shall adopt rules and procedures for the
477-14 submission, review, and approval or rejection of permit
477-15 applications. (Sec. 366.053, Health and Safety Code.)
477-16 Sec. 15.054. Notice From Installer. An installer may not
477-17 begin construction, alteration, repair, or extension of an on-site
477-18 sewage disposal system unless the installer notifies the commission
477-19 or authorized agent of the date on which the installer plans to
477-20 begin work on the system. (Sec. 366.054, Health and Safety Code.)
477-21 Sec. 15.055. Inspections. (a) The commission or authorized
477-22 agent shall review a proposal for an on-site sewage disposal system
477-23 and make inspections of the system as necessary to ensure that the
477-24 on-site sewage disposal system is in substantial compliance with
477-25 this chapter and the rules adopted under this chapter.
477-26 (b) An on-site sewage disposal system may not be used unless
477-27 it is inspected and approved by the commission or the authorized
478-1 agent.
478-2 (c) A holder of a permit issued under this chapter shall
478-3 notify the commission, the authorized agent, or a designated
478-4 representative not later than the fifth working day before the
478-5 proposed date of the operation of an installation that the
478-6 installation is ready for inspection.
478-7 (d) The inspection shall be made on a date and time mutually
478-8 agreed on by the holder of a permit and the commission, the
478-9 authorized agent, or a designated representative.
478-10 (e) An installation inspection shall be made not later than
478-11 the second working day, excluding holidays, after the date on which
478-12 notification that the installation is completed and ready for
478-13 inspection is given to the commission, the authorized agent, or a
478-14 designated representative.
478-15 (f) The owner, owner's representative, or occupant of the
478-16 property on which the installation is located shall give the
478-17 commission, the authorized agent, or a designated representative
478-18 reasonable access to the property at reasonable times to make
478-19 necessary inspections. (Sec. 366.055, Health and Safety Code.)
478-20 Sec. 15.056. Approval of On-Site Sewage Disposal System.
478-21 (a) The commission or authorized agent may approve or disapprove
478-22 the on-site sewage disposal system depending on the results of the
478-23 inspections under Section 15.055.
478-24 (b) If a system is not approved under this section, the
478-25 on-site sewage disposal system may not be used until all
478-26 deficiencies are corrected and the system is reinspected and
478-27 approved by the department or authorized agent. (Sec. 366.056,
479-1 Health and Safety Code.)
479-2 Sec. 15.057. Permit Issuance. (a) The commission shall
479-3 issue or authorize the issuance of permits and other documents.
479-4 (b) A permit and approved plan to construct, alter, repair,
479-5 extend, or operate an on-site sewage disposal system must be issued
479-6 in the name of the person who owns the system and must identify the
479-7 specific property location or address for the specific
479-8 construction, alteration, extension, repair, or operation proposed
479-9 by the person.
479-10 (c) The commission may not issue a permit to construct,
479-11 alter, repair, or extend an on-site sewage disposal system if the
479-12 issuance of a permit conflicts with other applicable laws or public
479-13 policy under this chapter. (Sec. 366.057, Health and Safety
479-14 Code.)
479-15 (Sections 15.058-15.070 reserved for expansion)
479-16 SUBCHAPTER E. REGISTRATION OF INSTALLERS
479-17 Sec. 15.071. Registration. A person may not operate as an
479-18 installer in this state unless the person is registered by the
479-19 commission or an authorized agent. (Sec. 366.071, Health and
479-20 Safety Code.)
479-21 Sec. 15.072. Registration Application. The commission shall
479-22 adopt a registration application form and rules and procedures for
479-23 the submission, review, and approval or rejection of registration
479-24 applications. (Sec. 366.072, Health and Safety Code.)
479-25 Sec. 15.073. Registration Issuance. (a) The commission
479-26 shall issue or authorize the issuance of registrations and other
479-27 documents.
480-1 (b) The commission shall issue a registration to an
480-2 installer if the installer:
480-3 (1) completes an application form that complies with
480-4 this chapter and rules adopted under this chapter; and
480-5 (2) completes the training program provided by the
480-6 commission. (Sec. 366.073, Health and Safety Code.)
480-7 Sec. 15.074. Proof of Registration. Each installer shall
480-8 furnish proof of registration if requested by the commission, an
480-9 authorized agent, or a designated representative. (Sec. 366.075,
480-10 Health and Safety Code.)
480-11 Sec. 15.075. Registration Renewal. The commission may
480-12 provide for periodic renewal of registrations. (Sec. 366.076,
480-13 Health and Safety Code.)
480-14 Sec. 15.076. Registration Revocation. (a) An installer's
480-15 statewide registration may be revoked by the commission or an
480-16 authorized agent after notice and hearing if the installer violates
480-17 this chapter or a rule adopted under this chapter.
480-18 (b) The revocation procedures must comply with the
480-19 Administrative Procedure and Texas Register Act (Article 6252-13a,
480-20 Vernon's Texas Civil Statutes).
480-21 (c) The installer may appeal a revocation under this section
480-22 as provided by law. (Sec. 366.077, Health and Safety Code.)
480-23 Sec. 15.077. Official Roster of Registered Installers. On
480-24 request, the commission semiannually shall:
480-25 (1) disseminate to the public an official roster of
480-26 registered installers; and
480-27 (2) provide to authorized agents a monthly update of
481-1 the roster. (Sec. 366.078, Health and Safety Code.)
481-2 (Sections 15.078-15.090 reserved for expansion)
481-3 SUBCHAPTER F. PENALTIES
481-4 Sec. 15.091. Criminal Penalties. (a) A person commits an
481-5 offense if the person violates Section 15.071.
481-6 (b) A person commits an offense if the person begins to
481-7 construct, alter, repair, or extend an on-site sewage disposal
481-8 system owned by another person before the owner of the system
481-9 obtains a permit to construct, alter, repair, or extend the on-site
481-10 sewage disposal system as required by Subchapter D.
481-11 (c) An emergency repair to an on-site sewage disposal system
481-12 without a permit in accordance with the rules adopted under Section
481-13 15.012(a)(1)(C) is not an offense under this section.
481-14 (d) An offense under this section is a misdemeanor
481-15 punishable by a fine of not less than $50 or more than $100 unless
481-16 it is shown on the trial of the defendant that the defendant has
481-17 previously been convicted of an offense under this chapter, in
481-18 which event the offense is punishable by:
481-19 (1) a fine of not less than $125 or more than $500;
481-20 (2) confinement in jail for not more than one month;
481-21 or
481-22 (3) both the fine and confinement.
481-23 (e) Each day of a continuing violation is a separate
481-24 offense. (Sec. 366.091, Health and Safety Code.)
481-25 Sec. 15.092. Injunction. The commission or an authorized
481-26 agent may bring suit for injunction to prevent or restrain a
481-27 violation of this chapter. (Sec. 366.092, Health and Safety Code.)
482-1 Sec. 15.093. Legal Proceedings. A prosecuting attorney who
482-2 receives a report from the commission or an authorized agent of a
482-3 violation of this chapter or a rule adopted under this chapter
482-4 shall:
482-5 (1) begin appropriate proceedings in the proper court
482-6 without unnecessary delay; and
482-7 (2) prosecute the cause as required by law. (Sec.
482-8 366.093, Health and Safety Code.)
482-9 (Chapters 16-19 reserved for expansion)
482-10 TITLE 3. SOLID WASTE
482-11 CHAPTER 20. SOLID WASTE DISPOSAL ACT
482-12 SUBCHAPTER A. GENERAL PROVISIONS
482-13 Sec. 20.001. SHORT TITLE. This chapter may be cited as the
482-14 Solid Waste Disposal Act. (Sec. 361.001, Health and Safety Code.)
482-15 Sec. 20.002. Policy; Findings. (a) It is this state's
482-16 policy and the purpose of this chapter to safeguard the health,
482-17 welfare, and physical property of the people and to protect the
482-18 environment by controlling the management of solid waste, including
482-19 accounting for hazardous waste that is generated.
482-20 (b) The storage, processing, and disposal of hazardous waste
482-21 at municipal solid waste facilities pose a risk to public health
482-22 and the environment, and in order to protect the environment and to
482-23 provide measures for adequate protection of public health, it is in
482-24 the public interest to require hazardous waste to be stored,
482-25 processed, and disposed of only at permitted hazardous industrial
482-26 solid waste facilities. (Sec. 361.002, Health and Safety Code.)
482-27 Sec. 20.003. Definitions. Unless the context requires a
483-1 different definition, in this chapter:
483-2 (1) "Apparent recharge zone" means that recharge zone
483-3 designated on maps prepared or compiled by, and located in the
483-4 offices of, the commission.
483-5 (2) "Class I industrial solid waste" means an
483-6 industrial solid waste or mixture of industrial solid waste,
483-7 including hazardous industrial waste, that because of its
483-8 concentration or physical or chemical characteristics:
483-9 (A) is toxic, corrosive, flammable, a strong
483-10 sensitizer or irritant, or a generator of sudden pressure by
483-11 decomposition, heat, or other means; and
483-12 (B) poses or may pose a substantial present or
483-13 potential danger to human health or the environment if improperly
483-14 processed, stored, transported, or otherwise managed.
483-15 (3) "Class I nonhazardous industrial solid waste"
483-16 means any Class I industrial solid waste that has not been
483-17 identified or listed as a hazardous waste by the administrator of
483-18 the United States Environmental Protection Agency under the federal
483-19 Solid Waste Disposal Act, as amended by the Resource Conservation
483-20 and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.).
483-21 (4) "Commercial hazardous waste management facility"
483-22 means any hazardous waste management facility that accepts
483-23 hazardous waste or PCBs for a charge, except a captured facility or
483-24 a facility that accepts waste only from other facilities owned or
483-25 effectively controlled by the same person, where "captured
483-26 facility" means a manufacturing or production facility that
483-27 generates an industrial solid waste or hazardous waste that is
484-1 routinely stored, processed, or disposed of on a shared basis in an
484-2 integrated waste management unit owned, operated by, and located
484-3 within a contiguous manufacturing complex.
484-4 (5) "Composting" means the controlled biological
484-5 decomposition of organic solid waste under aerobic conditions.
484-6 (6) "Disposal" means the discharging, depositing,
484-7 injecting, dumping, spilling, leaking, or placing of solid waste or
484-8 hazardous waste, whether containerized or uncontainerized, into or
484-9 on land or water so that the solid waste or hazardous waste or any
484-10 constituent thereof may be emitted into the air, discharged into
484-11 surface water or groundwater, or introduced into the environment in
484-12 any other manner.
484-13 (7) "Environmental response law" means the federal
484-14 Comprehensive Environmental Response, Compensation and Liability
484-15 Act of 1980, 42 U.S.C. Sections 9601 through 9675, as amended by
484-16 the Superfund Amendments and Reauthorization Act of 1986.
484-17 (8) "Garbage" means solid waste that is putrescible
484-18 animal and vegetable waste materials from the handling,
484-19 preparation, cooking, or consumption of food, including waste
484-20 materials from markets, storage facilities, and the handling and
484-21 sale of produce and other food products.
484-22 (9) "Hazardous substance":
484-23 (A) means:
484-24 (i) a substance designated under Section
484-25 311(b)(2)(A) of the Federal Water Pollution Control Act, as amended
484-26 (33 U.S.C. Section 1321);
484-27 (ii) an element, compound, mixture,
485-1 solution, or substance designated under Section 102 of the
485-2 environmental response law;
485-3 (iii) a hazardous waste having the
485-4 characteristics identified under or listed under Section 3001 of
485-5 the federal Solid Waste Disposal Act, as amended (42 U.S.C. Section
485-6 6921), excluding waste, the regulation of which under the federal
485-7 Solid Waste Disposal Act (42 U.S.C. Section 6901 et seq.) has been
485-8 suspended by Act of Congress;
485-9 (iv) a toxic pollutant listed under
485-10 Section 307(a) of the Federal Water Pollution Control Act (33
485-11 U.S.C. Section 1317);
485-12 (v) a hazardous air pollutant listed under
485-13 Section 112 of the federal Clean Air Act, as amended (42 U.S.C.
485-14 Section 7412); and
485-15 (vi) any imminently hazardous chemical
485-16 substance or mixture with respect to which the administrator of the
485-17 Environmental Protection Agency has taken action under Section 7 of
485-18 the Toxic Substances Control Act (15 U.S.C. Section 2606); but
485-19 (B) does not include:
485-20 (i) petroleum, which means crude oil or
485-21 any fraction of crude oil that is not otherwise specifically listed
485-22 or designated as a hazardous substance under Subparagraphs (i)
485-23 through (vi) of Paragraph (A);
485-24 (ii) natural gas, natural gas liquids,
485-25 liquefied natural gas, or synthetic gas usable for fuel mixtures of
485-26 natural gas and synthetic gas; or
485-27 (iii) waste materials that result from
486-1 activities associated with the exploration, development, or
486-2 production of oil or gas or geothermal resources or any other
486-3 substance or material regulated by the Railroad Commission of Texas
486-4 under Section 91.101, Natural Resources Code.
486-5 (10) "Hazardous waste" means solid waste identified or
486-6 listed as a hazardous waste by the administrator of the United
486-7 States Environmental Protection Agency under the federal Solid
486-8 Waste Disposal Act, as amended by the Resource Conservation and
486-9 Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.).
486-10 (11) "Hazardous waste management facility" means all
486-11 contiguous land, including structures, appurtenances, and other
486-12 improvements on the land, used for processing, storing, or
486-13 disposing of hazardous waste. The term includes a publicly or
486-14 privately owned hazardous waste management facility consisting of
486-15 processing, storage, or disposal operational hazardous waste
486-16 management units such as one or more landfills, surface
486-17 impoundments, waste piles, incinerators, boilers, and industrial
486-18 furnaces, including cement kilns, injection wells, salt dome waste
486-19 containment caverns, land treatment facilities, or a combination of
486-20 units.
486-21 (12) "Hazardous waste management unit" means a
486-22 landfill, surface impoundment, waste pile, industrial furnace,
486-23 incinerator, cement kiln, injection well, container, drum, salt
486-24 dome waste containment cavern, or land treatment unit, or any other
486-25 structure, vessel, appurtenance, or other improvement on land used
486-26 to manage hazardous waste.
486-27 (13) "Industrial furnace" includes cement kilns, lime
487-1 kilns, aggregate kilns, phosphate kilns, coke ovens, blast
487-2 furnaces, smelting, melting, or refining furnaces, including
487-3 pyrometallurgical devices such as cupolas, reverberator furnaces,
487-4 sintering machines, roasters, or foundry furnaces, titanium dioxide
487-5 chloride process oxidation reactors, methane reforming furnaces,
487-6 pulping liquor recovery furnaces, combustion devices used in the
487-7 recovery of sulfur values from spent sulfuric acid, and other
487-8 devices the commission may list.
487-9 (14) "Industrial solid waste" means solid waste
487-10 resulting from or incidental to a process of industry or
487-11 manufacturing, or mining or agricultural operations.
487-12 (15) "Local government" means:
487-13 (A) a county;
487-14 (B) a municipality; or
487-15 (C) a political subdivision exercising the
487-16 authority granted under Section 20.165.
487-17 (16) "Management" means the systematic control of the
487-18 activities of generation, source separation, collection, handling,
487-19 storage, transportation, processing, treatment, recovery, or
487-20 disposal of solid waste.
487-21 (17) "Motor vehicle" has the meaning assigned by
487-22 Section 2(b), Uniform Act Regulating Traffic on Highways (Article
487-23 6701d, Vernon's Texas Civil Statutes).
487-24 (18) "Municipal solid waste" means solid waste
487-25 resulting from or incidental to municipal, community, commercial,
487-26 institutional, or recreational activities, and includes garbage,
487-27 rubbish, ashes, street cleanings, dead animals, abandoned
488-1 automobiles, and other solid waste other than industrial solid
488-2 waste.
488-3 (19) "Notice of intent to file an application" means
488-4 the notice filed under Section 20.063.
488-5 (20) "PCBs" or "polychlorinated biphenyl compounds"
488-6 means compounds subject to Title 40, Code of Federal Regulations,
488-7 Part 761.
488-8 (21) "Person" means an individual, corporation,
488-9 organization, government or governmental subdivision or agency,
488-10 business trust, partnership, association, or any other legal
488-11 entity.
488-12 (22) "Person affected" means a person who demonstrates
488-13 that the person has suffered or will suffer actual injury or
488-14 economic damage and, if the person is not a local government:
488-15 (A) is a resident of a county, or a county
488-16 adjacent or contiguous to the county, in which a solid waste
488-17 facility is to be located; or
488-18 (B) is doing business or owns land in the county
488-19 or adjacent or contiguous county.
488-20 (23) "Processing" means the extraction of materials
488-21 from or the transfer, volume reduction, conversion to energy, or
488-22 other separation and preparation of solid waste for reuse or
488-23 disposal. The term includes the treatment or neutralization of
488-24 hazardous waste designed to change the physical, chemical, or
488-25 biological character or composition of a hazardous waste so as to
488-26 neutralize the waste, recover energy or material from the waste,
488-27 render the waste nonhazardous or less hazardous, make it safer to
489-1 transport, store, or dispose of, or render it amenable for recovery
489-2 or storage, or reduce its volume. The term does not include
489-3 activities concerning those materials exempted by the administrator
489-4 of the United States Environmental Protection Agency under the
489-5 federal Solid Waste Disposal Act, as amended by the Resource
489-6 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
489-7 Section 6901 et seq.), unless the commission determines that
489-8 regulation of the activity under this chapter is necessary to
489-9 protect human health or the environment.
489-10 (24) "Radioactive waste" means waste that requires
489-11 specific licensing under Chapter 401, Health and Safety Code, and
489-12 the rules adopted by the board of health under that law.
489-13 (25) "Recycling" means the legitimate use, reuse, or
489-14 reclamation of solid waste.
489-15 (26) "Release" means any spilling, leaking, pumping,
489-16 pouring, emitting, emptying, discharging, injecting, escaping,
489-17 leaching, dumping, or disposing into the environment. The term
489-18 does not include:
489-19 (A) a release that results in an exposure to a
489-20 person solely within a workplace, concerning a claim that the
489-21 person may assert against the person's employer;
489-22 (B) an emission from the engine exhaust of a
489-23 motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping
489-24 station engine;
489-25 (C) a release of source, by-product, or special
489-26 nuclear material from a nuclear incident, as those terms are
489-27 defined by the Atomic Energy Act of 1954, as amended (42 U.S.C.
490-1 Section 2011 et seq.), if the release is subject to requirements
490-2 concerning financial protection established by the Nuclear
490-3 Regulatory Commission under Section 170 of that Act;
490-4 (D) for the purposes of Section 104 of the
490-5 environmental response law, or other response action, a release of
490-6 source, by-product, or special nuclear material from a processing
490-7 site designated under Section 102(a)(1) or 302(a) of the Uranium
490-8 Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Sections
490-9 7912 and 7942); and
490-10 (E) the normal application of fertilizer.
490-11 (27) "Remedial action" means an action consistent with
490-12 a permanent remedy taken instead of or in addition to a removal
490-13 action in the event of a release or threatened release of a
490-14 hazardous waste into the environment to prevent or minimize the
490-15 release of hazardous waste so that the hazardous waste does not
490-16 migrate to cause an imminent and substantial danger to present or
490-17 future public health and safety or the environment. The term
490-18 includes:
490-19 (A) actions at the location of the release,
490-20 including storage, confinement, perimeter protection using dikes,
490-21 trenches, or ditches, clay cover, neutralization, cleanup of
490-22 released hazardous waste or contaminated materials, recycling or
490-23 reuse, diversion, destruction, segregation of reactive waste,
490-24 dredging or excavations, repair or replacement of leaking
490-25 containers, collection of leachate and runoff, on-site treatment or
490-26 incineration, provision of alternate water supplies, and any
490-27 monitoring reasonably required to assure that those actions protect
491-1 the public health and safety or the environment; and
491-2 (B) the costs of permanent relocation of
491-3 residents, businesses, and community facilities if the
491-4 administrator of the United States Environmental Protection Agency
491-5 or the executive director determines that, alone or in combination
491-6 with other measures, the relocation:
491-7 (i) is more cost-effective than and
491-8 environmentally preferable to the transportation, storage,
491-9 treatment, destruction, or secure disposition off-site of hazardous
491-10 waste; or
491-11 (ii) may otherwise be necessary to protect
491-12 the public health or safety.
491-13 (28) "Removal" includes:
491-14 (A) cleaning up or removing released hazardous
491-15 waste from the environment;
491-16 (B) taking necessary action in the event of the
491-17 threat of release of hazardous waste into the environment;
491-18 (C) taking necessary action to monitor, assess,
491-19 and evaluate the release or threat of release of hazardous waste;
491-20 (D) disposing of removed material;
491-21 (E) erecting a security fence or other measure
491-22 to limit access;
491-23 (F) providing alternate water supplies,
491-24 temporary evacuation, and housing for threatened individuals not
491-25 otherwise provided for;
491-26 (G) acting under Section 104(b) of the
491-27 environmental response law;
492-1 (H) providing emergency assistance under the
492-2 federal Disaster Relief Act of 1974 (42 U.S.C. Section 5121 et
492-3 seq.); or
492-4 (I) taking any other necessary action to
492-5 prevent, minimize, or mitigate damage to the public health and
492-6 welfare or the environment that may otherwise result from a release
492-7 or threat of release.
492-8 (29) "Rubbish" means nonputrescible solid waste,
492-9 excluding ashes, that consists of:
492-10 (A) combustible waste materials, including
492-11 paper, rags, cartons, wood, excelsior, furniture, rubber, plastics,
492-12 yard trimmings, leaves, and similar materials; and
492-13 (B) noncombustible waste materials, including
492-14 glass, crockery, tin cans, aluminum cans, metal furniture, and
492-15 similar materials that do not burn at ordinary incinerator
492-16 temperatures (1,600 to 1,800 degrees Fahrenheit).
492-17 (30) "Sanitary landfill" means a controlled area of
492-18 land on which solid waste is disposed of in accordance with
492-19 standards, rules, or orders established by the commission.
492-20 (31) "Sludge" means solid, semisolid, or liquid waste
492-21 generated from a municipal, commercial, or industrial wastewater
492-22 treatment plant, water supply treatment plant, or air pollution
492-23 control facility, excluding the treated effluent from a wastewater
492-24 treatment plant.
492-25 (32) This subdivision expires on delegation of the
492-26 Resource Conservation and Recovery Act authority to the Railroad
492-27 Commission of Texas. Subject to the limitations of 42 U.S.C.
493-1 Section 6903(27) and 40 C.F.R. Section 261.4(a), "solid waste"
493-2 means garbage, rubbish, refuse, sludge from a waste treatment
493-3 plant, water supply treatment plant, or air pollution control
493-4 facility, and other discarded material, including solid, liquid,
493-5 semisolid, or contained gaseous material resulting from industrial,
493-6 municipal, commercial, mining, and agricultural operations and from
493-7 community and institutional activities. The term:
493-8 (A) does not include:
493-9 (i) solid or dissolved material in
493-10 domestic sewage, or solid or dissolved material in irrigation
493-11 return flows, or industrial discharges subject to regulation by
493-12 permit issued under Chapter 10;
493-13 (ii) soil, dirt, rock, sand, and other
493-14 natural or man-made inert solid materials used to fill land if the
493-15 object of the fill is to make the land suitable for the
493-16 construction of surface improvements; or
493-17 (iii) waste materials that result from
493-18 activities associated with the exploration, development, or
493-19 production of oil or gas or geothermal resources and other
493-20 substance or material regulated by the Railroad Commission of Texas
493-21 under Section 91.101, Natural Resources Code, unless the waste,
493-22 substance, or material results from activities associated with
493-23 gasoline plants, natural gas or natural gas liquids processing
493-24 plants, pressure maintenance plants, or repressurizing plants and
493-25 is hazardous waste as defined by the administrator of the United
493-26 States Environmental Protection Agency under the federal Solid
493-27 Waste Disposal Act, as amended by the Resource Conservation and
494-1 Recovery Act, as amended (42 U.S.C. Section 6901 et seq.); and
494-2 (B) does include hazardous substances, for the
494-3 purposes of Sections 20.271 through 20.277, 20.280, and 20.343
494-4 through 20.345.
494-5 (33) This subdivision is effective on delegation of
494-6 the Resource Conservation and Recovery Act authority to the
494-7 Railroad Commission of Texas. Subject to the limitations of 42
494-8 U.S.C. Section 6903(27) and 40 C.F.R. Section 261.4(a), "solid
494-9 waste" means garbage, rubbish, refuse, sludge from a waste
494-10 treatment plant, water supply treatment plant, or air pollution
494-11 control facility, and other discarded material, including solid,
494-12 liquid, semisolid, or contained gaseous material resulting from
494-13 industrial, municipal, commercial, mining, and agricultural
494-14 operations and from community and institutional activities. The
494-15 term:
494-16 (A) does not include:
494-17 (i) solid or dissolved material in
494-18 domestic sewage, or solid or dissolved material in irrigation
494-19 return flows, or industrial discharges subject to regulation by
494-20 permit issued under Chapter 10;
494-21 (ii) soil, dirt, rock, sand, and other
494-22 natural or man-made inert solid materials used to fill land if the
494-23 object of the fill is to make the land suitable for the
494-24 construction of surface improvements; or
494-25 (iii) waste materials that result from
494-26 activities associated with the exploration, development, or
494-27 production of oil or gas or geothermal resources and other
495-1 substance or material regulated by the Railroad Commission of Texas
495-2 under Section 91.101, Natural Resources Code; and
495-3 (B) does include hazardous substances, for the
495-4 purposes of Sections 20.271 through 20.277, 20.280, and 20.343
495-5 through 20.345.
495-6 (34) "Solid waste facility" means all contiguous land,
495-7 including structures, appurtenances, and other improvements on the
495-8 land, used for processing, storing, or disposing of solid waste.
495-9 The term includes a publicly or privately owned solid waste
495-10 facility consisting of several processing, storage, or disposal
495-11 operational units such as one or more landfills, surface
495-12 impoundments, or a combination of units.
495-13 (35) "Solid waste technician" means an individual who
495-14 is trained in the practical aspects of the design, operation, and
495-15 maintenance of a solid waste facility in accordance with standards,
495-16 rules, or orders established by the commission.
495-17 (36) "Storage" means the temporary holding of solid
495-18 waste, after which the solid waste is processed, disposed of, or
495-19 stored elsewhere.
495-20 (37) "Pollution" means the alteration of the physical,
495-21 thermal, chemical, or biological quality of, or the contamination
495-22 of, any land or surface or subsurface water in the state that
495-23 renders the land or water harmful, detrimental, or injurious to
495-24 humans, animal life, vegetation, or property or to public health,
495-25 safety, or welfare or impairs the usefulness or the public
495-26 enjoyment of the land or water for any lawful or reasonable
495-27 purpose. (Sec. 361.003, Health and Safety Code.)
496-1 (Sections 20.004-20.010 reserved for expansion)
496-2 SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION
496-3 Sec. 20.011. Commission's Jurisdiction: Municipal Solid
496-4 Waste. (a) The commission is responsible for the management of
496-5 municipal solid waste, excluding hazardous municipal waste, and
496-6 shall coordinate municipal solid waste activities, excluding
496-7 activities concerning hazardous municipal waste.
496-8 (b) The commission shall accomplish the purposes of this
496-9 chapter by controlling all aspects of the management of municipal
496-10 solid waste, excluding management of hazardous municipal waste, by
496-11 all practical and economically feasible methods consistent with its
496-12 powers and duties under this chapter and other law.
496-13 (c) The commission has the powers and duties specifically
496-14 prescribed by this chapter and all other powers necessary or
496-15 convenient to carry out its responsibilities under this chapter.
496-16 Sec. 20.012. ENFORCEMENT REFERRAL. (a) In matters under
496-17 the commission's jurisdiction, the commission shall consult with
496-18 the attorney general's office for assistance in determining whether
496-19 referral to the attorney general for enforcement is mandatory under
496-20 Section 20.227 or whether referral is appropriate, in the
496-21 commission's discretion, for the disposition of enforcement matters
496-22 under this chapter.
496-23 (b) If referral is determined to be mandatory or
496-24 appropriate, the commission shall consult with the attorney
496-25 general's office for assistance in determining whether criminal or
496-26 civil enforcement action should be taken. The commission shall use
496-27 all available enforcement options. (Sec. 361.011, Health and
497-1 Safety Code.)
497-2 Sec. 20.013. Use of Solid Waste Fee Revenue. Revenue
497-3 received by the commission under Sections 2.175(b)-(e) shall be
497-4 deposited in the state treasury to the credit of the commission.
497-5 At least half the revenue is dedicated to the commission's
497-6 municipal solid waste permitting and enforcement programs and
497-7 related support activities, and the balance of the revenue is
497-8 dedicated to pay for activities that will enhance the state's solid
497-9 waste management program, including:
497-10 (1) provision of funds for the municipal solid waste
497-11 management planning fund and the municipal solid waste resource
497-12 recovery applied research and technical assistance fund established
497-13 by Chapter 22;
497-14 (2) provision of technical assistance to local
497-15 governments concerning solid waste management;
497-16 (3) establishment of a solid waste resource center in
497-17 the commission and an office of waste minimization and recycling;
497-18 (4) provision of supplemental funding to local
497-19 governments for the enforcement of this chapter, Chapter 25, and
497-20 Chapter 741, Acts of the 67th Legislature, Regular Session, 1981
497-21 (Article 4477-9a, Vernon's Texas Civil Statutes);
497-22 (5) conduct of a statewide public awareness program
497-23 concerning solid waste management;
497-24 (6) provision of supplemental funds for other state
497-25 agencies with responsibilities concerning solid waste management,
497-26 recycling, and other initiatives with the purpose of diverting
497-27 recyclable waste from landfills;
498-1 (7) conduct of research to promote the development and
498-2 stimulation of markets for recycled waste products;
498-3 (8) creation of a state municipal solid waste
498-4 superfund for:
498-5 (A) the cleanup of unauthorized tire dumps and
498-6 solid waste dumps for which a responsible party cannot be located
498-7 or is not immediately financially able to provide the cleanup; and
498-8 (B) the cleanup or proper closure of abandoned
498-9 or contaminated municipal solid waste sites for which a responsible
498-10 party is not immediately financially able to provide the cleanup;
498-11 and
498-12 (9) provision of funds for other programs that the
498-13 commission may consider appropriate to further the purposes of this
498-14 chapter. (Sec. 361.014, Health and Safety Code.)
498-15 Sec. 20.014. Commission's Jurisdiction: Radioactive Waste.
498-16 The commission is the state agency under Chapter 401, Health and
498-17 Safety Code, that regulates radioactive waste activities not
498-18 preemptively regulated by the federal government. (Sec. 361.015,
498-19 Health and Safety Code.)
498-20 Sec. 20.015. Recycling. (a) The commission shall establish
498-21 and administer a waste minimization and recycling office within the
498-22 commission that provides technical assistance to local governments
498-23 concerning waste minimization and recycling.
498-24 (b) The commission shall work in conjunction with the Texas
498-25 Department of Commerce to pursue the development of markets for
498-26 recycled materials, including composting products. (Sec. 361.0151,
498-27 Health and Safety Code.)
499-1 Sec. 20.016. Memorandum of Understanding by Commission. The
499-2 commission by rule shall adopt:
499-3 (1) any memorandum of understanding between the
499-4 commission and any other state agency; and
499-5 (2) any revision of a memorandum of understanding.
499-6 (Sec. 361.016, Health and Safety Code.)
499-7 Sec. 20.017. Commission's Jurisdiction: Industrial Solid
499-8 Waste and Hazardous Municipal Waste. (a) The commission is
499-9 responsible for the management of industrial solid waste and
499-10 hazardous municipal waste and shall coordinate industrial solid
499-11 waste activities and hazardous municipal waste activities.
499-12 (b) The commission shall accomplish the purposes of this
499-13 chapter by controlling all aspects of the management of industrial
499-14 solid waste and hazardous municipal waste by all practical and
499-15 economically feasible methods consistent with its powers and duties
499-16 under this chapter and other law.
499-17 (c) The commission has the powers and duties specifically
499-18 prescribed by this chapter and all other powers necessary or
499-19 convenient to carry out its responsibilities under this chapter.
499-20 (d) In matters under the commission's jurisdiction, the
499-21 commission shall consult with:
499-22 (1) the Texas Department of Health concerning the
499-23 public health aspects;
499-24 (2) the attorney general's office for assistance in
499-25 determining whether referral to the attorney general for
499-26 enforcement is mandatory under Section 20.227 or whether referral
499-27 is appropriate, in the agency's discretion, for the disposition of
500-1 enforcement matters under this chapter.
500-2 (e) If referral is determined to be mandatory or
500-3 appropriate, the commission shall consult with the attorney
500-4 general's office for assistance in determining whether criminal or
500-5 civil enforcement action should be taken. The commission shall use
500-6 all available enforcement options. (Sec. 361.017, Health and
500-7 Safety Code.)
500-8 Sec. 20.018. Commission's Jurisdiction Over Hazardous Waste
500-9 Components of Radioactive Waste. (a) The commission has the
500-10 powers under this chapter necessary or convenient to carry out its
500-11 responsibilities concerning the regulation of the management of
500-12 hazardous waste components of radioactive waste under the
500-13 commission's jurisdiction.
500-14 (b) The commission may not adopt rules or engage in
500-15 management activities under this section that conflict with state
500-16 or federal laws and rules concerning the regulation of radioactive
500-17 waste. (Sec. 361.018, Health and Safety Code.)
500-18 Sec. 20.019. Approval of Industrial Solid Waste Management
500-19 in Municipal Solid Waste Facility. (a) Except as provided by
500-20 Subsection (b), Class I nonhazardous industrial solid waste and
500-21 small quantities of hazardous waste generated by conditionally
500-22 exempt small quantity generators, as defined by the commission, may
500-23 be accepted in a municipal solid waste facility if:
500-24 (1) authorized by the written approval of, or by rule
500-25 of, the commission; and
500-26 (2) the generator of the Class I nonhazardous waste
500-27 certifies on an appropriate commission form that the waste is not a
501-1 hazardous waste.
501-2 (b) Except as otherwise prohibited by this chapter,
501-3 nonhazardous industrial solid waste generated by the mechanical
501-4 shredding of motor vehicles, appliances, or other items of scrap,
501-5 used, or obsolete metals shall be accepted, without approval of the
501-6 commission under Subsection (a), in a municipal solid waste
501-7 facility that has previously been authorized to accept and has
501-8 accepted Class I nonhazardous industrial solid wastes or Class II
501-9 industrial solid wastes if the waste contains no free liquids, is
501-10 not a hazardous waste as defined in Section 20.003, and satisfies
501-11 other criteria that may be established by commission rule. Until
501-12 the commission adopts rules establishing additional criteria,
501-13 generators of this type of waste shall satisfy the two criteria
501-14 described in this subsection when these wastes are disposed of in
501-15 municipal solid waste facilities.
501-16 (c) Solid waste under the commission's jurisdiction may be
501-17 accepted in an industrial solid waste facility if authorized in
501-18 writing by the commission. (Sec. 361.019, Health and Safety Code.)
501-19 Sec. 20.020. State Solid Waste Plans. (a) The commission
501-20 shall develop a strategic state solid waste plan for all solid
501-21 waste under its jurisdiction.
501-22 (b) A strategic plan shall identify both short-term and
501-23 long-term waste management problems, set short-term objectives as
501-24 steps toward meeting long-term goals, and recommend specific
501-25 actions to be taken within state times designed to address the
501-26 identified problems and to achieve the stated objectives and goals.
501-27 A plan shall reflect the state's preferred waste management methods
502-1 as stated in Section 20.022 or 20.023 for the kinds of waste under
502-2 the jurisdiction of the agency preparing the plan.
502-3 (c) A strategic plan shall include a short-range planning
502-4 period of not more than five years, an intermediate planning period
502-5 of not more than 10 years, and a long-range planning period of 11
502-6 years or longer.
502-7 (d) In preparing its strategic plan the commission shall
502-8 consult with:
502-9 (1) the commission's waste minimization, recycling, or
502-10 reduction division;
502-11 (2) the waste reduction advisory committee; and
502-12 (3) the interagency coordinating council.
502-13 (e) A strategic plan shall be updated every two years. The
502-14 commission continually shall collect and analyze data for use in
502-15 its next updated plan and systematically shall monitor progress
502-16 toward achieving existing plan objectives and goals. In preparing
502-17 its updated plan, the commission shall examine previously and newly
502-18 identified waste management problems, reevaluate its plan
502-19 objectives and goals, and review and update its planning documents.
502-20 (Sec. 361.020, Health and Safety Code.)
502-21 Sec. 20.021. Interagency Coordination Council. (a) The
502-22 interagency coordination council shall coordinate the activities of
502-23 its member agencies concerning the regulation of solid waste and
502-24 solid waste management facilities and the enforcement of the
502-25 applicable solid waste laws and rules.
502-26 (b) The council is composed of the executive head, or the
502-27 executive head's designated representative, of the following
503-1 agencies:
503-2 (1) the commission; and
503-3 (2) the Railroad Commission of Texas.
503-4 (c) The commission's representative is the council chairman.
503-5 (d) The council shall meet at least quarterly to review the
503-6 solid waste regulatory and enforcement activities of the previous
503-7 quarter and coordinate planned activities in the interest of
503-8 efficiency and cooperation, including:
503-9 (1) the consideration of the use of waste exchange
503-10 programs;
503-11 (2) the establishment of a clearinghouse for
503-12 scientific and engineering information concerning hazardous waste
503-13 management;
503-14 (3) the coordination of hazardous waste research and
503-15 development activities;
503-16 (4) the coordination and development of consistent
503-17 agency rules relevant to the regulation of hazardous waste
503-18 activities;
503-19 (5) the evaluation of means to assist small quantity
503-20 hazardous waste generators and affected communities in the
503-21 effective and safe management and disposal of their regulated
503-22 waste;
503-23 (6) the assessment of any preapplication public
503-24 interactions with applicants to evaluate their effectiveness and to
503-25 consider developing rules to incorporate those activities if
503-26 appropriate;
503-27 (7) the consideration of the use of incentives to
504-1 encourage waste minimization and reusing and recycling waste, and
504-2 the use of resource recovery and detoxification equipment; and
504-3 (8) the evaluation of the feasibility of household
504-4 hazardous waste collection and disposal programs.
504-5 (e) The chairman shall prepare a report summarizing each
504-6 quarterly meeting. The report shall be submitted for approval by a
504-7 majority of agencies represented on the council. The report is a
504-8 public document.
504-9 (f) The council shall consult with and advise the pollution
504-10 prevention council on all matters relating to pollution prevention.
504-11 (g) The council shall assist the commission in preparing
504-12 strategic state solid waste management plans required by Section
504-13 20.020.
504-14 (h) The council shall coordinate efforts to develop and
504-15 update its member agency management information systems to improve
504-16 access to high-level planning information.
504-17 (i) Not later than February 1 of each odd-numbered year, the
504-18 council shall report to the legislature on:
504-19 (1) the status of its member agencies in meeting
504-20 stated agency goals;
504-21 (2) documented efforts to implement the state's
504-22 preferred waste management methods as stated in Sections 20.022 and
504-23 20.023;
504-24 (3) local, regional, interstate, and international
504-25 waste management planning concerns of interest to the state;
504-26 (4) the coordination of federal mandates with state
504-27 waste management plans; and
505-1 (5) new waste management issues.
505-2 (j) The council may obtain assistance in preparing its
505-3 reports from the staffs of its member agencies. (Sec. 361.021,
505-4 Health and Safety Code.)
505-5 Sec. 20.022. Public Policy Concerning Municipal Solid Waste
505-6 and Sludge. (a) To protect the public health and environment, it
505-7 is the state's goal, through source reduction, to eliminate the
505-8 generation of municipal solid waste and municipal sludge to the
505-9 maximum extent that is technologically and economically feasible.
505-10 Therefore, it is the state's public policy that, in generating,
505-11 treating, storing, and disposing of municipal solid waste or
505-12 municipal sludge, the methods listed under Subsections (b) and (c)
505-13 are preferred to the extent economically and technologically
505-14 feasible and considering the appropriateness of the method to the
505-15 type of solid waste material or sludge generated, treated, disposed
505-16 of, or stored.
505-17 (b) For municipal solid waste, not including sludge, the
505-18 following methods are preferred, in the order listed:
505-19 (1) source reduction and waste minimization;
505-20 (2) reuse or recycling of waste;
505-21 (3) treatment to destroy or reprocess waste to recover
505-22 energy or other beneficial resources if the treatment does not
505-23 threaten public health, safety, or the environment; or
505-24 (4) land disposal.
505-25 (c) For municipal sludge, the following methods are
505-26 preferred, in the order listed:
505-27 (1) source reduction and minimization of sludge
506-1 production and concentrations of heavy metals and other toxins in
506-2 sludge;
506-3 (2) treatment of sludge to reduce pathogens and
506-4 recover energy, produce beneficial by-products, or reduce the
506-5 quantity of sludge;
506-6 (3) marketing and distribution of sludge and sludge
506-7 products if the marketing and distribution do not threaten public
506-8 health, safety, or the environment;
506-9 (4) applying sludge to land for beneficial use;
506-10 (5) land treatment; or
506-11 (6) landfilling.
506-12 (d) In adopting rules to implement public policy concerning
506-13 municipal solid waste management, the commission shall consider the
506-14 preference of municipal solid waste management methods under this
506-15 section. (Sec. 361.022, Health and Safety Code.)
506-16 Sec. 20.023. Public Policy Concerning Hazardous Waste.
506-17 (a) To protect the public health and environment, it is the
506-18 state's goal, through source reduction, to eliminate the generation
506-19 of hazardous waste to the maximum extent that is technologically
506-20 and economically feasible. Therefore, it is the state's public
506-21 policy that, in generating, treating, storing, and disposing of
506-22 hazardous waste, the following methods are preferred to the extent
506-23 economically and technologically feasible, in the order listed:
506-24 (1) source reduction;
506-25 (2) reuse or recycling of waste, or both;
506-26 (3) treatment to destroy hazardous characteristics;
506-27 (4) treatment to reduce hazardous characteristics;
507-1 (5) underground injection; and
507-2 (6) land disposal.
507-3 (b) Under Subsection (a)(3), on-site destruction is
507-4 preferred, but it shall be evaluated in the context of other
507-5 relevant factors such as transportation hazard, distribution of
507-6 risk, quality of destruction, operator capability, and site
507-7 suitability. (Sec. 361.023, Health and Safety Code.)
507-8 Sec. 20.024. Public Policy Concerning Adequate Capacity for
507-9 Industrial and Hazardous Waste. (a) To protect the public health
507-10 and environment, encourage economic development, and assure the
507-11 continuation of the federal funding for abandoned facility response
507-12 actions, it is the state public policy that adequate capacity
507-13 should exist for the proper management of industrial and hazardous
507-14 waste generated in this state.
507-15 (b) "Adequate capacity" is the capacity necessary to manage
507-16 the industrial and hazardous waste that remains after application,
507-17 to the maximum extent economically and technologically feasible, of
507-18 waste reduction techniques.
507-19 (c) It is further the state's policy that, wherever
507-20 feasible, the generation of hazardous waste is to be reduced or
507-21 eliminated as expeditiously as possible. (Sec. 361.0231, Health
507-22 and Safety Code.)
507-23 Sec. 20.025. Assessment of Commercial Hazardous Waste
507-24 Management Capacity. (a) Not later than January 1, 1992, the
507-25 commission shall assess the need for commercial hazardous waste
507-26 management capacity. In making the assessment, the commission
507-27 shall consider the need for various technologies for commercial
508-1 waste disposal and shall evaluate the need for disposal capacity on
508-2 a technology-by-technology basis. At a minimum, the commission
508-3 shall assess separately the need for metals recovery, solvent
508-4 recovery, other recovery such as nonsolvent organic recovery and
508-5 acid regeneration, incineration of liquids, incineration of sludge
508-6 or solids, energy recovery, aqueous inorganic treatment, aqueous
508-7 organic treatment, other treatment such as neutralization and gas
508-8 incineration, sludge treatment, stabilization, land treatment,
508-9 landfill, deep well injection, and other disposal such as ocean
508-10 dumping and depositing wastes in salt mines. The commission shall
508-11 adopt rules based on the assessment.
508-12 (b) In evaluating need and drafting rules under this
508-13 section, the commission shall consider:
508-14 (1) demand for commercial hazardous waste capacity in
508-15 the state;
508-16 (2) availability of commercial hazardous waste
508-17 capacity to small quantity generators;
508-18 (3) demand for noncommercial hazardous waste capacity
508-19 in the state;
508-20 (4) demand for nonhazardous waste capacity in the
508-21 state;
508-22 (5) permitted commercial hazardous waste capacity in
508-23 the state;
508-24 (6) permitted commercial nonhazardous waste capacity
508-25 in the state;
508-26 (7) anticipated waste reduction capability;
508-27 (8) potential increases in substances defined as
509-1 hazardous waste;
509-2 (9) the preferences established by Section 20.023;
509-3 (10) the effect of any rules adopted under this
509-4 section on the status of federal funds and any federally delegable
509-5 programs;
509-6 (11) the risks associated with the transportation of
509-7 hazardous waste to the facility;
509-8 (12) research on new technology; and
509-9 (13) any other relevant information.
509-10 (c) In developing this assessment, the commission shall
509-11 consider the need to maintain an appropriate reserve capacity in
509-12 the state to assure continuity of hazardous waste management and an
509-13 effective enforcement program while encouraging waste reduction and
509-14 recycling and recovery. (Sec. 361.0232, Health and Safety Code, as
509-15 added by Chapters 296 and 703, Acts 1991, 72nd Leg.)
509-16 Sec. 20.026. Hazardous Waste Generated in Foreign Country.
509-17 (a) Except as otherwise provided by this section, a person may not
509-18 receive, transport, or cause to be transported into this state, for
509-19 the purpose of treatment, storage, or disposal in this state,
509-20 hazardous waste generated in a country other than the United
509-21 States.
509-22 (b) This section may not be construed or applied in a manner
509-23 that interferes with the authority of the federal government to
509-24 regulate commerce with foreign nations and among the several states
509-25 provided by Article I, Section 8, Clause 3, of the United States
509-26 Constitution.
509-27 (c) This section does not apply to a person who transports
510-1 or receives material from a country other than the United States
510-2 for:
510-3 (1) recycling or reuse of the material; or
510-4 (2) use of the material as a feedstock or ingredient
510-5 in the production of a new product.
510-6 (d) This section does not apply to waste transported or
510-7 received for treatment, storage, or disposal at a hazardous waste
510-8 management facility that is owned by the generator of the waste or
510-9 by a parent, subsidiary, or affiliated corporation of the
510-10 generator.
510-11 (e) This section does not apply to waste received by:
510-12 (1) a producer of the product or material from which
510-13 the waste is generated; or
510-14 (2) a parent, subsidiary, or affiliated corporation of
510-15 such producer.
510-16 (f) This section does not apply to waste generated in Mexico
510-17 at an approved maquiladora facility to the extent that such waste:
510-18 (1) was generated as a result of the processing or
510-19 fabrication of materials imported into Mexico from Texas on a
510-20 temporary basis; and
510-21 (2) is required to be re-exported to the United States
510-22 under Mexican law. (Sec. 361.0232, Health and Safety Code, as
510-23 added by Chapter 336, Acts 1991, 72nd Leg.)
510-24 Sec. 20.027. Assessment of Commercial Nonhazardous Solid
510-25 Waste Disposal Capacity. (a) Not later than March 1, 1996, the
510-26 commission shall assess the need for commercial nonhazardous solid
510-27 waste disposal capacity in the state. In making the assessment,
511-1 the commission shall consider the need for various technologies for
511-2 commercial nonhazardous waste disposal and shall evaluate the need
511-3 for disposal capacity on a technology-by-technology basis. The
511-4 commission shall adopt rules based on the assessment.
511-5 (b) In evaluating need and drafting rules under this
511-6 section, the commission shall consider:
511-7 (1) demand for nonhazardous waste capacity in the
511-8 state;
511-9 (2) permitted commercial hazardous waste capacity in
511-10 the state;
511-11 (3) permitted commercial nonhazardous waste capacity
511-12 in the state;
511-13 (4) anticipated waste reduction capability;
511-14 (5) potential increases in substances defined as
511-15 hazardous waste;
511-16 (6) the preferences established by Section 20.022;
511-17 (7) the effect of any rules adopted under this section
511-18 on the status of federal funds and any federally delegable
511-19 programs;
511-20 (8) research on new technology; and
511-21 (9) any other relevant information.
511-22 (c) The commission shall also consider:
511-23 (1) the continued viability of industrial solid waste
511-24 management in municipal solid waste facilities, under Section
511-25 20.019;
511-26 (2) the geographic location of all commercial disposal
511-27 facilities relative to the location of industrial solid waste
512-1 generators; and
512-2 (3) the risks associated with the transportation of
512-3 industrial solid waste to the facility. (Sec. 361.0233, Health and
512-4 Safety Code.)
512-5 Sec. 20.028. Rules; Update of Rules and Assessments.
512-6 (a) To expedite the consideration of permits for technologies that
512-7 an assessment prepared under Section 20.025 or 20.027 determines to
512-8 be most needed, the rules adopted by the commission shall provide
512-9 for a permitting process that encourages the development of new and
512-10 innovative disposal technologies, grants preferences considering
512-11 the hierarchies established by Sections 20.022 and 20.023,
512-12 emphasizes waste reduction efforts, and encourages applicants for
512-13 permits for hazardous waste management facilities to include
512-14 recycling and recovery components where appropriate.
512-15 (b) The commission shall update the assessments and related
512-16 rules at least every two years. In preparing an update of the
512-17 assessment, the commission shall consider source reduction and
512-18 waste minimization plans and reports submitted under Subchapter A,
512-19 Chapter 52. (Sec. 361.0234, Health and Safety Code.)
512-20 Sec. 20.029. Rules and Standards. (a) The commission may
512-21 adopt rules consistent with this chapter and establish minimum
512-22 standards of operation for the management and control of the solid
512-23 waste under this chapter.
512-24 (b) In developing rules concerning hazardous waste, the
512-25 commission shall consult with the State Soil and Water Conservation
512-26 Board, the Bureau of Economic Geology of The University of Texas at
512-27 Austin, and other appropriate state sources.
513-1 (c) The minimum standards set by the commission for on-site
513-2 storage of hazardous waste must be at least the minimum standards
513-3 set by the manufacturer of the chemical.
513-4 (d) Rules adopted by the commission under Section 20.041 and
513-5 Sections 20.097-20.109 for solid waste facilities may differ
513-6 according to the type or hazard of hazardous waste managed and the
513-7 type of waste management method used. (Sec. 361.024, Health and
513-8 Safety Code.)
513-9 Sec. 20.030. Exempt Activities. (a) The commission and the
513-10 Railroad Commission of Texas shall jointly prepare an exclusive
513-11 list of activities that are associated with oil and gas
513-12 exploration, development, and production and are therefore exempt
513-13 from regulation under this chapter.
513-14 (b) The list shall be adopted by rule and amended as
513-15 necessary. (Sec. 361.025, Health and Safety Code.)
513-16 Sec. 20.031. Assistance Provided by Department and
513-17 Commission. (a) The commission may:
513-18 (1) provide educational, advisory, and technical
513-19 services concerning solid waste management to other state agencies,
513-20 regional planning agencies, local governments, special districts,
513-21 institutions, and individuals; and
513-22 (2) assist other state agencies, regional planning
513-23 agencies, local governments, special districts, and institutions in
513-24 acquiring federal grants for:
513-25 (A) the development of solid waste facilities
513-26 and management programs; and
513-27 (B) research to improve solid waste management.
514-1 (b) The commission may engage in the programs and activities
514-2 under this section only as the participation by it concerns the
514-3 management and control of the solid waste under its jurisdiction.
514-4 (Sec. 361.026, Health and Safety Code.)
514-5 Sec. 20.032. Training of Solid Waste Technicians. (a) The
514-6 commission may:
514-7 (1) develop a program to train solid waste technicians
514-8 to improve the competency of those technicians; and
514-9 (2) issue letters of competency.
514-10 (b) The owner or operator of a solid waste facility is
514-11 encouraged to employ as site manager a solid waste technician
514-12 holding a letter of competency.
514-13 (c) The commission may:
514-14 (1) prescribe standards of training required for the
514-15 program;
514-16 (2) determine the duration of the letter of
514-17 competency;
514-18 (3) award one or more categories of letters of
514-19 competency with each category reflecting a different degree of
514-20 training or skill;
514-21 (4) require a reasonable, nonrefundable fee, in an
514-22 amount determined from time to time by the agency, to be paid by
514-23 participants, deposited to the credit of the general revenue fund,
514-24 and used to administer the program;
514-25 (5) extend or renew letters of competency issued by
514-26 the commission; and
514-27 (6) withdraw a letter of competency for good cause,
515-1 which may include a violation of this chapter or a rule concerning
515-2 the technician's duties and responsibilities. (Sec. 361.027,
515-3 Health and Safety Code.)
515-4 Sec. 20.033. Industrial Solid and Hazardous Waste Materials
515-5 Exchange. (a) The commission shall establish an industrial solid
515-6 and hazardous waste materials exchange that provides for the
515-7 exchange, between interested persons, of information concerning:
515-8 (1) particular quantities of industrial solid or
515-9 hazardous waste available in this state for recovery;
515-10 (2) persons interested in acquiring certain types of
515-11 industrial solid or hazardous waste for purposes of recovery; and
515-12 (3) methods for the treatment and recovery of
515-13 industrial solid or hazardous waste.
515-14 (b) The industrial solid and hazardous waste materials
515-15 exchange may be operated under one or more reciprocity agreements
515-16 providing for the exchange of information described by Subsection
515-17 (a) for similar information from a program operated in another
515-18 state.
515-19 (c) The commission may contract for a private person or
515-20 public entity to establish or operate the industrial solid and
515-21 hazardous waste materials exchange.
515-22 (d) The commission may prescribe rules concerning the
515-23 establishment and operation of the industrial solid and hazardous
515-24 waste exchange, including the setting of a necessary subscription
515-25 fee to offset the cost of participation in the program.
515-26 (e) The commission may seek grants and contract support from
515-27 federal and other sources to the extent possible and may accept
516-1 gifts to support its purposes and programs. (Sec. 361.028, Health
516-2 and Safety Code.)
516-3 Sec. 20.034. Collection and Disposal of Household Materials
516-4 That could be Classified as Hazardous Waste. (a) The commission
516-5 shall provide by rule for interested persons to engage in
516-6 activities that involve the collection and disposal of household
516-7 materials that could be classified as hazardous waste.
516-8 (b) The rules must specify the necessary requirements
516-9 concerning the training of persons involved in the collection and
516-10 disposal of those household materials.
516-11 (c) A person is not liable for damages as a result of any
516-12 act or omission in the course of advertising, promoting, or
516-13 distributing educational materials concerning the collection or
516-14 disposal of those household materials in accordance with the rules.
516-15 This subsection does not preclude liability for damages as a result
516-16 of gross negligence of or intentional misconduct by the person.
516-17 (Sec. 361.029, Health and Safety Code.)
516-18 Sec. 20.035. Federal Funds. The commission may individually
516-19 or jointly accept funds from the federal government for purposes
516-20 concerning solid waste management and spend money received from the
516-21 federal government for those purposes in the manner prescribed by
516-22 law and in accordance with agreements as are necessary and
516-23 appropriate between the federal government and the commission.
516-24 (Sec. 361.030, Health and Safety Code.)
516-25 Sec. 20.036. Financial Assistance to Local Governments.
516-26 (a) The commission may administer and spend state funds provided
516-27 by legislative appropriations, or otherwise, to make grants to
517-1 local governments for:
517-2 (1) solid waste planning;
517-3 (2) installation of solid waste facilities; and
517-4 (3) administration of solid waste programs.
517-5 (b) The amount of financial assistance granted by the state
517-6 through the commission to a local government under this chapter
517-7 must be matched by local government funds at least in equal
517-8 amounts. (Sec. 361.031, Health and Safety Code.)
517-9 Sec. 20.037. Inspections; Right of Entry. (a) The
517-10 commission is authorized to inspect and approve solid waste
517-11 facilities used or proposed to be used to store, process, or
517-12 dispose of solid waste.
517-13 (b) Agents or employees of the commission or local
517-14 governments have the right to enter at any reasonable time public
517-15 or private property in the governmental entity's jurisdiction,
517-16 including a municipality's extraterritorial jurisdiction, to
517-17 inspect and investigate conditions concerning solid waste
517-18 management and control.
517-19 (c) Agents or employees may not enter private property with
517-20 management in residence without notifying the management, or the
517-21 person in charge at the time, of their presence and presenting
517-22 proper credentials.
517-23 (d) Agents or employees inspecting an establishment shall
517-24 observe the establishment's rules on safety, internal security, and
517-25 fire protection. (Sec. 361.032, Health and Safety Code.)
517-26 Sec. 20.038. Inspections Required by Environmental
517-27 Protection Agency. (a) The commission shall inspect regulated
518-1 hazardous waste management and disposal facilities periodically as
518-2 required by the United States Environmental Protection Agency under
518-3 the federal Solid Waste Disposal Act, as amended by the Resource
518-4 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
518-5 Section 6901 et seq.).
518-6 (b) In supplementing the inspections under Subsection (a),
518-7 the commission shall give priority to inspecting and reinspecting
518-8 those facilities, including generators, considered most likely to
518-9 be in noncompliance or most likely to pose an environmental or
518-10 public health threat, regardless of whether the facilities are
518-11 characterized as major or non-major facilities.
518-12 (c) The commission may randomly perform less comprehensive
518-13 checks of facilities to supplement the more comprehensive
518-14 inspections required by the United States Environmental Protection
518-15 Agency. (Sec. 361.033, Health and Safety Code.)
518-16 Sec. 20.039. Reports. (a) The commission shall submit a
518-17 report to the presiding officers of the legislature and the
518-18 governor not later than January 1 of each odd-numbered year. The
518-19 report must include:
518-20 (1) a summary of a performance report of the imposed
518-21 industrial solid waste and hazardous waste fees authorized under
518-22 Sections 2.175(f)-(u) and related activities to determine the
518-23 appropriateness of the fee structures;
518-24 (2) an evaluation of progress made in accomplishing
518-25 the state's public policy concerning the preference of waste
518-26 management methods under Section 20.023;
518-27 (3) projections of the volume of waste by type of
519-1 waste, disposition of waste, and remaining capacity or capacity
519-2 used for the treatment and disposal of the waste; and
519-3 (4) projections of the availability of adequate
519-4 capacity in this state for the management of all types of hazardous
519-5 waste generated within the state and a report of the amounts,
519-6 types, and sources of hazardous waste imported into and exported
519-7 from the state in the previous year.
519-8 (b) To develop the reports required under Subsection (a),
519-9 the commission shall adopt rules requiring a person who generates,
519-10 stores, treats, or disposes of industrial solid waste or hazardous
519-11 waste to respond to a periodic survey detailing projections of
519-12 waste volumes generated and handled, assumptions used as the basis
519-13 for these projections, disposition, and remaining capacity,
519-14 concerning a surveyed facility owned or operated by the person.
519-15 (Sec. 361.034, Health and Safety Code.)
519-16 Sec. 20.040. Records and Reports; Disposal of Hazardous
519-17 Waste. (a) The commission by rule shall require operators of
519-18 solid waste facilities for disposal of hazardous waste to maintain
519-19 records and to submit to the commission reports necessary for the
519-20 commission to determine the amount of hazardous waste disposal.
519-21 (b) The commission by rule shall establish the date on which
519-22 a report required by this section is to be submitted.
519-23 (Sec. 361.035, Health and Safety Code.)
519-24 Sec. 20.041. Records and Manifests Required; Class I
519-25 Industrial Solid Waste or Hazardous Waste. The commission by rule
519-26 shall require a person who generates, transports, processes,
519-27 stores, or disposes of Class I industrial solid waste or hazardous
520-1 waste to provide recordkeeping and use a manifest or other
520-2 appropriate system to assure that the waste is transported to a
520-3 processing, storage, or disposal facility permitted or otherwise
520-4 authorized for that purpose. (Sec. 361.036, Health and Safety
520-5 Code.)
520-6 Sec. 20.042. Annual Inspection Report. (a) In January of
520-7 each year, the commission shall publish an annual inspection report
520-8 that:
520-9 (1) summarizes the commission's inspection strategy
520-10 and the results of inspections conducted during the previous fiscal
520-11 year; and
520-12 (2) lists each hazardous waste treatment, storage, and
520-13 disposal facility not inspected.
520-14 (b) The report must identify each hazardous waste facility
520-15 inspected and include a list of:
520-16 (1) each facility that is in compliance with hazardous
520-17 waste regulations, including each facility with an exemplary record
520-18 of compliance over the preceding three years;
520-19 (2) each facility that has only minor or clerical
520-20 violations; and
520-21 (3) each facility that has substantive, nonclerical
520-22 violations, including each facility that has been adjudicated
520-23 during the preceding three years to have committed substantive,
520-24 nonclerical violations resulting in an actual release of hazardous
520-25 waste that presented an imminent and substantial endangerment to
520-26 the public health and safety or the environment.
520-27 (c) The report must identify the substantive, nonclerical
521-1 violations and either summarize corrective actions or describe the
521-2 status of unresolved violations.
521-3 (d) The report shall be submitted to the governor,
521-4 lieutenant governor, and speaker of the house. The commission
521-5 shall provide notice of the report's availability by publishing
521-6 notice in the Texas Register. (Sec. 361.038, Health and Safety
521-7 Code.)
521-8 Sec. 20.043. Construction of Other Laws. Except as
521-9 specifically provided by this chapter, this chapter does not
521-10 diminish or limit the authority of the commission or a local
521-11 government in performing the powers, functions, and duties vested
521-12 in those governmental entities by other law. (Sec. 361.039, Health
521-13 and Safety Code.)
521-14 (Sections 20.044-20.060 reserved for expansion)
521-15 SUBCHAPTER C. PERMITS
521-16 Sec. 20.061. Permits; Solid Waste Facility. Except as
521-17 provided by Section 20.090 with respect to certain industrial solid
521-18 waste, the commission may require and issue permits authorizing and
521-19 governing the construction, operation, and maintenance of the solid
521-20 waste facilities used to store, process, or dispose of solid waste.
521-21 (Sec. 361.061, Health and Safety Code.)
521-22 Sec. 20.062. Compatibility with County's Plan. (a) Before
521-23 the commission issues a permit to construct, operate, or maintain a
521-24 solid waste facility to process, store, or dispose of solid waste
521-25 in a county that has a local solid waste management plan approved
521-26 under Chapter 22 (Comprehensive Municipal Solid Waste Management,
521-27 Resource Recovery, and Conservation Act), the commission must
522-1 consider whether the solid waste facility and the proposed site for
522-2 the facility are compatible with the county's approved local solid
522-3 waste management plan.
522-4 (b) Until a local solid waste management plan is approved by
522-5 the commission and adopted by rule, the commission may not consider
522-6 the plan and its contents in the review of an application for a
522-7 solid waste facility permit. (Sec. 361.062, Health and Safety
522-8 Code.)
522-9 Sec. 20.063. Preapplication Local Review Committee Process.
522-10 (a) The commission shall encourage applicants for solid waste
522-11 facilities or for hazardous waste management facilities to enter
522-12 into agreements with affected persons to resolve issues of concern.
522-13 During this process, persons are encouraged to identify issues of
522-14 concern and work with the applicant to resolve those issues.
522-15 (b) The agreement shall be made through participation in a
522-16 local review committee process that includes a good faith effort to
522-17 identify issues of concern, describe them to the applicant, and
522-18 attempt to resolve those issues before the hearing on the permit
522-19 application begins. A person is not required to be a local review
522-20 committee member to participate in a local review committee
522-21 process.
522-22 (c) If an applicant decides to participate in a local review
522-23 committee process, the applicant must file with the commission a
522-24 notice of intent to file an application, setting forth the proposed
522-25 location and type of hazardous waste management facility. A copy
522-26 of the notice shall be delivered to the county judge of the county
522-27 in which the facility is to be located. In addition, if the
523-1 proposed facility is to be located in a municipality or the
523-2 extraterritorial jurisdiction of a municipality, a copy of the
523-3 notice shall be delivered to the mayor of the municipality. The
523-4 filing of the notice with the commission initiates the
523-5 preapplication review process.
523-6 (d) Not later than the 15th day after the date the notice of
523-7 intent is filed under Subsection (c), the local review committee
523-8 shall be appointed. The commission shall adopt rules concerning
523-9 the composition and appointment of a local review committee.
523-10 (e) The local review committee shall meet not later than the
523-11 21st day after the date the notice of intent is filed under
523-12 Subsection (c). The preapplication review process must continue
523-13 for 90 days unless the process is shortened or lengthened by
523-14 agreement between the applicant and the local review committee.
523-15 (f) The commission, as appropriate, may award to a person,
523-16 other than the applicant, who has participated in the local review
523-17 committee process under this section concerning an application for
523-18 a hazardous waste management facility all or a part of the person's
523-19 reasonable costs for technical studies and reports and expert
523-20 witnesses associated with the presentation of evidence at the
523-21 public hearing concerning issues that are raised by the person in
523-22 the local review committee process and that are unresolved at the
523-23 beginning of the hearing on the permit application. The total
523-24 amount of awards granted to all persons under this subsection
523-25 concerning an application may not exceed $25,000. In determining
523-26 the appropriateness of the award, the commission shall consider
523-27 whether:
524-1 (1) the evidence or analysis provided by the studies,
524-2 reports, and witnesses is significant to the evaluation of the
524-3 application;
524-4 (2) the evidence or analysis would otherwise not have
524-5 been provided in the proceeding; and
524-6 (3) the local review committee was established in
524-7 accordance with commission rules.
524-8 (g) Except as provided by Subsection (k), if an applicant
524-9 has not entered into a local review committee process, the
524-10 commission, in determining the appropriateness of an award of costs
524-11 under Subsection (f), shall waive any requirement that the person
524-12 affected has participated in a local review committee process.
524-13 (h) Except as provided by Subsection (k), costs awarded by
524-14 the commission under Subsection (f) are assessed against the
524-15 applicant. Rules shall be adopted for the award of those costs.
524-16 Judicial review of an award of costs is under the substantial
524-17 evidence rule as provided by the Administrative Procedure and Texas
524-18 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
524-19 (i) A local review committee shall:
524-20 (1) interact with the applicant in a structured manner
524-21 during the preapplication review stage of the permitting process
524-22 and, if necessary, during the technical review stage of the
524-23 permitting process to raise and attempt to resolve both technical
524-24 and nontechnical issues of concern; and
524-25 (2) produce a fact-finding report documenting resolved
524-26 and unresolved issues and unanswered questions.
524-27 (j) The applicant must submit the report required under
525-1 Subsection (i)(2) to the commission with its permit application.
525-2 (k) If an applicant, after reasonable efforts to determine
525-3 if local opposition exists to its proposed facility, including
525-4 discussing the proposed facility with the county judge and other
525-5 elected officials, does not enter into a local review committee
525-6 process because of no apparent opposition or because a local review
525-7 committee is not established despite the applicant's good faith
525-8 efforts, costs may not be assessed against the applicant under
525-9 Subsection (f).
525-10 (l) This section does not apply to:
525-11 (1) a solid waste or hazardous waste management
525-12 facility for which an application was filed, or that was authorized
525-13 to operate, as of September 1, 1985;
525-14 (2) amendments to applications that were pending on
525-15 September 1, 1987; or
525-16 (3) changes in waste storage or processing operations
525-17 at existing sites at which waste management activities were being
525-18 conducted on September 1, 1987. (Sec. 361.063, Health and Safety
525-19 Code.)
525-20 Sec. 20.064. Preapplication Meeting. (a) If requested by a
525-21 person who intends to file a permit application and with approval
525-22 of the commission, the commission shall provide the person an
525-23 opportunity to meet jointly with one or more staff members of the
525-24 commission to discuss the permit application that the person
525-25 intends to file.
525-26 (b) The person must make the request in writing to the
525-27 commission that the person intends to file, and the commission
526-1 shall coordinate a meeting held under this section.
526-2 (c) A meeting under this section must be held before the
526-3 person files the permit application with the commission.
526-4 (Sec. 361.0635, Health and Safety Code.)
526-5 Sec. 20.065. Permit Application Form and Procedures.
526-6 (a) The commission, in exercising the power to issue permits for
526-7 solid waste facilities under this subchapter, to the extent not
526-8 otherwise provided by this subchapter, shall prescribe:
526-9 (1) the form of and reasonable requirements for the
526-10 permit application; and
526-11 (2) the procedures for processing the application.
526-12 (b) The commission shall provide a thorough and timely
526-13 review of and a timely issuance or denial of any permit application
526-14 for a solid waste management facility. (Sec. 361.064, Health and
526-15 Safety Code.)
526-16 Sec. 20.066. Notice to State Senator and Representative. On
526-17 receiving an application for, or notice of intent to file an
526-18 application for, a permit to construct, operate, or maintain a
526-19 facility to store, process, or dispose of solid waste or hazardous
526-20 waste, the commission shall send notice of the application or the
526-21 notice of intent to the state senator and representative who
526-22 represent the area in which the facility is or will be located.
526-23 (Sec. 361.0641, Health and Safety Code.)
526-24 Sec. 20.067. Submission of Administratively Complete Permit
526-25 Application. (a) An applicant must submit any portion of an
526-26 application that the commission determines is necessary to make the
526-27 application administratively complete not later than the 270th day
527-1 after the applicant receives notice from the commission that the
527-2 additional information or material is needed.
527-3 (b) If an applicant does not submit an administratively
527-4 complete application as required by this section, the application
527-5 is considered withdrawn, unless there are extenuating
527-6 circumstances. (Sec. 361.066, Health and Safety Code.)
527-7 Sec. 20.068. Notice of Intent to Obtain Municipal Solid
527-8 Waste Permit. (a) A person who applies for a municipal solid
527-9 waste permit shall publish notice of intent to obtain a permit
527-10 under this chapter at least once in a newspaper of the largest
527-11 general circulation that is published in the county in which the
527-12 facility is located or proposed to be located.
527-13 (b) Notice must include:
527-14 (1) a description of the location or proposed location
527-15 of the facility;
527-16 (2) a statement that a person who may be affected by
527-17 the facility or proposed facility is entitled to request a hearing
527-18 from the commission;
527-19 (3) the manner in which the commission may be
527-20 contacted for further information; and
527-21 (4) any other information that the commission by rule
527-22 requires.
527-23 (c) If a newspaper is not published in the county, the
527-24 notice must be published in a newspaper of general circulation in
527-25 the county in which the facility is located or proposed to be
527-26 located and in a newspaper of circulation in the immediate vicinity
527-27 in which the facility is located or proposed to be located as
528-1 defined by department rule.
528-2 (d) In addition, the commission shall publish notice in the
528-3 Texas Register. (Sec. 361.0665, Health and Safety Code.)
528-4 Sec. 20.069. Review of Permit Application by Other
528-5 Governmental Entities. (a) If the commission determines that a
528-6 permit application submitted to it is administratively complete, it
528-7 shall mail a copy of the application or a summary of its contents
528-8 to:
528-9 (1) the mayor and health authority of a municipality
528-10 in whose territorial limits or extraterritorial jurisdiction the
528-11 solid waste facility is located; and
528-12 (2) the county judge and the health authority of the
528-13 county in which the facility is located.
528-14 (b) A governmental entity to whom the information is mailed
528-15 shall have a reasonable time, as prescribed by the commission, to
528-16 present comments and recommendations on the permit application
528-17 before the commission acts on the application. (Sec. 361.067,
528-18 Health and Safety Code.)
528-19 Sec. 20.070. When Application is Administratively Complete.
528-20 A permit application is administratively complete when:
528-21 (1) a complete permit application form and the report
528-22 and fees required to be submitted with a permit application have
528-23 been submitted to the commission; and
528-24 (2) the permit application is ready for technical
528-25 review in accordance with the rules of the commission.
528-26 (Sec. 361.068, Health and Safety Code.)
528-27 Sec. 20.071. Determination of Land Use Compatibility. The
529-1 commission in its discretion may, in processing a permit
529-2 application, make a separate determination on the question of land
529-3 use compatibility, and, if the site location is acceptable, may at
529-4 another time consider other technical matters concerning the
529-5 application. A public hearing may be held for each determination
529-6 in accordance with Section 20.088. (Sec. 361.069, Health and
529-7 Safety Code.)
529-8 Sec. 20.072. Maintenance of State Program Authorization
529-9 Under Federal Law. This subchapter does not abridge, modify, or
529-10 restrict the authority of the commission to adopt rules under
529-11 Subchapter B and this subchapter, to issue permits and to enforce
529-12 the terms and conditions of the permits, concerning hazardous waste
529-13 management to the extent necessary for the commission to receive
529-14 and maintain state program authorization under Section 3006 of the
529-15 federal Solid Waste Disposal Act, as amended by the Resource
529-16 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
529-17 Section 6901 et seq.). (Sec. 361.078, Health and Safety Code.)
529-18 Sec. 20.073. Notice Concerning Receipt of Permit
529-19 Application; Hearing Procedures. (a) Except as provided by
529-20 Sections 20.075(b) and 20.076(c), the commission by rule shall
529-21 establish procedures for public notice and a public hearing under
529-22 Section 20.075 or 20.076.
529-23 (b) The hearings shall be conducted in accordance with the
529-24 hearing rules and the applicable provisions of the Administrative
529-25 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
529-26 Civil Statutes).
529-27 (c) To improve the timeliness of notice to the public of a
530-1 public hearing under Section 20.075 or 20.076, public notice of
530-2 receipt of the permit application shall be provided at the time a
530-3 permit application is submitted to the commission. (Sec. 361.079,
530-4 Health and Safety Code.)
530-5 Sec. 20.074. Public Meeting and Notice Requirement.
530-6 (a) Notwithstanding other law, the commission shall hold a public
530-7 meeting on an application for a new hazardous waste management
530-8 facility in the county in which the proposed hazardous waste
530-9 management facility is to be located. The commission, on request
530-10 of a person affected or as otherwise required by commission rule,
530-11 shall hold a public meeting on an application for a Class 3
530-12 modification or a major amendment to an existing facility's
530-13 hazardous waste permit.
530-14 (b) A public meeting held as part of a local review process
530-15 under Section 20.063 meets the requirement of Subsection (a) if
530-16 notice is provided as required by this section.
530-17 (c) A public meeting under this section is not a contested
530-18 case hearing under the Administrative Procedure and Texas Register
530-19 Act (Article 6252-13a, Vernon's Texas Civil Statutes).
530-20 (d) If a meeting is required under Subsection (a), not less
530-21 than once each week during the three weeks preceding a public
530-22 meeting, the applicant shall publish notice of the meeting in the
530-23 newspaper of the largest general circulation that is published in
530-24 the county in which the proposed facility is to be located or, if
530-25 no newspaper is published in the county, in a newspaper of general
530-26 circulation in the county. The applicant shall provide the
530-27 commission an affidavit certifying that the notice was given as
531-1 required by this section. Acceptance of the affidavit creates a
531-2 rebuttable presumption that the applicant has complied with this
531-3 section.
531-4 (e) The published notice may not be smaller than 96.8 square
531-5 centimeters or 15 square inches with the shortest dimension at
531-6 least 7.6 centimeters or three inches and shall contain, at a
531-7 minimum, the following information:
531-8 (1) the permit application number;
531-9 (2) the applicant's name;
531-10 (3) the proposed location of the facility; and
531-11 (4) the location and availability of copies of the
531-12 permit application.
531-13 (f) The applicant shall pay the cost of notice required to
531-14 be provided under this section. The commission by rule may
531-15 establish procedures for payment of those costs. (Sec. 361.0791,
531-16 Health and Safety Code.)
531-17 Sec. 20.075. Hearing Concerning Permit Application for
531-18 Hazardous Industrial Solid Waste Facility. (a) A hearing on an
531-19 application for a permit concerning a hazardous industrial solid
531-20 waste facility must include one session held in the county in which
531-21 the facility is located.
531-22 (b) Notice for a hearing session held under this section
531-23 shall be provided in accordance with Section 20.074.
531-24 (Sec. 361.080, Health and Safety Code.)
531-25 Sec. 20.076. Notice of Hearing Concerning Application for a
531-26 Solid Waste Facility. (a) The commission shall require the
531-27 applicant to mail notice to each residential or business address
532-1 located within one-half mile of a new solid waste management
532-2 facility and to each owner of real property located within one-half
532-3 mile of a new solid waste management facility listed in the real
532-4 property appraisal records of the appraisal district in which the
532-5 solid waste management facility is sought to be permitted as of the
532-6 date the commission determines the permit application is
532-7 administratively complete. The notice must be sent by mail and
532-8 must be deposited with the United States postal service not more
532-9 than 45 days or less than 30 days before the date of the hearing.
532-10 (b) The applicant must certify to the commission that the
532-11 mailings were deposited as required by Subsection (a). Acceptance
532-12 of the certification creates a rebuttable presumption that the
532-13 applicant has complied with this section.
532-14 (c) In addition to the requirements of Subsection (a), the
532-15 commission shall hold a public meeting and the applicant shall give
532-16 notice concerning the application for a permit for a new hazardous
532-17 waste management facility as provided by Section 20.074.
532-18 (Sec. 361.081, Health and Safety Code.)
532-19 Sec. 20.077. Application for Hazardous Waste Permit; Notice
532-20 and Hearing. (a) A person may not process, store, or dispose of
532-21 hazardous waste without having first obtained a hazardous waste
532-22 permit issued by the commission.
532-23 (b) On its own motion or the request of a person affected,
532-24 the commission may hold a public hearing on an application for a
532-25 hazardous waste permit in accordance with this subchapter.
532-26 (c) The commission by rule shall establish procedures for
532-27 public notice and public hearing. At a minimum, the rules shall
533-1 include the public notice requirements set forth in Section 20.076.
533-2 (d) In addition to the hearing held under this section, the
533-3 commission shall hold a public meeting and the applicant shall give
533-4 notice as provided by Section 20.074.
533-5 (e) The commission may include any requirement in the permit
533-6 for remedial action by the applicant that the commission determines
533-7 is necessary to protect the public health and safety and the
533-8 environment.
533-9 (f) An owner or operator of a solid waste management
533-10 facility that is in existence on the effective date of a statutory
533-11 or regulatory change that subjects the owner or operator to a
533-12 requirement to obtain a hazardous waste permit who has filed a
533-13 hazardous waste permit application in accordance with commission
533-14 rules may continue to process, store, or dispose of hazardous waste
533-15 until the commission approves or denies the application, except as
533-16 provided by Section 20.111 or, if the owner or operator becomes
533-17 subject to a requirement to obtain a hazardous waste permit after
533-18 November 8, 1984, except as provided by United States Environmental
533-19 Protection Agency or commission rules relative to termination of
533-20 interim status.
533-21 (g) On request under this section by a person affected for a
533-22 hearing on the permit application, the applicant for a permit for a
533-23 new hazardous waste management facility shall furnish a bond or
533-24 other financial assurance authorized by the commission to guarantee
533-25 payment of the costs of a person affected who provides information
533-26 to the commission on the question of the issuance of the permit and
533-27 who is entitled to those costs under an order made as provided by
534-1 Section 20.081. For applications involving commercial hazardous
534-2 waste management facilities, the bond or other financial assurance
534-3 must be in the amount of $100,000. For applications that do not
534-4 involve commercial hazardous waste management facilities, the bond
534-5 or other financial assurance must be in the amount of $20,000.
534-6 (Sec. 361.082, Health and Safety Code.)
534-7 Sec. 20.078. Evidence of Notice of Hearing. (a) Before the
534-8 commission may hear testimony in a contested case, evidence must be
534-9 placed in the record to show that proper notice of the hearing was
534-10 given to affected persons.
534-11 (b) If mailed notice to an affected person is required, the
534-12 commission or other party to the hearing shall place evidence in
534-13 the record that notice was mailed to the affected person's address
534-14 as shown by the appropriate appraisal district real property
534-15 appraisal records at the time of the mailing.
534-16 (c) The affidavit of the commission employee responsible for
534-17 the mailing of the notice, attesting that the notice was mailed to
534-18 the address shown by the appraisal district real property appraisal
534-19 records at the time of mailing, is prima facie evidence of proper
534-20 mailing. (Sec. 361.083, Health and Safety Code.)
534-21 Sec. 20.079. Ex Parte Contacts Prohibited. (a) Unless
534-22 required for the disposition of ex parte matters authorized by law,
534-23 a hearings examiner of the commission may not communicate, directly
534-24 or indirectly, with any employee of the commission, any
534-25 commissioner, or any party to a hearing conducted by the commission
534-26 in connection with any issue of fact or law pertaining to a
534-27 contested case in which the commission or party is involved.
535-1 (b) An employee of the commission, a commissioner, or a
535-2 party to a hearing conducted by the commission may not attempt to
535-3 influence the finding of facts or the application of law or rules
535-4 by a hearings examiner of the commission except by proper evidence,
535-5 pleadings, and legal argument with notice and opportunity for all
535-6 parties to participate.
535-7 (c) If a prohibited contact is made, the hearings examiner
535-8 shall notify all parties with a summary of that contact and notice
535-9 of their opportunity to participate and shall give all parties an
535-10 opportunity to respond. (Sec. 361.0831, Health and Safety Code.)
535-11 Sec. 20.080. Proposal for Decision; Certified Issues;
535-12 Reversal by Commission. (a) After hearing evidence and receiving
535-13 legal arguments, a hearings examiner of the commission shall make
535-14 findings of fact, conclusions of law, and any ultimate findings
535-15 required by statute, all of which shall be separately stated. The
535-16 hearings examiner shall make a proposal for decision to the
535-17 commission and shall serve the proposal for decision on all
535-18 parties. The commission shall consider and act on the proposal for
535-19 decision.
535-20 (b) If a contested case involves an ultimate finding of
535-21 compliance with or satisfaction of a statutory standard the
535-22 determination of which is committed to the discretion or judgment
535-23 of the commission by law, a hearings examiner, on joint motion of
535-24 all parties or sua sponte, may certify those policy issues to the
535-25 commission. A certification request must contain a statement of
535-26 the policy issue to be determined and a statement of all relevant
535-27 facts sufficient to show fully the nature of the controversy. The
536-1 commission may receive written or oral statements from parties to
536-2 the hearing or the hearings examiner on the policy issue certified.
536-3 The commission must answer policy issues not later than the 60th
536-4 day after the date of certification or, in its discretion, may
536-5 decline to answer. If the commission fails to answer a policy
536-6 issue within that period, the commission shall be deemed to have
536-7 declined to answer. The hearings examiner shall proceed with the
536-8 contested case and make a proposal for decision as required by
536-9 Subsection (a).
536-10 (c) The commission may overturn an underlying finding of
536-11 fact that serves as the basis for a decision in a contested case
536-12 only if the commission finds that the finding was not supported by
536-13 the great weight of the evidence.
536-14 (d) The commission may overturn a conclusion of law in a
536-15 contested case only on the grounds that the conclusion was clearly
536-16 erroneous in light of precedent and applicable rules.
536-17 (e) If a decision in a contested case involves an ultimate
536-18 finding of compliance with or satisfaction of a statutory standard
536-19 the determination of which is committed to the discretion or
536-20 judgment of the commission by law, the commission may reject a
536-21 proposal for decision as to the ultimate finding for reasons of
536-22 policy only.
536-23 (f) The commission shall issue written rulings, orders, or
536-24 decisions in all contested cases and shall fully explain in a
536-25 ruling, order, or decision the reasoning and grounds for
536-26 overturning each finding of fact or conclusion of law or for
536-27 rejecting any proposal for decision on an ultimate finding.
537-1 (Sec. 361.0832, Health and Safety Code.)
537-2 Sec. 20.081. Costs for Information Provided by a Person
537-3 Affected Regarding Hazardous Waste Permit. (a) After considering
537-4 the factors in Subsection (e), the commission may order the
537-5 applicant for a permit for a new hazardous waste management
537-6 facility to pay reasonable costs incurred by a person affected in
537-7 presenting information set out in Subsection (b) to the commission
537-8 on the question of the issuance of the permit.
537-9 (b) Information for which an award of costs under Subsection
537-10 (a) may be made includes:
537-11 (1) technical studies of the area in which the new
537-12 hazardous waste facility is proposed to be located;
537-13 (2) expert testimony given at a hearing on the permit
537-14 application; and
537-15 (3) surveys of land use and potential use in the
537-16 hazardous waste facility area.
537-17 (c) The commission may order the applicant for a permit for
537-18 a new hazardous waste management facility to pay reasonable costs
537-19 incurred by a person affected who presented information to the
537-20 commission at a hearing showing that the applicant:
537-21 (1) knowingly made false or misleading statements in
537-22 the application;
537-23 (2) knowingly made false or misleading statements
537-24 during the hearing; or
537-25 (3) failed to present information that the applicant
537-26 had in its possession that would have materially affected the
537-27 issues of fact and law on which the decision of the commission was
538-1 based.
538-2 (d) The total costs awarded to all persons affected under
538-3 Subsection (a) may not exceed $100,000 for a new commercial
538-4 hazardous waste management facility or $20,000 for a new
538-5 noncommercial hazardous waste management facility. The total costs
538-6 awarded to all persons affected under Subsection (c) may not exceed
538-7 $150,000 for a new commercial hazardous waste management facility
538-8 or $30,000 for a new noncommercial hazardous waste management
538-9 facility.
538-10 (e) In determining the appropriateness of an award under
538-11 Subsection (a) or (c), the commission shall consider:
538-12 (1) whether the information provided is material to
538-13 the commission's determination to deny the permit or to require the
538-14 applicant to make significant changes in the facility's design or
538-15 operation; and
538-16 (2) whether the information would otherwise not have
538-17 been presented to the commission while the commission is
538-18 considering its decision.
538-19 (f) If the applicant fails or refuses to pay the amount of
538-20 costs ordered not later than the 30th day after the date of entry
538-21 of the final order granting payment of costs, the commission shall
538-22 order the applicant's bond or other financial assurance forfeited
538-23 in the amount of the costs ordered reimbursed under Subsection (a)
538-24 or (c) up to and including the full amount of the bond or other
538-25 financial assurance. The commission shall forward the forfeited
538-26 amount to the person affected.
538-27 (g) If no request is made for an award of costs under this
539-1 section or if a person affected is determined by the commission not
539-2 to be entitled to an award of costs, the commission shall release
539-3 the bond or other financial assurance of the applicant subject to
539-4 an appeal of the denial of costs under this section. The
539-5 commission shall also release the bond or other financial assurance
539-6 on presentation of proof that the costs awarded have been paid.
539-7 (h) An order issued under this section is enforceable as a
539-8 debt. (Sec. 361.0833, Health and Safety Code.)
539-9 Sec. 20.082. Compliance Summaries. (a) The commission by
539-10 rule shall establish a procedure to prepare compliance summaries
539-11 relating to the applicant's solid waste management activities.
539-12 (b) The compliance summaries shall be made available to the
539-13 applicant and any interested person after the commission has
539-14 completed its technical review of the permit application and before
539-15 the issuance of the public notice concerning an opportunity for a
539-16 hearing on the permit application.
539-17 (c) Evidence of compliance or noncompliance by an applicant
539-18 for a solid waste management facility permit with commission rules,
539-19 permits, other orders, or evidence of a final determination of
539-20 noncompliance with federal statutes or statutes of any state in the
539-21 preceding five years concerning solid waste management may be:
539-22 (1) offered by a party at a hearing concerning the
539-23 application; and
539-24 (2) admitted into evidence subject to applicable rules
539-25 of evidence.
539-26 (d) The commission shall consider all evidence admitted,
539-27 including compliance history, in determining whether to issue,
540-1 amend, extend, or renew a permit. (Sec. 361.084, Health and Safety
540-2 Code.)
540-3 Sec. 20.083. Financial Assurance and Disclosure by Permit
540-4 Applicant. (a) Before a permit may be issued, amended,
540-5 transferred, extended, or renewed for a hazardous waste management
540-6 facility, the commission shall require as a part of each
540-7 application information it deems necessary to demonstrate that an
540-8 applicant has sufficient financial resources to operate the
540-9 facility in a safe manner and in compliance with the permit and all
540-10 applicable rules, including how an applicant intends to obtain
540-11 financing for construction of the facility, and to close the
540-12 facility in accordance with applicable rules. That information may
540-13 include balance sheets, financial statements, and disclosure of
540-14 relevant information regarding investors and stockholders, or
540-15 information required by Title 40, Code of Federal Regulations, Part
540-16 264, Subpart H. If the information would be considered confidential
540-17 under applicable law, the commission shall protect the information
540-18 accordingly. During hearings on contested applications, the
540-19 commission may allow disclosure of confidential information only
540-20 under an appropriate protective order.
540-21 (b) The commission may order a party in a contested case
540-22 permit hearing to provide:
540-23 (1) the identity of any known competitor of the
540-24 applicant that has provided funding to the party for its
540-25 participation in the hearing; and
540-26 (2) the amount of that funding.
540-27 (c) Before a permit may be issued, amended, extended, or
541-1 renewed for a solid waste facility to store, process, or dispose of
541-2 hazardous waste, the commission shall determine the type or types
541-3 of financial assurance that may be given by the applicant to comply
541-4 with rules adopted by the commission requiring financial assurance.
541-5 (d) Before hazardous waste may be received for storage,
541-6 processing, or disposal at a solid waste facility for which a
541-7 permit is issued, amended, extended, or renewed, the commission
541-8 shall require the permit holder to execute the required financial
541-9 assurance conditioned on the permit holder's satisfactorily
541-10 operating and closing the solid waste facility.
541-11 (e) The commission may condition issuance, amendment,
541-12 extension, or renewal of a permit for a solid waste facility, other
541-13 than a solid waste facility for disposal of hazardous waste, on the
541-14 permit holder's executing a bond or giving other financial
541-15 assurance conditioned on the permit holder's satisfactorily
541-16 operating and closing the solid waste facility.
541-17 (f) The commission shall require an assurance of financial
541-18 responsibility as may be necessary or desirable consistent with the
541-19 degree and duration of risks associated with the processing,
541-20 storage, or disposal of specified solid waste.
541-21 (g) Financial requirements established by the commission
541-22 must at a minimum be consistent with the federal requirements
541-23 established under the federal Solid Waste Disposal Act, as amended
541-24 by the Resource Conservation and Recovery Act of 1976, as amended
541-25 (42 U.S.C. Section 6901 et seq.).
541-26 (h) The commission may:
541-27 (1) receive funds as the beneficiary of a financial
542-1 assurance arrangement established under this section for the proper
542-2 closure of a solid waste management facility; and
542-3 (2) spend the funds from the financial assurance
542-4 arrangement to close the facility.
542-5 (i) If liability insurance is required of an applicant, the
542-6 applicant may not use a claims made policy as security unless the
542-7 applicant places in escrow, as provided by the commission, an
542-8 amount sufficient to pay an additional year of premiums for renewal
542-9 of the policy by the state on notice of termination of coverage.
542-10 (j) In addition to other forms of financial assurance
542-11 authorized by rules of the commission, the commission may authorize
542-12 the applicant to use a letter of credit if the issuing institution
542-13 or another institution that guarantees payment under the letter is:
542-14 (1) a bank chartered by the state or the federal
542-15 government; and
542-16 (2) federally insured and its financial practices are
542-17 regulated by the state or the federal government. (Sec. 361.085,
542-18 Health and Safety Code.)
542-19 Sec. 20.084. Separate Permit for Each Facility. (a) A
542-20 separate permit is required for each solid waste facility.
542-21 (b) A permit under this subchapter may be issued only to the
542-22 person in whose name the application is made and only for the
542-23 facility described by the permit.
542-24 (c) A permit may not be transferred without first giving
542-25 written notice to and receiving written approval of the commission.
542-26 (Sec. 361.086, Health and Safety Code.)
542-27 Sec. 20.085. Separate Recycling Permit not Required. (a) A
543-1 permit holder or a municipal solid waste management facility that
543-2 has or plans to have a recycling or waste separation facility
543-3 established in conjunction with the permitted municipal solid waste
543-4 management facility is not required to obtain for that recycling or
543-5 waste separation facility a separate permit from the commission or
543-6 to apply for an amendment to an existing permit issued by the
543-7 commission.
543-8 (b) A facility to which this section applies must register
543-9 with the commission in accordance with commission rules and comply
543-10 with commission rules adopted under this chapter.
543-11 (c) If a permit is otherwise required, the commission shall
543-12 expedite the permit proceeding if the applicant is seeking a permit
543-13 for a solid waste management facility that employs an innovative,
543-14 high technology method of waste disposition and recycling.
543-15 (Sec. 361.0861, Health and Safety Code.)
543-16 Sec. 20.086. Contents of Permit. A permit issued under this
543-17 subchapter must include:
543-18 (1) the name and address of each person who owns the
543-19 land on which the solid waste facility is located and the person
543-20 who is or will be the operator or person in charge of the facility;
543-21 (2) a legal description of the land on which the
543-22 facility is located; and
543-23 (3) the terms and conditions on which the permit is
543-24 issued, including the duration of the permit. (Sec. 361.087,
543-25 Health and Safety Code.)
543-26 Sec. 20.087. Evaluation of Waste Stream; Land Use and Need.
543-27 (a) Before a permit may be issued for a new hazardous waste
544-1 management facility or amended to provide for capacity expansion,
544-2 the applicant shall identify the nature of any known specific and
544-3 potential sources, types, and volumes of waste to be stored,
544-4 processed, or disposed of by the facility and shall identify any
544-5 other related information the commission may require.
544-6 (b) In evaluating a permit for a new hazardous waste
544-7 management facility, the commission shall assess the impact of the
544-8 proposed facility on local land use in the area, including any
544-9 relevant land use plans in existence before publication of the
544-10 notice of intent to file a solid waste permit application or, if no
544-11 notice of intent is filed, at the time the permit application is
544-12 filed. In determining whether a new hazardous waste management
544-13 facility is compatible with local land use, the commission shall
544-14 consider, at a minimum, the location of industrial and other
544-15 waste-generating facilities in the area, the amounts of hazardous
544-16 waste generated by those facilities, and the risks associated with
544-17 the transportation of hazardous waste to the facility. If the
544-18 commission determines that a proposed application is not compatible
544-19 with local land use, it may deny the permit. The commission shall
544-20 adopt rules to implement this subsection.
544-21 (c) In accordance with Section 20.025, in evaluating an
544-22 application for a new commercial hazardous waste management
544-23 facility, the commission shall determine the need for the specific
544-24 technology proposed in the facility to manage new or increased
544-25 volumes of waste generated in the state. The commission rules
544-26 adopted under Section 20.025 shall identify the types of technology
544-27 for which a commercial waste management need exists and shall
545-1 provide for priority consideration in permit processing for those
545-2 applications that address the highest priority need as identified
545-3 by the commission. (Sec. 361.0871, Health and Safety Code.)
545-4 Sec. 20.088. Permit Issuance, Amendment, Extension and
545-5 Renewal; Notice and Hearing. (a) The commission may amend,
545-6 extend, or renew a permit it issues in accordance with reasonable
545-7 procedures prescribed by the commission.
545-8 (b) The procedures prescribed by Section 20.069 for a permit
545-9 application apply to an application to amend, extend, or renew a
545-10 permit.
545-11 (c) Before a permit is issued, amended, extended, or
545-12 renewed, the commission shall provide an opportunity for a hearing
545-13 to the applicant and persons affected. The commission may also
545-14 hold a hearing on its own motion.
545-15 (d) In addition to providing an opportunity for a hearing
545-16 held under this section, the commission shall hold a public meeting
545-17 and give notice as provided by Section 20.074. (Sec. 361.088,
545-18 Health and Safety Code.)
545-19 Sec. 20.089. Permit Denial, Amendment, Suspension or
545-20 Revocation; Notice and Hearing. (a) The commission may, for good
545-21 cause, deny, amend, or revoke a permit it issues or has authority
545-22 to issue for reasons pertaining to public health, air or water
545-23 pollution, or land use, or for a violation of this chapter or other
545-24 applicable laws or rules controlling the management of solid waste.
545-25 (b) Except as provided by Section 20.111, the commission
545-26 shall notify each governmental entity listed under Section 20.069
545-27 and provide an opportunity for a hearing to the permit holder or
546-1 applicant and persons affected. The commission may also hold a
546-2 hearing on its own motion.
546-3 (c) The commission by rule shall establish procedures for
546-4 public notice and any public hearing under this section.
546-5 (d) Hearings under this section shall be conducted in
546-6 accordance with the hearing rules adopted by the commission and the
546-7 applicable provisions of the Administrative Procedure and Texas
546-8 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
546-9 (e) The commission may deny, suspend for not more than 90
546-10 days, or revoke an original or renewal permit if it is found, after
546-11 notice and hearing, that:
546-12 (1) the permit holder has a record of environmental
546-13 violations in the preceding five years at the permitted site;
546-14 (2) the applicant has a record of environmental
546-15 violations in the preceding five years at any site owned, operated,
546-16 or controlled by the applicant;
546-17 (3) the permit holder or applicant made a false or
546-18 misleading statement in connection with an original or renewal
546-19 application, either in the formal application or in any other
546-20 written instrument relating to the application submitted to the
546-21 agency, its officers, or its employees;
546-22 (4) the permit holder or applicant is indebted to the
546-23 state for fees, payment of penalties, or taxes imposed by this
546-24 title or by a rule of the commission; or
546-25 (5) the permit holder or applicant is unable to ensure
546-26 that the management of the hazardous waste management facility
546-27 conforms or will conform to this title and the rules of the
547-1 commission.
547-2 (f) Before denying, suspending, or revoking a permit under
547-3 this section, the commission must find:
547-4 (1) that a violation or violations are significant and
547-5 that the permit holder or applicant has not made a substantial
547-6 attempt to correct the violations; or
547-7 (2) that the permit holder or applicant is indebted to
547-8 the state for fees, payment of penalties, or taxes imposed by this
547-9 title or by a rule of the commission.
547-10 (g) For purposes of this section, the terms "permit holder"
547-11 and "applicant" include each member of a partnership or association
547-12 and, with respect to a corporation, each officer and the owner or
547-13 owners of a majority of the corporate stock, provided such partner
547-14 or owner controls at least 20 percent of the permit holder or
547-15 applicant and at least 20 percent of another business which
547-16 operates a solid waste management facility. (Sec. 361.089, Health
547-17 and Safety Code.)
547-18 Sec. 20.090. Regulation and Permitting of Certain Industrial
547-19 Solid Waste Disposal. (a) The commission may not require a permit
547-20 under this chapter for the collection, handling, storage,
547-21 processing, and disposal of industrial solid waste that is disposed
547-22 of within the boundaries of a tract of land that is:
547-23 (1) owned or otherwise effectively controlled by the
547-24 owners or operators of the particular industrial plant,
547-25 manufacturing plant, mining operation, or agricultural operation
547-26 from which the waste results or is produced; and
547-27 (2) located within 50 miles from the plant or
548-1 operation that is the source of the industrial solid waste.
548-2 (b) This section does not apply to:
548-3 (1) waste collected, handled, stored, processed, or
548-4 disposed of with solid waste from any other source or sources; or
548-5 (2) hazardous waste.
548-6 (c) This section does not change or limit any authority the
548-7 commission may have concerning:
548-8 (1) the requirement of permits and the control of
548-9 water quality, or otherwise, under Chapter 10; or
548-10 (2) the authority under Section 20.303.
548-11 (d) The commission may adopt rules under Section 20.029 to
548-12 control the collection, handling, storage, processing, and disposal
548-13 of the industrial solid waste to which this section applies to
548-14 protect the property of others, public property and rights-of-way,
548-15 groundwater, and other rights requiring protection.
548-16 (e) The commission may require a person who disposes or
548-17 plans to dispose of industrial solid waste and claims to be exempt
548-18 under this section to submit to the commission information that is
548-19 reasonably required to enable the commission to determine if this
548-20 section applies to the waste disposal activity. (Sec. 361.090,
548-21 Health and Safety Code.)
548-22 Sec. 20.091. Enclosed Containers or Vehicles; Permits;
548-23 Inspections; Criminal Penalty. (a) A solid waste site or
548-24 operation permitted as a Type IV landfill may not accept solid
548-25 waste that is in a completely enclosed container or enclosed
548-26 vehicle unless:
548-27 (1) the solid waste is transported on a route approved
549-1 by the commission and designed to eliminate putrescible, hazardous,
549-2 or infectious waste;
549-3 (2) the solid waste is delivered to the site or
549-4 operation on a date and time designated and approved by the
549-5 commission to eliminate putrescible, hazardous, or infectious
549-6 waste;
549-7 (3) the transporter possesses a special permit issued
549-8 by the commission that includes the approved route, date, and time;
549-9 and
549-10 (4) a commission inspector is present to verify that
549-11 the solid waste is free of putrescible, hazardous, or infectious
549-12 waste.
549-13 (b) The commission may issue the special permit under this
549-14 section and charge a reasonable fee to cover the costs of the
549-15 permit. The commission may adopt rules of procedure necessary to
549-16 carry out the permit program.
549-17 (c) The commission may employ one or more inspectors and
549-18 other employees necessary to inspect and determine if Type IV
549-19 landfills are free of putrescible, hazardous, or infectious waste.
549-20 The commission shall pay the compensation and expenses of
549-21 inspectors and other necessary employees employed under this
549-22 subsection, but the holders of Type IV landfill permits shall
549-23 reimburse the commission for the compensation and expenses as
549-24 provided by this section.
549-25 (d) The commission shall notify each holder of a Type IV
549-26 landfill permit of the compensation and expenses that are required
549-27 annually for the inspection of the landfills.
550-1 (e) The commission shall hold a public hearing to determine
550-2 the apportionment of the administration costs of the inspection
550-3 program among the holders of Type IV landfill permits. After the
550-4 hearing, the commission shall equitably apportion the costs of the
550-5 inspection program and issue an order assessing the annual costs
550-6 against each permit holder. The commission may provide for
550-7 payments in installments and shall specify the date by which each
550-8 payment must be made to the commission.
550-9 (f) A holder of a permit issued under this section may not
550-10 accept solid waste if the permit holder is delinquent in the
550-11 payment of costs assessed under Subsection (e).
550-12 (g) The commission's order assessing costs is effective
550-13 until the commission:
550-14 (1) modifies, revokes, or supersedes an order
550-15 assessing costs with a subsequent order; or
550-16 (2) issues supplementary orders applicable to new Type
550-17 IV landfill permits.
550-18 (h) The commission may adopt rules necessary to carry out
550-19 this section.
550-20 (i) An operator of a solid waste facility or a solid waste
550-21 hauler commits an offense if the operator or hauler disposes of
550-22 solid waste in a completely enclosed container or vehicle at a
550-23 solid waste site or operation permitted as a Type IV landfill:
550-24 (1) without having in possession the special permit
550-25 required by this section;
550-26 (2) on a date or time not authorized by the
550-27 commission; or
551-1 (3) without a commission inspector present to verify
551-2 that the solid waste is free of putrescible, hazardous, and
551-3 infectious waste.
551-4 (j) An offense under this section is a Class B misdemeanor.
551-5 (k) Penalties under this section are in addition to any
551-6 other penalty applicable under this chapter.
551-7 (l) This section does not apply to:
551-8 (1) a stationary compactor that is at a specific
551-9 location and that has an annual permit under this section issued by
551-10 the commission, on certification to the commission by the generator
551-11 that the contents of the compactor are free of putrescible,
551-12 hazardous, or infectious waste; or
551-13 (2) an enclosed vehicle of a municipality if the
551-14 vehicle has a permit issued by the commission to transport brush or
551-15 construction-demolition waste and rubbish on designated dates, on
551-16 certification by the municipality to the commission that the
551-17 contents of the vehicle are free of putrescible, hazardous, or
551-18 infectious waste.
551-19 (m) In this section, "putrescible waste" means organic
551-20 waste, such as garbage, wastewater treatment plant sludge, and
551-21 grease trap waste, that may:
551-22 (1) be decomposed by microorganisms with sufficient
551-23 rapidity as to cause odors or gases; or
551-24 (2) provide food for or attract birds, animals, or
551-25 disease vectors. (Sec. 361.091, Health and Safety Code.)
551-26 Sec. 20.092. Permit for Extracting Materials From Certain
551-27 Solid Waste Facilities. (a) The commission may require a permit
552-1 to extract materials for energy and material recovery and for gas
552-2 recovery from closed or inactive portions of a solid waste facility
552-3 that has been used for disposal of municipal or industrial solid
552-4 waste.
552-5 (b) The commission shall issue a permit under this section
552-6 in the same manner as provided by this subchapter for issuance of a
552-7 permit to operate and maintain a solid waste facility.
552-8 (c) The commission shall adopt standards necessary to ensure
552-9 that the integrity of a solid waste facility is maintained.
552-10 (Sec. 361.092, Health and Safety Code.)
552-11 Sec. 20.093. Regulation and Permitting of Rendering Plants.
552-12 (a) A manufacturing or processing establishment, commonly known as
552-13 a rendering plant, that processes waste materials originating from
552-14 animals and from materials of vegetable origin, including animal
552-15 parts and scraps, offal, paunch manure, and waste cooking grease of
552-16 animal and vegetable origin, is subject to regulation under the
552-17 industrial solid waste provisions of this chapter and may be
552-18 regulated under Chapter 10.
552-19 (b) If a rendering plant is owned by a person who operates
552-20 the plant as an integral part of an establishment that manufactures
552-21 or processes for animal or human consumption food derived wholly or
552-22 partly from dead, slaughtered, or processed animals, the combined
552-23 business may operate under a single permit issued under Chapter 10.
552-24 (c) This section does not apply to a rendering plant in
552-25 operation and production on or before August 27, 1973.
552-26 (d) In this section, "animals" includes only animals,
552-27 poultry, and fish. (Sec. 361.093, Health and Safety Code.)
553-1 Sec. 20.094. Permit Holder Exempt From Local License
553-2 Requirements. If a permit is issued, amended, renewed, or extended
553-3 by the commission in accordance with this subchapter, the solid
553-4 waste facility owner or operator does not need to obtain a license
553-5 for the same facility from a political subdivision under Section
553-6 20.165 or from a county. (Sec. 361.094, Health and Safety Code.)
553-7 Sec. 20.095. Applicant for Hazardous Waste Management
553-8 Facility Permit Exempt From Local Permit. (a) An applicant for a
553-9 permit under this subchapter is not required to obtain a permit for
553-10 the siting, construction, or operation of a hazardous waste
553-11 management facility from a local government or other political
553-12 subdivision of the state.
553-13 (b) A local government or other political subdivision of the
553-14 state may not adopt a rule or ordinance that conflicts with or is
553-15 inconsistent with the requirements for hazardous waste management
553-16 facilities as specified by the rules of the commission or by a
553-17 permit issued by the commission.
553-18 (c) In an action to enforce a rule or ordinance of a local
553-19 government or other political subdivision, the burden is on the
553-20 facility owner or operator or on the applicant to demonstrate
553-21 conflict or inconsistency with state requirements.
553-22 (d) The validity or applicability of a rule or ordinance of
553-23 a local government or other political subdivision may be determined
553-24 in an action for declaratory judgment under Chapter 37, Civil
553-25 Practice and Remedies Code, if it is alleged that the rule or
553-26 ordinance, or its threatened application, interferes with or
553-27 impairs, or threatens to interfere with or impair, the legal rights
554-1 or privileges of the plaintiff concerning an application for or the
554-2 issuance of a permit for the siting, construction, or operation of
554-3 a hazardous waste management facility.
554-4 (e) The local government or other political subdivision
554-5 whose rule or ordinance is being questioned shall be made a party
554-6 to the action. The commission shall be given written notice by
554-7 certified mail of the pendency of the action, and the commission
554-8 may become a party to the action.
554-9 (f) A declaratory judgment may be rendered even if the
554-10 plaintiff has requested the commission, the local government or
554-11 political subdivision, or another court to determine the validity
554-12 or applicability of the rule or ordinance in question.
554-13 (Sec. 361.095, Health and Safety Code.)
554-14 Sec. 20.096. Effect on Authority of Local Government or
554-15 Other Political Subdivision. (a) Except as specifically provided
554-16 by this chapter, this subchapter does not limit the powers and
554-17 duties of a local government or other political subdivision of the
554-18 state as conferred by this or other law.
554-19 (b) Sections 20.094 and 20.095 do not affect the power of a
554-20 local government or other political subdivision to adopt or enforce
554-21 building codes. (Sec. 361.096, Health and Safety Code.)
554-22 Sec. 20.097. Condition on Issuance of Permit for Hazardous
554-23 Waste Management Facility. The commission by rule shall condition
554-24 the issuance of a permit for a new hazardous waste management
554-25 facility or the areal expansion of an existing hazardous waste
554-26 management facility on the selection of a facility site that
554-27 reasonably minimizes possible contamination of surface water and
555-1 groundwater. (Sec. 361.097, Health and Safety Code.)
555-2 Sec. 20.098. Prohibition on Permit for Hazardous Waste
555-3 Landfill in 100-Year Floodplain. (a) Except as provided by
555-4 Subsections (b) and (c), the commission by rule shall prohibit the
555-5 issuance of a permit for a new hazardous waste landfill or an areal
555-6 expansion of such a landfill if the landfill is to be located in
555-7 the 100-year floodplain existing before site development, unless
555-8 the landfill is to be located in an area with a flood depth of less
555-9 than three feet.
555-10 (b) The commission by rule may allow an areal expansion of a
555-11 landfill in a 100-year floodplain if it can be demonstrated to the
555-12 satisfaction of the commission that the facility design will
555-13 prevent the physical transport of any hazardous waste by a 100-year
555-14 flood event.
555-15 (c) The commission by rule shall prohibit the issuance of a
555-16 permit for a new commercial hazardous waste land disposal unit if
555-17 the unit is to be located in a 100-year floodplain, unless the
555-18 applicant can demonstrate to the satisfaction of the commission
555-19 that the facility design will prevent the physical transport of any
555-20 hazardous waste by a 100-year flood event.
555-21 (d) The commission by rule shall require an applicant to
555-22 provide sufficient information to assure that a proposed hazardous
555-23 waste landfill, areal expansion of such landfill, or new commercial
555-24 hazardous waste land disposal unit is not subject to inundation of
555-25 a 100-year flood event. An applicant or any other party may not
555-26 rely solely on floodplain maps prepared by the Federal Emergency
555-27 Management Agency or a successor agency to determine whether a
556-1 hazardous waste landfill, areal expansion of such landfill, or
556-2 commercial hazardous waste land disposal unit is subject to such an
556-3 inundation. (Sec. 361.098, Health and Safety Code.)
556-4 Sec. 20.099. Prohibition on Permit for Hazardous Waste
556-5 Management Unit in Wetlands. (a) The commission by rule shall
556-6 prohibit the issuance of a permit for a new hazardous waste
556-7 management unit or an areal expansion of an existing hazardous
556-8 waste management unit if the unit is to be located in wetlands, as
556-9 defined by the commission.
556-10 (b) In this section and Section 20.100, "hazardous waste
556-11 management unit" means a landfill, surface impoundment, land
556-12 treatment facility, waste pile, or storage or processing facility
556-13 used to manage hazardous waste. (Sec. 361.099, Health and Safety
556-14 Code.)
556-15 Sec. 20.100. Prohibition on Permit for Certain Hazardous
556-16 Waste Management Units. The commission by rule shall prohibit the
556-17 issuance of a permit for a new hazardous waste management unit if
556-18 the landfill:
556-19 (1) is in a floodplain of a perennial stream subject
556-20 to not less than one percent chance of flooding in any year,
556-21 delineated on a flood map adopted by the Federal Emergency
556-22 Management Agency after September 1, 1985, as zone A1-99, V0, or
556-23 V1-30; and
556-24 (2) receives hazardous waste for a fee.
556-25 (Sec. 361.100, Health and Safety Code.)
556-26 Sec. 20.101. Prohibition on Permit for Facility on Recharge
556-27 Zone of Sole Source Aquifer. The commission by rule shall prohibit
557-1 the issuance of a permit for a new hazardous waste landfill, land
557-2 treatment facility, surface impoundment, or waste pile, or areal
557-3 expansion of such a facility, if the facility is to be located on
557-4 the recharge zone of a sole source aquifer. (Sec. 361.101, Health
557-5 and Safety Code.)
557-6 Sec. 20.102. Prohibition on Permit for Facility Affected by
557-7 Fault. If a fault exists within two and one-half miles from the
557-8 proposed or existing wellbore of a Class I injection well or the
557-9 area within the cone of influence, whichever is greater, or if a
557-10 fault exists within 3,000 feet of a proposed hazardous waste
557-11 management facility other than a Class I injection well or of a
557-12 capacity expansion of an existing hazardous waste management
557-13 facility, the burden is on the applicant, unless previously
557-14 demonstrated to the commission or to the United States
557-15 Environmental Protection Agency, to show:
557-16 (1) in the case of Class I injection wells, that the
557-17 fault is not sufficiently transmissive or vertically extensive to
557-18 allow migration of hazardous constituents out of the injection
557-19 zone; or
557-20 (2) in the case of a proposed hazardous waste
557-21 management facility other than a Class I injection well or for a
557-22 capacity expansion of an existing hazardous waste management
557-23 facility, that:
557-24 (A) the fault has not had displacement within
557-25 Holocene time, or if faults have had displacement within Holocene
557-26 time, that no such faults pass within 200 feet of the portion of
557-27 the surface facility where treatment, storage, or disposal of
558-1 hazardous wastes will be conducted; and
558-2 (B) the fault will not result in structural
558-3 instability of the surface facility or provide for groundwater
558-4 movement to the extent that there is endangerment to human health
558-5 or the environment. (Sec. 361.1011, Health and Safety Code.)
558-6 Sec. 20.103. Prohibition on Permit for Hazardous Waste
558-7 Management Facilities Within a Certain Distance of Residence,
558-8 Church, School, Day Care Center, Park, or Public Drinking Water
558-9 Supply. (a) Except as provided by Subsections (b) and (c), the
558-10 commission by rule shall prohibit the issuance of a permit for a
558-11 new hazardous waste landfill or land treatment facility or the
558-12 areal expansion of such a facility if the boundary of the landfill
558-13 or land treatment facility is to be located within 1,000 feet of an
558-14 established residence, church, school, day care center, surface
558-15 water body used for a public drinking water supply, or dedicated
558-16 public park.
558-17 (b) The commission by rule shall prohibit the issuance of a
558-18 permit for a new commercial hazardous waste management facility or
558-19 the subsequent areal expansion of such a facility or unit of that
558-20 facility if the boundary of the unit is to be located within
558-21 one-half of a mile (2,640 feet) of an established residence,
558-22 church, school, day care center, surface water body used for a
558-23 public drinking water supply, or dedicated public park.
558-24 (c) For a subsequent areal expansion of a new commercial
558-25 hazardous waste management facility that was required to comply
558-26 with Subsection (b), distances shall be measured from a residence,
558-27 church, school, day care center, surface water body used for a
559-1 public drinking water supply, or dedicated public park only if such
559-2 structure, water supply, or park was in place at the time the
559-3 distance was certified for the original permit.
559-4 (d) The commission by rule shall prohibit the issuance of a
559-5 permit for a new commercial hazardous waste management facility
559-6 that is proposed to be located at a distance greater than one-half
559-7 mile (2,640 feet) from an established residence, church, school,
559-8 day care center, surface water body used for a public drinking
559-9 water supply, or dedicated park, unless the applicant demonstrates
559-10 that the facility will be operated so as to safeguard public health
559-11 and welfare and protect physical property and the environment, at
559-12 any distance beyond the facility's property boundaries, consistent
559-13 with the purposes of this chapter.
559-14 (e) The measurement of distances required by Subsections
559-15 (a), (b), (c), and (d) shall be taken toward an established
559-16 residence, church, school, day care center, surface water body used
559-17 for a public drinking water supply, or dedicated park that is in
559-18 use when the notice of intent to file a permit application is filed
559-19 with the commission or, if no notice of intent is filed, when the
559-20 permit application is filed with the commission. The restrictions
559-21 imposed by Subsections (a), (b), (c), and (d) do not apply to a
559-22 residence, church, school, day care center, surface water body used
559-23 for a public drinking water supply, a dedicated park located within
559-24 the boundaries of a commercial hazardous waste management facility,
559-25 or property owned by the permit applicant.
559-26 (f) The measurement of distances required by Subsections
559-27 (a), (b), (c), and (d) shall be taken from a perimeter around the
560-1 proposed hazardous waste management unit. The perimeter shall be
560-2 not more than 75 feet from the edge of the proposed hazardous waste
560-3 management unit. (Sec. 361.102, Health and Safety Code.)
560-4 Sec. 20.104. Other Areas Unsuitable for Hazardous Waste
560-5 Management Facility. The commission by rule shall define the
560-6 characteristics that make other areas unsuitable for a hazardous
560-7 waste management facility, including consideration of:
560-8 (1) flood hazards;
560-9 (2) discharge from or recharge to a groundwater
560-10 aquifer;
560-11 (3) soil conditions;
560-12 (4) areas of direct drainage within one mile of a lake
560-13 used to supply public drinking water;
560-14 (5) active geological processes;
560-15 (6) coastal high hazard areas, such as areas subject
560-16 to hurricane storm surge and shoreline erosion; or
560-17 (7) critical habitat of endangered species.
560-18 (Sec. 361.103, Health and Safety Code.)
560-19 Sec. 20.105. Prohibition on Permit for Facility in
560-20 Unsuitable Area. The commission by rule shall prohibit the
560-21 issuance of a permit for a new hazardous waste management facility
560-22 or an areal expansion of an existing hazardous waste management
560-23 facility if the facility is to be located in an area determined to
560-24 be unsuitable under rules adopted by the commission under Section
560-25 20.104 unless the design, construction, and operational features of
560-26 the facility will prevent adverse effects from unsuitable site
560-27 characteristics. (Sec. 361.104, Health and Safety Code.)
561-1 Sec. 20.106. Petition by Local Government for Rule on
561-2 Hazardous Waste Facility in Unsuitable Area. (a) The commission
561-3 by rule shall allow a local government to petition the commission
561-4 for a rule that restricts or prohibits the siting of a new
561-5 hazardous waste disposal facility or other new hazardous waste
561-6 management facility in an area including an area meeting one or
561-7 more of the characteristics described by Section 20.104.
561-8 (b) A rule adopted under this section may not affect the
561-9 siting of a new hazardous waste disposal facility or other new
561-10 hazardous waste management facility if an application or a notice
561-11 of intent to file an application concerning the facility is filed
561-12 with the commission before the filing of a petition under this
561-13 section. (Sec. 361.105, Health and Safety Code.)
561-14 Sec. 20.107. Prohibition on Permit for Landfill if
561-15 Alternative Exists. The commission by rule shall prohibit the
561-16 issuance of a permit for a new hazardous waste landfill or the
561-17 areal expansion of an existing hazardous waste landfill if there is
561-18 a practical, economic, and feasible alternative to the landfill
561-19 that is reasonably available to manage the types and classes of
561-20 hazardous waste that might be disposed of at the landfill.
561-21 (Sec. 361.106, Health and Safety Code.)
561-22 Sec. 20.108. Hydrogeologic Report for Certain Hazardous
561-23 Waste Facilities. The commission by rule shall require an
561-24 applicant for a new hazardous waste landfill, land treatment
561-25 facility, or surface impoundment that is to be located in the
561-26 apparent recharge zone of a regional aquifer to prepare and file a
561-27 hydrogeologic report documenting the potential effects, if any, on
562-1 the regional aquifer in the event of a release from the waste
562-2 containment system. (Sec. 361.107, Health and Safety Code.)
562-3 Sec. 20.109. Engineering Report for Hazardous Waste
562-4 Landfill. The commission by rule shall require an applicant for a
562-5 new hazardous waste landfill filed after January 1, 1986, to
562-6 provide an engineering report evaluating:
562-7 (1) the benefits, if any, associated with constructing
562-8 the landfill above existing grade at the proposed site;
562-9 (2) the costs associated with the above grade
562-10 construction; and
562-11 (3) the potential adverse effects, if any, that would
562-12 be associated with the above grade construction. (Sec. 361.108,
562-13 Health and Safety Code.)
562-14 Sec. 20.110. Grant of Permit for Hazardous Waste Management
562-15 Facility. (a) The commission may grant an application for a
562-16 permit in whole or in part for a hazardous waste management
562-17 facility if it finds that:
562-18 (1) the applicant has provided for the proper
562-19 operation of the proposed hazardous waste management facility;
562-20 (2) the applicant for a proposed hazardous waste
562-21 management facility has made a reasonable effort to ensure that the
562-22 burden, if any, imposed by the proposed hazardous waste management
562-23 facility on local law enforcement, emergency medical or
562-24 fire-fighting personnel, or public roadways, will be minimized or
562-25 mitigated; and
562-26 (3) the applicant, other than an applicant who is not
562-27 an owner of the facility, owns or has made a good faith claim to,
563-1 or has an option to acquire, or the authority to acquire by eminent
563-2 domain, the property or portion of the property on which the
563-3 hazardous waste management facility will be constructed.
563-4 (b) If the commission determines that a burden on public
563-5 roadways will be imposed by a new commercial hazardous waste
563-6 management facility, the commission shall require the applicant to
563-7 pay the cost of the improvements necessary to minimize or mitigate
563-8 the burden. The applicant shall bear the costs associated with any
563-9 required roadway improvements. The failure of a county or
563-10 municipality to accept the funds and make the improvements shall
563-11 not be the basis for denial or suspension of a permit.
563-12 (c) The commission shall not process an application for a
563-13 permit for a new commercial hazardous waste management facility
563-14 unless the applicant:
563-15 (1) has provided sufficient evidence that emergency
563-16 response capabilities are available or will be available before the
563-17 facility first receives waste in the area in which the facility is
563-18 located or proposed to be located to manage a reasonable worst-case
563-19 emergency condition associated with the operation of the facility;
563-20 or
563-21 (2) has secured bonding of sufficient financial
563-22 assurance to fund the emergency response personnel and equipment
563-23 determined to be necessary by the commission to manage a reasonable
563-24 worst-case emergency condition associated with the facility.
563-25 (d) If the applicant intends to use emergency response
563-26 facilities that are not provided by the county or municipality in
563-27 which the facility is located to satisfy the requirements of
564-1 Subsection (c), the applicant must provide its own facilities or
564-2 contract for emergency response facilities with an adjoining
564-3 county, municipality, mutual aid association, or other appropriate
564-4 entity. If financial assurance is required, the financial
564-5 assurance must be for the benefit of the county government or
564-6 municipal government in the county in which the facility is located
564-7 or proposed to be located, or both, and must provide payment of the
564-8 amount of the bond or other instrument to the governmental body or
564-9 governmental bodies before the facility first receives waste, with
564-10 a limitation that the money can only be spent for emergency
564-11 response personnel and equipment. The commission shall adopt rules
564-12 to ensure that the county or municipal government or other entity
564-13 has sufficient emergency response capabilities before the facility
564-14 first receives waste.
564-15 (e) A permit for a new commercial hazardous waste management
564-16 facility shall not be granted unless the applicant provides a
564-17 summary of its experience in hazardous waste management and in the
564-18 particular hazardous waste management technology proposed for the
564-19 application location. Any applicant without experience in the
564-20 particular hazardous waste management technology shall
564-21 conspicuously state that lack of experience in the application or a
564-22 permit shall not be granted pursuant to the application. A permit
564-23 may not be denied solely on the basis of lack of experience of the
564-24 applicant. (Sec. 361.109, Health and Safety Code.)
564-25 Sec. 20.111. Termination of Authorization or Permit.
564-26 Authorization to store, process, or dispose of hazardous waste
564-27 under Section 20.077 or under a solid waste permit issued under
565-1 this subchapter that has not been reissued in accordance with an
565-2 approved state program under Section 3006 of the federal Solid
565-3 Waste Disposal Act, as amended by the Resource Conservation and
565-4 Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.),
565-5 terminates as follows:
565-6 (1) in the case of each land disposal facility, on
565-7 November 8, 1985, unless the facility owner or operator applied for
565-8 a final determination concerning the issuance of a permit before
565-9 that date and certified that the facility was in compliance with
565-10 all applicable groundwater monitoring and financial responsibility
565-11 requirements;
565-12 (2) in the case of each incinerator facility, on
565-13 November 8, 1989, unless the facility owner or operator applied for
565-14 a final determination concerning the issuance of a permit by
565-15 November 8, 1986; or
565-16 (3) in the case of any other solid waste facility, on
565-17 November 8, 1992, unless the facility owner or operator applied for
565-18 a final determination concerning the issuance of a permit by
565-19 November 8, 1988. (Sec. 361.110, Health and Safety Code.)
565-20 Sec. 20.112. Commission May Exempt Certain Municipal
565-21 Facilities. The commission may exempt from permit requirements a
565-22 municipal solid waste management facility that:
565-23 (1) is used in the transfer of municipal solid waste
565-24 from a service area with a population of less than 5,000 to a solid
565-25 waste processing or disposal site; and
565-26 (2) complies with requirements established by
565-27 commission rule that are necessary to protect the public's health
566-1 and the environment. (Sec. 361.111, Health and Safety Code.)
566-2 Sec. 20.113. Storage, Transportation, and Disposal of Used
566-3 or Scrap Tires. (a) A person may not store more than 500 used or
566-4 scrap tires for any period on any publicly or privately owned
566-5 property unless the person registers the storage site with the
566-6 commission. This subsection does not apply to the storage,
566-7 protection, or production of agricultural commodities.
566-8 (b) The commission may register a site to store more than
566-9 500 used or scrap tires.
566-10 (c) A person may not dispose of used or scrap tires in a
566-11 facility that is not permitted by the commission for that purpose.
566-12 (d) The commission may issue a permit for a facility for the
566-13 disposal of used or scrap tires.
566-14 (e) The commission by rule shall adopt application forms and
566-15 procedures for the registration and permitting processes authorized
566-16 under this section.
566-17 (f) A person may not store more than 500 used or scrap tires
566-18 or dispose of any quantity of used or scrap tires unless the tires
566-19 are shredded, split, or quartered as provided by commission rule.
566-20 The commission may grant an exception to this requirement if the
566-21 commission finds that circumstances warrant the exception. The
566-22 prohibition provided by this subsection does not apply to a person
566-23 who, for eventual recycling, reuse, or energy recovery, temporarily
566-24 stores scrap tires in a designated recycling collection area at a
566-25 landfill permitted by the commission or licensed by a county or by
566-26 a political subdivision exercising the authority granted by Section
566-27 20.165.
567-1 (g) The commission shall require a person who transports
567-2 used or scrap tires for storage or disposal to maintain records and
567-3 use a manifest or other appropriate system to assure that those
567-4 tires are transported to a storage site that is registered or to a
567-5 disposal facility that is permitted under this section for that
567-6 purpose.
567-7 (h) The commission may amend, extend, transfer, or renew a
567-8 permit issued under this section as provided by this chapter and
567-9 commission rule.
567-10 (i) The notice and hearing procedures provided by this
567-11 subchapter apply to a permit issued, amended, extended, or renewed
567-12 under this section.
567-13 (j) The commission may, for good cause, revoke or amend a
567-14 permit it issues under this section for reasons concerning public
567-15 health, air or water pollution, land use, or violation of this
567-16 section as provided by Section 20.089.
567-17 (k) The commission may not register or issue a permit to a
567-18 facility required by Section 20.477 to provide evidence of
567-19 financial responsibility unless the facility has complied with that
567-20 section.
567-21 (l) The commission may not register or issue a permit to a
567-22 facility required to provide evidence of financial responsibility
567-23 unless the facility has complied with that requirement.
567-24 (m) In this section, "scrap tire" means a tire that can no
567-25 longer be used for its original intended purpose. (Sec. 361.112,
567-26 Health and Safety Code.)
567-27 Sec. 20.114. Permit Conditions for the Operation of
568-1 Hazardous Waste Management Facilities. (a) The commission by rule
568-2 shall establish requirements for commercial hazardous waste
568-3 management facilities that will provide the opportunity for
568-4 periodic monitoring of the operation of those facilities in order
568-5 to assure that the facilities are in compliance with the terms of
568-6 their respective permits.
568-7 (b) In proposing and adopting rules to implement this
568-8 section, the commission shall consider, at a minimum, a requirement
568-9 that the facility owner or operator fund an independent inspector
568-10 for the facility, a requirement for an independent annual
568-11 environmental audit of the facility, a procedure for considering
568-12 comments from affected parties on the selection of the independent
568-13 inspector, a requirement that operational personnel at the
568-14 permitted facility be certified by the state as competent to
568-15 operate the size and type of hazardous waste management facility
568-16 for which the permit has been issued, and a requirement that the
568-17 facility provide for fence line and ambient air quality monitoring.
568-18 (c) A requirement that is established by commission rule to
568-19 implement this section shall be incorporated as appropriate into
568-20 the conditions of a permit for a new hazardous waste management
568-21 facility when the permit is issued and shall be incorporated into
568-22 the conditions of a permit for an existing hazardous waste
568-23 management facility when the permit is renewed. (Sec. 361.113,
568-24 Health and Safety Code.)
568-25 Sec. 20.115. Grant of Permit for Disposal of Hazardous Waste
568-26 Into Salt Domes. (a) The commission may not issue a permit for a
568-27 hazardous waste injection well in a solution-mined salt dome cavern
569-1 unless the United States Environmental Protection Agency and the
569-2 commission determine that sufficient rules are in place to regulate
569-3 that activity.
569-4 (b) Before issuing a permit for a hazardous waste injection
569-5 well in a solution-mined salt dome cavern, the commission by order
569-6 must find that there is an urgent public necessity for the
569-7 hazardous waste injection well. The commission, in determining
569-8 whether an urgent public necessity exists for the permitting of the
569-9 hazardous waste injection well in a solution-mined salt dome
569-10 cavern, must find that:
569-11 (1) the injection well will be designed, constructed,
569-12 and operated in a manner that provides at least the same degree of
569-13 safety as required of other currently operating hazardous waste
569-14 disposal technologies;
569-15 (2) consistent with the need and desire to manage
569-16 within the state hazardous wastes generated in the state, there is
569-17 a substantial or obvious public need for additional hazardous waste
569-18 disposal capacity and the hazardous waste injection well will
569-19 contribute additional capacity toward servicing that need;
569-20 (3) the injection well will be constructed and
569-21 operated in a manner so as to safeguard public health and welfare
569-22 and protect physical property and the environment;
569-23 (4) the applicant has demonstrated that groundwater
569-24 and surface waters, including public water supplies, will be
569-25 protected from the release of hazardous waste from the salt-dome
569-26 waste containment cavern; and
569-27 (5) any other criteria required by the commission to
570-1 satisfy that the test of urgency has been met. (Sec. 361.114,
570-2 Health and Safety Code.)
570-3 (Sections 20.116-20.150 reserved for expansion)
570-4 SUBCHAPTER D. POWERS AND DUTIES OF LOCAL GOVERNMENTS
570-5 Sec. 20.151. Relationship of County Authority to State
570-6 Authority. (a) Each county has the solid waste management powers
570-7 prescribed under this subchapter.
570-8 (b) The exercise of the licensing authority and other powers
570-9 granted to a county by this chapter does not preclude the
570-10 commission from exercising the powers vested in the commission
570-11 under other provisions of this chapter, including the provisions
570-12 authorizing the commission to issue a permit to construct, operate,
570-13 and maintain a facility to process, store, or dispose of solid
570-14 waste.
570-15 (c) The commission, by specific action or directive, may
570-16 supersede any authority granted to or exercised by a county under
570-17 this chapter. (Sec. 361.151, Health and Safety Code.)
570-18 Sec. 20.152. Limitation on County Powers Concerning
570-19 Industrial Solid Waste. The powers specified by Sections
570-20 20.154-20.162 and Sections 23.011 and 23.012 (County Solid Waste
570-21 Control Act) may not be exercised by a county with respect to the
570-22 industrial solid waste disposal practices and areas to which
570-23 Section 20.090 applies. (Sec. 361.152, Health and Safety Code.)
570-24 Sec. 20.153. County Solid Waste Plans and Programs; Fees.
570-25 (a) A county may appropriate and spend money from its general
570-26 revenues to manage solid waste and to administer a solid waste
570-27 program and may charge reasonable fees for those services.
571-1 (b) As sufficient funds are made available by the
571-2 commission, a county shall develop county solid waste plans and
571-3 coordinate those plans with the plans of:
571-4 (1) local governments, regional planning agencies, and
571-5 other governmental entities, as prescribed by Subchapter B, Chapter
571-6 22; and
571-7 (2) the commission. (Sec. 361.153, Health and Safety
571-8 Code.)
571-9 Sec. 20.154. County Licensing Authority. (a) Except as
571-10 provided by Sections 20.151 and 20.152, a county may require and
571-11 issue licenses authorizing and governing the operation and
571-12 maintenance of facilities used to process, store, or dispose of
571-13 solid waste, other than hazardous waste, in an area not in the
571-14 territorial limits or extraterritorial jurisdiction of a
571-15 municipality.
571-16 (b) If a county exercises licensing authority, it shall
571-17 adopt and enforce rules for the management of solid waste. The
571-18 rules must be:
571-19 (1) compatible with and not less stringent than those
571-20 of the commission; and
571-21 (2) approved by the commission.
571-22 (c) Sections 20.155-20.161 apply if a county exercises
571-23 licensing authority under this section. (Sec. 361.154, Health and
571-24 Safety Code.)
571-25 Sec. 20.155. County Notification of License Application to
571-26 State Agencies. The county shall mail a copy of each license
571-27 application with pertinent supporting data to the commission. The
572-1 commission has at least 60 days to submit comments and
572-2 recommendations on the license application before the county may
572-3 act on the application unless that privilege is waived by the
572-4 commission. (Sec. 361.155, Health and Safety Code.)
572-5 Sec. 20.156. Separate License for Each Facility. (a) A
572-6 county shall issue a separate license for each solid waste
572-7 facility.
572-8 (b) A license under this subchapter may be issued only to
572-9 the person in whose name the application is made and only for the
572-10 facility described in the license.
572-11 (c) A license may not be transferred without prior notice to
572-12 and approval by the county that issued it. (Sec. 361.156, Health
572-13 and Safety Code.)
572-14 Sec. 20.157. Contents of License. A license for a solid
572-15 waste facility issued by a county must include:
572-16 (1) the name and address of each person who owns the
572-17 land on which the solid waste facility is located and the person
572-18 who is or will be the operator or person in charge of the facility;
572-19 (2) a legal description of the land on which the
572-20 facility is located; and
572-21 (3) the terms and conditions on which the license is
572-22 issued, including the duration of the license. (Sec. 361.157,
572-23 Health and Safety Code.)
572-24 Sec. 20.158. License Fee. (a) A county may charge a
572-25 license fee not to exceed $100, as set by the commissioners court
572-26 of the county.
572-27 (b) The fees shall be deposited to the credit of the
573-1 county's general fund. (Sec. 361.158, Health and Safety Code.)
573-2 Sec. 20.159. License Issuance; Amendment, Extension, and
573-3 Renewal. (a) A county may amend, extend, or renew a license it
573-4 issues in accordance with county rules.
573-5 (b) The procedures prescribed by Section 20.155 apply to an
573-6 application to amend, extend, or renew a license.
573-7 (c) A license for the use of a facility to process, store,
573-8 or dispose of solid waste may not be issued, amended, renewed, or
573-9 extended without the prior approval of the commission.
573-10 (Sec. 361.159, Health and Safety Code.)
573-11 Sec. 20.160. License Amendment and Revocation. (a) A
573-12 county may, for good cause, after hearing with notice to the
573-13 license holder and to the commission, revoke or amend a license it
573-14 issues for reasons concerning:
573-15 (1) public health;
573-16 (2) air or water pollution;
573-17 (3) land use; or
573-18 (4) a violation of this chapter or of other applicable
573-19 laws or rules controlling the processing, storage, or disposal of
573-20 solid waste.
573-21 (b) For similar reasons, the commission may for good cause
573-22 amend or revoke a license issued by a county, after hearing with
573-23 notice to:
573-24 (1) the license holder; and
573-25 (2) the county that issued the license.
573-26 (Sec. 361.160, Health and Safety Code.)
573-27 Sec. 20.161. Permit From Commission Not Required. If a
574-1 county issues, amends, renews, or extends a license in accordance
574-2 with Sections 20.154-20.160, the owner or operator of the facility
574-3 is not required to obtain a permit from the commission for the same
574-4 facility. (Sec. 361.161, Health and Safety Code.)
574-5 Sec. 20.162. Designation of Areas Suitable for Facilities.
574-6 (a) Subject to the limitation under Sections 20.151 and 20.152, a
574-7 county may designate land areas not in the territorial limits or
574-8 extraterritorial jurisdiction of a municipality as suitable for use
574-9 as solid waste facilities.
574-10 (b) The county shall base a designation on the principles of
574-11 public health, safety, and welfare, including proper land use,
574-12 compliance with state statutes, and other pertinent factors.
574-13 (Sec. 361.162, Health and Safety Code.)
574-14 Sec. 20.163. Cooperative Agreements With Local Governments.
574-15 A county may enter into cooperative agreements with local
574-16 governments and other governmental entities to jointly operate
574-17 solid waste management activities and to charge reasonable fees for
574-18 the services. (Sec. 361.163, Health and Safety Code.)
574-19 Sec. 20.164. Enforcement. A county may enforce this chapter
574-20 and the rules adopted by the commission concerning the management
574-21 of solid waste. (Sec. 361.164, Health and Safety Code.)
574-22 Sec. 20.165. Political Subdivisions With Jurisdiction in Two
574-23 or More Counties. (a) This section applies to a political
574-24 subdivision of the state that:
574-25 (1) has jurisdiction of territory in more than one
574-26 county; and
574-27 (2) has been granted the power by the legislature to
575-1 regulate solid waste handling or disposal practices or activities
575-2 in its jurisdiction.
575-3 (b) The governing body of the political subdivision may, by
575-4 resolution, assume for the political subdivision the exclusive
575-5 authority to exercise, in the area subject to its jurisdiction, the
575-6 powers granted by this chapter to a county, to the exclusion of the
575-7 exercise of the same powers by the counties otherwise having
575-8 jurisdiction over the area.
575-9 (c) In the exercise of those powers, the political
575-10 subdivision is subject to the same duties, limitations, and
575-11 restrictions applicable to a county under this chapter.
575-12 (d) A political subdivision that assumes the authority
575-13 granted under this section:
575-14 (1) serves as the coordinator of all solid waste
575-15 management practices and activities for municipalities, counties,
575-16 and other governmental entities in its jurisdiction that have solid
575-17 waste management regulatory powers or engage in solid waste
575-18 management practices or activities; and
575-19 (2) shall exercise the authority as long as the
575-20 resolution of the political subdivision is effective.
575-21 (Sec. 361.165, Health and Safety Code.)
575-22 Sec. 20.166. Municipal Restrictions. A municipality may not
575-23 abolish or restrict the use or operation of a solid waste facility
575-24 in its limits or extraterritorial jurisdiction if the solid waste
575-25 facility:
575-26 (1) was in existence when the municipality was
575-27 incorporated or was in existence when the municipality annexed the
576-1 area in which it is located; and
576-2 (2) is operated in substantial compliance with
576-3 applicable state and county regulations. (Sec. 361.166, Health and
576-4 Safety Code.)
576-5 Sec. 20.167. Operation of Facility by Political Subdivision.
576-6 A municipality or other political subdivision operating a solid
576-7 waste facility may not be prevented from operating the solid waste
576-8 facility on the ground that the facility is located in the limits
576-9 or extraterritorial jurisdiction of another municipality.
576-10 (Sec. 361.167, Health and Safety Code.)
576-11 (Sections 20.168-20.180 reserved for expansion)
576-12 SUBCHAPTER E. REGISTRY AND CLEANUP OF
576-13 CERTAIN HAZARDOUS WASTE FACILITIES
576-14 Sec. 20.181. State Registry: Annual Publication. (a) The
576-15 commission shall annually publish an updated state registry
576-16 identifying, to the extent feasible, each facility that may
576-17 constitute an imminent and substantial endangerment to public
576-18 health and safety or the environment due to a release or threatened
576-19 release of hazardous substances into the environment.
576-20 (b) The registry shall identify the relative priority for
576-21 action at each listed facility. The relative priority for action
576-22 at facilities listed on the registry shall be periodically reviewed
576-23 and revised by the commission as necessary to accurately reflect
576-24 the need for action at the facilities.
576-25 (c) In this subchapter, "facility" means any building,
576-26 structure, installation, equipment, pipe, or pipeline (including
576-27 any pipe into a sewer or publicly owned treatment works, well, pit,
577-1 pond, lagoon, impoundment, ditch, landfill, storage container,
577-2 motor vehicle, rolling stock, or aircraft), or any site or area
577-3 where a hazardous substance has been deposited, stored, disposed
577-4 of, or placed or otherwise come to be located. The term does not
577-5 include any consumer product in consumer use or any vessel. (Sec.
577-6 361.181, Health and Safety Code.)
577-7 Sec. 20.182. Investigations. (a) The executive director
577-8 may conduct investigations of facilities that are listed on the
577-9 state registry, or that the executive director has reason to
577-10 believe should be included on the state registry, in accordance
577-11 with Sections 2.202, 20.037, and 20.038.
577-12 (b) If there is a reasonable basis to believe there may be a
577-13 release or threatened release of a hazardous substance at a
577-14 facility, the executive director may submit requests for
577-15 information and requests for the production of documents to any
577-16 person who has or may have information or documents relevant to:
577-17 (1) the identification, nature, or quantity of
577-18 materials that have been generated, treated, stored, or disposed of
577-19 at a facility or transported to a facility;
577-20 (2) the identification of soils, groundwater, or
577-21 surface water at a facility that have been or may be affected by an
577-22 actual or threatened release of a hazardous substance;
577-23 (3) the nature or extent of a release or threatened
577-24 release of a hazardous substance at or from a facility; or
577-25 (4) the ability of a person to pay for or to perform a
577-26 remedial action.
577-27 (c) If the requested information or documents are not
578-1 produced in a timely manner, the commission may issue an order
578-2 directing compliance with the requests for information or
578-3 production of documents. Information or documents requested under
578-4 Subsection (b) or this subsection are public records, except that
578-5 the commission shall consider the copied records as confidential if
578-6 a showing satisfactory to the commission is made by the owner of
578-7 the records that the records would divulge trade secrets if made
578-8 public. This subsection does not require the commission to
578-9 consider the composition or characteristics of hazardous substances
578-10 being processed, stored, disposed of, or otherwise handled to be
578-11 held confidential.
578-12 (d) The commission shall adopt rules regarding the provision
578-13 of notice and an opportunity for a hearing before the commission on
578-14 whether the requested information or documents should be produced.
578-15 (Sec. 361.182, Health and Safety Code.)
578-16 Sec. 20.183. Registry Listing Procedure: Determination of
578-17 Eligibility. (a) Before the listing of a facility on the state
578-18 registry, the executive director shall determine whether the
578-19 potential endangerment to public health and safety or the
578-20 environment at the facility can be resolved by the present owner or
578-21 operator under the federal Resource Conservation and Recovery Act
578-22 of 1976 (42 U.S.C. Section 6901) or by some or all of the
578-23 potentially responsible parties identified in Subchapter G, under
578-24 an agreed administrative order issued by the commission.
578-25 (b) If the potential endangerment to public health and
578-26 safety or the environment can be resolved in such a manner, the
578-27 facility may not be listed on the state registry. Notice of the
579-1 approach selected to resolve the apparent endangerment to public
579-2 health and safety or the environment and the fact that this action
579-3 is being taken in lieu of listing the facility on the state
579-4 registry shall be published in the Texas Register.
579-5 (c) If after reasonable efforts the executive director
579-6 determines that the potential endangerment to public health and
579-7 safety or the environment cannot be resolved by either of the
579-8 approaches under Subsection (a), the executive director shall
579-9 evaluate the facility to determine whether the site exceeds the
579-10 commission's minimum criteria for listing on the state registry.
579-11 The commission by rule shall adopt the minimum criteria. The
579-12 executive director shall also evaluate the facility to determine
579-13 whether it is eligible for listing on the federal National
579-14 Priorities List.
579-15 (d) The commission shall proceed under this subchapter only
579-16 if, based on information available to the executive director, the
579-17 facility is eligible for listing on the state registry but not
579-18 eligible for the federal National Priorities List. (Sec. 361.183,
579-19 Health and Safety Code.)
579-20 Sec. 20.184. Registry Listing Procedure: Notices and
579-21 Hearing. (a) If the executive director determines that a facility
579-22 is eligible for listing on the state registry, the commission shall
579-23 publish in the Texas Register and in a newspaper of general
579-24 circulation in the county in which the facility is located a notice
579-25 of intent to list the facility on the state registry. The notice
579-26 shall at least specify the name and location of the facility, the
579-27 general nature of the potential endangerment to public health and
580-1 safety or the environment as determined by information available to
580-2 the executive director at that time, and the duties and
580-3 restrictions imposed by Subsection (c). The notice also shall
580-4 provide that interested parties may do either or both of the
580-5 following:
580-6 (1) submit written comments to the commission relative
580-7 to the proposed listing of the facility; or
580-8 (2) request a public meeting to discuss the proposed
580-9 listing by submitting a request not later than the 30th day after
580-10 the date on which the notice is issued.
580-11 (b) If the facility is determined to be eligible for listing
580-12 on the state registry, the executive director shall make all
580-13 reasonable efforts to identify all potentially responsible parties
580-14 for remediation of the facility. Concurrent with the publication
580-15 of general notice under Subsection (a), the executive director
580-16 shall provide to each identified potentially responsible party
580-17 direct, written notification of the proposed listing of the
580-18 facility on the state registry and of the procedures for requesting
580-19 a public meeting to discuss the listing and the information
580-20 included in the general notice as required by Subsection (a).
580-21 Written notifications under this subsection shall be by certified
580-22 mail, return receipt requested, to each named responsible party at
580-23 the party's last known address.
580-24 (c) If a public meeting is requested regarding the proposed
580-25 listing of a facility on the state registry, the commission shall
580-26 publish general notice of the date, time, and location of the
580-27 public meeting in the Texas Register and in the same newspaper in
581-1 which the notice of the opportunity to request the public meeting
581-2 was published. The public meeting notice shall be provided not
581-3 later than the 31st day before the date of the meeting. Notice of
581-4 the meeting also shall be provided by certified mail, return
581-5 receipt requested, to each identified potentially responsible party
581-6 at the party's last known address.
581-7 (d) Nonreceipt of any notice mailed to a potentially
581-8 responsible party under Subsection (b) or this subsection does not
581-9 affect the responsibilities, duties, or liabilities imposed on the
581-10 party. Contemporaneously with issuing the notice of the public
581-11 meeting, the executive director shall make available to all
581-12 interested parties the public records the executive director has
581-13 regarding the facility. For the purposes of providing this
581-14 information, the executive director shall provide a brief summary
581-15 of those public records and make those public records available for
581-16 inspection and copying during regular business hours.
581-17 (e) A public meeting is legislative in nature and not a
581-18 contested case hearing under the Administrative Procedure and Texas
581-19 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
581-20 The meeting shall be held for the purpose of obtaining additional
581-21 information regarding the facility relative to the eligibility of
581-22 the facility for listing on the state registry and the
581-23 identification of potentially responsible parties.
581-24 (f) After the public meeting or after opportunity to request
581-25 a public meeting has passed, the commission shall file or cause to
581-26 be filed an affidavit or notice in the real property records of the
581-27 county in which the facility is located identifying the facility as
582-1 one proposed for listing on the state registry unless the executive
582-2 director determines, based on information presented at the public
582-3 meeting, that efforts to list the facility on the state registry
582-4 should not be pursued. (Sec. 361.184, Health and Safety Code.)
582-5 Sec. 20.185. Investigation/Feasibility Study. (a) After
582-6 the public meeting or after opportunity to request a public meeting
582-7 has passed, but before any listing of the facility on the state
582-8 registry, the commission shall allow all identified potentially
582-9 responsible parties the opportunity to fund or conduct, if
582-10 appropriate, a remedial investigation-feasibility study, or a
582-11 similar study as approved by the executive director, for the
582-12 facility. Not later than the 90th day after notice under Section
582-13 20.184(a) is issued, the potentially responsible parties may make a
582-14 good faith offer to conduct the study. If a good faith offer from
582-15 all or some of the potentially responsible parties is received by
582-16 the commission within that period, those making the offer have an
582-17 additional 60 days within which to negotiate an agreed
582-18 administrative order from the commission, which must include a
582-19 scope of work. In the agreed administrative order the commission
582-20 may not require the participating potentially responsible parties
582-21 to agree to perform the remedial action or admit liability for the
582-22 facility remediation.
582-23 (b) If no potentially responsible party makes a good faith
582-24 offer to conduct the remedial investigation-feasibility study or
582-25 similar study as approved by the executive director or if the
582-26 participating potentially responsible parties fail to conduct or
582-27 complete an approved study, the commission may conduct or complete
583-1 the study using funds from the hazardous waste disposal fee fund.
583-2 (c) To encourage potentially responsible parties to perform
583-3 the remedial investigation-feasibility study or other similar study
583-4 as approved by the executive director, costs for commission
583-5 oversight of the study may not be assessed against those parties
583-6 who fund or perform the study. Nonparticipating potentially
583-7 responsible parties who are ultimately determined to be liable for
583-8 remediation of the facility under this chapter or who subsequently
583-9 enter into an agreed order relative to the remediation of the
583-10 facility may be assessed up to the full costs for commission
583-11 oversight of the study process. If all potentially responsible
583-12 parties participate or agree to fund the remedial
583-13 investigation-feasibility study or other similar study, all
583-14 commission oversight costs shall be paid from the hazardous waste
583-15 disposal fee fund. (Sec. 361.185, Health and Safety Code.)
583-16 Sec. 20.186. Facility Eligible for Listing: Activities and
583-17 Change of Use. (a) If the executive director determines that a
583-18 facility is eligible for listing on the state registry, a person
583-19 may not perform at the facility any partial or total removal
583-20 activities except as authorized by the executive director in
583-21 appropriate circumstances after notice and opportunity for comment
583-22 to all other potentially responsible parties. The commission may
583-23 adopt rules determining what constitutes an appropriate
583-24 circumstance to take removal action under this subsection.
583-25 Authorization by the executive director to conduct a partial or
583-26 total removal action does not constitute:
583-27 (1) a final determination of the party's ultimate
584-1 liability for remediation of the facility; or
584-2 (2) a determination of divisibility.
584-3 (b) If the facility is determined to be eligible for listing
584-4 on the state registry, the owner or operator of the facility must
584-5 provide the executive director with written notice of any
584-6 substantial change in use of the facility before the 60th day
584-7 before the date on which the change in use is made. Notice of a
584-8 proposed substantial change in use must be in writing, addressed to
584-9 the executive director, sent by certified mail, return receipt
584-10 requested, and include a brief description of the proposed change
584-11 in use. A substantial change in use shall be defined by rule and
584-12 must include actions such as the erection of a building or other
584-13 structure at the facility, the use of the facility for agricultural
584-14 production, the paving of the facility for use as a roadway or
584-15 parking lot, and the creation of a park or other public or private
584-16 recreational use on the facility.
584-17 (c) If, within 30 days after the date of the notice, the
584-18 executive director determines that the proposed substantial change
584-19 in use will interfere significantly with a proposed or ongoing
584-20 remedial investigation-feasibility study or similar study approved
584-21 by the executive director or expose the public health and safety or
584-22 the environment to a significantly increased threat of harm, the
584-23 executive director shall notify the owner or operator of the
584-24 determination. After the determination is made and notification
584-25 given, the owner or operator may not proceed with the proposed
584-26 substantial change in use. The owner or operator may request a
584-27 hearing before the commission on whether the determination should
585-1 be modified or set aside by submitting a request not later than the
585-2 30th day after the receipt of the executive director's
585-3 determination. If a hearing is requested, the commission shall
585-4 initiate the hearing not later than the 45th day after the receipt
585-5 of the request. The hearing shall be conducted in accordance with
585-6 the Administrative Procedure and Texas Register Act (Article
585-7 6252-13a, Vernon's Texas Civil Statutes). The executive director's
585-8 determination becomes unappealable on the 31st day after issuance
585-9 if a hearing is not requested. (Sec. 361.186, Health and Safety
585-10 Code.)
585-11 Sec. 20.187. Proposed Remedial Action. (a) Within a
585-12 reasonable time after the completion of the remedial
585-13 investigation-feasibility study or other similar study, if
585-14 required, the executive director shall select a proposed remedial
585-15 action. After the selection of a proposed remedial action, the
585-16 commission shall hold a public meeting to discuss the proposed
585-17 action.
585-18 (b) The commission shall publish notice of the meeting in
585-19 the Texas Register and in a newspaper of general circulation in the
585-20 county in which the facility is located at least 45 days before the
585-21 date of the public meeting. The notice shall provide information
585-22 regarding the proposed remedial action and the date, time, and
585-23 place of the meeting. The commission shall also mail the same
585-24 information to each potentially responsible party by certified
585-25 mail, return receipt requested, at the party's last known address
585-26 at least 45 days before the public meeting. Contemporaneously with
585-27 the issuance of notice of the public meeting, the executive
586-1 director shall make available to all interested parties the public
586-2 records the executive director has regarding the facility. For
586-3 purposes of providing this information, the executive director
586-4 shall provide a brief summary of those public records and make
586-5 those public records available for inspection and copying during
586-6 regular business hours. Nonreceipt of any notice mailed to a
586-7 potentially responsible party under this section does not affect
586-8 the responsibilities, duties, or liabilities imposed on the party.
586-9 (c) The public meeting is legislative in nature and not a
586-10 contested case hearing under the Administrative Procedure and Texas
586-11 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
586-12 The meeting shall be held for the purpose of obtaining additional
586-13 information regarding the facility and the identification of
586-14 additional potentially responsible parties. Those in attendance
586-15 may comment on the proposed remedial action, and the executive
586-16 director may revise the proposed remedial action in light of the
586-17 presentations.
586-18 (d) After the public meeting on the proposed remedial
586-19 action, the commission shall provide all identified potentially
586-20 responsible parties an opportunity to fund or perform the proposed
586-21 remedial action. Not later than the 60th day after the date of the
586-22 public meeting, the potentially responsible parties may make a good
586-23 faith offer to fund or perform the proposed remedial action. If a
586-24 good faith offer is made by all or some of the potentially
586-25 responsible parties within this period, those parties have an
586-26 additional 60 days to negotiate an agreed administrative order from
586-27 the commission, which shall include a scope of work. The
587-1 commission may not require an admission of liability in the agreed
587-2 administrative order.
587-3 (e) To encourage potentially responsible parties to perform
587-4 the remedial action, costs for commission oversight of the remedial
587-5 action may not be assessed against those parties who fund or
587-6 perform the remedial action. Nonparticipating potentially
587-7 responsible parties who are ultimately determined to be liable for
587-8 remediation of the facility may be assessed up to the full costs
587-9 for commission oversight of the remedial action. If all
587-10 potentially responsible parties conduct or fund the remedial
587-11 action, all commission oversight costs shall be paid from the
587-12 hazardous waste disposal fee fund. Participation in the remedial
587-13 action does not relieve those who did not conduct or fund the
587-14 remedial investigation-feasibility study or other similar study
587-15 approved by the executive director from paying their portion of the
587-16 oversight costs of that phase of the remediation.
587-17 (f) The executive director may authorize a potentially
587-18 responsible party to conduct a partial remedial action at a portion
587-19 of the facility if after notice and opportunity for comment to all
587-20 other potentially responsible parties the executive director
587-21 determines that the release or threatened release is divisible. In
587-22 this subchapter, "divisible" means that the hazardous substance
587-23 released or threatened to be released is capable of being managed
587-24 separately under the remedial action plan. A determination of
587-25 divisibility by the executive director does not have res judicata
587-26 or collateral estoppel effect on a potentially responsible party's
587-27 ultimate liability for remediation of the facility under Sections
588-1 20.221-20.238 or Subchapter G. (Sec. 361.187, Health and Safety
588-2 Code.)
588-3 Sec. 20.188. Final Administrative Order. (a) After
588-4 consideration of all good faith offers to perform a remedial
588-5 action, the commission shall issue a final administrative order
588-6 that must:
588-7 (1) list the facility on the state registry, thus
588-8 determining that the facility poses an imminent and substantial
588-9 endangerment to public health and safety or the environment;
588-10 (2) specify the selected remedial action;
588-11 (3) list the parties determined to be responsible for
588-12 remediating the facility;
588-13 (4) make findings of fact describing actions
588-14 voluntarily undertaken by responsible parties;
588-15 (5) order the responsible parties to remediate the
588-16 facility and, if appropriate, reimburse the hazardous waste
588-17 disposal fee fund for remedial investigation-feasibility study and
588-18 remediation costs;
588-19 (6) establish a schedule for completion of the
588-20 remedial action;
588-21 (7) state any determination of divisibility of
588-22 responsible party liability; and
588-23 (8) give notice of the duties and restrictions imposed
588-24 by Section 20.190.
588-25 (b) The provisions in Subchapters G, I, and J relating to
588-26 administrative orders apply to orders issued under this section.
588-27 (c) If a potentially responsible party is newly identified
589-1 after a final administrative order under Subsection (a) has been
589-2 issued by the commission, that party has 60 days to negotiate an
589-3 amendment to the existing order. The commission is not prohibited
589-4 from issuing a separate order for the newly identified potentially
589-5 responsible party if the commission determines that the
589-6 circumstances warrant a separate order. The responsible parties
589-7 identified in the order issued under Subsection (a) shall be
589-8 allowed to comment on the issuance of a separate order for the
589-9 newly identified potentially responsible party.
589-10 (d) Within a reasonable period after a determination has
589-11 been made, the commission shall file or cause to be filed in the
589-12 real property records of the county in which the facility is
589-13 located an affidavit or notice stating that the facility has been
589-14 listed on or deleted from the state registry or is no longer
589-15 proposed for listing on the state registry. (Sec. 361.188, Health
589-16 and Safety Code.)
589-17 Sec. 20.189. Deletions from Registry. (a) Any owner or
589-18 operator or other named responsible party of a facility listed or
589-19 to be listed on the state registry may request the commission to
589-20 delete the facility from the state registry, modify the facility's
589-21 priority within the state registry, or modify any information
589-22 regarding the facility by submitting a written statement setting
589-23 forth the grounds of the request in the form the commission may by
589-24 rule require.
589-25 (b) The commission by rule shall establish procedures,
589-26 including public hearings, for review of requests submitted under
589-27 this section. (Sec. 361.189, Health and Safety Code.)
590-1 Sec. 20.190. Change in Use of Listed Facility. (a) After
590-2 the listing of a facility on the state registry, a person may not
590-3 substantially change the manner in which the facility is used
590-4 without notifying the executive director and receiving written
590-5 approval of the executive director for the change.
590-6 (b) A substantial change in use shall be defined by rule and
590-7 shall include actions such as the erection of a building or other
590-8 structure at the facility, the use of the facility for agricultural
590-9 production, the paving of the facility for use as a roadway or
590-10 parking lot, and the creation of a park or other public or private
590-11 recreational use on the facility.
590-12 (c) The notice must be in writing, addressed to the
590-13 executive director, sent by certified mail, return receipt
590-14 requested, and include a brief description of the proposed change
590-15 in use.
590-16 (d) The executive director shall approve or disapprove the
590-17 proposed action within 60 days after the date of receipt of the
590-18 notice of proposed change in use. The executive director may not
590-19 approve the proposed change in use if the new use will
590-20 significantly interfere with a proposed, ongoing, or completed
590-21 remedial action program at a facility or expose the public health
590-22 and safety or the environment to a significantly increased threat
590-23 of harm. (Sec. 361.190, Health and Safety Code.)
590-24 Sec. 20.191. Immediate Removal. (a) If the commission,
590-25 after investigation, finds that there exists a release or
590-26 threatened release of a hazardous substance at a facility that is
590-27 causing irreversible or irreparable harm to the public health and
591-1 safety or the environment and that the immediacy of the situation
591-2 makes it prejudicial to the public interest to delay action until
591-3 an administrative order can be issued to potentially responsible
591-4 parties or until a judgment can be entered in an appeal of an
591-5 administrative order, the commission may, with the funds available
591-6 to the commission from the hazardous waste disposal fee fund,
591-7 undertake immediate removal action at the facility to alleviate the
591-8 harm.
591-9 (b) After the immediate danger of irreversible or
591-10 irreparable harm has been alleviated, the commission shall proceed
591-11 under this subchapter.
591-12 (c) Findings required under this section must be in writing
591-13 and may be made ex parte by the commission subject to judicial
591-14 review under the substantial evidence rule as provided by the
591-15 Administrative Procedure and Texas Register Act (Article 6252-13a,
591-16 Vernon's Texas Civil Statutes).
591-17 (d) The reasonable expenses of any immediate removal action
591-18 taken by the commission may be recoverable from the persons
591-19 described in Sections 20.221-20.238 or Subchapter G, and the state
591-20 may seek to recover the reasonable expenses in any court of
591-21 appropriate jurisdiction. (Sec. 361.191, Health and Safety Code.)
591-22 Sec. 20.192. Remedial Action by Commission. (a) If a
591-23 person ordered to eliminate an imminent and substantial
591-24 endangerment to the public health and safety or the environment has
591-25 failed to do so within the time limits specified in the order or
591-26 any extension of time approved by the commission, the commission
591-27 may implement the remedial action program for the facility.
592-1 (b) The reasonable expenses of implementing the remedial
592-2 action program by the commission shall be paid by the persons to
592-3 whom the order was issued and shall be recoverable under Section
592-4 20.197. (Sec. 361.192, Health and Safety Code.)
592-5 Sec. 20.193. Goal of Remedial Action. (a) The goal of any
592-6 remedial action is the elimination of the imminent and substantial
592-7 endangerment to the public health and safety or the environment
592-8 posed by a release or threatened release of a hazardous substance
592-9 at a facility. The appropriate extent of the remedial action at
592-10 any particular facility shall be determined by the commission's
592-11 selection of the remedial alternative that the commission
592-12 determines is the lowest cost alternative that is technologically
592-13 feasible and reliable and that effectively mitigates and minimizes
592-14 damage to and provides adequate protection of the public health and
592-15 safety or the environment.
592-16 (b) In considering the appropriate remedial action program
592-17 at a particular facility, the commission may approve a program that
592-18 does not attain a level or standard of control at least equivalent
592-19 to a legally applicable or relevant and appropriate standard,
592-20 requirement, criterion, or limitation, as required by state or
592-21 local law, if the commission finds that:
592-22 (1) the remedial action selected is only part of a
592-23 total remedial action that will attain that level or standard of
592-24 control when completed;
592-25 (2) compliance with the requirement at that facility
592-26 will result in greater risk to public health and safety or the
592-27 environment than alternative options;
593-1 (3) compliance with the requirement is technically
593-2 impracticable from an engineering perspective;
593-3 (4) the remedial action selected will attain a
593-4 standard of performance that is equivalent to that required under
593-5 the otherwise applicable standard, requirement, criterion, or
593-6 limitation through use of another method or approach;
593-7 (5) with respect to a local standard, requirement,
593-8 criterion, or limitation, the locality has not consistently applied
593-9 or demonstrated the intention to consistently apply the standard,
593-10 requirement, criterion, or limitation in similar circumstances of
593-11 other remedial actions within the locality; or
593-12 (6) with respect to an action using solely state
593-13 funds, selection of a remedial action that attains those levels or
593-14 standards of control will not provide a balance between the need
593-15 for protection of public health and safety or the environment at
593-16 the facility and the availability of state funds to respond to
593-17 other sites that present a threat to public health and safety or
593-18 the environment, taking into consideration the relative immediacy
593-19 of the threats. (Sec. 361.193, Health and Safety Code.)
593-20 Sec. 20.194. Lien. (a) In addition to all other remedies
593-21 available to the state under this chapter or other law, all
593-22 remediation costs for which a person is liable to the state
593-23 constitute a lien in favor of the state on the real property and
593-24 the rights to the real property that are subject to or affected by
593-25 a remedial action. This provision is cumulative of other remedies
593-26 available to the state under this chapter.
593-27 (b) The lien imposed by this section arises and attaches to
594-1 the real property subject to or affected by a remedial action at
594-2 the time an affidavit is recorded and indexed in accordance with
594-3 this section in the county in which the real property is located.
594-4 For the purpose of determining rights of all affected parties, the
594-5 lien does not relate back to a time before the date on which the
594-6 affidavit is recorded, which date is the lien inception date. The
594-7 lien continues until the liability for the costs is satisfied or
594-8 becomes unenforceable through operation of law.
594-9 (c) An authorized representative of the commission shall
594-10 execute the affidavit. The affidavit must show:
594-11 (1) the names and addresses of the persons liable for
594-12 the costs;
594-13 (2) a description of the real property that is subject
594-14 to or affected by the remediation action for the costs or claims;
594-15 and
594-16 (3) the amount of the costs and the balance due.
594-17 (d) The county clerk shall record the affidavit in records
594-18 kept for that purpose and shall index the affidavit under the names
594-19 of the persons liable for the costs.
594-20 (e) The commission shall record a relinquishment or
594-21 satisfaction of the lien when the lien is paid or satisfied.
594-22 (f) The lien may be foreclosed only on judgment of a court
594-23 of competent jurisdiction foreclosing the lien and ordering the
594-24 sale of the property subject to the lien.
594-25 (g) The lien imposed by this section is not valid or
594-26 enforceable if real property, an interest in real property, or a
594-27 mortgage, lien, or other encumbrance on or against real property is
595-1 acquired before the affidavit is recorded, unless the person
595-2 acquiring the real property, an interest in the property, or the
595-3 mortgage, lien, or other encumbrance on the property had or
595-4 reasonably should have had actual notice or knowledge that the real
595-5 property is subject to or affected by a clean-up action or has
595-6 knowledge that the state has incurred clean-up costs.
595-7 (h) If a lien is fixed or attempted to be fixed as provided
595-8 by this section, the owner of the real property affected by the
595-9 lien may file a bond to indemnify against the lien. The bond must
595-10 be filed with the county clerk of the county in which the real
595-11 property subject to the lien is located. An action to establish,
595-12 enforce, or foreclose any lien or claim of lien covered by the bond
595-13 must be brought not later than the 30th day after the date of
595-14 service of notice of the bond. The bond must:
595-15 (1) describe the real property on which the lien is
595-16 claimed;
595-17 (2) refer to the lien claimed in a manner sufficient
595-18 to identify it;
595-19 (3) be in an amount double the amount of the lien
595-20 referred to;
595-21 (4) be payable to the commission;
595-22 (5) be executed by the party filing the bond as
595-23 principal and a corporate surety authorized under the law of this
595-24 state to execute the bond as surety; and
595-25 (6) be conditioned substantially that the principal
595-26 and sureties will pay to the commission the amount of the lien
595-27 claimed, plus costs, if the claim is proved to be a lien on the
596-1 real property.
596-2 (i) After the bond is filed, the county clerk shall issue
596-3 notice of the bond to the named obligee. A copy of the bond must
596-4 be attached to the notice. The notice may be served on each
596-5 obligee by having a copy delivered to the obligee by any person
596-6 competent to make oath of the delivery. The original notice shall
596-7 be returned to the office of the county clerk, and the person
596-8 making service of copy shall make an oath on the back of the copies
596-9 showing on whom and on what date the copies were served. The
596-10 county clerk shall record the bond notice and return in records
596-11 kept for that purpose. In acquiring an interest in real property,
596-12 a purchaser or lender may rely on and is absolutely protected by
596-13 the record of the bond, notice, and return.
596-14 (j) The commission may sue on the bond after the 30th day
596-15 after the date on which the notice is served but may not sue on the
596-16 bond later than one year after the date on which the notice is
596-17 served. The commission is entitled to recover reasonable
596-18 attorney's fees if the commission recovers in a suit on the lien or
596-19 on the bond. (Sec. 361.194, Health and Safety Code.)
596-20 Sec. 20.195. Payments from Hazardous Waste Disposal Fee
596-21 Fund. (a) Money for actions taken or to be taken by the
596-22 commission in connection with the elimination of an imminent and
596-23 substantial endangerment to the public health and safety or the
596-24 environment under this subchapter is payable directly to the
596-25 commission from the hazardous waste disposal fee fund. These
596-26 payments include any costs of inspection or sampling and laboratory
596-27 analysis of wastes, soils, air, surface water, and groundwater done
597-1 on behalf of a state agency and the costs of investigations to
597-2 identify and locate potentially responsible parties.
597-3 (b) The commission shall seek remediation of facilities by
597-4 potentially responsible parties before expenditure of federal or
597-5 state funds for the remediations. (Sec. 361.195, Health and Safety
597-6 Code.)
597-7 Sec. 20.196. Remediation: Permits not Required; Liability.
597-8 (a) Potentially responsible parties shall coordinate with ongoing
597-9 federal and state hazardous waste programs although a state or
597-10 local permit may not be required for any removal or remedial action
597-11 conducted on site.
597-12 (b) Subject to Section 20.193, the state may enforce any
597-13 federal or state standard, requirement, criterion, or limitation to
597-14 which the remedial action would otherwise be required to conform if
597-15 a permit were required.
597-16 (c) An action taken by the person to contain or remove a
597-17 release or threatened release in accordance with an approved
597-18 remedial action plan may not be construed as an admission of
597-19 liability for the release or threatened release.
597-20 (d) A person who renders assistance in containing or
597-21 removing a release or threatened release in accordance with an
597-22 approved remedial action plan is not liable for any additional
597-23 remediation costs at the facility resulting solely from acts or
597-24 omissions of the person in rendering the assistance in compliance
597-25 with the approvals required by this section, unless the remediation
597-26 costs were caused by the person's gross negligence or wilful
597-27 misconduct.
598-1 (e) Except as specifically provided by this section, these
598-2 provisions do not expand or diminish the common law tort liability,
598-3 if any, of private parties participating in a remediation action
598-4 for civil damages to third parties. (Sec. 361.196, Health and
598-5 Safety Code.)
598-6 Sec. 20.197. Cost Recovery. (a) The commission shall file
598-7 a cost recovery action against all responsible parties who have not
598-8 complied with the terms of an administrative order issued under
598-9 Section 20.188. The commission shall file the cost recovery action
598-10 no later than one year after all remedial action has been
598-11 completed.
598-12 (b) The state may seek a judgment against the noncompliant
598-13 parties for the total amount of the cost of the remedial action,
598-14 including costs of any necessary studies and oversight costs, minus
598-15 the amount agreed to be paid or expended by any other responsible
598-16 parties under an order issued under Section 20.188.
598-17 (c) The action may also include a plea seeking civil
598-18 penalties for noncompliance with the commission's administrative
598-19 order and a claim for up to double the state's costs if the
598-20 responsible party's defenses are determined by the court to be
598-21 unreasonable, frivolous, or without foundation. (Sec. 361.197,
598-22 Health and Safety Code.)
598-23 Sec. 20.198. Administrative or Civil Penalty. (a) A
598-24 responsible party named in an administrative order who does not
598-25 comply with the order is subject to the imposition of
598-26 administrative or civil penalties under Section 20.240. The
598-27 penalties may be assessed only from the date after which the
599-1 administrative order becomes nonappealable.
599-2 (b) The commission may include provisions within an agreed
599-3 administrative order that stipulate administrative penalty amounts
599-4 for failure to comply with the order. The penalty provisions may
599-5 be applicable to either or both the remedial
599-6 investigation-feasibility study and remedial action orders. (Sec.
599-7 361.198, Health and Safety Code.)
599-8 Sec. 20.199. Mixed Funding Program. The commission by rule
599-9 shall adopt a mixed funding program in which available money from
599-10 potentially responsible parties is combined with state or federal
599-11 funds to clean up a facility in a timely manner. Use of the state
599-12 or federal funds in a mixed funding approach does not preclude the
599-13 state or federal government from seeking recovery of its costs from
599-14 nonparticipating potentially responsible parties. (Sec. 361.199,
599-15 Health and Safety Code.)
599-16 Sec. 20.200. De Minimis Settlement. The commission shall
599-17 assess and by rule may develop and implement a de minimis
599-18 settlement program. Under the program, the commission shall
599-19 consider the advantages of developing a final settlement with
599-20 potentially responsible parties that are responsible for only a
599-21 minor portion of the response costs at a facility because the
599-22 hazardous substances the party is responsible for are minimal in
599-23 amount or in hazardous effect by comparison with the hazardous
599-24 substances attributable to other parties. (Sec. 361.200, Health
599-25 and Safety Code.)
599-26 Sec. 20.201. Financial Capability and Funding Priority.
599-27 (a) The commission may determine whether a potentially responsible
600-1 party is financially capable of conducting any necessary
600-2 remediation studies or remedial action. The commission by rule
600-3 shall adopt the criteria for determination of financial capability.
600-4 (b) If no financially capable, potentially responsible
600-5 parties exist for a facility, the commission shall issue an
600-6 administrative order stating its determination that the facility
600-7 constitutes an imminent and substantial endangerment and that there
600-8 are no financially capable, potentially responsible parties. The
600-9 commission shall then conduct its own remediation study and
600-10 remedial action, using federal funds if available, or, if federal
600-11 funds are not available, using state funds from the hazardous waste
600-12 disposal fee fund.
600-13 (c) Generally, the remediation of listed facilities shall be
600-14 achieved first by private party funding, second with the aid of
600-15 federal funds, and third, if necessary, with state funds from the
600-16 hazardous waste disposal fee fund. (Sec. 361.201, Health and
600-17 Safety Code.)
600-18 Sec. 20.202. Deadline Extensions. The executive director or
600-19 the commission may extend any period specified in this section if
600-20 considered appropriate. (Sec. 361.202, Health and Safety Code.)
600-21 (Sections 20.203-20.220 reserved for expansion)
600-22 SUBCHAPTER F. ENFORCEMENT: CRIMINAL, CIVIL, AND
600-23 ADMINISTRATIVE PENALTIES
600-24 Sec. 20.221. Offenses and Criminal Penalties. (a) A person
600-25 commits an offense if the person, acting intentionally or knowingly
600-26 with respect to the person's conduct:
600-27 (1) transports, or causes or permits to be
601-1 transported, for storage, processing, or disposal, any hazardous
601-2 waste to any location that does not have all required permits;
601-3 (2) stores, processes, exports, or disposes of, or
601-4 causes to be stored, processed, exported, or disposed of, any
601-5 hazardous waste without all permits required by the appropriate
601-6 regulatory agency or in knowing violation of any material condition
601-7 or requirement of a permit or of an applicable interim status rule
601-8 or standard;
601-9 (3) omits or causes to be omitted material information
601-10 or makes or causes to be made any false material statement or
601-11 representation in any application, label, manifest, record, report,
601-12 permit, plan, or other document filed, maintained, or used to
601-13 comply with any requirement of this chapter applicable to hazardous
601-14 waste;
601-15 (4) generates, transports, stores, processes, or
601-16 disposes of, or otherwise handles, or causes to be generated,
601-17 transported, stored, processed, disposed of, or otherwise handled,
601-18 hazardous waste, whether the activity took place before or after
601-19 September 1, 1981, and who knowingly destroys, alters, conceals, or
601-20 does not file, or causes to be destroyed, altered, concealed, or
601-21 not filed, any record, application, manifest, report, or other
601-22 document required to be maintained or filed to comply with the
601-23 rules of the appropriate regulatory agency adopted under this
601-24 chapter; or
601-25 (5) transports without a manifest, or causes or
601-26 permits to be transported without a manifest, any hazardous waste
601-27 required by rules adopted under this chapter to be accompanied by a
602-1 manifest.
602-2 (b) An individual who commits an offense under this section
602-3 shall be subject on conviction to:
602-4 (1) a fine of not less than $100 or more than $50,000
602-5 for each act of violation and each day of violation;
602-6 (2) imprisonment not to exceed five years for a
602-7 violation under Subsection (a)(1) or (2) or imprisonment not to
602-8 exceed two years for any other violation under Subsection (a); or
602-9 (3) both fine and imprisonment.
602-10 (c) A person other than an individual that commits an
602-11 offense under this section shall be subject on conviction to a fine
602-12 of not less than $1,000 or more than $250,000.
602-13 (d) If it is shown on the trial of an individual that the
602-14 individual has previously been convicted of an offense under this
602-15 section, the offense is punishable by:
602-16 (1) a fine of not less than $200 or more than $100,000
602-17 for each day of violation;
602-18 (2) imprisonment not to exceed 10 years for a
602-19 violation under Subsection (a)(1) or (2) or imprisonment not to
602-20 exceed four years for any other violation under Subsection (a); or
602-21 (3) both fine and imprisonment.
602-22 (e) If it is shown on the trial of a person other than an
602-23 individual that the person previously has been convicted of an
602-24 offense under this section, the offense is punishable by a fine of
602-25 not less than $2,000 or more than $500,000.
602-26 (f) Venue for prosecution for an alleged violation under
602-27 this section is in the county in which the violation is alleged to
603-1 have occurred or in Travis County.
603-2 (g) A fine recovered through a prosecution brought under
603-3 this section shall be divided equally between the state and any
603-4 local government significantly involved in prosecuting the case,
603-5 except that if the court determines that the state or the local
603-6 government bore significantly more of the burden of prosecuting the
603-7 case, it may apportion up to 75 percent of the fine to the
603-8 government that predominantly prosecuted the case.
603-9 (h) In this section, "person" means an individual,
603-10 corporation, company, association, firm, partnership, joint stock
603-11 company, foundation, institution, trust, society, union, or any
603-12 other association of individuals. (Sec. 361.221, Health and Safety
603-13 Code.)
603-14 Sec. 20.222. Criminal Offenses and Penalties. (a) A person
603-15 commits an offense if the person, acting intentionally or knowingly
603-16 with respect to the person's conduct:
603-17 (1) tampers with, modifies, disables, or fails to use
603-18 required pollution control or monitoring devices, systems, methods,
603-19 or practices, unless done in strict compliance with this chapter or
603-20 with a valid and currently effective order, rule, or permit of the
603-21 commission;
603-22 (2) releases, causes, or permits the release of a
603-23 hazardous waste that causes or threatens to cause pollution, unless
603-24 the release is made in strict compliance with all required permits
603-25 or a valid and currently effective order, rule, or permit of the
603-26 commission; or
603-27 (3) fails to notify or report to the commission as
604-1 required by this chapter or by a valid and currently effective
604-2 order, rule, or permit of the commission.
604-3 (b) An individual who commits an offense under this section
604-4 shall be subject on conviction to:
604-5 (1) a fine of not less than $500 or more than $100,000
604-6 for each act of violation and each day of violation;
604-7 (2) confinement in jail not to exceed one year; or
604-8 (3) both fine and confinement.
604-9 (c) A person other than an individual that commits an
604-10 offense under this section shall be subject on conviction to a fine
604-11 of not less than $1,000 or more than $250,000 for each act of
604-12 violation and each day of violation.
604-13 (d) If it is shown on the trial of the defendant that the
604-14 defendant has previously been convicted of the same offense under
604-15 this section, the maximum punishment is doubled with respect to
604-16 both the fine and imprisonment.
604-17 (e) Venue for prosecution for an alleged violation under
604-18 this section is in the county in which the violation is alleged to
604-19 have occurred or in any county to which or through which the
604-20 hazardous waste was transported.
604-21 (f) A fine recovered through a prosecution brought under
604-22 this section shall be divided equally between the state and any
604-23 local government significantly involved in prosecuting the case,
604-24 except that if the court determines that the state or the local
604-25 government bore significantly more of the burden of prosecuting the
604-26 case, it may apportion up to 75 percent of the fine to the
604-27 government that predominantly prosecuted the case. (Sec. 361.2215,
605-1 Health and Safety Code.)
605-2 Sec. 20.223. Endangerment Offenses. (a) A person commits
605-3 an offense if, acting intentionally or knowingly, the person
605-4 transports, processes, stores, exports, or disposes of, or causes
605-5 to be transported, processed, stored, exported, or disposed of,
605-6 hazardous waste in violation of this chapter and thereby knowingly
605-7 places any other person in imminent danger of death or serious
605-8 bodily injury.
605-9 (b) An offense under Subsection (a) is punishable for an
605-10 individual by:
605-11 (1) a fine of not less than $2,500 or more than
605-12 $250,000;
605-13 (2) imprisonment for not more than 15 years; or
605-14 (3) both fine and imprisonment.
605-15 (c) A person, other than an individual, that commits an
605-16 offense under this section shall be subject on conviction to a fine
605-17 of not less than $5,000 or more than $1 million.
605-18 (d) If an offense committed by an individual under
605-19 Subsection (a) results in death or serious bodily injury to any
605-20 person, the individual may be punished by:
605-21 (1) a fine of not less than $5,000 or more than
605-22 $500,000;
605-23 (2) imprisonment for not less than two years or more
605-24 than 30 years; or
605-25 (3) both fine and imprisonment.
605-26 (e) If an offense committed by a person other than an
605-27 individual under Subsection (a) results in death or serious bodily
606-1 injury to any person, the person may be punished by a fine of not
606-2 less than $10,000 or more than $1,500,000.
606-3 (f) For purposes of Subsection (a), in determining whether a
606-4 defendant who is an individual knew that the violation placed
606-5 another person in imminent danger of death or serious bodily
606-6 injury, the defendant is responsible only for the defendant's
606-7 actual awareness or actual belief possessed. Knowledge possessed
606-8 by a person other than the defendant may not be attributed to the
606-9 defendant. To prove a defendant's actual knowledge, circumstantial
606-10 evidence may be used, including evidence that the defendant took
606-11 affirmative steps to be shielded from relevant information.
606-12 (g) A person commits an offense if the person, acting
606-13 intentionally or knowingly with respect to the person's conduct,
606-14 transports, processes, stores, exports, or disposes of, or causes
606-15 to be transported, processed, stored, exported, or disposed of,
606-16 hazardous waste in violation of this chapter, thereby placing any
606-17 other person in imminent danger of death or serious bodily injury,
606-18 unless the conduct charged is done in strict compliance with all
606-19 required permits or with a valid and currently effective order
606-20 issued or rule adopted by the commission.
606-21 (h) An offense under Subsection (g) is punishable for an
606-22 individual by:
606-23 (1) a fine of not less than $1,500 or more than
606-24 $150,000;
606-25 (2) imprisonment for not more than five years; or
606-26 (3) both fine and imprisonment.
606-27 (i) An offense under Subsection (g) is punishable for a
607-1 person other than an individual by a fine of not less than $3,000
607-2 or more than $300,000.
607-3 (j) If an offense committed under Subsection (g) results in
607-4 death or serious bodily injury to any person, an individual may be
607-5 punished by:
607-6 (1) a fine of not less than $3,000 or more than
607-7 $300,000;
607-8 (2) imprisonment for not less than two years or more
607-9 than 10 years; or
607-10 (3) both fine and imprisonment.
607-11 (k) If an offense committed by a person other than an
607-12 individual under Subsection (g) results in death or serious bodily
607-13 injury to any person, the person may be punished by a fine of not
607-14 less than $6,000 or more than $600,000.
607-15 (l) A person commits an offense if the person, acting
607-16 intentionally or knowingly with respect to the person's conduct,
607-17 releases, causes, or permits the release of a hazardous waste into
607-18 the environment, thereby placing any other person in imminent
607-19 danger of death or serious bodily injury, unless the release is
607-20 made in strict compliance with all required permits or a valid and
607-21 currently effective order issued or rule adopted by the commission.
607-22 (m) An offense under Subsection (l) is punishable for an
607-23 individual by:
607-24 (1) a fine of not less than $1,500 or more than
607-25 $150,000;
607-26 (2) imprisonment for not more than five years; or
607-27 (3) both fine and imprisonment.
608-1 (n) An offense under Subsection (l) is punishable for a
608-2 person other than an individual by a fine of not less than $3,000
608-3 or more than $300,000.
608-4 (o) If an offense committed by an individual under
608-5 Subsection (l) results in death or serious bodily injury to any
608-6 person, the individual may be punished by:
608-7 (1) a fine of not less than $3,000 or more than
608-8 $300,000;
608-9 (2) imprisonment for not less than two years or more
608-10 than 10 years; or
608-11 (3) both fine and imprisonment.
608-12 (p) If an offense committed by a person other than an
608-13 individual under Subsection (l) results in death or serious bodily
608-14 injury to any person, the person may be punished by a fine of not
608-15 less than $6,000 or more than $600,000.
608-16 (q) A person commits an offense if the person, acting
608-17 recklessly with respect to the person's conduct, releases, causes,
608-18 or permits the release of a hazardous waste into the environment,
608-19 thereby placing any other person in imminent danger of death or
608-20 serious bodily injury, unless the release is made in strict
608-21 compliance with all required permits or a valid and currently
608-22 effective order issued or rule adopted by the commission.
608-23 (r) An offense under Subsection (q) is punishable for an
608-24 individual by:
608-25 (1) a fine of not less than $1,000 or more than
608-26 $100,000;
608-27 (2) confinement in jail not to exceed one year; or
609-1 (3) both fine and confinement.
609-2 (s) An offense under Subsection (q) is punishable for a
609-3 person other than an individual by a fine of not less than $2,500
609-4 or more than $250,000.
609-5 (t) If an offense committed by an individual under
609-6 Subsection (q) results in death or serious bodily injury to any
609-7 person, the individual may be punished by:
609-8 (1) a fine of not less than $2,000 or more than
609-9 $200,000;
609-10 (2) confinement for not less than one year or more
609-11 than two years; or
609-12 (3) both fine and confinement.
609-13 (u) If an offense committed by a person other than an
609-14 individual under Subsection (q) results in death or serious bodily
609-15 injury to any person, the person may be punished by a fine of not
609-16 less than $5,000 or more than $500,000.
609-17 (v) It is an affirmative defense to prosecution under this
609-18 section that the conduct charged was freely consented to by the
609-19 person endangered and that the danger and conduct charged were
609-20 reasonably foreseeable hazards of the person's occupation,
609-21 business, or profession or a medical treatment or medical or
609-22 scientific experimentation conducted by professionally approved
609-23 methods and the person endangered had been made aware of the risks
609-24 involved before giving consent.
609-25 (w) Venue for prosecution for an alleged violation under
609-26 this section is in the county in which the violation is alleged to
609-27 have occurred or in Travis County.
610-1 (x) A fine recovered through a prosecution brought under
610-2 this section shall be divided equally between the state and any
610-3 local government significantly involved in prosecuting the case,
610-4 except that if the court determines that the state or the local
610-5 government bore significantly more of the burden of prosecuting the
610-6 case, it may apportion up to 75 percent of the fine to the
610-7 government that predominantly prosecuted the case.
610-8 (y) In this section, "person" means an individual,
610-9 corporation, company, association, firm, partnership, joint stock
610-10 company, foundation, institution, trust, society, union, or any
610-11 other association of individuals. (Sec. 361.222, Health and Safety
610-12 Code.)
610-13 Sec. 20.224. Failure to Pay Fees; Criminal Penalties.
610-14 (a) A person commits an offense if the person intentionally or
610-15 knowingly fails to pay a fee required by Section 2.175 or this
610-16 chapter or by a valid and currently effective order, rule, or
610-17 permit of the commission.
610-18 (b) An offense under this section is punishable by:
610-19 (1) a fine of up to twice the amount of the required
610-20 fee, confinement in jail not to exceed 90 days, or both fine and
610-21 confinement, for an individual; and
610-22 (2) a fine of up to twice the amount of the required
610-23 fee for a person other than an individual. (Sec. 361.2225, Health
610-24 and Safety Code.)
610-25 Sec. 20.225. Affirmative Defense. It is an affirmative
610-26 defense to prosecution under Sections 20.221, 20.222, 20.223, and
610-27 20.224 that the person charged was an employee who was carrying out
611-1 the person's normal activities and was acting under orders from the
611-2 person's employer, unless the person charged engaged in knowing and
611-3 wilful violations. (Sec. 361.2226, Health and Safety Code.)
611-4 Sec. 20.226. Civil Penalties. (a) A person may not cause,
611-5 suffer, allow, or permit the collection, storage, handling,
611-6 transportation, processing, or disposal of solid waste or the use
611-7 or operation of a solid waste facility to store, process, or
611-8 dispose of solid waste or to extract materials under Section 20.092
611-9 in violation of this chapter or a rule, permit, license, or other
611-10 order of the commission or a county or a political subdivision
611-11 exercising the authority granted by Section 20.165 in whose
611-12 jurisdiction the violation occurs.
611-13 (b) Any person who violates any provision of this chapter or
611-14 any rule, permit, license, or order of the commission or a county
611-15 or a political subdivision exercising the authority granted by
611-16 Section 20.165 in whose jurisdiction the violation occurs is
611-17 subject to a civil penalty of not less than $100 or more than
611-18 $25,000 for each act of violation and for each day of violation, as
611-19 the court may deem proper, to be recovered in the manner provided
611-20 by this section.
611-21 (c) A civil penalty recovered in a suit first brought by a
611-22 local government or governments under this chapter shall be equally
611-23 divided between the state and the local government or governments
611-24 that first brought the suit, and the state shall deposit its
611-25 recovery to the credit of the general revenue fund.
611-26 (d) The penalties imposed under this section do not apply to
611-27 failure to pay a fee under Section 2.175 or failure to file a
612-1 report under Section 20.040. Subsection (c) does not apply to
612-2 interest and penalties imposed under Section 2.175(a). (Sec.
612-3 361.223, Health and Safety Code.)
612-4 Sec. 20.227. Suit by State. (a) If it appears that a
612-5 person has violated, is violating, or is threatening to violate any
612-6 provision of this chapter or of any rule, permit, or other order of
612-7 the commission, the commission may request a civil suit to be
612-8 brought in a district court for:
612-9 (1) injunctive relief to restrain the person from
612-10 continuing the violation or threat of violation;
612-11 (2) the assessment and recovery of a civil penalty as
612-12 provided by this subchapter, as the court may consider proper; or
612-13 (3) both the injunctive relief and civil penalty.
612-14 (b) At the request of the executive director, the attorney
612-15 general shall bring and conduct the suit in the name of the state.
612-16 (c) The executive director shall refer matters to the
612-17 attorney general's office for enforcement through civil suit if a
612-18 person:
612-19 (1) is alleged to be operating a new facility without
612-20 a permit in violation of state law; or
612-21 (2) has been the subject of two or more finally issued
612-22 administrative penalty orders under this chapter for violations
612-23 occurring at the same facility within two years immediately before
612-24 the first alleged violation currently under investigation at that
612-25 facility.
612-26 (d) Violations that were reported by the violator or
612-27 violations consisting of errors in recordkeeping or in
613-1 self-reporting submissions may not be considered in determining
613-2 whether Subsection (c) applies.
613-3 (e) Even though the criteria of Subsection (c) are met, the
613-4 attorney general's office and the executive director may agree to
613-5 resolve any of the alleged violations, before or after referral, by
613-6 administrative order issued by the commission with the approval of
613-7 the attorney general. (Sec. 361.224, Health and Safety Code.)
613-8 Sec. 20.228. Suit by County or Political Subdivision. If it
613-9 appears that a violation or threat of violation of any provision of
613-10 this chapter or any rule, permit, license, or other order of the
613-11 commission, a county, or a political subdivision exercising the
613-12 authority granted by Section 20.165 has occurred or is occurring in
613-13 the jurisdiction of that county or political subdivision, the
613-14 county or political subdivision, in the same manner as the
613-15 commission, may institute a civil suit in a district court by its
613-16 own attorney for the injunctive relief or civil penalty, or both,
613-17 as authorized by Section 20.227, against the person who committed,
613-18 is committing, or is threatening to commit the violation. (Sec.
613-19 361.225, Health and Safety Code.)
613-20 Sec. 20.229. Suit by Municipality. If it appears that a
613-21 violation or threat of violation of any provision of this chapter
613-22 or any rule, permit, license, or other order of the commission, a
613-23 county, or a political subdivision exercising the authority granted
613-24 by Section 20.165 has occurred or is occurring in a municipality or
613-25 its extraterritorial jurisdiction, or is causing or will cause
613-26 injury to or an adverse effect on the health, welfare, or physical
613-27 property of the municipality or its inhabitants, the municipality,
614-1 in the same manner as the commission, may institute a civil suit in
614-2 a district court by its own attorney for the injunctive relief or
614-3 civil penalty, or both, as authorized by Section 20.227, against
614-4 the person who committed, is committing, or is threatening to
614-5 commit the violation. (Sec. 361.226, Health and Safety Code.)
614-6 Sec. 20.230. Venue. A suit for injunctive relief or for
614-7 recovery of a civil penalty, or for both, may be brought in:
614-8 (1) the county in which the defendant resides;
614-9 (2) the county in which the violation or threat of
614-10 violation occurs; or
614-11 (3) Travis County if the suit involves an unpermitted
614-12 municipal solid waste facility. (Sec. 361.227, Health and Safety
614-13 Code.)
614-14 Sec. 20.231. Injunction. (a) On application for injunctive
614-15 relief and a finding that a person is violating or threatening to
614-16 violate any provision of this chapter or of any rule, permit, or
614-17 other order of the commission, the district court shall grant
614-18 appropriate injunctive relief.
614-19 (b) In a suit brought to enjoin a violation or threat of
614-20 violation of this chapter or of any rule, permit, license, or order
614-21 of the commission, a county, or a political subdivision exercising
614-22 the authority granted by Section 20.165, the court may grant any
614-23 prohibitory or mandatory injunction warranted by the facts,
614-24 including a temporary restraining order after notice and hearing, a
614-25 temporary injunction, and a permanent injunction. The court shall
614-26 grant injunctive relief without bond or other undertaking by the
614-27 governmental entity. (Sec. 361.228, Health and Safety Code.)
615-1 Sec. 20.232. Parties in Suit by Local Government. In a suit
615-2 brought by a local government under Section 20.228 or 20.229, the
615-3 commission is a necessary and indispensable party. (Sec. 361.229,
615-4 Health and Safety Code.)
615-5 Sec. 20.233. Fees and Costs Recoverable. If the attorney
615-6 general or a local government institutes a suit under this
615-7 subchapter or Subchapter G for injunctive relief, recovery of a
615-8 civil penalty, or both injunctive relief and a civil penalty, the
615-9 prevailing party may recover its reasonable attorney's fees, court
615-10 costs, and reasonable investigative costs incurred in relation to
615-11 the proceeding. However, the amount awarded by the court may not
615-12 exceed $250,000. (Sec. 361.230, Health and Safety Code.)
615-13 Sec. 20.234. Notice of Criminal Conviction. (a) In
615-14 addition to a sentence that may be imposed under this chapter, a
615-15 person other than an individual that has been convicted of an
615-16 offense under this chapter may be ordered by the court to give
615-17 notice of the conviction to any person the court considers
615-18 appropriate.
615-19 (b) On conviction under this chapter, the clerk of the court
615-20 in which the conviction is returned shall forward a copy of the
615-21 judgment to the regulatory agency. (Sec. 361.231, Health and
615-22 Safety Code.)
615-23 Sec. 20.235. Criminal Fine Treated as Judgment in Civil
615-24 Action. A fine imposed by a court under this chapter against a
615-25 person other than an individual shall be entered by the clerk of
615-26 the court as a judgment against the person. A fine so entered has
615-27 the same force and effect and may be enforced in the same manner as
616-1 a judgment entered in a civil action. (Sec. 361.232, Health and
616-2 Safety Code.)
616-3 Sec. 20.236. Effect on Certain Other Laws. Conduct
616-4 punishable as an offense under this chapter that is also punishable
616-5 under another law may be prosecuted under either this chapter or
616-6 the other law. (Sec. 361.233, Health and Safety Code.)
616-7 Sec. 20.237. Defense Excluded. It is not a defense to
616-8 prosecution under this chapter that the actor did not know or was
616-9 not aware of a rule, order, or statute. (Sec. 361.234, Health and
616-10 Safety Code.)
616-11 Sec. 20.238. Testimonial Immunity. A party to a criminal
616-12 offense under this chapter may be required to furnish evidence or
616-13 testify about the offense. Evidence or testimony required to be
616-14 furnished under this chapter or information directly or indirectly
616-15 derived from that evidence or testimony may not be used against the
616-16 witness in a criminal case, except a prosecution for aggravated
616-17 perjury or contempt. (Sec. 361.235, Health and Safety Code.)
616-18 Sec. 20.239. Administrative Penalty by Department. (a) The
616-19 commission may assess a civil penalty against a person as provided
616-20 by this section if:
616-21 (1) the person violates:
616-22 (A) a provision of this chapter that is under
616-23 the commission's jurisdiction;
616-24 (B) a rule adopted by the commission; or
616-25 (C) an order, license, or permit issued by the
616-26 commission under this chapter; and
616-27 (2) no county, political subdivision, or municipality
617-1 has instituted a lawsuit and is diligently prosecuting that lawsuit
617-2 under Section 20.228 or 20.229 against the same person for the same
617-3 violation.
617-4 (b) The amount of the penalty may not exceed $10,000 a day
617-5 for a person who violates this chapter or a rule, order, license,
617-6 or permit issued under this chapter. Each day a violation
617-7 continues may be considered a separate violation.
617-8 (c) In determining the amount of the penalty, the commission
617-9 shall consider:
617-10 (1) the seriousness of the violation, including the
617-11 nature, circumstances, extent, and gravity of the prohibited act
617-12 and the hazard or potential hazard created to the health or safety
617-13 of the public;
617-14 (2) the history of previous violations;
617-15 (3) the amount necessary to deter future violations;
617-16 (4) efforts to correct the violation; and
617-17 (5) any other matters that justice may require.
617-18 (d) If, after examination of a possible violation and the
617-19 facts surrounding that possible violation, the commission concludes
617-20 that a violation has occurred, the commission may issue a
617-21 preliminary report:
617-22 (1) stating the facts that support the conclusion;
617-23 (2) recommending that a civil penalty under this
617-24 section be imposed; and
617-25 (3) recommending the amount of the penalty, which
617-26 shall be based on the seriousness of the violation as determined
617-27 from the facts surrounding the violation.
618-1 (e) Not later than the 10th day after the date on which the
618-2 report is issued, the commission shall give written notice of the
618-3 report to the person charged with the violation. The notice must
618-4 include:
618-5 (1) a brief summary of the charges;
618-6 (2) a statement of the amount of the penalty
618-7 recommended; and
618-8 (3) a statement of the right of the person charged to
618-9 a hearing on the occurrence of the violation, the amount of the
618-10 penalty, or both.
618-11 (f) Not later than the 20th day after the date on which
618-12 notice is sent, the person charged may give to the executive
618-13 director written consent to the commission's report, including the
618-14 recommended penalty, or make a written request for a hearing.
618-15 (g) If the person charged with the violation consents to the
618-16 penalty recommended by the executive director or does not timely
618-17 respond to the notice, the executive director or the executive
618-18 director's designee by order shall assess the penalty or order a
618-19 hearing to be held on the findings and recommendations in the
618-20 commission's report. If the executive director or the executive
618-21 director's designee assesses the penalty, the commission shall give
618-22 written notice to the person charged of the decision and the person
618-23 shall pay the penalty.
618-24 (h) If the person charged requests or the executive director
618-25 orders a hearing, the executive director shall order and shall give
618-26 notice of the hearing.
618-27 (i) The hearing shall be held by a hearing examiner
619-1 designated by the executive director.
619-2 (j) The hearing examiner shall make findings of fact and
619-3 promptly issue to the executive director a written decision as to
619-4 the occurrence of the violation and a recommendation of the amount
619-5 of the proposed penalty if a penalty is warranted.
619-6 (k) Based on the findings of fact and the recommendations of
619-7 the hearing examiner, the executive director by order may find that
619-8 a violation has occurred and assess a civil penalty or may find
619-9 that no violation occurred.
619-10 (l) All proceedings under Subsections (h)-(k) are subject to
619-11 the Administrative Procedure and Texas Register Act (Article
619-12 6252-13a, Vernon's Texas Civil Statutes).
619-13 (m) The executive director shall give notice of the
619-14 executive director's decision to the person charged, and if the
619-15 executive director finds that a violation has occurred and assesses
619-16 a civil penalty, the executive director shall give written notice
619-17 to the person charged of:
619-18 (1) the executive director's findings;
619-19 (2) the amount of the penalty; and
619-20 (3) the person's right to judicial review of the
619-21 executive director's order.
619-22 (n) Not later than the 30th day after the date on which the
619-23 executive director's order is final, the person charged with the
619-24 penalty shall pay the penalty in full or file a petition for
619-25 judicial review.
619-26 (o) If the person seeks judicial review of the fact of the
619-27 violation, the amount of the penalty, or both, the person, within
620-1 the time provided by Subsection (n), shall:
620-2 (1) send the amount of the penalty to the executive
620-3 director for placement in an escrow account; or
620-4 (2) post with the executive director a supersedeas
620-5 bond in a form approved by the executive director for the amount of
620-6 the penalty, the bond to be effective until judicial review of the
620-7 order or decision is final.
620-8 (p) A person who fails to comply with Subsection (o) waives
620-9 the right to judicial review, and the executive director may refer
620-10 the matter to the attorney general for enforcement.
620-11 (q) Judicial review of the order or decision of the
620-12 executive director assessing the penalty shall be under Section 19,
620-13 Administrative Procedure and Texas Register Act (Article 6252-13a,
620-14 Vernon's Texas Civil Statutes).
620-15 (r) If the penalty is reduced or not assessed, the executive
620-16 director shall:
620-17 (1) remit to the person charged the appropriate amount
620-18 of any penalty payment plus accrued interest; or
620-19 (2) execute a release of the bond if a supersedeas
620-20 bond has been posted.
620-21 (s) The accrued interest on amounts remitted by the
620-22 executive director shall be paid:
620-23 (1) at a rate equal to the rate charged on loans to
620-24 depository institutions by the New York Federal Reserve Bank; and
620-25 (2) for the period beginning on the date the penalty
620-26 is paid to the executive director under Subsection (o) and ending
620-27 on the date the penalty is remitted.
621-1 (t) A penalty collected under this section shall be
621-2 deposited to the credit of the general revenue fund. (Sec.
621-3 361.251, Health and Safety Code.)
621-4 Sec. 20.240. Administrative Penalty by Commission. (a) The
621-5 commission may assess a civil penalty against a person as provided
621-6 by this section if:
621-7 (1) the person violates:
621-8 (A) a provision of this chapter concerning solid
621-9 waste;
621-10 (B) a rule or order adopted by the commission
621-11 concerning solid waste; or
621-12 (C) a solid waste permit or registration issued
621-13 under this chapter; and
621-14 (2) no county, political subdivision, or municipality
621-15 has instituted a lawsuit and is diligently prosecuting that lawsuit
621-16 under Section 20.228 or 20.229 against the same person for the same
621-17 violation.
621-18 (b) The amount of the penalty may not exceed $10,000 a day
621-19 for a person who violates this chapter or a rule, order, or permit
621-20 issued under this chapter. Each day a violation continues may be
621-21 considered a separate violation.
621-22 (c) In determining the amount of the penalty, the commission
621-23 shall consider:
621-24 (1) the nature, circumstances, extent, duration, and
621-25 gravity of the prohibited act with special emphasis on the hazard
621-26 or potential hazard created to the health or safety of the public;
621-27 (2) the impact of the violation on a receiving stream
622-1 or underground water reservoir, on the property owners along a
622-2 receiving stream or underground water reservoir, and on water users
622-3 of a receiving stream or underground water reservoir;
622-4 (3) with respect to the alleged violator:
622-5 (A) the history and extent of previous
622-6 violations;
622-7 (B) the degree of culpability, including whether
622-8 the violation was attributable to mechanical or electrical failures
622-9 and whether the violation could have been reasonably anticipated
622-10 and avoided;
622-11 (C) the demonstrated good faith, including
622-12 actions taken by the alleged violator to rectify the cause of the
622-13 violation;
622-14 (D) economic benefit gained by the violation;
622-15 and
622-16 (E) the amount necessary to deter future
622-17 violations; and
622-18 (4) any other matters that justice may require.
622-19 (d) If, after examination of a possible violation and the
622-20 facts surrounding that possible violation, the executive director
622-21 concludes that a violation has occurred, the executive director may
622-22 issue a preliminary report:
622-23 (1) stating the facts that support the conclusion;
622-24 (2) recommending that a civil penalty under this
622-25 section be imposed; and
622-26 (3) recommending the amount of the penalty, which
622-27 shall be based on the factors prescribed by Subsection (c),
623-1 including an analysis of each factor for the commission.
623-2 (e) Not later than the 10th day after the date on which the
623-3 report is issued, the executive director shall give written notice
623-4 of the report to the person charged with the violation. The notice
623-5 must include:
623-6 (1) a brief summary of the charges;
623-7 (2) a statement of the amount of the penalty
623-8 recommended; and
623-9 (3) a statement of the right of the person charged to
623-10 a hearing on the occurrence of the violation, the amount of the
623-11 penalty, or both.
623-12 (f) Not later than the 20th day after the date on which
623-13 notice is received, the person charged may give to the commission
623-14 written consent to the executive director's report, including the
623-15 recommended penalty, or make a written request for a hearing.
623-16 (g) If the person charged with the violation consents to the
623-17 penalty recommended by the executive director or does not timely
623-18 respond to the notice, the commission by order shall assess the
623-19 penalty or order a hearing to be held on the findings and
623-20 recommendations in the executive director's report. If the
623-21 commission assesses the penalty, the commission shall give written
623-22 notice to the person charged of its decision.
623-23 (h) If the person charged requests or the commission orders
623-24 a hearing, the commission shall order and shall give notice of the
623-25 hearing. The commission by order may find that a violation has
623-26 occurred and may assess a civil penalty, may find that a violation
623-27 has occurred but that no penalty should be assessed, or may find
624-1 that no violation has occurred. In making a penalty decision, the
624-2 commission shall analyze each factor prescribed by Subsection (c).
624-3 All proceedings under this subsection are subject to the
624-4 Administrative Procedure and Texas Register Act (Article 6252-13a,
624-5 Vernon's Texas Civil Statutes).
624-6 (i) The commission shall give notice of its decision to the
624-7 person charged, and if the commission finds that a violation has
624-8 occurred and assesses a civil penalty, the commission shall give
624-9 written notice to the person charged of:
624-10 (1) the commission's findings;
624-11 (2) the amount of the penalty; and
624-12 (3) the person's right to judicial review of the
624-13 commission's order.
624-14 (j) If the commission is required to give notice of a civil
624-15 penalty under Subsection (g) or (i), the commission shall file
624-16 notice of its decision in the Texas Register not later than the
624-17 10th day after the date on which the decision is adopted.
624-18 (k) Not later than the 30th day after the date on which the
624-19 commission's order is final, the person charged with the penalty
624-20 shall pay the penalty in full or file a petition for judicial
624-21 review.
624-22 (l) If the person seeks judicial review of the fact of the
624-23 violation, the amount of the penalty, or both, the person, within
624-24 the time provided by Subsection (k), shall:
624-25 (1) send the amount of the penalty to the commission
624-26 for placement in an escrow account; or
624-27 (2) post with the commission a supersedeas bond in a
625-1 form approved by the commission for the amount of the penalty, the
625-2 bond to be effective until judicial review of the order or decision
625-3 is final.
625-4 (m) A person who fails to comply with Subsection (l) waives
625-5 the right to judicial review, and the commission or the executive
625-6 director may refer the matter to the attorney general for
625-7 enforcement.
625-8 (n) Judicial review of the order or decision of the
625-9 commission assessing the penalty shall be under Section 19,
625-10 Administrative Procedure and Texas Register Act (Article 6252-13a,
625-11 Vernon's Texas Civil Statutes).
625-12 (o) The commission may compromise, modify, or remit, with or
625-13 without conditions, a civil penalty imposed under this section.
625-14 (p) Payment of a penalty under this section is full and
625-15 complete satisfaction of the violation for which the administrative
625-16 penalty is assessed and precludes any other civil or criminal
625-17 penalty for the same violation.
625-18 (q) A penalty collected under this section shall be
625-19 deposited to the credit of the general revenue fund. (Sec.
625-20 361.252, Health and Safety Code.)
625-21 (Sections 20.241-20.270 reserved for expansion)
625-22 SUBCHAPTER G. ENFORCEMENT; ADMINISTRATIVE ORDERS
625-23 CONCERNING IMMINENT AND SUBSTANTIAL ENDANGERMENT
625-24 Sec. 20.271. Persons Responsible for Solid Waste. For the
625-25 purpose of this subchapter, a person is responsible for solid waste
625-26 if the person:
625-27 (1) is any owner or operator of a solid waste
626-1 facility;
626-2 (2) owned or operated a solid waste facility at the
626-3 time of processing, storage, or disposal of any solid waste;
626-4 (3) by contract, agreement, or otherwise, arranged to
626-5 process, store, or dispose of, or arranged with a transporter for
626-6 transport to process, store, or dispose of, solid waste owned or
626-7 possessed by the person, by any other person or entity at:
626-8 (A) the solid waste facility owned or operated
626-9 by another person or entity that contains the solid waste; or
626-10 (B) the site to which the solid waste was
626-11 transported that contains the solid waste; or
626-12 (4) accepts or accepted any solid waste for transport
626-13 to a solid waste facility or site selected by the person. (Sec.
626-14 361.271, Health and Safety Code.)
626-15 Sec. 20.272. Administrative Orders Concerning Imminent and
626-16 Substantial Endangerment. (a) The commission may issue an
626-17 administrative order to a person responsible for solid waste if it
626-18 appears that there is an actual or threatened release of solid
626-19 waste that presents an imminent and substantial endangerment to the
626-20 public health and safety or the environment:
626-21 (1) from a solid waste facility at which solid waste
626-22 is stored, processed, or disposed of; or
626-23 (2) at any site at which one or more of those
626-24 activities concerning solid waste have been conducted in the past,
626-25 regardless of whether the activity was lawful at the time.
626-26 (b) An administrative order may be issued under this section
626-27 to:
627-1 (1) restrain the person from allowing or continuing
627-2 the release or threatened release; and
627-3 (2) require the person to take any action necessary to
627-4 provide and implement a cost effective and environmentally sound
627-5 remedial action plan designed to eliminate the release or
627-6 threatened release.
627-7 (c) An administrative order issued under this section shall:
627-8 (1) be delivered to the persons identified by the
627-9 order by certified mail, return receipt requested;
627-10 (2) be delivered by hand delivery to the person
627-11 identified by the order; or
627-12 (3) on failure of delivery of the order by certified
627-13 mail or hand delivery, be served on the persons by publication:
627-14 (A) once in the Texas Register; and
627-15 (B) once in a newspaper of general circulation
627-16 in each county in which a person identified by the order had the
627-17 person's last known address. (Sec. 361.272, Health and Safety
627-18 Code.)
627-19 Sec. 20.273. Injunction as Alternative to Administrative
627-20 Order. The commission may cause a civil suit for injunctive relief
627-21 to be brought in a district court in the county in which the actual
627-22 release is occurring or threatened release may occur to:
627-23 (1) restrain a person responsible for solid waste
627-24 under Section 20.271 from allowing or continuing the release or
627-25 threatened release; and
627-26 (2) require the person to take actions necessary to
627-27 provide and implement a cost effective and environmentally sound
628-1 remedial action plan designed to eliminate the release or
628-2 threatened release. (Sec. 361.273, Health and Safety Code.)
628-3 Sec. 20.274. No Prior Notice Concerning Administrative
628-4 Order. An administrative order under Section 20.272 does not
628-5 require prior notice or an adjudicative hearing before the
628-6 commission. (Sec. 361.274, Health and Safety Code.)
628-7 Sec. 20.275. Defenses. (a) A person responsible for solid
628-8 waste under Section 20.271 is liable under Section 20.272 or 20.273
628-9 unless the person can establish by a preponderance of the evidence
628-10 that the release or threatened release was caused solely by:
628-11 (1) an act of God;
628-12 (2) an act of war;
628-13 (3) an act or omission of a third person; or
628-14 (4) any combination of Subdivisions (1), (2), and (3).
628-15 (b) In a defense under Subsection (a)(3), the defendant must
628-16 establish by a preponderance of the evidence that the defendant:
628-17 (1) exercised due care concerning the solid waste,
628-18 considering the characteristics of the solid waste, in light of all
628-19 relevant facts and circumstances; and
628-20 (2) took precautions against foreseeable acts or
628-21 omissions of the third person and the consequences that could
628-22 foreseeably result from those acts or omissions.
628-23 (c) The defense under Subsection (a)(3) does not apply if
628-24 the third person:
628-25 (1) is an employee or agent of the defendant; or
628-26 (2) has a direct or indirect contractual relationship
628-27 with the defendant and the act or omission of the third person
629-1 occurred in connection with the contractual relationship.
629-2 (d) In Subsection (c)(2), "contractual relationship"
629-3 includes land contracts, deeds, or other instruments transferring
629-4 title or possession of real property.
629-5 (e) A defendant who enters into a contractual relationship
629-6 as provided by Subsection (c)(2) is not liable under this
629-7 subchapter if:
629-8 (1) the sole contractual relationship is acceptance
629-9 for rail carriage by a common carrier under a published tariff; or
629-10 (2) the defendant acquired the real property on which
629-11 the facility requiring the remedial action is located, after the
629-12 disposal or placement of the hazardous substance on, in, or at the
629-13 facility and the defendant establishes by a preponderance of the
629-14 evidence that:
629-15 (A) the defendant has satisfied Subsection (b);
629-16 (B) at the time the defendant acquired the
629-17 facility the defendant did not know and had no reason to know that
629-18 a hazardous substance that is the subject of the release or
629-19 threatened release was disposed of on, in, or at the facility;
629-20 (C) the defendant is a governmental entity that
629-21 acquired the facility by escheat, by other involuntary transfer or
629-22 acquisition, or by the exercise of the power of eminent domain; or
629-23 (D) the defendant acquired the facility by
629-24 inheritance or bequest.
629-25 (f) To demonstrate the condition under Subsection (e)(2)(B),
629-26 the defendant must have made, at the time of acquisition,
629-27 appropriate inquiry into the previous ownership and uses of the
630-1 property consistent with good commercial or customary practice in
630-2 an effort to minimize liability. In deciding whether the defendant
630-3 meets this condition, the court shall consider:
630-4 (1) any specialized knowledge or experience of the
630-5 defendant;
630-6 (2) the relationship of the purchase price to the
630-7 value of the property if the property were uncontaminated;
630-8 (3) commonly known or reasonably ascertainable
630-9 information about the property;
630-10 (4) the obvious presence or likely presence of
630-11 contamination of the property; and
630-12 (5) the defendant's ability to detect the
630-13 contamination by appropriate inspection.
630-14 (g) This section does not decrease the liability of a
630-15 previous owner or operator of a facility who is liable under this
630-16 chapter. If the defendant obtained actual knowledge of the release
630-17 or threatened release of a hazardous substance at a facility at the
630-18 time the defendant owned the real property on which the facility is
630-19 located and subsequently transferred ownership of the property to
630-20 another person without disclosing that knowledge, the defendant is
630-21 liable and a defense under this section is not available to the
630-22 defendant.
630-23 (h) Subsections (e)-(g) do not affect the liability under
630-24 this chapter of a defendant who, by an act or omission, caused or
630-25 contributed to the release or threatened release of a hazardous
630-26 substance that is the subject of the action concerning the
630-27 facility. (Sec. 361.275, Health and Safety Code.)
631-1 Sec. 20.276. Apportionment of Liability. (a) If the
631-2 release or threatened release caused by a person's acts or
631-3 omissions is proved by a preponderance of the evidence to be
631-4 divisible, that person is liable only for the elimination of that
631-5 release or threatened release attributable to the person. If the
631-6 release or threatened release is not proved to be divisible,
631-7 persons liable under Section 20.272 or 20.273 are jointly and
631-8 severally liable for eliminating the release or threatened release.
631-9 (b) In this section, "divisible" means that the waste
631-10 released or threatened to be released has been and is capable of
631-11 being managed separately under the remedial action plan. (Sec.
631-12 361.276, Health and Safety Code.)
631-13 Sec. 20.277. Judgment by State Against Nonsettling Party;
631-14 Action for Contribution by Nonsettling Party. (a) If fewer than
631-15 all of the persons identified as liable under this subchapter agree
631-16 with the state to take remedial action to abate an actual or
631-17 threatened release of solid waste that is an imminent and
631-18 substantial endangerment to the public health and safety or the
631-19 environment under an administrative order issued under Section
631-20 20.272 or an action filed by the state under this subchapter, the
631-21 state may seek a judgment against a nonsettling person for the
631-22 total amount of the cost of the remedial action minus that amount
631-23 the settling persons agree to pay or spend.
631-24 (b) In an action for contribution brought by a nonsettling
631-25 person against a settling person, the nonsettling person has the
631-26 burden to prove that the amount of cleanup costs that a settling
631-27 person agreed to pay under an agreement with the state is
632-1 unreasonable considering the factors under Section 20.343 and the
632-2 need to undertake timely cleanup action concerning the release or
632-3 threatened release. (Sec. 361.277, Health and Safety Code.)
632-4 Sec. 20.278. Liability of Engineer or Contractor. (a) An
632-5 engineer or contractor performing a program of remedial action or
632-6 cleanup of hazardous waste or solid waste under a contract with a
632-7 state agency or political subdivision of the state is liable under
632-8 this subchapter for any negligent act or omission or for wilful
632-9 misconduct that results in an actual or threatened release of
632-10 hazardous waste or solid waste after the abandonment or conclusion
632-11 of the program only to the extent that the endangerment to public
632-12 health and safety or the environment is aggravated as a result of
632-13 the act, omission, or misconduct.
632-14 (b) In this section, "engineer or contractor" means a
632-15 person, including the employee or subcontractor of the person, who
632-16 performs a contract for evaluation, planning, designing,
632-17 engineering, construction, equipment, or auxiliary services in
632-18 connection with:
632-19 (1) identifying a hazardous or solid waste site;
632-20 (2) developing a plan to clean up the site; or
632-21 (3) supervising or implementing the plan to clean up
632-22 the site. (Sec. 361.278, Health and Safety Code.)
632-23 Sec. 20.279. Contracts With State. A state agency
632-24 contracting for services or products shall consider whether the
632-25 person proposing to contract with the state has been adjudicated
632-26 during the preceding three-year period to have committed
632-27 substantive, nonclerical violations resulting in an actual release
633-1 of hazardous waste that presented an imminent and substantial
633-2 danger to the public health and safety or the environment. (Sec.
633-3 361.279, Health and Safety Code.)
633-4 Sec. 20.280. Remedies Cumulative. (a) The remedies under
633-5 this subchapter are cumulative of all other remedies.
633-6 (b) This subchapter does not exempt a person from complying
633-7 with or being subject to other law. (Sec. 361.280, Health and
633-8 Safety Code.)
633-9 (Sections 20.281-20.300 reserved for expansion)
633-10 SUBCHAPTER H. ENFORCEMENT; EMERGENCY ORDER;
633-11 CORRECTIVE ACTION
633-12 Sec. 20.301. Emergency Order. (a) The commission may issue
633-13 an emergency mandatory or prohibitory order concerning an activity
633-14 of solid waste management, even if the activity is not covered by a
633-15 permit, if the commission determines that an emergency requiring
633-16 immediate action to protect the public health and safety or the
633-17 environment exists.
633-18 (b) The order may be issued without notice and hearing or
633-19 with notice and hearing the commission considers practicable under
633-20 the circumstances.
633-21 (c) If an emergency order is issued under this section
633-22 without a hearing, the commission shall set a time and place for a
633-23 hearing to be held in accordance with the rules of the commission
633-24 to affirm, modify, or set aside the emergency order.
633-25 (d) The requirements of Section 20.088 concerning public
633-26 notice do not apply to the hearing, but general notice of the
633-27 hearing shall be given in accordance with the rules of the
634-1 commission. (Sec. 361.301, Health and Safety Code.)
634-2 Sec. 20.302. Issuance of Order by Commission. (a) The
634-3 commission may issue an order to a person requiring compliance with
634-4 this chapter and prescribing the corrective action that the person
634-5 must take to achieve compliance if the person violates:
634-6 (1) the provisions of this chapter concerning solid
634-7 waste under the commission's jurisdiction;
634-8 (2) a rule or order adopted by the commission
634-9 concerning solid waste under the commission's jurisdiction; or
634-10 (3) a solid waste permit or registration issued by the
634-11 commission under this chapter.
634-12 (b) The order may be issued instead of or in addition to an
634-13 order under Section 20.240 assessing an administrative civil
634-14 penalty.
634-15 (c) Judicial review of an order issued under this section is
634-16 in the district court of the county in which the alleged violation
634-17 occurred. (Sec. 361.302, Health and Safety Code.)
634-18 Sec. 20.303. Corrective Action. (a) The commission shall
634-19 require corrective action for a release of hazardous waste or
634-20 hazardous waste constituents from a solid waste management unit at
634-21 a solid waste processing, storage, or disposal facility that is
634-22 required to obtain a permit for the management of hazardous waste
634-23 and whose permit is issued after November 8, 1984, regardless of
634-24 when the waste is placed in the unit.
634-25 (b) The commission shall establish schedules for compliance
634-26 for the corrective action, if the corrective action cannot be
634-27 completed before permit issuance, and shall require assurances of
635-1 financial responsibility for completing the corrective action.
635-2 (c) If, before the issuance of a permit, the commission
635-3 determines that there is or has been a release of hazardous waste
635-4 into the environment from a facility required to obtain a permit in
635-5 accordance with an approved state program under Section 3006 of the
635-6 federal Solid Waste Disposal Act, as amended by the Resource
635-7 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
635-8 Section 6901 et seq.), the commission may:
635-9 (1) issue an order requiring corrective action or
635-10 other response measure considered necessary to protect human health
635-11 or the environment; or
635-12 (2) institute a civil action under Section 20.227.
635-13 (d) An order issued under this section:
635-14 (1) may include a suspension or revocation of
635-15 authorization to operate;
635-16 (2) must state with reasonable specificity the nature
635-17 of the required corrective action or other response measure; and
635-18 (3) must specify a time for compliance.
635-19 (e) If any person named in the order does not comply with
635-20 the order, the commission may assess a civil penalty in accordance
635-21 with this chapter. (Sec. 361.303, Health and Safety Code.)
635-22 (Sections 20.304-20.320 reserved for expansion)
635-23 SUBCHAPTER I. APPEALS; JOINDER OF PARTIES
635-24 Sec. 20.321. Appeals. (a) A person affected by a ruling,
635-25 order, decision, or other act of the commission may appeal the
635-26 action by filing a petition in the district court of Travis County.
635-27 (b) A person affected by a ruling, order, decision, or other
636-1 act of a county, or of a political subdivision exercising the
636-2 authority granted by Section 20.165, may appeal by filing a
636-3 petition in a district court with jurisdiction in the county or
636-4 political subdivision.
636-5 (c) Except as provided by Section 20.322(a), the petition
636-6 must be filed not later than the 30th day after the date of the
636-7 ruling, order, decision, or other act of the governmental entity
636-8 whose action is appealed. Service of citation must be accomplished
636-9 not later than the 30th day after the date on which the petition is
636-10 filed.
636-11 (d) The plaintiff shall pursue the action with reasonable
636-12 diligence. The court shall presume that the action has been
636-13 abandoned if the plaintiff does not prosecute the action within one
636-14 year after it is filed and shall dismiss the suit on a motion for
636-15 dismissal made by the governmental entity whose action is appealed
636-16 unless the plaintiff, after receiving notice, can show good and
636-17 sufficient cause for the delay.
636-18 (e) Except as provided by Section 20.322(e), in an appeal
636-19 from an action of the commission, a county, or a political
636-20 subdivision exercising the authority granted by Section 20.165, the
636-21 issue is whether the action is invalid, arbitrary, or unreasonable.
636-22 (Sec. 361.321, Health and Safety Code.)
636-23 Sec. 20.322. Appeal of Administrative Order Issued Under
636-24 Section 20.272; Joinder of Parties. (a) Any person subject to an
636-25 administrative order under Section 20.272 may appeal the order by
636-26 filing a petition before the 46th day after the date of receipt,
636-27 hand delivery, or publication service of the order.
637-1 (b) The plaintiff shall pursue the action with reasonable
637-2 diligence. The court shall presume that the action has been
637-3 abandoned if the plaintiff does not prosecute the action within one
637-4 year after it is filed and shall dismiss the suit on a motion for
637-5 dismissal made by the governmental entity whose action is appealed
637-6 unless the plaintiff, after receiving notice, can show good and
637-7 sufficient cause for the delay.
637-8 (c) The filing of a motion for rehearing under the
637-9 Administrative Procedure and Texas Register Act (Article 6252-13a,
637-10 Vernon's Texas Civil Statutes) is not a prerequisite for an appeal
637-11 of the order.
637-12 (d) The person appealing the order must join the commission
637-13 as a party and may join as parties any other person named as a
637-14 responsible party in the administrative order and any other person
637-15 who is or may be liable for the elimination of the actual or
637-16 threatened release of solid waste or hazardous substances governed
637-17 by the administrative order.
637-18 (e) The filing of the petition does not prevent the
637-19 commission from proceeding with the remedial action program under
637-20 Subchapter E unless the court enjoins the remedial action under
637-21 its general equity jurisdiction.
637-22 (f) The administrative order is final as to a nonappealing
637-23 party on the 46th day after the date of receipt, hand delivery, or
637-24 publication service of the order by, to, or on the nonappealing
637-25 party.
637-26 (g) The district court shall uphold the administrative order
637-27 if the commission proves by a preponderance of the evidence that:
638-1 (1) there is an actual or threatened release of solid
638-2 waste or hazardous substances that is an imminent and substantial
638-3 endangerment to the public health and safety or the environment;
638-4 and
638-5 (2) the person made subject to the administrative
638-6 order is liable for the elimination of the release or threatened
638-7 release, in whole or in part.
638-8 (h) If the appropriateness of the selected remedial action
638-9 is contested in the appeal of the administrative order, the
638-10 remedial action shall be upheld unless the court determines that
638-11 the remedy is arbitrary or unreasonable.
638-12 (i) A person made a party to the appeal may join as a party
638-13 any other person who is or may be liable for the elimination of the
638-14 release or threatened release, but the failure by a party to file
638-15 an action for contribution or indemnity does not waive any right
638-16 under this chapter or other law.
638-17 (j) In an appeal under this section, the district court on
638-18 establishing the validity of the order shall issue an injunction
638-19 requiring any person named or joined against whom liability has
638-20 been established by the commission or other party to comply with
638-21 the order.
638-22 (k) As between parties determined to be liable under
638-23 Subchapter G, the court may, as equity requires, apportion cleanup
638-24 costs in accordance with Section 20.343 and grant any other
638-25 appropriate relief. (Sec. 361.322, Health and Safety Code.)
638-26 Sec. 20.323. Joinder of Parties in Action Filed by State.
638-27 (a) In an action brought by the attorney general under Section
639-1 20.273 seeking an injunction to eliminate a release or threatened
639-2 release, the attorney general shall, and a party may, join as a
639-3 party a person reasonably believed to be liable for the release or
639-4 threatened release in accordance with Section 20.272.
639-5 (b) Failure of the attorney general or a party to name or
639-6 join a person as a party is not a defense to an action against that
639-7 person for contribution or indemnity.
639-8 (c) In an action brought by the attorney general under
639-9 Section 20.273, the district court shall grant relief on the
639-10 grounds provided by Section 20.322(d), and Sections 20.322(f) and
639-11 (g) apply to the action. (Sec. 361.323, Health and Safety Code.)
639-12 (Sections 20.324-20.340 reserved for expansion)
639-13 SUBCHAPTER J. COST RECOVERY
639-14 Sec. 20.341. Cost Recovery by State. (a) The state is
639-15 entitled to recover reasonable attorney's fees, reasonable costs to
639-16 prepare and provide witnesses, and reasonable costs of
639-17 investigating and assessing the facility or site if it prevails in:
639-18 (1) an appeal of an administrative order issued under
639-19 Section 20.272 or Section 20.188;
639-20 (2) an action to enforce such an administrative order;
639-21 (3) a civil suit seeking injunctive relief under
639-22 Section 20.273; or
639-23 (4) a cost recovery suit under Section 20.197.
639-24 (b) The court shall apportion the costs among liable parties
639-25 as it determines is equitable and just.
639-26 (c) All such costs recovered by the state under Subchapter E
639-27 shall be remitted to the commission and deposited to the credit of
640-1 a separate account of the hazardous waste disposal fee fund. All
640-2 other costs recovered by the state under Sections 20.271 through
640-3 20.277 shall be remitted to the commission and deposited to the
640-4 credit of a separate account of the hazardous waste generation and
640-5 facility fees fund.
640-6 (d) If an appeal or third party claim is found by the court
640-7 to be frivolous, unreasonable, or without foundation, the court may
640-8 assess damages against the party bringing the appeal or third party
640-9 claim in an amount not to exceed twice the costs incurred by the
640-10 state or the third party defendant, including reasonable attorney's
640-11 fees, reasonable costs of preparing and providing witnesses, and
640-12 reasonable costs of studies, analyses, engineering reports, tests,
640-13 or other projects the court finds were necessary for the
640-14 preparation of the party's case. (Sec. 361.341, Health and Safety
640-15 Code.)
640-16 Sec. 20.342. Cost Recovery by Appealing or Contesting Party.
640-17 If the court finds that an administrative order referred to by
640-18 Section 20.341 is frivolous, unreasonable, or without foundation
640-19 with respect to a party named by the order, the party appealing or
640-20 contesting the order is entitled to recover from the state its
640-21 reasonable:
640-22 (1) attorney's fees;
640-23 (2) costs to prepare and provide witnesses; and
640-24 (3) costs of studies, analyses, engineering reports,
640-25 tests, or other projects the court finds were necessary to prepare
640-26 the party's case. (Sec. 361.342, Health and Safety Code.)
640-27 Sec. 20.343. Apportionment of Costs. (a) Apportionment of
641-1 costs for the elimination of the release or threatened release of
641-2 solid waste among the persons responsible for solid waste under
641-3 Section 20.271 shall be made according to:
641-4 (1) the relationship between the parties' actions in
641-5 storing, processing, and disposing of solid waste and the remedy
641-6 required to eliminate the release or threatened release;
641-7 (2) the volume of solid waste each party is
641-8 responsible for at the solid waste facility or site to the extent
641-9 that the costs of the remedy are based on the volume of solid waste
641-10 present;
641-11 (3) consideration of toxicity or other waste
641-12 characteristics if those characteristics affect the cost to
641-13 eliminate the release or threatened release; and
641-14 (4) a party's cooperation with state agencies, its
641-15 cooperation or noncooperation with the pending efforts to eliminate
641-16 the release or threatened release, or a party's actions concerning
641-17 storing, processing, or disposing of solid waste, as well as the
641-18 degree of care that the party exercised.
641-19 (b) The apportionment of costs only adjusts the rights of
641-20 parties identified by Section 20.271 and does not affect a person's
641-21 liability to the state. (Sec. 361.343, Health and Safety Code.)
641-22 Sec. 20.344. Cost Recovery by Liable Party or Third Party.
641-23 (a) A person subject to a court injunction or an administrative
641-24 order issued under this chapter, in addition to having the right to
641-25 file an action for contribution or indemnity, or both, in an appeal
641-26 proceeding or in an action brought by the attorney general, may
641-27 bring suit in a district court to recover costs incurred to
642-1 eliminate the release or threatened release and other costs as the
642-2 court, in its discretion, considers reasonable.
642-3 (b) Venue for the suit is:
642-4 (1) in the county in which the release or threatened
642-5 release is or was located; or
642-6 (2) in any other county in which venue is proper under
642-7 Chapter 15, Civil Practice and Remedies Code.
642-8 (c) To recover costs under this section in a proceeding that
642-9 is not an appeal proceeding or an action brought by the attorney
642-10 general under this subchapter, the person seeking cost recovery
642-11 must have made reasonable attempts to notify the person against
642-12 whom cost recovery is sought:
642-13 (1) of the existence of the release or threatened
642-14 release; and
642-15 (2) that the person seeking cost recovery intended to
642-16 take steps to eliminate the release or threatened release.
642-17 (d) The court shall determine the amount of cost recovery
642-18 according to the criteria prescribed by Section 20.343.
642-19 (e) A fact determination or ruling by a district court in an
642-20 appeal of an administrative order under Section 20.322 is not res
642-21 judicata or collateral estoppel as to an issue brought in a
642-22 proceeding under this section concerning a party not joined in the
642-23 appeal. (Sec. 361.344, Health and Safety Code.)
642-24 Sec. 20.345. Creation of Rights. Subchapter G and Section
642-25 20.344 and the enforcement by the commission of that subchapter and
642-26 section do not:
642-27 (1) create rights or causes of action on behalf of a
643-1 person other than those expressly stated by this chapter; or
643-2 (2) change common law or a rule of decision except as
643-3 limited by this chapter to actions by the commission to eliminate
643-4 an actual release or threatened release of solid waste that is an
643-5 imminent and substantial endangerment to the public health and
643-6 safety or the environment. (Sec. 361.345, Health and Safety Code.)
643-7 (Sections 20.346-20.400 reserved for expansion)
643-8 SUBCHAPTER K. REMOVAL AND REMEDIATION AGREEMENTS
643-9 Sec. 20.401. Definitions. In this subchapter:
643-10 (1) "Disposal facility" means a site or area at which
643-11 a hazardous substance, pollutant, or contaminant has been
643-12 deposited, stored, disposed of, or placed or otherwise come to be
643-13 located that no longer receives hazardous substances, pollutants,
643-14 and contaminants.
643-15 (2) "Fund" means the hazardous waste disposal fee
643-16 fund.
643-17 (3) "Petroleum" means crude oil or any fraction of
643-18 crude oil that is not otherwise listed or designated as a hazardous
643-19 substance under Section 20.003.
643-20 (4) "Pollutant" or "contaminant" means any element,
643-21 substance, compound, or mixture, including disease-causing agents,
643-22 that after release into the environment and on exposure, ingestion,
643-23 inhalation, or assimilation into any organism, either directly from
643-24 the environment or indirectly by ingestion through food chains,
643-25 will or may reasonably be anticipated to cause death, disease,
643-26 behavioral abnormalities, cancer, genetic mutation, physiological
643-27 malfunctions, including malfunctions in reproduction, or physical
644-1 deformations in the organism or its offspring. The term does not
644-2 include petroleum, natural gas, liquefied natural gas, synthetic
644-3 gas of pipeline quality, or mixtures of natural gas and synthetic
644-4 gas.
644-5 (5) "Removal" means:
644-6 (A) cleaning up or removing released hazardous
644-7 substances, pollutants, or contaminants from the environment;
644-8 (B) taking necessary action in the event of the
644-9 threat of release of hazardous substances, pollutants, or
644-10 contaminants into the environment;
644-11 (C) taking necessary action to monitor, assess,
644-12 and evaluate the release or threat of release of hazardous
644-13 substances, pollutants, or contaminants;
644-14 (D) disposing of removed material;
644-15 (E) erecting security fencing or taking other
644-16 measures to limit access;
644-17 (F) providing alternate water supplies;
644-18 (G) temporarily evacuating and housing
644-19 threatened individuals not otherwise provided for;
644-20 (H) taking action under Section 104(b) of the
644-21 environmental response law;
644-22 (I) providing any emergency assistance under the
644-23 Disaster Relief Act of 1974 (42 U.S.C. Section 5121 et seq.); and
644-24 (J) taking other action as may be necessary to
644-25 prevent, minimize, or mitigate damage to the public health and
644-26 safety or to the environment that may otherwise result from a
644-27 release or threat of release.
645-1 (6) "Remedial action" means an action consistent with
645-2 a permanent remedy taken instead of or in addition to removal
645-3 actions in the event of a release or threatened release of a
645-4 hazardous substance, pollutant, or contaminant into the environment
645-5 to prevent or minimize the release of hazardous substances,
645-6 pollutants, or contaminants so that they do not migrate to cause
645-7 substantial danger to present or future public health and safety or
645-8 the environment. The term:
645-9 (A) includes:
645-10 (i) actions at the location of the
645-11 release, including storage, confinement, perimeter protection using
645-12 dikes, trenches, or ditches, clay cover, neutralization, cleanup of
645-13 released hazardous substances, pollutants, contaminants, or
645-14 contaminated materials, recycling or reuse, diversion, destruction,
645-15 segregation of reactive wastes, dredging or excavations, repair or
645-16 replacement of leaking containers, collections of leachate and
645-17 runoff, on-site treatment or incineration, provision of alternate
645-18 water supplies, and any monitoring reasonably required to assure
645-19 that those reactions protect the public health and safety or the
645-20 environment; and
645-21 (ii) the costs of permanent relocation of
645-22 residents and businesses and community facilities where the
645-23 president of the United States determines that alone or in
645-24 combination with other measures this relocation is more
645-25 cost-effective than and environmentally preferable to the
645-26 transportation, storage, treatment, destruction, or secure
645-27 disposition off site of hazardous substances, pollutants, or
646-1 contaminants or may otherwise be necessary to protect the public
646-2 health or safety; but
646-3 (B) does not include off-site transport of
646-4 hazardous substances or the storage, treatment, destruction, or
646-5 secure disposition off site of the hazardous substances,
646-6 pollutants, contaminants, or contaminated materials unless the
646-7 president of the United States determines that those actions:
646-8 (i) are more cost-effective than other
646-9 remedial actions;
646-10 (ii) will create new capacity to manage,
646-11 in compliance with Subtitle C of the federal Solid Waste Disposal
646-12 Act (42 U.S.C. Section 6921 et seq.), hazardous substances in
646-13 addition to those located at the affected facility; or
646-14 (iii) are necessary to protect the public
646-15 health and safety or the environment from a present or potential
646-16 risk that may be created by further exposure to the continued
646-17 presence of those substances, pollutants, contaminants, or
646-18 materials.
646-19 (7) "Response" means removal and remedial action.
646-20 (Sec. 361.401, Health and Safety Code.)
646-21 Sec. 20.402. Commission Duties and Powers. (a) The
646-22 commission shall:
646-23 (1) administer this subchapter; and
646-24 (2) cooperate with municipalities and with agencies,
646-25 departments, and political subdivisions of this state and the
646-26 United States and its agencies in implementing this section and the
646-27 environmental response law.
647-1 (b) The commission may:
647-2 (1) enter into contracts and cooperative agreements
647-3 with the federal government to carry out removal and remedial
647-4 action for a specific disposal facility as authorized by Section
647-5 104(c)(3) of the environmental response law or to carry out removal
647-6 and remedial action with regard to a disposal facility under
647-7 Section 104(d)(1) of the environmental response law;
647-8 (2) after notice and hearing, authorize the executive
647-9 director to enter into contracts and cooperative agreements on
647-10 behalf of the commission under Subdivision (1) under terms and
647-11 conditions stated in the commission's order; and
647-12 (3) when acting under a cooperative agreement with the
647-13 federal government under Subdivision (1), undertake the enforcement
647-14 and remedial actions authorized under the environmental response
647-15 law as may be reasonably necessary, in lieu of or in conjunction
647-16 with actions by the federal government. (Sec. 361.402, Health and
647-17 Safety Code.)
647-18 Sec. 20.403. Terms and Conditions of Agreements; Costs.
647-19 (a) If the commission enters into a contract or cooperative
647-20 agreement under Section 104(c)(3) of the environmental response
647-21 law, the commission shall include in the contract or agreement
647-22 terms and conditions to:
647-23 (1) assure future maintenance of the removal and
647-24 remedial actions provided for the expected life of those actions as
647-25 determined by the federal government;
647-26 (2) assure the availability of a hazardous waste
647-27 disposal facility acceptable to the federal government that
648-1 complies with Subchapter III of the federal Solid Waste Disposal
648-2 Act (42 U.S.C. Section 6921 et seq.) for any necessary off-site
648-3 storage, destruction, treatment, or secure disposition of the
648-4 hazardous substances, pollutants, or contaminants; and
648-5 (3) assure payment by the state of:
648-6 (A) 10 percent of the costs of the remedial
648-7 actions, including future maintenance; or
648-8 (B) at least 50 percent or more of the costs as
648-9 determined appropriate by the federal government, taking into
648-10 account the degree of responsibility of the state for any amount
648-11 spent in response to a release at a disposal facility that was
648-12 owned by the state at the time of disposal of hazardous substances
648-13 at the disposal facility.
648-14 (b) A contract entered into with the federal government
648-15 under Section 104(d)(1) of the environmental response law is
648-16 subject to the same cost-sharing requirements provided for
648-17 contracts in Subsection (a)(3).
648-18 (c) The state's share of reasonable response costs shall be
648-19 paid from the fund. (Sec. 361.403, Health and Safety Code.)
648-20 Sec. 20.404. Cooperation With Federal Government.
648-21 (a) Before entering into a contract or cooperative agreement under
648-22 Section 20.402, the commission shall consult and work with the
648-23 federal government in determining the response that will be
648-24 necessary under the contract or cooperative agreement with regard
648-25 to the particular disposal facility.
648-26 (b) The commission shall collect and shall file with the
648-27 federal government any information required by the environmental
649-1 response law and rules adopted under that law. (Sec. 361.404,
649-2 Health and Safety Code.)
649-3 Sec. 20.405. Indemnification of Engineer or Contractor.
649-4 (a) Notwithstanding any other law or rule, the commission may
649-5 agree in a contract retaining an engineer or contractor to perform
649-6 a program of removal, remedial action, or cleanup of a hazardous
649-7 substance in connection with a contract or cooperative agreement
649-8 under Section 20.402 to indemnify the engineer or contractor
649-9 against any claim or liability arising from an actual or threatened
649-10 release of a hazardous substance that occurs during the performance
649-11 of any work, including:
649-12 (1) damages arising from economic loss, personal
649-13 injury, property damages, or death;
649-14 (2) costs and expenses, including the cost of defense
649-15 of a lawsuit brought against the engineer or contractor; and
649-16 (3) claims by third parties for indemnification,
649-17 contribution, or damages for economic loss, personal injury,
649-18 property damages, or death.
649-19 (b) In determining whether to contract to indemnify an
649-20 engineer or contractor under this section, the commission shall
649-21 consider the availability of insurance to the engineer or
649-22 contractor for the claims and liabilities against which the
649-23 commission may indemnify the engineer or contractor under this
649-24 section on the date the engineer or contractor enters into a
649-25 contract to perform services covered by this section. The
649-26 commission may not contract to indemnify an engineer or contractor
649-27 under this section if the engineer or contractor cannot demonstrate
650-1 that insurance is unavailable at a reasonable cost or if another
650-2 engineer or contractor submitting a comparable proposal
650-3 demonstrates that insurance is available at a reasonable cost.
650-4 (c) The commission is not obligated to award a contract if
650-5 it determines that adequate liability insurance is not available to
650-6 an engineer or contractor and that the award of the contract is not
650-7 in the public interest.
650-8 (d) The commission may not contract to indemnify an engineer
650-9 or contractor under this section unless the federal government
650-10 agrees in a contract or cooperative agreement to indemnify in turn
650-11 the commission under Section 119 of the environmental response law.
650-12 The commission's decision to contract or not to contract to
650-13 indemnify an engineer or contractor may be made as an executive act
650-14 without an adjudicative public hearing and is not subject to
650-15 judicial review.
650-16 (e) An engineer or contractor performing a program of
650-17 removal, remedial action, or cleanup of a hazardous substance under
650-18 a contract entered into in connection with a contract or
650-19 cooperative agreement under Section 20.402 that results in an
650-20 actual or threatened release of hazardous substance is not liable
650-21 under Section 20.221, 20.226 through 20.232, or 20.240 for an act
650-22 or a failure to act during the performance of the contract. This
650-23 subsection does not in any way limit or otherwise affect the
650-24 liability of an engineer or contractor in any other action.
650-25 (f) Subsections (a) and (e) do not apply to a grossly
650-26 negligent act or omission or to wilful misconduct of an engineer or
650-27 contractor during the performance of a contract. Notwithstanding
651-1 any other law, an engineer or contractor performing a program of
651-2 removal, remedial action, or cleanup of a hazardous substance under
651-3 a contract entered into in connection with a contract or
651-4 cooperative agreement under Section 20.402 is liable for a grossly
651-5 negligent act or omission or for wilful misconduct that results in
651-6 an actual or threatened release of a hazardous substance in
651-7 violation of Sections 20.221-20.238 or Subchapter G, or Section
651-8 20.240, only to the extent that the act, omission, or misconduct
651-9 caused the violation.
651-10 (g) In this section, "engineer or contractor" means a
651-11 person, including the employee or subcontractor of the person, who
651-12 performs a contract for evaluation, planning, designing,
651-13 engineering, construction, equipment, or auxiliary services in
651-14 connection with the identification of a site containing a hazardous
651-15 substance, the development of a plan of response to the site, or
651-16 the supervision or performance of the response to the site. (Sec.
651-17 361.405, Health and Safety Code.)
651-18 (Sections 20.406-20.430 reserved for expansion)
651-19 SUBCHAPTER L. PLASTIC CONTAINERS
651-20 Sec. 20.431. Definitions. In this subchapter:
651-21 (1) "Plastic" means a material made of polymeric
651-22 organic compounds and additives that can be shaped by flow.
651-23 (2) "Plastic bottle" means a plastic container that:
651-24 (A) has a neck smaller than the body of the
651-25 container;
651-26 (B) is designed for a screw top, snap cap, or
651-27 other closure; and
652-1 (C) has a capacity of not less than 16 fluid
652-2 ounces or more than five gallons.
652-3 (3) "Rigid plastic container" means a formed or molded
652-4 container, other than a plastic bottle, that:
652-5 (A) is intended for single use;
652-6 (B) is composed predominantly of plastic resin;
652-7 (C) has a relatively inflexible finite shape or
652-8 form; and
652-9 (D) has a capacity of not less than eight ounces
652-10 or more than five gallons. (Sec. 369.001, Health and Safety Code.)
652-11 Sec. 20.432. Symbols for Certain Plastic Containers. (a) A
652-12 person may not manufacture or distribute a plastic bottle or rigid
652-13 plastic container unless the appropriate symbol indicating the
652-14 plastic resin used to produce the bottle or container is molded
652-15 into or imprinted on the bottom or near the bottom of the bottle or
652-16 container.
652-17 (b) A plastic bottle or rigid plastic container with a base
652-18 cup or other component of a material different from the basic
652-19 material used in making the bottle or container must bear the
652-20 symbol indicating its basic material.
652-21 (c) The symbols used under this section must consist of a
652-22 number placed within a triangle of arrows and of letters placed
652-23 below the triangle of arrows. The triangle must be equilateral,
652-24 formed by three arrows with the apex of each point of the triangle
652-25 at the midpoint of each arrow, rounded with a short radius. The
652-26 arrowhead of each arrow must be at the midpoint of each side of the
652-27 triangle with a short gap separating the arrowhead from the base of
653-1 the adjacent arrow. The triangle formed by the arrows must depict
653-2 a clockwise path around the number.
653-3 (d) The numbers, letters of the symbols, and the plastic
653-4 resins represented by the symbols are:
653-5 (1) 1 and PETE, representing polyethylene
653-6 terephthalate;
653-7 (2) 2 and HDPE, representing high density
653-8 polyethylene;
653-9 (3) 3 and V, representing vinyl;
653-10 (4) 4 and LDPE, representing low density polyethylene;
653-11 (5) 5 and PP, representing polypropylene;
653-12 (6) 6 and PS, representing polystyrene; and
653-13 (7) 7 and OTHER, representing all other resins,
653-14 including layered plastics of a combination of materials.
653-15 (e) The commission shall:
653-16 (1) maintain a list of the symbols; and
653-17 (2) provide a copy of that list to any person on
653-18 request. (Sec. 369.002, Health and Safety Code.)
653-19 Sec. 20.433. Penalty. (a) A person who violates Section
653-20 20.432(a) or (b) is subject to a civil penalty not to exceed $500
653-21 for each act of violation.
653-22 (b) If it appears that a person has violated or is violating
653-23 Section 20.432, the attorney general or a district attorney,
653-24 criminal district attorney, or county attorney shall institute and
653-25 conduct a suit in the name of this state to recover the civil
653-26 penalty imposed under this section.
653-27 (c) A civil penalty recovered under this section shall be
654-1 deposited:
654-2 (1) in the state treasury if the attorney general
654-3 brings the suit; or
654-4 (2) in the general fund of the county in which the
654-5 violation occurred if a district attorney, criminal district
654-6 attorney, or county attorney brings the suit. (Sec. 369.003,
654-7 Health and Safety Code.)
654-8 (Sections 20.434-20.450 reserved for expansion)
654-9 SUBCHAPTER M. LEAD ACID BATTERIES
654-10 Sec. 20.451. Land Disposal Prohibited. (a) A person may
654-11 not place a used lead-acid battery in mixed municipal solid waste
654-12 or discard or otherwise dispose of a lead-acid battery except by
654-13 delivery to:
654-14 (1) a battery retailer or wholesaler;
654-15 (2) a secondary lead smelter; or
654-16 (3) a collection or recycling facility authorized
654-17 under the laws of this state or by the United States Environmental
654-18 Protection Agency.
654-19 (b) A battery retailer may not dispose of a used lead-acid
654-20 battery except by delivery to:
654-21 (1) a battery wholesaler or a secondary lead smelter,
654-22 or an agent thereof;
654-23 (2) a battery manufacturer for delivery to a secondary
654-24 lead smelter; or
654-25 (3) a collection or recycling facility authorized
654-26 under the laws of this state or by the United States Environmental
654-27 Protection Agency.
655-1 (c) A person commits an offense if the person knowingly or
655-2 intentionally disposes of a lead-acid battery other than as
655-3 provided in this section. (Sec. 361.451, Health and Safety Code.)
655-4 Sec. 20.452. Collection for Recycling. A person selling
655-5 lead-acid batteries at retail or offering lead-acid batteries for
655-6 retail sale in this state shall:
655-7 (1) accept from customers, if offered, at the point of
655-8 transfer, used lead-acid batteries of the type and in a quantity at
655-9 least equal to the number of new batteries purchased; and
655-10 (2) post written notice, which must be at least 8 1/2
655-11 inches by 11 inches in size, containing the universal recycling
655-12 symbol and the following language:
655-13 (A) "It is illegal to discard or improperly
655-14 dispose of a motor-vehicle battery or other lead-acid battery.";
655-15 (B) "Recycle your used batteries."; and
655-16 (C) "State law requires us to accept used
655-17 motor-vehicle batteries or other lead-acid batteries for recycling
655-18 in exchange for new batteries purchased." (Sec. 361.452, Health
655-19 and Safety Code.)
655-20 Sec. 20.453. Inspection of Battery Retailers. The
655-21 commission shall produce, print, and distribute the notices
655-22 required by Section 20.452 to all places where lead-acid batteries
655-23 are offered for sale at retail. In performing its duties under
655-24 this section the commission may inspect any place, building, or
655-25 premises governed by Section 20.452. Authorized employees of the
655-26 commission may issue warnings and citations to persons who fail to
655-27 comply with the requirements of Section 20.452. Failure to post
656-1 the required notice within three days following warning subjects
656-2 the establishment to a fine of $100 per day. (Sec. 361.453, Health
656-3 and Safety Code.)
656-4 Sec. 20.454. Lead-Acid Battery Wholesalers. A person
656-5 selling new lead-acid batteries at wholesale shall accept from
656-6 customers, at the point of transfer, used lead-acid batteries of
656-7 the type and in a quantity at least equal to the number of new
656-8 batteries purchased, if offered by customers. A person accepting
656-9 batteries in transfer from a battery retailer shall remove
656-10 batteries from the retail point of collection within 90 days after
656-11 acceptance. (Sec. 361.154, Health and Safety Code.)
656-12 Sec. 20.455. Penalty. Any violation of this subchapter is a
656-13 Class C misdemeanor. Each battery improperly disposed of
656-14 constitutes a separate violation and offense. (Sec. 361.455,
656-15 Health and Safety Code.)
656-16 Sec. 20.456. Enforcement. The commission shall adopt rules
656-17 necessary to enforce the provisions of this subchapter. (Sec.
656-18 361.456, Health and Safety Code.)
656-19 (Sections 361.457-361.470 reserved for expansion)
656-20 SUBCHAPTER N. WASTE TIRE RECYCLING PROGRAM
656-21 Sec. 20.471. Definitions. In this subchapter:
656-22 (1) "Fund" means the waste tire recycling fund.
656-23 (2) "Mobile tire shredder" means equipment mounted on
656-24 wheels or skid-mounted and hauled from place to place to split,
656-25 shred, or quarter used or scrap tires.
656-26 (3) "Scrap tire" has the meaning assigned by Section
656-27 20.113.
657-1 (4) "Waste tire facility" means a facility permitted
657-2 by the commission under Section 20.113 at which scrap tires are
657-3 collected or deposited and shredded to facilitate the future
657-4 extraction of useful materials for recycling, reuse, or energy
657-5 recovery.
657-6 (5) "Waste tire processor" means:
657-7 (A) a waste tire facility; or
657-8 (B) a mobile tire shredder that splits, shreds,
657-9 or quarters tires and deposits the split, shredded, or quartered
657-10 tires for eventual recycling, reuse, or energy recovery at:
657-11 (i) a waste tire storage facility
657-12 registered by the commission under Section 20.113; or
657-13 (ii) a waste tire facility.
657-14 (6) "Waste tire transporter" means a person who
657-15 collects and transports used or scrap tires for storage or
657-16 disposal.
657-17 (7) "Weighed tire" means a unit of weight for shredded
657-18 scrap tires that is equal to 18.7 pounds. (Sec. 361.471, Health
657-19 and Safety Code.)
657-20 Sec. 20.472. Enforcement; Penalties. (a) A person who does
657-21 not file a report as provided by Section 2.184 or who possesses a
657-22 fee collected or payable under that section and who does not remit
657-23 the fee to the comptroller at the time and in the manner required
657-24 by that section and rules of the comptroller shall pay a penalty of
657-25 five percent of the amount of the fee due and payable. If the
657-26 person does not file the report or pay the fee before the 30th day
657-27 after the date on which the fee or report is due, the person shall
658-1 pay a penalty of an additional five percent of the amount of the
658-2 fee due and payable.
658-3 (b) Chapters 101 and 111 through 113, Tax Code, and Sections
658-4 153.006 and 153.007, Tax Code, apply to the administration,
658-5 payment, collection, and enforcement of fees under this section in
658-6 the same manner that those chapters and sections apply to the
658-7 administration, payment, collection, and enforcement of taxes under
658-8 Title 2, Tax Code.
658-9 (c) The comptroller may add a penalty of 75 percent of the
658-10 amount of the fee, penalty, and interest due if failure to file the
658-11 report or pay the fee when it comes due is attributable to fraud or
658-12 an intent to evade the application of this section or a rule made
658-13 under this section or Chapter 111, Tax Code. (Sec. 361.473, Health
658-14 and Safety Code.)
658-15 Sec. 20.473. Disposition of Fees and Penalties. Fees and
658-16 penalties collected under Section 2.184 and this subchapter shall
658-17 be deposited in the state treasury to the credit of the fund.
658-18 (Sec. 361.474, Health and Safety Code.)
658-19 Sec. 20.474. Priority Enforcement List. The commission
658-20 shall identify unauthorized tire dumps that present an existing or
658-21 potential threat to public health and safety or to the environment
658-22 and shall prepare an enforcement list of those dumps, giving
658-23 priority to dumps for which a responsible party cannot be located.
658-24 (Sec. 361.476, Health and Safety Code.)
658-25 Sec. 20.475. Payments to Waste Tire Processors. (a) The
658-26 commission each month shall pay a waste tire processor that shreds
658-27 scrap tires and meets the requirements of this section and rules
659-1 adopted under this section an amount equal to 85 cents for each
659-2 weighed tire shredded by the processor during the preceding
659-3 calendar month.
659-4 (b) A waste tire processor that desires to receive payment
659-5 under this section for tires shredded by the processor during a
659-6 calendar month must:
659-7 (1) apply to the commission in accordance with forms
659-8 prescribed by the commission;
659-9 (2) demonstrate as required by rules adopted under
659-10 this section that:
659-11 (A) all tires for which payment is sought have
659-12 been shredded to a particle size not larger than nine square
659-13 inches; and
659-14 (B) not less than 25 percent of those tires were
659-15 collected from tire dumps listed on the commission's priority
659-16 enforcement list;
659-17 (3) provide any other information the commission
659-18 determines is needed to accomplish the purposes of this subchapter;
659-19 and
659-20 (4) demonstrate that energy recovery activities are in
659-21 compliance with applicable air emission control rules and standards
659-22 as adopted by the commission.
659-23 (c) A waste tire processor that in any month exceeds the 25
659-24 percent minimum requirement of Subsection (b)(2) shall receive a
659-25 credit for the amount in excess of 25 percent that may be used to
659-26 meet the minimum requirement during a later month. The commission
659-27 by rule may prescribe the method of applying credits accrued under
660-1 this subsection.
660-2 (d) The commission by rule shall adopt application and
660-3 payment procedures and requirements to implement this section.
660-4 (e) A permitted Type VIII tire monofill approved under
660-5 commission rules may qualify as a waste tire processor and is
660-6 eligible to receive payment under this section if the Type VIII
660-7 tire monofill complies with all the provisions of this subchapter
660-8 and rules of the commission. (Sec. 361.477, Health and Safety
660-9 Code.)
660-10 Sec. 20.476. Evaluation of Recycling and Energy Recovery
660-11 Activities; Certification for Payment. (a) Beginning June 1,
660-12 1995, and every five years after that date, the commission shall
660-13 evaluate according to standards adopted by commission rule the
660-14 recycling and energy recovery activities of each waste tire
660-15 processor that received payment under Section 20.475 during the
660-16 preceding five years.
660-17 (b) After evaluation, the commission shall certify as
660-18 eligible for payment under Section 20.475 during the next five
660-19 years a waste tire processor that has conducted or provided for
660-20 recycling of or energy recovery from tires for which the processor
660-21 received payment during the preceding five years.
660-22 (c) A waste tire processor that receives payment under
660-23 Section 20.475 during any five-year period and that after
660-24 evaluation is not certified by the commission under Subsection (b)
660-25 as eligible for payment under Section 20.475 may not receive
660-26 payment under that section for the next five years.
660-27 (d) The commission by rule may establish a procedure by
661-1 which a waste tire processor can reestablish eligibility for
661-2 payment under Section 20.475. (Sec. 361.478, Health and Safety
661-3 Code.)
661-4 Sec. 20.477. Evidence of Financial Responsibility. (a) A
661-5 waste tire storage facility registered by the commission under
661-6 Section 20.113 or a waste tire facility that accepts shredded tires
661-7 for storage or for processing for recycling, reuse, or energy
661-8 recovery shall submit to the commission evidence of financial
661-9 responsibility in an amount adequate to assure proper cleanup or
661-10 closure of the facility.
661-11 (b) A facility subject to Subsection (a) shall submit to the
661-12 commission an estimate of the total amount of shredded tires
661-13 measured by weighed tire that the facility will store or process
661-14 and the estimated cost, using that total amount, of cleaning up or
661-15 closing the facility.
661-16 (c) The commission shall evaluate and may amend an estimate
661-17 submitted under Subsection (b) and by order shall determine for
661-18 each facility the amount for which evidence of financial
661-19 responsibility is required.
661-20 (d) Evidence of financial responsibility may be in the form
661-21 of a performance bond, a letter of credit from a recognized
661-22 financial institution, a trust fund, or insurance for a privately
661-23 owned facility, or a resolution by the commissioners court or the
661-24 city council, as appropriate, for a publicly owned facility. (Sec.
661-25 361.479, Health and Safety Code.)
661-26 Sec. 20.478. Tire Collection Fee Prohibited. A waste tire
661-27 transporter or mobile tire shredder may not charge a fee to a
662-1 wholesale or retail dealer for collecting for delivery to a waste
662-2 tire facility or for collecting and shredding used or scrap tires
662-3 accepted for temporary storage by the dealer from purchasers of new
662-4 tires. (Sec. 361.480, Health and Safety Code.)
662-5 Sec. 20.479. Prohibition on Out-of-State Tires. A waste
662-6 tire processor may not claim payment under Section 20.475 for
662-7 shredding out-of-state tires. (Sec. 361.481, Health and Safety
662-8 Code.)
662-9 Sec. 20.480. Prohibition on Disposal of Shredded Tires in
662-10 Landfill. A waste tire processor may not dispose of shredded tires
662-11 in a landfill if the processor has received payment under Section
662-12 20.475 for the tires. (Sec. 361.482, Health and Safety Code.)
662-13 Sec. 20.481. Civil Penalty. (a) A person who violates
662-14 Section 20.479 or 20.480 is liable for a civil penalty of up to
662-15 $10,000 for each violation.
662-16 (b) The attorney general or the prosecuting attorney in the
662-17 county in which the alleged violation occurs may bring suit to
662-18 recover the civil penalty imposed under Subsection (a).
662-19 (c) A penalty collected under this section shall be
662-20 deposited to the credit of the fund. (Sec. 361.483, Health and
662-21 Safety Code.)
662-22 Sec. 20.482. Rules. The commission may adopt rules
662-23 reasonably necessary to implement this subchapter. (Sec. 361.484,
662-24 Health and Safety Code.)
662-25 Sec. 20.483. Report. Not later than February 1 of each
662-26 odd-numbered year, the commission shall report to the governor and
662-27 the legislature on the administration of the program established
663-1 under this subchapter and its effectiveness in cleaning up existing
663-2 tire dumps and in preventing new dumps. (Sec. 361.485, Health and
663-3 Safety Code.)
663-4 CHAPTER 21. SOLID WASTE RESOURCE RECOVERY FINANCING ACT
663-5 SUBCHAPTER A. GENERAL PROVISIONS
663-6 Sec. 21.001. Short Title. This chapter may be cited as the
663-7 Solid Waste Resource Recovery Financing Act. (Sec. 362.001, Health
663-8 and Safety Code.)
663-9 Sec. 21.002. Policy and Purpose. (a) The policy of the
663-10 state is to safeguard the public health, general welfare, and
663-11 physical property from solid waste pollution by encouraging the
663-12 processing of solid waste for the purpose of extracting, converting
663-13 to energy, or otherwise separating and preparing solid waste for
663-14 reuse.
663-15 (b) It is the policy of the state that the processing of
663-16 solid waste for reuse is essential to the well-being and survival
663-17 of state inhabitants and the protection of the environment. That
663-18 processing will conserve and develop state natural resources,
663-19 within the meaning of Article XVI, Section 59(a), of the Texas
663-20 Constitution by preventing further damage to the environment.
663-21 (Sec. 362.002, Health and Safety Code.)
663-22 Sec. 21.003. Definitions. In this chapter:
663-23 (1) "Bond" includes a note or other evidence of
663-24 indebtedness.
663-25 (2) "Cost" means expenses related or incidental to the
663-26 acquisition, construction, or improvement of a system, including:
663-27 (A) real property acquired for a system;
664-1 (B) finance charges;
664-2 (C) interest before and during construction and
664-3 for a period the issuer finds reasonable after completion of
664-4 construction;
664-5 (D) expenses incurred for architectural,
664-6 engineering, and legal services;
664-7 (E) license fees and royalties;
664-8 (F) expenses incurred for plans, specifications,
664-9 surveys, and estimates;
664-10 (G) expenses incurred in placing the system in
664-11 operation; and
664-12 (H) administration expenses.
664-13 (3) "Issuer" means a district or authority that:
664-14 (A) is created under Article XVI, Section 59, or
664-15 Article III, Section 52, of the Texas Constitution;
664-16 (B) is authorized by law to own a waste disposal
664-17 system; and
664-18 (C) includes within its boundaries all of at
664-19 least one county.
664-20 (4) "Public agency" means:
664-21 (A) an issuer;
664-22 (B) a municipality; or
664-23 (C) another political subdivision or agency of
664-24 the state authorized to own and operate a solid waste collection,
664-25 transportation, or disposal facility or system.
664-26 (5) "Real property" means land, a structure, a
664-27 franchise or interest in land, air rights, or another thing or
665-1 right pertaining to that property, including an easement,
665-2 right-of-way, use, lease, license, or other incorporeal
665-3 hereditament, or an estate, interest, or legal or equitable right,
665-4 including a term for years or lien on that property because of a
665-5 judgment, mortgage, or other reason.
665-6 (6) "Resolution" means the action, including an order
665-7 or ordinance, that authorizes bonds and that is taken by the
665-8 issuer's governing body.
665-9 (7) "Security agreement" means a trust indenture or
665-10 other instrument securing bonds.
665-11 (8) "Solid waste" has the meaning assigned by Chapter
665-12 20 (Solid Waste Disposal Act).
665-13 (9) "System" means real property, plants, works,
665-14 facilities, equipment, pipelines, machinery, vehicles, vessels,
665-15 rolling stock, licenses, or franchises used or useful:
665-16 (A) in connection with processing solid waste to
665-17 extract, recover, reclaim, salvage, reduce, or concentrate the
665-18 solid waste, or convert it to energy or useful matter or resources
665-19 including electricity, steam, or other form of energy, metal,
665-20 fertilizer, glass, or other form of resource; or
665-21 (B) in the transportation, receipt, storage,
665-22 transfer, and handling of solid waste, the preparation, separation,
665-23 or processing of solid waste for reuse, the handling and
665-24 transportation of recovered matter, resources, or energy, and the
665-25 handling, transportation, and disposition of nonrecoverable solid
665-26 waste residue. (Sec. 362.003, Health and Safety Code.)
665-27 Sec. 21.004. Effect of Other Law. (a) This chapter does
666-1 not limit the authority of the commission or a local government to:
666-2 (1) perform a power or duty provided by other law; or
666-3 (2) adopt and enforce rules to carry out duties under
666-4 Chapter 20.
666-5 (b) Chapter 20 shall be enforced without regard to ownership
666-6 of a system financed under this chapter.
666-7 (c) This chapter does not affect the right of a private
666-8 person to pursue, against a person who contracts with an issuer
666-9 under this chapter, a common-law remedy to abate, or recover
666-10 damages for, a condition of pollution or other nuisance. A person
666-11 purchasing or leasing a system under contract with an issuer may
666-12 not assert the defense of sovereign immunity because of the
666-13 issuer's ownership of the system.
666-14 (d) An issuer or public agency may use other law not in
666-15 conflict with this chapter to the extent convenient or necessary to
666-16 carry out any authority expressly or impliedly granted by this
666-17 chapter. (Sec. 362.004, Health and Safety Code.)
666-18 Sec. 21.005. Exception for Certain Material Presorted to be
666-19 Recycled. This chapter does not authorize a public agency to
666-20 compel burning of material presorted to be recycled. (Sec.
666-21 362.005, Health and Safety Code.)
666-22 (Sections 21.006-21.010 reserved for expansion)
666-23 SUBCHAPTER B. OPERATION OF SYSTEM
666-24 Sec. 21.011. Authority to Acquire and Transfer Property.
666-25 (a) An issuer may acquire, construct, and improve a system for
666-26 lease or sale as provided by this chapter and may acquire real
666-27 property as the issuer considers appropriate for the system.
667-1 (b) An issuer may lease its system to another person.
667-2 (c) An issuer may sell a system, by installment payments or
667-3 other method of payment, to any person on conditions the issuer
667-4 considers desirable.
667-5 (d) A lease or sales contract entered into under this
667-6 chapter may be for the term agreed to by the parties, and must
667-7 provide that it continues in effect until the bonds specified in
667-8 the lease or contract, or refunding bonds issued in place of those
667-9 bonds, are fully paid. (Sec. 362.011, Health and Safety Code.)
667-10 Sec. 21.012. Location of System. A system may be located on
667-11 the property of any person. (Sec. 362.012, Health and Safety
667-12 Code.)
667-13 Sec. 21.013. Contract Terms and Procedures. (a) The
667-14 provisions of Article 5160, Revised Statutes, that relate to
667-15 performance and payment bonds apply to a contract entered into by
667-16 an issuer.
667-17 (b) An issuer may contract for the acquisition,
667-18 construction, and improvement of a system on the terms and under
667-19 the conditions that the governing body of the issuer considers
667-20 appropriate, including a contract under which a person agrees to
667-21 perform and supply all services and materials required in
667-22 connection with the design, construction, and placing into
667-23 operation of a system.
667-24 (c) The issuer shall publish notice of the time and place
667-25 the contract will be let in a newspaper of general circulation
667-26 within the boundaries of the issuer once a week for two consecutive
667-27 weeks, with the first publication occurring not later than the 15th
668-1 day before the date the contract will be let.
668-2 (d) The issuer shall analyze competitive proposals received
668-3 in response to the notice and let the contract to the responsible
668-4 party making the proposal that is most advantageous to the issuer
668-5 and that will result in the most economical completion of the
668-6 system. (Sec. 362.013, Health and Safety Code.)
668-7 Sec. 21.014. Public Agency Contract. (a) A public agency,
668-8 on terms it considers appropriate, may contract with an issuer or
668-9 other person who finances, constructs, or improves a system to
668-10 sell, lease, or dedicate the use of real property or all or part of
668-11 a solid waste disposal facility for use as part of the system.
668-12 (b) A public agency may contract with any person for the
668-13 supply, collection, or transportation of solid waste for disposal
668-14 at a system. The public agency may agree in the contract to supply
668-15 minimum amounts of solid waste and to pay minimum fees for the
668-16 right to dispose of the solid waste at the system during the term
668-17 of the contract. The contract may continue in effect for the term
668-18 of years that the public agency's governing body determines to be
668-19 desirable. (Sec. 362.014, Health and Safety Code.)
668-20 Sec. 21.015. Payment of Contract From Sources Other Than
668-21 Taxes. (a) A public agency may use any available revenue or
668-22 resource for, or pledge the revenue or resource to, payment of all
668-23 or part of the amount due under a contract under Section 21.014.
668-24 The public agency may agree in the contract to assure availability
668-25 of payment when required.
668-26 (b) The public agency may agree to make sufficient provision
668-27 in its annual budget to make all payments under the contract.
669-1 (c) The public agency may fix, charge, and collect, from its
669-2 inhabitants or other users or beneficiaries of a service or
669-3 facility provided in connection with the contract, a fee, rate,
669-4 charge, rental, or other amount for the service or facility,
669-5 including a water charge, sewage charge, solid waste disposal fee
669-6 or charge, garbage collection or handling fee, or other fee or
669-7 charge. The public agency may use those amounts for, or pledge
669-8 them to, payments required under the contract, and may agree in the
669-9 contract to make that use or pledge in an amount sufficient to make
669-10 all or part of the payments when due. (Sec. 362.015, Health and
669-11 Safety Code.)
669-12 Sec. 21.016. Payment of Contract From Taxes. (a) A public
669-13 agency that has taxing power and that, when it enters into a
669-14 contract under Section 21.014, is using its general funds,
669-15 including tax revenue, to pay all or part of the cost of providing
669-16 solid waste collection, transportation, and disposal services may
669-17 agree that the payments under the contract are an obligation
669-18 against the public agency's taxing power.
669-19 (b) Except as provided by Subsection (c), a person is not
669-20 entitled to demand payment from taxes during any period unless the
669-21 contracting person is willing and able to receive and dispose of
669-22 solid waste during the period as provided by the contract.
669-23 (c) A public agency that has taxing power may hold an
669-24 election substantially in accordance with Chapter 1, Title 22,
669-25 Revised Statutes, applicable to issuance of bonds by a municipality
669-26 to determine whether a contract may be an obligation secured by the
669-27 taxing power of the public agency to an extent not permitted by
670-1 Subsection (b). If it is determined by a favorable vote at the
670-2 election that the public agency is authorized to levy an ad valorem
670-3 tax to make all or part of the payments under the contract, and
670-4 that the payments are to be made unconditionally regardless of
670-5 whether the contracting person is willing and able to receive and
670-6 dispose of solid waste as provided by the contract, the contract is
670-7 an obligation secured by the public agency's taxing power to the
670-8 extent provided. The ballot proposition at the election must
670-9 plainly state that ad valorem tax funds may be used to make
670-10 contract payments if the contractor cannot receive or dispose of
670-11 solid waste because of mechanical failure of the facility financed
670-12 by the bonds or for other reasons. (Sec. 362.016, Health and
670-13 Safety Code.)
670-14 Sec. 21.017. Industrial Development Corporation. (a) A
670-15 public agency that has entered into a contract under Section 21.014
670-16 may sponsor the creation of an industrial development corporation
670-17 under the Development Corporation Act of 1979 (Article 5190.6,
670-18 Vernon's Texas Civil Statutes).
670-19 (b) The corporation may issue bonds, notes, or other
670-20 evidences of indebtedness under the Development Corporation Act of
670-21 1979 to finance the cost of a system under the contract regardless
670-22 of whether the system is located within the boundaries of the
670-23 public agency. (Sec. 362.017, Health and Safety Code.)
670-24 Sec. 21.018. Cost of Certain Required Alterations. The
670-25 relocation, raising, lowering, rerouting, changing of grade, or
670-26 altering of construction of a highway, railroad, electric
670-27 transmission line, telegraph or telephone property or facility, or
671-1 pipeline made necessary by the actions of an issuer shall be
671-2 accomplished at the sole expense of the issuer, who shall pay the
671-3 cost of the required activity as necessary to provide comparable
671-4 replacement, minus the net salvage value of any replaced facility.
671-5 The issuer shall pay that amount from the proceeds of bonds issued
671-6 to finance a system. (Sec. 362.018, Health and Safety Code.)
671-7 Sec. 21.019. TAXATION. (a) Bonds issued under this
671-8 chapter, the transfer of the bonds, and income from the bonds are
671-9 exempt from taxation in this state.
671-10 (b) A system purchased or leased under this chapter is
671-11 subject to ad valorem taxation payable by the person contracting
671-12 with the issuer according to state law. An item purchased or
671-13 leased as part of a system is subject to all applicable state
671-14 taxation. (Sec. 362.019, Health and Safety Code.)
671-15 (Sections 21.020-21.030 reserved for expansion)
671-16 SUBCHAPTER C. BONDS
671-17 Sec. 21.031. Authority to Issue Bonds and Bond Anticipation
671-18 Notes. (a) An issuer may issue bonds, payable from revenues of
671-19 the issuer, to finance or refinance the cost of acquiring,
671-20 constructing, or improving a system.
671-21 (b) The bonds may be issued in more than one series and from
671-22 time to time as required to carry out the purposes of this chapter.
671-23 (c) The issuer may declare an emergency because funds are
671-24 not available to pay the principal of and interest on its bonds or
671-25 to meet other needs of the issuer and may issue bond anticipation
671-26 notes to borrow the needed money. The bond anticipation notes may
671-27 bear interest at any fixed, floating, or other type of rate, and
672-1 must mature within one year of their date. The bond anticipation
672-2 notes shall be paid with the proceeds of bonds, or bonds may be
672-3 issued and delivered in exchange for and in substitution of the
672-4 notes. (Sec. 362.031, Health and Safety Code.)
672-5 Sec. 21.032. Form and Procedure. (a) Bonds under this
672-6 chapter must be authorized by resolution. The bonds must:
672-7 (1) be signed by the presiding officer or assistant
672-8 presiding officer of the issuer's governing body;
672-9 (2) be attested by the secretary of the issuer's
672-10 governing body; and
672-11 (3) have the seal of the issuer impressed, printed, or
672-12 lithographed on the bonds.
672-13 (b) The bonds may have the characteristics and bear the
672-14 designation determined by the issuer's governing body, except that
672-15 the designation must include:
672-16 (1) the name of each person guaranteeing the
672-17 contractual obligation of each person leasing or purchasing the
672-18 system; or
672-19 (2) a statement, if applicable, that a group of
672-20 persons will be leasing or purchasing the system.
672-21 (c) The governing body may authorize a required signature to
672-22 be printed or lithographed on the bonds. The issuer may adopt or
672-23 use the signature of a person who has been an officer, regardless
672-24 of whether the person is an officer when the bonds are delivered to
672-25 a purchaser. (Sec. 362.032, Health and Safety Code.)
672-26 Sec. 21.033. Terms. Bonds issued under this chapter must
672-27 mature serially or in another manner not more than 40 years after
673-1 they are issued. The bonds may:
673-2 (1) bear interest at a fixed, floating, or other type
673-3 of rate, and be sold at public or private sale at a price or under
673-4 terms that the issuer's governing body determines to be the most
673-5 advantageous reasonably obtainable;
673-6 (2) be made callable before maturity at times and
673-7 prices prescribed by the issuer's governing body;
673-8 (3) be in coupon form; and
673-9 (4) be registrable as to principal or as to principal
673-10 and interest. (Sec. 362.033, Health and Safety Code.)
673-11 Sec. 21.034. Approval and Registration. (a) An issuer
673-12 shall submit bonds that have been authorized by its governing body,
673-13 including refunding bonds and the record relating to the bond
673-14 issuance, to the attorney general for examination as to their
673-15 validity. If the bonds state that they are secured by a pledge of
673-16 proceeds of a lease or contract of sale previously entered into by
673-17 the issuer, the issuer may submit the contract with the bonds.
673-18 (b) If the bonds have been authorized in accordance with
673-19 state law and any contract has been made in accordance with state
673-20 law, the attorney general shall approve the bonds and contract and
673-21 the comptroller shall register the bonds.
673-22 (c) Following approval and registration, the bonds and
673-23 contract are incontestable. (Sec. 362.034, Health and Safety
673-24 Code.)
673-25 Sec. 21.035. Pledge of Revenue and Other Amounts as
673-26 Security. (a) Bonds are payable solely from and shall be secured
673-27 by a pledge of:
674-1 (1) revenues of the issuer derived from the lease or
674-2 sale of a system;
674-3 (2) amounts attributable to bond proceeds; or
674-4 (3) amounts obtained through the exercise of a remedy
674-5 provided by the governing body's resolution or a security agreement
674-6 securing the bonds in the manner specified in the resolution or
674-7 security agreement.
674-8 (b) The governing body shall fix and periodically revise
674-9 payments under a lease or contract for sale of a system so that the
674-10 payments and other pledged revenue will be sufficient to pay the
674-11 bonds and interest on the bonds as they mature and become due and
674-12 to maintain reserve or other funds as provided by the resolution or
674-13 security agreement.
674-14 (c) The governing body may direct the investment of money in
674-15 the funds created by the resolution or security agreement, and may
674-16 delegate this authority to its authorized agent. (Sec. 362.035,
674-17 Health and Safety Code.)
674-18 Sec. 21.036. Security May Apply to Additional Bonds. (a) A
674-19 pledge under Section 21.035 may reserve the right, under conditions
674-20 specified by the pledge, to issue additional bonds to be on a
674-21 parity with or subordinate to the bonds secured by the pledge.
674-22 (b) Bonds issued under this chapter may be combined in the
674-23 same issue with bonds issued for other purposes authorized by law.
674-24 (Sec. 362.036, Health and Safety Code.)
674-25 Sec. 21.037. Trust as Security. (a) The issuer's governing
674-26 body may additionally secure bonds, including refunding bonds, by a
674-27 trust indenture under which the trustee may be a bank that has
675-1 trust powers and that is located inside or outside the state.
675-2 (b) Regardless of any mortgage, deed of trust lien, or
675-3 security interest under Section 21.038, the trust indenture may:
675-4 (1) contain any provision that the governing body
675-5 prescribes for the security of the bonds and the preservation of
675-6 the trust estate;
675-7 (2) provide for amendment or modification of the trust
675-8 indenture;
675-9 (3) condition the right to spend the issuer's money or
675-10 sell an issuer's system as provided by the trust indenture;
675-11 (4) provide in other manners for protection and
675-12 enforcement of bondholders' rights and remedies as is reasonable
675-13 and proper; and
675-14 (5) provide for the issuance of replacement bonds for
675-15 lost, stolen, or mutilated bonds. (Sec. 362.037, Health and Safety
675-16 Code.)
675-17 Sec. 21.038. Other Security. (a) The bonds may be
675-18 additionally secured by a mortgage, deed of trust lien, or security
675-19 interest in a designated system of the issuer's governing body and
675-20 all property and rights appurtenant to the system.
675-21 (b) The mortgage, deed of trust lien, or security interest
675-22 may give the trustee the power to operate the system, sell the
675-23 system to pay the debt, or take any other action to secure the
675-24 bonds.
675-25 (c) A purchaser at a sale under a mortgage or deed of trust
675-26 lien is the absolute owner of the system and rights purchased.
675-27 (Sec. 362.038, Health and Safety Code.)
676-1 Sec. 21.039. Action by Bondholders. (a) The resolution or
676-2 a security agreement may provide that on default in the payment of
676-3 principal of or interest on the bonds, or threatened default under
676-4 conditions stated in the resolution or security agreement, and on
676-5 petition of the holders of outstanding bonds, a court of competent
676-6 jurisdiction may appoint a receiver to collect and receive pledged
676-7 income.
676-8 (b) The resolution or security agreement may limit or
676-9 qualify the rights of less than all of the holders of outstanding
676-10 bonds payable from the same source to institute or prosecute
676-11 litigation affecting the issuer's property or income. (Sec.
676-12 362.039, Health and Safety Code.)
676-13 Sec. 21.040. Investment and Use of Proceeds. (a) The
676-14 governing body of the issuer may set aside amounts from the
676-15 proceeds of the sale of bonds for payment into an interest and
676-16 sinking fund and reserve funds and may provide for this in the
676-17 resolution or a security agreement. All expenses of issuing and
676-18 selling the bonds shall be paid from the proceeds of the sale of
676-19 the bonds.
676-20 (b) Proceeds from the sale of bonds shall be invested in the
676-21 manner provided by the resolution or security agreement.
676-22 (c) A bank or trust company with trust powers may be
676-23 designated as depository for proceeds of bonds or of sales contract
676-24 or lease revenue. The bank or trust company shall furnish
676-25 indemnifying bonds or pledge securities as required by the issuer
676-26 to secure the deposits. (Sec. 362.040, Health and Safety Code.)
676-27 Sec. 21.041. Refunding Bonds. (a) The governing body of an
677-1 issuer may issue refunding bonds to refund the principal of,
677-2 interest on, and any redemption premium applicable to outstanding
677-3 bonds. The refunding bonds may:
677-4 (1) refund more than one series of outstanding bonds
677-5 and combine the revenue pledged to the outstanding bonds for the
677-6 security of the refunding bonds; and
677-7 (2) be secured by other or additional revenues and
677-8 deed of trust liens.
677-9 (b) The provisions of this chapter relating to issuance of
677-10 bonds, security for bonds, approval by the attorney general, and
677-11 remedies of bondholders apply to refunding bonds.
677-12 (c) The comptroller shall register refunding bonds:
677-13 (1) on the surrender and cancellation of the original
677-14 bonds; or
677-15 (2) without surrender and cancellation of the original
677-16 bonds if:
677-17 (A) the resolution authorizing the refunding
677-18 bonds provides that their proceeds be deposited in the bank where
677-19 the original bonds are payable; and
677-20 (B) the refunding bonds are issued in an amount
677-21 sufficient to pay the principal of, interest on, and any redemption
677-22 premium applicable to the original bonds up to their option date or
677-23 maturity date. (Sec. 362.041, Health and Safety Code.)
677-24 Sec. 21.042. Legal Investments; Security for Deposits.
677-25 (a) Bonds issued under this chapter are legal and authorized
677-26 investments for:
677-27 (1) a bank;
678-1 (2) a savings bank;
678-2 (3) a trust company;
678-3 (4) a savings and loan association;
678-4 (5) an insurance company;
678-5 (6) a fiduciary;
678-6 (7) a trustee; and
678-7 (8) a sinking fund of a municipality, county, school
678-8 district, or other political corporation or subdivision of the
678-9 state.
678-10 (b) The bonds may secure the deposits of public funds of the
678-11 state or a municipality, county, school district, or other
678-12 political corporation or subdivision of the state. The bonds are
678-13 lawful and sufficient security for those deposits in an amount up
678-14 to their face value, if accompanied by all appurtenant unmatured
678-15 coupons. (Sec. 362.042, Health and Safety Code.)
678-16 Sec. 21.043. Bonds Not General Obligation. The bonds are
678-17 special obligations payable solely from revenues pledged to their
678-18 payment and are not general obligations of the governing body, the
678-19 issuer, or the state. A bondholder may not demand payment from
678-20 money obtained from a tax or other revenue of the issuer, excluding
678-21 revenues pledged to the payment of the bonds. (Sec. 362.043,
678-22 Health and Safety Code.)
678-23 CHAPTER 22. MUNICIPAL SOLID WASTE
678-24 SUBCHAPTER A. GENERAL PROVISIONS
678-25 Sec. 22.001. Short Title. This chapter may be cited as the
678-26 Comprehensive Municipal Solid Waste Management, Resource Recovery,
678-27 and Conservation Act. (Sec. 363.001, Health and Safety Code.)
679-1 Sec. 22.002. Policy. It is this state's policy to safeguard
679-2 the health, general welfare, and physical property of the people
679-3 and to protect the environment by encouraging the reduction in
679-4 solid waste generation and the proper management of solid waste,
679-5 including disposal and processing to extract usable materials or
679-6 energy. Encouraging a cooperative effort among federal, state,
679-7 and local governments and private enterprise, to accomplish the
679-8 purposes of this chapter, will further that policy. (Sec. 363.002,
679-9 Health and Safety Code.)
679-10 Sec. 22.003. Findings. The legislature finds that:
679-11 (1) the growth of the state's economy and population
679-12 has resulted in an increase in discarded materials;
679-13 (2) the improper management of solid waste creates
679-14 hazards to the public health, can cause air and water pollution,
679-15 creates public nuisances, and causes a blight on the landscape;
679-16 (3) there is increasing public opposition to the
679-17 location of solid waste land disposal facilities;
679-18 (4) because some communities lack sufficient financial
679-19 resources, municipal solid waste land disposal sites in the state
679-20 are being improperly operated and maintained, causing potential
679-21 health problems to nearby residents, attracting vectors, and
679-22 creating conditions that destroy the beauty and quality of our
679-23 environment;
679-24 (5) often, operational deficiencies occur at rural
679-25 solid waste land disposal sites operated by local governments that
679-26 do not have the funds, personnel, equipment, and technical
679-27 expertise to properly operate a disposal system;
680-1 (6) many smaller communities and rural residents have
680-2 no organized solid waste collection and disposal system, resulting
680-3 in dumping of garbage and trash along the roadside, in roadside
680-4 parks, and at illegal dump sites;
680-5 (7) combining two or more small, inefficient
680-6 operations into local, regional, or countywide systems may provide
680-7 a more economical, efficient, and safe means for the collection and
680-8 disposal of solid waste and will offer greater opportunities for
680-9 future resource recovery;
680-10 (8) there are private operators of municipal solid
680-11 waste management systems with whom persons can contract or
680-12 franchise their services, and many of those private operators
680-13 possess the management expertise, qualified personnel, and
680-14 specialized equipment for the safe collection, handling, and
680-15 disposal of solid waste;
680-16 (9) technologies exist to separate usable material
680-17 from solid waste and to convert solid waste to energy, and it will
680-18 benefit this state to work in cooperation with private business,
680-19 nonprofit organizations, and public agencies that have acquired
680-20 knowledge, expertise, and technology in the fields of energy
680-21 production and recycling, reuse, reclamation, and collection of
680-22 materials;
680-23 (10) the opportunity for resource recovery is
680-24 diminished unless local governments can exercise control over solid
680-25 waste and can enter long-term contracts to supply solid waste to
680-26 resource recovery systems or to operate those systems; and
680-27 (11) the control of solid waste collection and
681-1 disposal should continue to be the responsibility of local
681-2 governments and public agencies, but the problems of solid waste
681-3 management have become a matter of state concern and require state
681-4 financial assistance to plan and implement solid waste management
681-5 practices that encourage the safe disposal of solid waste and the
681-6 recovery of material and energy resources from solid waste. (Sec.
681-7 363.003, Health and Safety Code.)
681-8 Sec. 22.004. Definitions. In this chapter:
681-9 (1) "Advisory council" means the Municipal Solid Waste
681-10 Management and Resource Recovery Advisory Council.
681-11 (2) "Disposal" means the discharge, deposit,
681-12 injection, dumping, spilling, leaking, or placing of containerized
681-13 or uncontainerized solid waste or hazardous waste into or on land
681-14 or water so that the solid waste or hazardous waste or any
681-15 constituent of solid waste or hazardous waste may enter the
681-16 environment or be emitted into the air or discharged into surface
681-17 water or groundwater.
681-18 (3) "Governing body" means the governing body of a
681-19 municipality, the commissioners court, the board of directors, the
681-20 trustees, or a similar body charged by law with governing a public
681-21 agency.
681-22 (4) "Hazardous waste" means solid waste identified or
681-23 listed as a hazardous waste by the administrator of the United
681-24 States Environmental Protection Agency under the federal Solid
681-25 Waste Disposal Act, as amended by the Resource Conservation and
681-26 Recovery Act (42 U.S.C. Section 6901 et seq.).
681-27 (5) "Industrial solid waste" means solid waste
682-1 resulting from or incidental to a process of industry or
682-2 manufacturing, or mining or agricultural operations.
682-3 (6) "Local government" means a county, municipality,
682-4 or other political subdivision of the state exercising the
682-5 authority granted under Section 20.165 (Solid Waste Disposal Act).
682-6 (7) "Municipal solid waste" means solid waste
682-7 resulting from or incidental to municipal, community, commercial,
682-8 institutional, and recreational activities, and includes garbage,
682-9 rubbish, ashes, street cleanings, dead animals, abandoned
682-10 automobiles, and other solid waste other than industrial solid
682-11 waste.
682-12 (8) "Planning fund" means the municipal solid waste
682-13 management planning fund.
682-14 (9) "Planning region" means a region of this state
682-15 identified by the governor as an appropriate region for municipal
682-16 solid waste planning as provided by Section 4006 of the federal
682-17 Solid Waste Disposal Act, as amended by the Resource Conservation
682-18 and Recovery Act (42 U.S.C. Section 6901 et seq.).
682-19 (10) "Processing" means the extraction of materials,
682-20 transfer, volume reduction, conversion to energy, or other
682-21 separation and preparation of solid waste for reuse or disposal,
682-22 including treatment or neutralization of hazardous waste designed
682-23 to change the physical, chemical, or biological character or
682-24 composition of hazardous waste so as to:
682-25 (A) neutralize hazardous waste;
682-26 (B) recover energy or material from hazardous
682-27 waste; or
683-1 (C) render hazardous waste nonhazardous or less
683-2 hazardous, safer to transport, store, or dispose of, amenable for
683-3 recovery or storage, or reduced in volume.
683-4 (11) "Property" means land, structures, interest in
683-5 land, air rights, water rights, and rights that accompany interest
683-6 in land, structures, water rights, and air rights and includes
683-7 easements, rights-of-way, uses, leases, incorporeal hereditaments,
683-8 legal and equitable estates, interest, or rights such as terms for
683-9 years and liens.
683-10 (12) "Public agency" means a municipality, county, or
683-11 district or authority created and operating under Article III,
683-12 Section 52(b)(1) or (2), or Article XVI, Section 59, of the Texas
683-13 Constitution, or a combination of two or more of those governmental
683-14 entities acting under an interlocal agreement and having the
683-15 authority under this chapter or other law to own and operate a
683-16 solid waste management system.
683-17 (13) "Regional or local solid waste management plan"
683-18 means a plan adopted by a planning region under Section 22.064 or a
683-19 local government under Section 22.065.
683-20 (14) "Resolution" means the action, including an order
683-21 or ordinance, that authorizes bonds and that is taken by the
683-22 governing body.
683-23 (15) "Resource recovery" means recovering materials or
683-24 energy from solid waste or otherwise converting solid waste to a
683-25 useful purpose.
683-26 (16) "Resource recovery system" means real property,
683-27 structures, plants, works, facilities, equipment, pipelines,
684-1 machinery, vehicles, vessels, rolling stock, licenses, or
684-2 franchises used or useful in connection with processing solid waste
684-3 to extract, recover, reclaim, salvage, reduce, or concentrate the
684-4 solid waste or convert it to energy or useful matter or resources,
684-5 including electricity, steam, or other forms of energy, metal,
684-6 fertilizer, glass, or other forms of material and resources. The
684-7 term includes real property, structures, plants, works, facilities,
684-8 pipelines, machinery, vehicles, vessels, rolling stock, licenses,
684-9 or franchises used or useful in:
684-10 (A) transporting, receiving, storing,
684-11 transferring, and handling solid waste;
684-12 (B) preparing, separating, or processing solid
684-13 waste for reuse;
684-14 (C) handling and transporting recovered matter,
684-15 resources, or energy; and
684-16 (D) handling, transporting, and disposing of
684-17 nonrecoverable solid waste residue.
684-18 (17) "Solid waste" means garbage, rubbish, sludge from
684-19 a wastewater treatment plant, water supply treatment plant, or air
684-20 pollution control facility, and other discarded material, including
684-21 solid, liquid, semisolid, or contained gaseous material resulting
684-22 from industrial, municipal, commercial, mining, and agricultural
684-23 operations and from community and institutional activities, but
684-24 does not include:
684-25 (A) solid or dissolved material in domestic
684-26 sewage or irrigation return flows or industrial discharges subject
684-27 to regulation by permit issued under Chapter 10;
685-1 (B) soil, dirt, rock, sand, and other natural or
685-2 man-made inert solid materials used to fill land if the object of
685-3 the fill is to make the land suitable for surface improvement
685-4 construction; or
685-5 (C) waste materials that result from activities
685-6 associated with the exploration, development, or production of oil
685-7 or gas and are subject to control by the Railroad Commission of
685-8 Texas.
685-9 (18) "Solid waste management" means the systematic
685-10 control of any of the following activities:
685-11 (A) generation;
685-12 (B) source separation;
685-13 (C) collection;
685-14 (D) handling;
685-15 (E) storage;
685-16 (F) transportation;
685-17 (G) processing;
685-18 (H) treatment;
685-19 (I) resource recovery; or
685-20 (J) disposal of solid waste.
685-21 (19) "Solid waste management system" means a plant,
685-22 composting process plant, incinerator, sanitary landfill, transfer
685-23 station, or other works and equipment that is acquired, installed,
685-24 or operated to collect, handle, store, process, recover material or
685-25 energy from, or dispose of solid waste, and includes sites for
685-26 those works and equipment.
685-27 (20) "State solid waste management plan" means the
686-1 Solid Waste Management Plan for Texas, Volume 1, Municipal Solid
686-2 Waste, adopted by the Texas Board of Health.
686-3 (21) "Technical assistance fund" means the municipal
686-4 solid waste resource recovery applied research and technical
686-5 assistance fund.
686-6 (22) "Yard waste" means leaves, grass clippings, yard
686-7 and garden debris, and brush, including clean woody vegetative
686-8 material not greater than six inches in diameter, that result from
686-9 landscaping maintenance and land-clearing operations. The term
686-10 does not include stumps, roots, or shrubs with intact root balls.
686-11 (Sec. 363.004, Health and Safety Code.)
686-12 Sec. 22.005. Application of Chapter. This chapter applies
686-13 only to solid waste and hazardous waste as described by Section
686-14 20.011. (Sec. 363.005, Health and Safety Code.)
686-15 Sec. 22.006. Construction of Chapter; Exemptions. (a) This
686-16 chapter does not prohibit or limit a person from extracting or
686-17 using materials that the person generates or legally collects or
686-18 acquires for recycling or resale.
686-19 (b) Materials that are separated or recovered from solid
686-20 waste for reuse or recycling by the generator, by a private person
686-21 under contract with the generator, or by a collector of solid waste
686-22 or recovered materials are not subject to this chapter. (Sec.
686-23 363.006, Health and Safety Code.)
686-24 Sec. 22.007. Commission Powers and Duties. (a) The
686-25 commission shall implement and enforce this chapter.
686-26 (b) The commission shall:
686-27 (1) provide technical assistance to public agencies
687-1 and planning regions and cooperate with federal agencies and
687-2 private organizations in carrying out this chapter;
687-3 (2) promote planning for and implementation of the
687-4 recovery of materials and energy from solid waste;
687-5 (3) establish guidelines for regional and local
687-6 municipal solid waste management plans;
687-7 (4) review and approve or disapprove regional and
687-8 local municipal solid waste management plans;
687-9 (5) assist the advisory council in its duties;
687-10 (6) provide educational and informational programs to
687-11 promote effective municipal solid waste management practices and to
687-12 encourage resource recovery;
687-13 (7) provide procedures under which public agencies and
687-14 planning regions may apply for financial assistance grants;
687-15 (8) evaluate applications and award financial
687-16 assistance grants in accordance with board rules; and
687-17 (9) coordinate programs under this chapter with other
687-18 state agencies, including the Railroad Commission of Texas and any
687-19 other state or federal agency having an interest in a program or
687-20 project. (Sec. 363.022, Health and Safety Code.)
687-21 Sec. 22.008. Statutes Not Affected by Chapter. This chapter
687-22 does not affect:
687-23 (1) Chapter 20 (Solid Waste Disposal Act);
687-24 (2) Chapter 23 (County Solid Waste Control Act); or
687-25 (3) Chapter 21 (Solid Waste Resource Recovery
687-26 Financing Act). (Sec. 363.007, Health and Safety Code.)
687-27 (Sections 22.009-22.060 reserved for expansion)
688-1 SUBCHAPTER B. REGIONAL AND LOCAL SOLID WASTE MANAGEMENT PLANS
688-2 Sec. 22.061. Commission Rules; Approval of Regional and
688-3 Local Solid Waste Management Plans. (a) The commission shall
688-4 adopt rules relating to regional and local solid waste management
688-5 plans, including procedures for review and criteria for approval of
688-6 those plans.
688-7 (b) The commission by rule shall require as a criterion for
688-8 approval of a regional or local solid waste management plan that
688-9 the plan reflect consideration of the preference of municipal solid
688-10 waste management methods under Section 20.022 (Solid Waste Disposal
688-11 Act). (Sec. 363.061, Health and Safety Code.)
688-12 Sec. 22.062. Responsibility for Regional Planning. (a) A
688-13 council of governments has primary responsibility for the regional
688-14 planning process.
688-15 (b) A planning region may be divided into subregions as part
688-16 of the regional planning process. If a planning region is divided
688-17 into subregions, the council of governments with jurisdiction in
688-18 the planning region may assist the local governments constituting a
688-19 subregion to develop a joint local solid waste management plan that
688-20 provides for solid waste services for solid waste generated within
688-21 that subregion.
688-22 (c) A council of governments may:
688-23 (1) employ personnel necessary to carry out the
688-24 regional planning process, including an administrator for each
688-25 subregion if subregions are established; and
688-26 (2) adopt rules necessary to carry out
688-27 responsibilities concerning the regional planning process.
689-1 (d) In this section, "council of governments" means a
689-2 regional planning commission created under Chapter 391, Local
689-3 Government Code. (Sec. 363.0615, Health and Safety Code.)
689-4 Sec. 22.063. Preparation of Regional Plan by Other Public
689-5 Agency in Certain Regions. (a) In a 10-county region with a
689-6 population of less than 300,000, a council of governments is not
689-7 required to prepare a regional solid waste management plan for that
689-8 region if a public agency other than a municipality or county has
689-9 received state funds for that purpose and has prepared a plan that
689-10 has been approved by the state agency that administered the state
689-11 funds.
689-12 (b) In this section, "council of governments" means a
689-13 regional planning commission created under Chapter 391, Local
689-14 Government Code. (Sec. 363.0616, Health and Safety Code.)
689-15 Sec. 22.064. Regional Solid Waste Management Plan. (a) A
689-16 planning region shall develop a regional solid waste management
689-17 plan as provided by Section 22.066 that must conform to the state
689-18 solid waste management plan.
689-19 (b) A regional solid waste management plan shall be
689-20 submitted to the commission for review.
689-21 (c) If the commission determines that a regional solid waste
689-22 management plan conforms to the requirements adopted by the
689-23 commission, the commission shall approve the regional solid waste
689-24 management plan.
689-25 (d) If the commission determines that a regional solid waste
689-26 management plan does not conform to the requirements adopted by the
689-27 commission, the commission shall give written notice to the
690-1 planning region of each aspect of the plan that must be changed to
690-2 conform to commission requirements. After the changes have been
690-3 made in the plan as provided by the commission, the commission
690-4 shall approve the plan.
690-5 (e) The commission by rule shall adopt an approved regional
690-6 solid waste management plan. (Sec. 363.062, Health and Safety
690-7 Code.)
690-8 Sec. 22.065. Local Solid Waste Management Plan. (a) A
690-9 local government shall develop a local solid waste management plan
690-10 as provided by Section 22.066.
690-11 (b) A local solid waste management plan must conform to the
690-12 adopted regional solid waste management plan that covers the area
690-13 in the local government's jurisdiction.
690-14 (c) A local solid waste management plan shall be submitted
690-15 to the commission for review. If the commission determines that
690-16 the plan conforms to the requirements adopted by the commission,
690-17 the commission shall approve the plan.
690-18 (d) If the commission determines that a local solid waste
690-19 management plan does not conform to the requirements adopted by the
690-20 commission, the commission shall give written notice to the local
690-21 government of each aspect of the plan that must be changed to
690-22 conform to commission requirements. After changes are made in the
690-23 plan as requested by the commission, the commission shall approve
690-24 the plan.
690-25 (e) The commission by rule shall adopt an approved local
690-26 solid waste management plan. (Sec. 363.063, Health and Safety
690-27 Code.)
691-1 Sec. 22.066. Schedule for Adoption of Plans. (a) The
691-2 commission shall establish a time schedule by which each planning
691-3 region existing on September 1, 1989, shall develop a regional
691-4 solid waste management plan, and local governments located in those
691-5 planning regions shall develop local solid waste management plans
691-6 as required by this section.
691-7 (b) The time schedule shall be based on the availability of
691-8 funds to provide financial assistance to planning regions and local
691-9 governments as prescribed by Sections 22.091 through 22.093 for the
691-10 development of those plans.
691-11 (c) Unless otherwise required by federal law or federal
691-12 regulations, a planning region or local government is not required
691-13 to develop a solid waste management plan until after the date on
691-14 which funds are provided to that planning region or local
691-15 government by the commission as prescribed by Sections 22.091
691-16 through 22.093 for the development of plans.
691-17 (d) Each planning region existing on September 1, 1989,
691-18 shall develop a regional solid waste management plan, and local
691-19 governments located in that planning region shall develop local
691-20 solid waste management plans in accordance with the time schedule
691-21 established by the commission and as provided by this subchapter.
691-22 (Sec. 363.0635, Health and Safety Code.)
691-23 Sec. 22.067. Contents of Regional or Local Solid Waste
691-24 Management Plan. A regional or local solid waste management plan
691-25 must:
691-26 (1) include a description and an assessment of current
691-27 efforts in the geographic area covered by the plan to minimize
692-1 production of municipal solid waste, including sludge, and efforts
692-2 to reuse or recycle waste;
692-3 (2) identify additional opportunities for waste
692-4 minimization and waste reuse or recycling;
692-5 (3) include a description and assessment of existing
692-6 or proposed community programs for the collection of household
692-7 hazardous waste;
692-8 (4) make recommendations for encouraging and achieving
692-9 a greater degree of waste minimization and waste reuse or recycling
692-10 in the geographic area covered by the plan;
692-11 (5) encourage cooperative efforts between local
692-12 governments in the siting of landfills for the disposal of solid
692-13 waste;
692-14 (6) consider the need to transport waste between
692-15 municipalities, from a municipality to an area in the jurisdiction
692-16 of a county, or between counties, particularly if a technically
692-17 suitable site for a landfill does not exist in a particular area;
692-18 (7) allow a local government to justify the need for a
692-19 landfill in its jurisdiction to dispose of the solid waste
692-20 generated in the jurisdiction of another local government that does
692-21 not have a technically suitable site for a landfill in its
692-22 jurisdiction;
692-23 (8) establish recycling rate goals appropriate to the
692-24 area covered by the plan; and
692-25 (9) recommend composting programs for yard waste and
692-26 related organic wastes that may include:
692-27 (A) creation and use of community composting
693-1 centers;
693-2 (B) adoption of the "Don't Bag It" program for
693-3 lawn clippings developed by the Texas Agricultural Extension
693-4 Service; and
693-5 (C) development and promotion of education
693-6 programs on home composting, community composting, and the
693-7 separation of yard waste for use as mulch. (Sec. 363.064, Health
693-8 and Safety Code.)
693-9 Sec. 22.068. Planning Process; Planning Area. (a) A
693-10 regional or local solid waste management plan must result from a
693-11 planning process that:
693-12 (1) is related to proper management of solid waste in
693-13 the planning area under consideration; and
693-14 (2) identifies problems and collects and evaluates
693-15 data necessary to provide a written public statement of goals,
693-16 objectives, and recommended actions intended to accomplish those
693-17 goals and objectives.
693-18 (b) A regional solid waste management plan must consider the
693-19 entire area in an identified planning region.
693-20 (c) A local solid waste management plan must consider all
693-21 the area in the jurisdiction of one or more local governments but
693-22 may not include an entire planning region. (Sec. 363.065, Health
693-23 and Safety Code.)
693-24 Sec. 22.069. Conformity With Regional or Local Solid Waste
693-25 Management Plan. (a) On the adoption of a regional or local solid
693-26 waste management plan by commission rule, public and private solid
693-27 waste management activities and state regulatory activities must
694-1 conform to that plan.
694-2 (b) The commission may grant a variance from the adopted
694-3 plan under procedures and criteria adopted by the commission.
694-4 (Sec. 363.066, Health and Safety Code.)
694-5 Sec. 22.070. Study Required for Resource Recovery or Other
694-6 Solid Waste Management Systems. (a) To develop programs to
694-7 implement regional or local solid waste management plans or other
694-8 solid waste management alternatives that include resource recovery,
694-9 a study must be made to determine feasibility and acceptance of the
694-10 programs.
694-11 (b) The study shall be conducted in three phases:
694-12 (1) a screening study;
694-13 (2) a feasibility study; and
694-14 (3) an implementation study.
694-15 (c) Public agencies that conduct all or part of one or more
694-16 phases may qualify for assistance to accomplish other phases or
694-17 parts of phases.
694-18 (d) After each phase, the governing body shall determine
694-19 whether to proceed to the next phase.
694-20 (e) A study may not include final design and working
694-21 drawings of any request for proposals for project facilities or
694-22 operations. (Sec. 363.067, Health and Safety Code.)
694-23 Sec. 22.071. Screening Study. (a) A screening study must
694-24 provide a survey and assessment of the various factors affecting
694-25 the suitability of resource recovery or other solid waste
694-26 management systems with the scope and detail needed to make an
694-27 initial determination of whether those systems are potentially
695-1 successful alternatives to existing systems.
695-2 (b) The survey and assessment must include:
695-3 (1) the amount and characteristics of available waste;
695-4 (2) the suitability and economics of existing solid
695-5 waste management systems;
695-6 (3) institutional factors affecting potential
695-7 alternatives;
695-8 (4) technologies available;
695-9 (5) identification of potential material and energy
695-10 markets;
695-11 (6) economics of alternative systems; and
695-12 (7) interest of the local citizenry in available
695-13 alternatives. (Sec. 363.068, Health and Safety Code.)
695-14 Sec. 22.072. Feasibility Study. A feasibility study must
695-15 provide an evaluation of alternatives that:
695-16 (1) identifies current solid waste management
695-17 practices and costs;
695-18 (2) analyzes the waste stream and its availability by
695-19 composition and quantity;
695-20 (3) identifies potential markets and obtains
695-21 statements of interest for recovered materials and energy;
695-22 (4) identifies and evaluates alternative solid waste
695-23 management systems;
695-24 (5) provides an assessment of potential effects of
695-25 alternatives in terms of their public health, physical, social,
695-26 economic, fiscal, environmental, and aesthetic implications;
695-27 (6) conducts and evaluates results of public hearings
696-1 or surveys of local citizens' opinions; and
696-2 (7) makes recommendations on alternatives for further
696-3 consideration. (Sec. 363.069, Health and Safety Code.)
696-4 Sec. 22.073. Implementation Study. An implementation study
696-5 must:
696-6 (1) provide a recommended course of action for a
696-7 public agency;
696-8 (2) provide for the collection and analysis of data;
696-9 (3) identify and characterize solid waste problems and
696-10 issues;
696-11 (4) determine waste stream composition and quantity;
696-12 (5) identify and analyze alternatives;
696-13 (6) evaluate risk elements of alternatives;
696-14 (7) identify and solidify markets;
696-15 (8) make site analyses;
696-16 (9) evaluate financing options and recommend preferred
696-17 methods of financing;
696-18 (10) evaluate the application of resource recovery
696-19 technologies;
696-20 (11) identify and discuss potential effects of
696-21 alternative systems;
696-22 (12) provide for public participation and recommend
696-23 preferred alternatives; and
696-24 (13) provide for implementation. (Sec. 363.070,
696-25 Health and Safety Code.)
696-26 (Sections 22.074-22.090 reserved for expansion)
696-27 SUBCHAPTER C. PLANNING FUND AND TECHNICAL ASSISTANCE FUND
697-1 Sec. 22.091. Municipal Solid Waste Management Planning Fund.
697-2 (a) The municipal solid waste management planning fund is in the
697-3 state treasury.
697-4 (b) In addition to money appropriated by the legislature,
697-5 money received from other sources, including money received under
697-6 contracts or agreements entered into under Section 22.116, shall be
697-7 deposited to the credit of the planning fund. (Sec. 363.091,
697-8 Health and Safety Code.)
697-9 Sec. 22.092. Planning Fund Use; Financial Assistance to
697-10 Local Governments and Planning Regions. (a) The executive
697-11 director shall administer the financial assistance program and the
697-12 planning fund under the commission's direction.
697-13 (b) The commission shall adopt rules for the use and
697-14 distribution to public agencies and planning regions of money in
697-15 the planning fund.
697-16 (c) The commission shall use the planning fund to provide
697-17 financial assistance to:
697-18 (1) local governments and planning regions to develop
697-19 regional and local solid waste management plans;
697-20 (2) public agencies and planning regions to prepare
697-21 screening, feasibility, and implementation studies; and
697-22 (3) local governments and planning regions for costs
697-23 of developing and implementing approved household hazardous waste
697-24 diversion programs, excluding costs of disposal.
697-25 (d) The commission shall use at least 90 percent of the
697-26 money appropriated to it for the planning fund to provide financial
697-27 assistance, and not more than 10 percent of the total funds
698-1 appropriated to the commission for the planning fund may be used to
698-2 administer the financial assistance program and the planning fund
698-3 and to pay the expenses of the advisory council.
698-4 (e) The planning fund may not be used for construction or to
698-5 prepare final design and working drawings, acquire land or an
698-6 interest in land, or pay for recovered resources.
698-7 (f) The commission by rule shall allocate a specific
698-8 percentage of money provided under Subsection (c)(1) to be used to
698-9 develop plans for community household hazardous waste collection
698-10 programs. (Sec. 363.092, Health and Safety Code.)
698-11 Sec. 22.093. Application for Financial Assistance. (a) An
698-12 applicant for financial assistance from the planning fund must
698-13 agree to comply with:
698-14 (1) the state solid waste management plan;
698-15 (2) the commission's municipal solid waste management
698-16 rules; and
698-17 (3) other commission requirements.
698-18 (b) The commission may not authorize release of funds under
698-19 a financial assistance application until the applicant furnishes to
698-20 the commission a resolution adopted by the governing body of each
698-21 public agency or planning region that is a party to the application
698-22 certifying that:
698-23 (1) the applicant will comply with the financial
698-24 assistance program's provisions and the commission's requirements;
698-25 (2) the funds will be used only for the purposes for
698-26 which they are provided;
698-27 (3) regional or local solid waste management plans or
699-1 studies developed with the financial assistance will be adopted by
699-2 the governing body as its policy; and
699-3 (4) future municipal solid waste management activities
699-4 will, to the extent reasonably feasible, conform to the regional or
699-5 local solid waste management plan.
699-6 (c) Financial assistance provided by the commission to a
699-7 public agency or planning region must be matched at least equally
699-8 by funds provided by the recipient, except that this matching
699-9 requirement does not apply if the recipient is a council of
699-10 governments created under Chapter 391, Local Government Code, or a
699-11 city or county.
699-12 (d) The priority given to applicants in receiving financial
699-13 assistance must be determined by:
699-14 (1) the need to initiate or improve the solid waste
699-15 management program in the applicant's jurisdiction;
699-16 (2) the needs of the state;
699-17 (3) the applicant's financial need; and
699-18 (4) the degree to which the proposed program will
699-19 result in improvements that meet the requirements of state,
699-20 regional, and local solid waste management plans.
699-21 (e) The commission may approve an application for financial
699-22 assistance if:
699-23 (1) the application is consistent with the rules
699-24 adopted by the commission under Section 22.092(b); and
699-25 (2) the commission finds that the applicant requires
699-26 state financial assistance and that it is in the public interest to
699-27 provide the financial assistance. (Sec. 363.093, Health and Safety
700-1 Code.)
700-2 Sec. 22.094. Municipal Solid Waste Resource Recovery Applied
700-3 Research and Technical Assistance Fund. (a) The municipal solid
700-4 waste resource recovery applied research and technical assistance
700-5 fund is in the state treasury.
700-6 (b) The technical assistance fund is composed of legislative
700-7 appropriations.
700-8 (c) The technical assistance fund shall be used to:
700-9 (1) accomplish applied research and development
700-10 studies; and
700-11 (2) provide technical assistance to public agencies to
700-12 carry out investigations and to make studies relating to resource
700-13 recovery and improved municipal solid waste management.
700-14 (d) The commissioner shall administer the technical
700-15 assistance fund under the commission's direction. (Sec. 363.094,
700-16 Health and Safety Code.)
700-17 Sec. 22.095. Use of Technical Assistance Fund.
700-18 (a) Studies, applied research, investigations, and other purposes
700-19 accomplished with and technical assistance provided through use of
700-20 money in the technical assistance fund must comply with:
700-21 (1) the state solid waste management plan;
700-22 (2) the commission's municipal solid waste management
700-23 rules; and
700-24 (3) other commission policy requirements.
700-25 (b) Technical assistance, applied research, investigations,
700-26 studies, and other purposes for which funds may be provided may
700-27 include:
701-1 (1) an evaluation of the long-term statewide needs of
701-2 public agencies in financing municipal solid waste systems and
701-3 consideration of the nature and extent of financial support that
701-4 the state should provide for those systems;
701-5 (2) an evaluation of state of the art waste reduction
701-6 systems and waste-to-energy systems that include steam generation
701-7 and electrical production;
701-8 (3) establishment and evaluation of a pilot source
701-9 separation and recycling project;
701-10 (4) feasibility studies of appropriate technology that
701-11 may be applicable to several local governments for the improvement
701-12 of solid waste management systems;
701-13 (5) cost and economic comparisons of alternative solid
701-14 waste management systems;
701-15 (6) an evaluation of available markets for energy and
701-16 recovered materials;
701-17 (7) an evaluation of the availability of recovered
701-18 materials and energy resources for new market opportunities; and
701-19 (8) a citizen involvement program to educate citizens
701-20 in solid waste management issues and the improvement of solid waste
701-21 management practices.
701-22 (c) The commission may hire personnel to be paid from the
701-23 technical assistance fund and may use the technical assistance fund
701-24 for obtaining consultant services and for entering into interagency
701-25 agreements with other state agencies, public agencies, or planning
701-26 regions. (Sec. 363.095, Health and Safety Code.)
701-27 (Sections 22.096-22.110 reserved for expansion)
702-1 SUBCHAPTER D. LOCAL SOLID WASTE SERVICES AND REGULATION
702-2 Sec. 22.111. Adoption of Rules by Public Agency. (a) A
702-3 governing body may adopt rules for regulating solid waste
702-4 collection, handling, transportation, storage, processing, and
702-5 disposal.
702-6 (b) The rules may not authorize any activity, method of
702-7 operation, or procedure prohibited by Chapter 20 (Solid Waste
702-8 Disposal Act) or by rules or regulations of the commission or other
702-9 state or federal agencies. (Sec. 363.111, Health and Safety Code.)
702-10 Sec. 22.112. Prohibition of Processing or Disposal of Solid
702-11 Waste in Certain Areas. (a) To prohibit the processing or
702-12 disposal of solid waste in certain areas of a municipality or
702-13 county, the governing body of the municipality or county must by
702-14 ordinance or order specifically designate the area of the
702-15 municipality or county, as appropriate, in which the disposal of
702-16 solid waste will not be prohibited.
702-17 (b) The ordinance or order must be published for two
702-18 consecutive weeks in a newspaper of general circulation in the area
702-19 of the municipality or county, as appropriate, before the date the
702-20 proposed ordinance or order is adopted by the governing body.
702-21 (c) This section does not apply to a municipality or county
702-22 that has adopted solid waste management plans approved by the
702-23 commission under Section 22.065. (Sec. 363.112, Health and Safety
702-24 Code.)
702-25 Sec. 22.113. Establishment of Solid Waste Management
702-26 Services. Each county with a population of more than 30,000 and
702-27 each municipality shall review the provision of solid waste
703-1 management services in its jurisdiction and shall assure that those
703-2 services are provided to all persons in its jurisdiction by a
703-3 public agency or private person. (Sec. 363.113, Health and Safety
703-4 Code.)
703-5 Sec. 22.114. Resource Recovery Service; Fees. (a) A public
703-6 agency may offer a resource recovery service to persons in its
703-7 jurisdictional boundaries and may charge fees for that service.
703-8 (b) To aid in enforcing collection of fees for a resource
703-9 recovery service, a public agency, after notice and hearing, may
703-10 suspend service provided by any utility owned or operated by the
703-11 public agency to a person who is delinquent in payment of those
703-12 fees. (Sec. 363.114, Health and Safety Code.)
703-13 Sec. 22.115. Tax Exempt Status of Certain Resource Recovery
703-14 Systems. A resource recovery system acquired by a public agency to
703-15 reduce municipal solid waste by mechanical means or incineration is
703-16 exempt from property taxes of any municipality, county, school
703-17 district, or other political subdivision of the state. (Sec.
703-18 363.115, Health and Safety Code.)
703-19 Sec. 22.116. Authority to Enter Contracts Concerning Solid
703-20 Waste Management Services. (a) A public agency may enter into
703-21 contracts to enable it to furnish or receive solid waste management
703-22 services on the terms considered appropriate by the public agency's
703-23 governing body.
703-24 (b) A home-rule municipality's charter provision restricting
703-25 the duration of a municipal contract does not apply to a municipal
703-26 contract that relates to solid waste management services. (Sec.
703-27 363.116, Health and Safety Code.)
704-1 Sec. 22.117. Solid Waste Management Service Contracts.
704-2 Under a solid waste management service contract, a public agency
704-3 may:
704-4 (1) acquire and operate all or any part of one or more
704-5 solid waste management systems, including resource recovery
704-6 systems;
704-7 (2) contract with a person or other public agency to
704-8 manage solid waste for that person or agency;
704-9 (3) contract with a person to purchase or sell, by
704-10 installments over a term considered desirable by the governing body
704-11 or otherwise, all or any part of a solid waste management system,
704-12 including a resource recovery system;
704-13 (4) contract with a person or other public agency for
704-14 the operation of all or any part of a solid waste management
704-15 system, including a resource recovery system;
704-16 (5) lease to or from a person or other public agency,
704-17 for the term and on the conditions considered desirable by the
704-18 governing body, all or any part of a solid waste management system,
704-19 including a resource recovery system;
704-20 (6) contract to make all or any part of a solid waste
704-21 management system available to other persons or public agencies and
704-22 furnish solid waste management services through the public agency's
704-23 system, provided the contract:
704-24 (A) includes provisions to assure equitable
704-25 treatment of parties who contract with the public agency for solid
704-26 waste management services from all or any part of the same solid
704-27 waste management system;
705-1 (B) provides the method of determining the
705-2 amounts to be paid by the parties;
705-3 (C) provides that the public agency shall either
705-4 operate or contract with a person to operate for the public agency
705-5 a solid waste management system or part of a solid waste management
705-6 system;
705-7 (D) provides that the public agency is entitled
705-8 to continued performance of the services after the amortization of
705-9 the public agency's investment in the solid waste management system
705-10 during the useful life of the system on payment of reasonable
705-11 charges for the services, reduced to take into consideration the
705-12 amortization; and
705-13 (E) includes any other provisions and
705-14 requirements the public agency determines to be appropriate;
705-15 (7) contract with another public agency or other
705-16 persons for solid waste management services, including contracts
705-17 for the collection and transportation of solid waste and for
705-18 processing or disposal at a permitted solid waste management
705-19 facility, including a resource recovery facility, provided the
705-20 contract may specify:
705-21 (A) the minimum quantity and quality of solid
705-22 waste to be provided by the public agency; and
705-23 (B) the minimum fees and charges to be paid by
705-24 the public agency for the right to have solid waste processed or
705-25 disposed of at the solid waste management facility;
705-26 (8) contract with a person or other public agency to
705-27 supply materials, fuel, or energy resulting from the operation of a
706-1 resource recovery facility; and
706-2 (9) contract with a person or other public agency to
706-3 receive or purchase solid waste, materials, fuel, or energy
706-4 recovered from resource recovery facilities. (Sec. 363.117, Health
706-5 and Safety Code.)
706-6 Sec. 22.118. Industrial Development Corporations. (a) A
706-7 public agency that enters into a contract under Section 22.116 may
706-8 sponsor the creation of an industrial development corporation as
706-9 provided by the Development Corporation Act of 1979 (Article
706-10 5190.6, Vernon's Texas Civil Statutes).
706-11 (b) If the system is located in the public agency's
706-12 boundaries, the corporation may issue its bonds, notes, or other
706-13 evidences of indebtedness to finance the costs of a solid waste
706-14 management system, including a resource recovery system,
706-15 contemplated under the contract. (Sec. 363.118, Health and Safety
706-16 Code.)
706-17 Sec. 22.119. Funding Solid Waste Management Services.
706-18 (a) A public agency may establish a solid waste management fund to
706-19 make payments for solid waste management services covered by
706-20 contracts entered into by the public agency.
706-21 (b) A public agency may agree to make sufficient provision
706-22 in its annual budget to make payments under its contracts.
706-23 (c) Payments to be made by a public agency under a contract
706-24 may also be made from revenues of the public agency's solid waste,
706-25 water, sewer, electric, or gas system or any combination of utility
706-26 systems.
706-27 (d) As a source of payment or as the sole source of payment,
707-1 a public agency may use and pledge available revenues or resources
707-2 for and to the payment of amounts due under contracts and may enter
707-3 into covenants concerning those sources of payment to assure their
707-4 availability if required.
707-5 (e) A public agency may establish, charge, and collect fees,
707-6 rates, charges, rentals, and other amounts for services or
707-7 facilities provided under or in connection with a contract. Those
707-8 fees, rates, charges, rentals, and other amounts may be charged to
707-9 and collected from the residents of the public agency, if any, or
707-10 from users or beneficiaries of the services or facilities and may
707-11 include water charges, sewage charges, and solid waste disposal
707-12 fees and charges, including solid waste collection or handling
707-13 fees. The public agency may use and pledge those fees, rates,
707-14 charges, rentals, and other amounts to make payments required under
707-15 a contract and may enter into a covenant to do so in amounts
707-16 sufficient to make all or any part of the payments when due.
707-17 (f) A public agency that has taxing power, and that at the
707-18 time of entering into a contract is using its general funds,
707-19 including its tax revenues, to pay all or part of the costs of
707-20 providing solid waste collection, transportation, and disposal
707-21 services, may agree and pledge that the contract is an obligation
707-22 against the taxing power of the public agency. (Sec. 363.119,
707-23 Health and Safety Code.)
707-24 (Sections 22.120-22.130 reserved for expansion)
707-25 SUBCHAPTER E. BONDS
707-26 Sec. 22.131. Authority to Issue Bonds. (a) A public agency
707-27 may issue bonds in the name of the public agency to acquire,
708-1 construct, improve, enlarge, and repair all or part of a solid
708-2 waste management system, including a resource recovery system.
708-3 (b) Pending the issuance of definitive bonds, a public
708-4 agency may issue negotiable interim bonds eligible for exchange or
708-5 substitution on issuance of definitive bonds. (Sec. 363.131,
708-6 Health and Safety Code.)
708-7 Sec. 22.132. Terms; Form. (a) A public agency may issue
708-8 its bonds in various series or issues.
708-9 (b) Bonds may mature serially or otherwise not more than 50
708-10 years after the date of issuance and shall bear interest at a rate
708-11 permitted by state law.
708-12 (c) A public agency's bonds and interest coupons, if any,
708-13 are investment securities under Chapter 8, Business & Commerce
708-14 Code, and may be:
708-15 (1) issued registrable as to principal or as to
708-16 principal and interest; and
708-17 (2) made redeemable before maturity, at the option of
708-18 the public agency, or may contain a mandatory redemption provision.
708-19 (d) A public agency's bonds may be issued in the form,
708-20 denominations, and manner, and under the terms, and shall be signed
708-21 and executed, as provided by the governing body in the resolution
708-22 or order authorizing the bonds. (Sec. 363.132, Health and Safety
708-23 Code.)
708-24 Sec. 22.133. Bond Provisions. (a) In the orders or
708-25 resolutions authorizing the issuance of bonds, including refunding
708-26 bonds, the governing body may:
708-27 (1) provide for the flow of funds and the
709-1 establishment and maintenance of the interest and sinking fund, the
709-2 reserve fund, and other funds; and
709-3 (2) make additional covenants with respect to the
709-4 bonds, the pledged revenues, and the operation and maintenance of
709-5 the physical property of the solid waste management system, the
709-6 revenue of which is pledged.
709-7 (b) In the orders or resolutions authorizing the issuance of
709-8 bonds, the governing body may:
709-9 (1) prohibit the further issuance of bonds or other
709-10 obligations payable from the pledged revenue or may reserve the
709-11 right to issue additional bonds to be secured by a pledge of and
709-12 payable from the revenue on a parity with or subordinate to the
709-13 lien and pledge in support of the bonds being issued; and
709-14 (2) include other provisions as the governing body may
709-15 determine.
709-16 (c) The governing body may adopt and have executed any other
709-17 proceedings or instruments necessary and convenient in the issuance
709-18 of bonds. (Sec. 363.133, Health and Safety Code.)
709-19 Sec. 22.134. Approval and Registration. (a) A public
709-20 agency shall submit bonds issued by the public agency and records
709-21 relating to their issuance to the attorney general for examination
709-22 as to their validity. If the bonds are secured by a pledge of
709-23 proceeds from a contract, the public agency shall submit to the
709-24 attorney general for examination a copy of the contract and a copy
709-25 of the records relating to the contract.
709-26 (b) If the attorney general finds that the bonds have been
709-27 authorized and a contract entered into in accordance with law, the
710-1 attorney general shall approve the bonds, and the comptroller shall
710-2 register the bonds.
710-3 (c) Following approval and registration, the bonds are
710-4 incontestable and are binding obligations according to their terms.
710-5 (Sec. 363.134, Health and Safety Code.)
710-6 Sec. 22.135. Bond Payment and Security. A public agency may
710-7 pay the principal of and interest on bonds:
710-8 (1) from the levy and collection of taxes on all
710-9 taxable property in the public agency's boundaries if the public
710-10 agency is authorized by law to levy and collect property taxes;
710-11 (2) by pledging all or part of the designated revenues
710-12 from the ownership or operation of physical property of a solid
710-13 waste management system, including a resource recovery system, or
710-14 from a contract entered into by a public agency under this chapter;
710-15 or
710-16 (3) from other income of the public agency. (Sec.
710-17 363.135, Health and Safety Code.)
710-18 Sec. 22.136. Bond Election. Bonds secured in whole or in
710-19 part by taxes may not be issued by a public agency until authorized
710-20 by a majority vote of the qualified voters of the public agency at
710-21 an election ordered for that purpose. A bond election shall be
710-22 held in the manner provided by law for other bond elections of the
710-23 public agency. (Sec. 363.136, Health and Safety Code.)
710-24 Sec. 22.137. Other Security. (a) The bonds may be
710-25 additionally secured by a deed of trust or mortgage lien on part or
710-26 all of the physical property of a solid waste management system,
710-27 including a resource recovery system, of the public agency and
711-1 rights appurtenant to that property.
711-2 (b) The deed of trust or mortgage lien may give the trustee
711-3 the power to operate the property, sell the property to pay the
711-4 debt, or take any other action to secure the bonds. A purchaser at
711-5 a sale under a deed of trust or mortgage lien is the absolute owner
711-6 of the property and rights purchased.
711-7 (c) Regardless of any deed of trust or mortgage lien under
711-8 Subsection (a), the trust indenture may:
711-9 (1) contain any provision that the governing body
711-10 prescribes for the security of the bonds and the preservation of
711-11 the trust estate;
711-12 (2) provide for amendment or modification of the trust
711-13 indenture; and
711-14 (3) provide for investment of the public agency's
711-15 funds. (Sec. 363.137, Health and Safety Code.)
711-16 Sec. 22.138. Bond Sale and Exchange. (a) A public agency
711-17 may sell bonds at a public or private sale at a price and on terms
711-18 determined by the governing body.
711-19 (b) The public agency may exchange its bonds for property or
711-20 an interest in property that its governing body considers necessary
711-21 or convenient to carry out this chapter. (Sec. 363.138, Health and
711-22 Safety Code.)
711-23 Sec. 22.139. Investment and Use of Proceeds. (a) Money may
711-24 be set aside out of bond proceeds to provide for:
711-25 (1) interest to accrue on the bonds;
711-26 (2) administrative expenses up to the estimated date
711-27 on which the solid waste management system will produce revenue;
712-1 and
712-2 (3) reserve funds created by the resolution that
712-3 authorized the bonds.
712-4 (b) Proceeds from the sale of bonds may be invested, pending
712-5 their use, in the securities or time deposits specified by the
712-6 resolution authorizing the issuance of the bonds or the trust
712-7 indenture securing the bonds.
712-8 (c) The earnings on the investments may be applied as
712-9 provided by the resolution or trust indenture. (Sec. 363.139,
712-10 Health and Safety Code.)
712-11 Sec. 22.140. Refunding Bonds. (a) A public agency may
712-12 issue refunding bonds to refund all or part of its outstanding
712-13 bonds, including matured but unpaid interest coupons.
712-14 (b) Refunding bonds:
712-15 (1) mature serially or otherwise not more than 50
712-16 years after the date of issuance and bear interest at a rate
712-17 permitted by state law; and
712-18 (2) may be payable from the same source as the bonds
712-19 being refunded or from other additional sources.
712-20 (c) Refunding bonds must be approved by the attorney general
712-21 in the same manner as other bonds.
712-22 (d) The comptroller shall register refunding bonds:
712-23 (1) on the surrender and cancellation of the original
712-24 bonds; or
712-25 (2) without surrender and cancellation of the original
712-26 bonds if:
712-27 (A) the order or resolution authorizing the
713-1 refunding bonds provides that their proceeds be deposited in the
713-2 place where the original bonds are payable; and
713-3 (B) the refunding bonds are issued in an amount
713-4 sufficient to pay the principal of and interest on the original
713-5 bonds up to their maturity date or to their option date if the
713-6 bonds are called for payment before maturity according to their
713-7 terms.
713-8 (e) A public agency may refund bonds in one or several
713-9 installments.
713-10 (f) Instead of the method provided by this section, a public
713-11 agency may refund bonds, notes, or other obligations as provided by
713-12 general law. (Sec. 363.140, Health and Safety Code.)
713-13 Sec. 22.141. Legal Investments; Security for Deposits.
713-14 (a) Public agency bonds are legal and authorized investments for:
713-15 (1) a bank;
713-16 (2) a savings bank;
713-17 (3) a trust company;
713-18 (4) a savings and loan association;
713-19 (5) an insurance company;
713-20 (6) a fiduciary;
713-21 (7) a trustee;
713-22 (8) a guardian; and
713-23 (9) a sinking fund of a municipality, county, school
713-24 district, or other political subdivision of the state and other
713-25 public funds of the state, including the permanent school fund.
713-26 (b) Public agency bonds may secure the deposits of public
713-27 funds of the state or a municipality, county, school district, or
714-1 other political subdivision of the state. The bonds are lawful and
714-2 sufficient security for deposits to the extent of their value, if
714-3 accompanied by all unmatured coupons. (Sec. 363.141, Health and
714-4 Safety Code.)
714-5 Sec. 22.142. Tax Status of Bonds. Since a public agency is
714-6 a public entity performing an essential public function, bonds
714-7 issued by the public agency, any transaction relating to the bonds,
714-8 and profits made in the sale of the bonds are exempt from taxation
714-9 by the state or by a municipality, county, special district, or
714-10 other political subdivision of the state. (Sec. 363.142, Health
714-11 and Safety Code.)
714-12 Sec. 22.143. Fees for Services. (a) While bonds are
714-13 outstanding, the governing body may adopt and collect fees for
714-14 services furnished or made available by the solid waste management
714-15 system, including a resource recovery system.
714-16 (b) The fees must be adequate to provide and maintain the
714-17 funds created by the resolution authorizing the bonds and to pay:
714-18 (1) operational costs or expenses allocable to the
714-19 solid waste management system, including a resource recovery
714-20 system; and
714-21 (2) the principal of and interest on the bonds. (Sec.
714-22 363.143, Health and Safety Code.)
714-23 Sec. 22.144. Adjustment of Rates for Adequate Revenue. A
714-24 public agency shall adopt and adjust the rates charged for solid
714-25 waste management services so that revenues, together with taxes
714-26 levied to support the services, will be sufficient to pay:
714-27 (1) the expense of operating and maintaining the solid
715-1 waste management system, including a resource recovery system;
715-2 (2) the public agency's obligations under a contract;
715-3 and
715-4 (3) the public agency's obligations under and in
715-5 connection with bonds issued that are secured by revenues from the
715-6 solid waste management service or a solid waste management system,
715-7 including a resource recovery system. (Sec. 363.144, Health and
715-8 Safety Code.)
715-9 Sec. 22.145. Bond Anticipation Notes. (a) A public agency
715-10 may declare an emergency if funds are not available to pay the
715-11 principal of or interest on the public agency's bonds issued under
715-12 this chapter.
715-13 (b) The public agency may issue negotiable bond anticipation
715-14 notes to borrow the money needed in an emergency, and the bond
715-15 anticipation notes may bear interest at any rate authorized by
715-16 state law and shall mature within one year of the date of issuance.
715-17 (c) The bond anticipation notes may be paid with the
715-18 proceeds of bonds, or bonds may be issued and delivered in exchange
715-19 for and in substitution of bond anticipation notes. (Sec. 363.145,
715-20 Health and Safety Code.)
715-21 (Sections 22.146-22.200 reserved for expansion)
715-22 SUBCHAPTER F. GARBAGE RECLAMATION PROJECT
715-23 OPERATED BY A MUNICIPALITY
715-24 Sec. 22.201. Definitions. In this subchapter:
715-25 (1) "Municipality" means an incorporated city or town.
715-26 (2) "Garbage reclamation project" means an undertaking
715-27 by which solid waste products are converted into a form usable by
716-1 persons for the production of energy or any other purpose.
716-2 (V.A.C.S. Art. 4477-7b, Sec. 1.)
716-3 Sec. 22.202. Authority to Own and Operate. A municipality
716-4 may own and operate a garbage reclamation project. (V.A.C.S. Art.
716-5 4477-7b, Sec. 2.)
716-6 Sec. 22.203. Issuance of Bonds. If necessary for a
716-7 municipality to carry out the authority granted by Section 22.202,
716-8 the governing body of the municipality may issue and sell bonds in
716-9 the name of the municipality to finance:
716-10 (1) the purchase, lease, or acquisition by any other
716-11 method of land, facilities, equipment, or supplies;
716-12 (2) the construction or improvement of facilities; or
716-13 (3) the installation of equipment. (V.A.C.S. Art.
716-14 4477-7b, Sec. 3.)
716-15 Sec. 22.204. Manner of Repayment of Bonds. The governing
716-16 body of the municipality may provide for the payment of principal
716-17 of and interest on the bonds in any one of the following manners:
716-18 (1) from the levy and collection of ad valorem taxes
716-19 on all taxable property in the municipality;
716-20 (2) by pledging all or any part of designated revenues
716-21 from the ownership or operation of the garbage reclamation project;
716-22 or
716-23 (3) from a combination of the sources listed in
716-24 Subdivisions (1) and (2). (V.A.C.S. Art. 4477-7b, Sec. 4.)
716-25 Sec. 22.205. Additional Security for Bonds. (a) The bonds
716-26 may be additionally secured by a deed of trust or mortgage lien on
716-27 part or all of the physical properties of the garbage reclamation
717-1 project and rights appurtenant to the properties, vesting in the
717-2 trustee power to sell the properties for payment of the
717-3 indebtedness, power to operate the properties, and all other powers
717-4 necessary for the further security of the bonds.
717-5 (b) The trust indenture, regardless of the existence of the
717-6 deed of trust or mortgage lien on the properties, may contain
717-7 provisions prescribed by the governing body of the municipality for
717-8 the security of the bonds and the preservation of the trust estate
717-9 and may make provisions for amendment or modification and may make
717-10 provisions for investment of revenue from the garbage reclamation
717-11 project.
717-12 (c) A purchaser under a sale under the deed of trust or
717-13 mortgage lien becomes absolute owner of the properties and rights
717-14 purchased and may maintain and operate them. (V.A.C.S. Art.
717-15 4477-7b, Sec. 5.)
717-16 Sec. 22.206. Bond Election. (a) The governing body of the
717-17 municipality may not issue the bonds until authorized to do so by a
717-18 majority vote of the qualified voters of the municipality at an
717-19 election called for that purpose.
717-20 (b) Except as provided by this subchapter, the election
717-21 shall be held, to the extent practicable, in accordance with the
717-22 bond election procedures established by Chapter 1, Title 22,
717-23 Revised Statutes, as amended (Article 701 et seq., Vernon's Texas
717-24 Civil Statutes).
717-25 (c) At an election to authorize bonds payable wholly from ad
717-26 valorem taxes, the ballots must be printed to provide for voting
717-27 for or against the proposition: "The issuance of bonds for a
718-1 garbage reclamation project in the amount of $__________ and the
718-2 levy of taxes for payment of the bonds." At an election to
718-3 authorize bonds payable wholly from revenues from the garbage
718-4 reclamation project, the ballots must be printed to provide for
718-5 voting for or against the proposition: "The issuance of bonds for
718-6 a garbage reclamation project in the amount of $__________ and the
718-7 pledge of net revenues from the project for the payment of the
718-8 bonds." At any election to authorize bonds payable from both ad
718-9 valorem taxes and revenues from the garbage reclamation project,
718-10 the ballots must be printed to provide for voting for or against
718-11 the proposition: "The issuance of bonds for a garbage reclamation
718-12 project in the amount of $__________ and the pledge of net revenues
718-13 and the levy of ad valorem taxes adequate to provide for the
718-14 payment of the bonds." (V.A.C.S. Art. 4477-7b, Sec. 6.)
718-15 Sec. 22.207. Form of Bonds. (a) A municipality may issue
718-16 its bonds in various series or issues.
718-17 (b) Bonds may mature serially or otherwise not more than 40
718-18 years from their date and shall bear interest at any rate permitted
718-19 by the constitution and laws of the state.
718-20 (c) A municipality's bonds and interest coupons, if any, are
718-21 investment securities under the terms of Chapter 8 of the Business
718-22 & Commerce Code and may be issued registrable as to principal or as
718-23 to both principal and interest and may be made redeemable before
718-24 maturity, at the option of the municipality, or may contain a
718-25 mandatory redemption provision.
718-26 (d) A municipality's bonds may be issued in the form,
718-27 denominations, and manner and under the terms, conditions, and
719-1 details and shall be signed and executed as provided by the
719-2 governing body of the municipality in the resolution or order
719-3 authorizing their issuance. (V.A.C.S. Art. 4477-7b, Sec. 7.)
719-4 Sec. 22.208. Provisions of Bonds. (a) In the orders or
719-5 resolutions authorizing the issuance of bonds, including refunding
719-6 bonds, the governing body of the municipality may provide for the
719-7 flow of funds, the establishment and maintenance of the interest
719-8 and sinking fund, the reserve fund, and other funds and may make
719-9 additional covenants with respect to the bonds, the pledged
719-10 revenues, and the operation and maintenance of the garbage
719-11 reclamation project, the revenue of which is pledged.
719-12 (b) The orders or resolutions of the governing body of the
719-13 municipality authorizing the issuance of bonds may also prohibit
719-14 the further issuance of bonds or other obligations payable from the
719-15 pledged revenue or may reserve the right to issue additional bonds
719-16 to be secured by a pledge of and payable from the revenue on a
719-17 parity with or subordinate to the lien and pledge in support of the
719-18 bonds being issued.
719-19 (c) The orders or resolutions of the governing body of the
719-20 municipality issuing bonds may contain other provisions and
719-21 covenants as the governing body may determine.
719-22 (d) The governing body of the municipality may adopt and
719-23 have executed any other proceedings or instruments necessary and
719-24 convenient in the issuance of bonds. (V.A.C.S. Art. 4477-7b, Sec.
719-25 8.)
719-26 Sec. 22.209. Approval by Attorney General; Registration by
719-27 Comptroller. (a) The bonds issued by the municipality must be
720-1 submitted to the attorney general for examination.
720-2 (b) If the attorney general finds that the bonds have been
720-3 authorized in accordance with law, he shall approve them, and they
720-4 shall be registered by the comptroller of public accounts.
720-5 (c) After the approval and registration of bonds, the bonds
720-6 are incontestable in any court or other forum, for any reason, and
720-7 are valid and binding obligations in accordance with their terms
720-8 for all purposes. (V.A.C.S. Art. 4477-7b, Sec. 9.)
720-9 Sec. 22.210. Refunding Bonds. (a) A municipality may issue
720-10 bonds to refund all or any part of its outstanding bonds issued
720-11 under this subchapter, including matured but unpaid interest
720-12 coupons.
720-13 (b) Refunding bonds shall mature serially or otherwise not
720-14 more than 40 years from their date and shall bear interest at any
720-15 rate or rates permitted by the constitution and laws of the state.
720-16 (c) Refunding bonds may be payable from the same source as
720-17 the bonds being refunded or from other additional sources.
720-18 (d) The refunding bonds must be approved by the attorney
720-19 general as in the case of other bonds and shall be registered by
720-20 the comptroller on the surrender and cancellation of the bonds
720-21 being refunded.
720-22 (e) The orders or resolutions authorizing the issuance of
720-23 the refunding bonds may provide that they be sold and the proceeds
720-24 deposited in the place or places at which the bonds being refunded
720-25 are payable, in which case the refunding bonds may be issued before
720-26 the cancellation of the bonds being refunded. If refunding bonds
720-27 are issued before cancellation of the other bonds, an amount
721-1 sufficient to pay the principal of and interest on the bonds being
721-2 refunded to their maturity dates or to their option dates if the
721-3 bonds have been duly called for payment prior to maturity according
721-4 to their terms shall be deposited in the place or places at which
721-5 the bonds being refunded are payable. The comptroller shall
721-6 register the refunding bonds without the surrender and cancellation
721-7 of bonds being refunded.
721-8 (f) A refunding may be accomplished in one or in several
721-9 installment deliveries. Refunding bonds and their interest coupons
721-10 are investment securities under Chapter 8 of the Business &
721-11 Commerce Code.
721-12 (g) In lieu of the method set forth in Subsections (a)
721-13 through (f), a municipality may refund bonds, notes, or other
721-14 obligations as provided by the general laws of the state.
721-15 (V.A.C.S. Art. 4477-7b, Sec. 10.)
721-16 Sec. 22.211. Bonds as Investments. The bonds are legal and
721-17 authorized investments for:
721-18 (1) banks;
721-19 (2) savings banks;
721-20 (3) trust companies;
721-21 (4) savings and loan associations;
721-22 (5) insurance companies;
721-23 (6) fiduciaries;
721-24 (7) trustees;
721-25 (8) guardians; and
721-26 (9) sinking funds of municipalities, counties, school
721-27 districts, and other political subdivisions of the state and other
722-1 public funds of the state and its agencies, including the permanent
722-2 school fund. (V.A.C.S. Art. 4477-7b, Sec. 11.)
722-3 Sec. 22.212. Bonds as Security for Deposits. The bonds are
722-4 eligible to secure deposits of public funds of the state and
722-5 municipalities, counties, school districts, and other political
722-6 subdivisions of the state. The bonds are lawful and sufficient
722-7 security for deposits to the extent of their value when accompanied
722-8 by all unmatured coupons. (V.A.C.S. Art. 4477-7b, Sec. 12.)
722-9 Sec. 22.213. Tax Status of Bonds. Since the operation of a
722-10 garbage reclamation project is an essential public function, the
722-11 bonds issued by the municipality, any transaction relating to the
722-12 bonds, and profits made in the sale of the bonds are free from
722-13 taxation by the state or by any municipality, county, special
722-14 district, or other political subdivision of the state. (V.A.C.S.
722-15 Art. 4477-7b, Sec. 13.)
722-16 Sec. 22.214. Levy of Taxes. (a) The governing body of the
722-17 municipality may annually levy ad valorem taxes to pay the bonds
722-18 issued by the municipality under this subchapter.
722-19 (b) The municipality may not levy ad valorem taxes to pay
722-20 the principal of or interest on bonds issued under this subchapter
722-21 payable wholly from revenues from a garbage reclamation project.
722-22 (V.A.C.S. Art. 4477-7b, Sec. 14.)
722-23 CHAPTER 23. COUNTY SOLID WASTE
722-24 SUBCHAPTER A. GENERAL PROVISIONS
722-25 Sec. 23.001. Short Title. This chapter may be cited as the
722-26 County Solid Waste Control Act. (Sec. 364.001, Health and Safety
722-27 Code.)
723-1 Sec. 23.002. Purpose. The purpose of this chapter is to
723-2 authorize a cooperative effort by counties, public agencies, and
723-3 other persons for the safe and economical collection,
723-4 transportation, and disposal of solid waste to control pollution in
723-5 this state. (Sec. 364.002, Health and Safety Code.)
723-6 Sec. 23.003. Definitions. In this chapter:
723-7 (1) "Composting" has the meaning assigned by Chapter
723-8 20 (Solid Waste Disposal Act).
723-9 (2) "District" means a district or authority created
723-10 under Article XVI, Section 59, or Article III, Section 52, of the
723-11 Texas Constitution.
723-12 (3) "Public agency" means a district, municipality,
723-13 regional planning commission created under Chapter 391, Local
723-14 Government Code, or other political subdivision or state agency
723-15 authorized to own and operate a solid waste collection,
723-16 transportation, or disposal facility or system.
723-17 (4) "Sanitary landfill" has the meaning assigned by
723-18 Chapter 20 (Solid Waste Disposal Act).
723-19 (5) "Solid waste" has the meaning assigned by Chapter
723-20 20 (Solid Waste Disposal Act).
723-21 (6) "Solid waste disposal system" means a plant,
723-22 composting process plant, incinerator, sanitary landfill, or other
723-23 works and equipment that are acquired, installed, or operated to
723-24 collect, handle, store, treat, neutralize, stabilize, or dispose of
723-25 solid waste, and includes the sites. (Sec. 364.003, Health and
723-26 Safety Code.)
723-27 (Sections 23.004-23.010 reserved for expansion)
724-1 SUBCHAPTER B. COUNTY SOLID WASTE MANAGEMENT
724-2 Sec. 23.011. County Adoption of Solid Waste Rules.
724-3 (a) Subject to the limitation provided by Sections 20.151 and
724-4 20.152 (Solid Waste Disposal Act), a commissioners court by rule
724-5 may regulate solid waste collection, handling, storage, and
724-6 disposal in areas of the county not in a municipality or the
724-7 extraterritorial jurisdiction of a municipality.
724-8 (b) A county, in making any rules, including those under the
724-9 licensing power granted by Chapter 20 (Solid Waste Disposal Act),
724-10 may not impose an unreasonable requirement on the disposal of the
724-11 solid waste in the county not warranted by the circumstances.
724-12 (c) A rule adopted under this section may not authorize an
724-13 activity, method of operation, or procedure that is prohibited by
724-14 Chapter 20 (Solid Waste Disposal Act) or by rules of the
724-15 commission.
724-16 (d) A county may institute legal proceedings to enforce its
724-17 rules. (Sec. 364.011, Health and Safety Code.)
724-18 Sec. 23.012. Prohibiting Solid Waste Disposal in County.
724-19 (a) The county may prohibit the disposal of solid waste in the
724-20 county if the disposal of the solid waste is a threat to the public
724-21 health, safety, and welfare.
724-22 (b) To prohibit the disposal of solid waste in a county, the
724-23 commissioners court must adopt an ordinance in the general form
724-24 prescribed for municipal ordinances specifically designating the
724-25 area of the county in which solid waste disposal is not prohibited.
724-26 The requirement in this subsection does not apply if the county has
724-27 adopted solid waste disposal guidelines approved by the commission.
725-1 (c) An ordinance required by Subsection (b) may be passed on
725-2 first reading, but the proposed ordinance must be published in a
725-3 newspaper of general circulation in the county for two consecutive
725-4 weeks before the commissioners court considers the proposed
725-5 ordinance. The publication must contain:
725-6 (1) a statement of the time, place, and date that the
725-7 commissioners court will consider the proposed ordinance; and
725-8 (2) notice that an interested citizen of the county
725-9 may testify at the hearing.
725-10 (d) A public hearing must be held on a proposed ordinance
725-11 before it is considered by the commissioners court, and any
725-12 interested citizen of the county shall be allowed to testify.
725-13 (Sec. 364.012, Health and Safety Code.)
725-14 Sec. 23.013. County Authority. A county may:
725-15 (1) acquire, construct, improve, enlarge, repair,
725-16 operate, and maintain all or part of one or more solid waste
725-17 disposal systems;
725-18 (2) contract with a person to collect, transport,
725-19 handle, store, or dispose of solid waste for that person;
725-20 (3) contract with a person to purchase or sell, by
725-21 installments for a term considered desirable, all or part of a
725-22 solid waste disposal system;
725-23 (4) enter into an operating agreement with a person,
725-24 for the terms and on the conditions considered desirable, for the
725-25 operation of all or part of a solid waste disposal system by that
725-26 person or by the county; and
725-27 (5) lease to or from a person, for the term and on the
726-1 conditions considered desirable, all or part of a solid waste
726-2 disposal system. (Sec. 364.013, Health and Safety Code.)
726-3 Sec. 23.014. Acquisition of Property. (a) A county may
726-4 acquire by purchase, lease, gift, condemnation, or any other manner
726-5 and may own, maintain, use, and operate property or an interest in
726-6 property necessary or convenient to the exercise of the powers and
726-7 purposes provided by this chapter.
726-8 (b) The power of eminent domain is restricted to the county
726-9 and may be exercised in the manner provided by law.
726-10 (c) A county may not exercise the power of eminent domain to
726-11 acquire real property under this section if that power conflicts
726-12 with a corporation's power of eminent domain as provided by law.
726-13 (Sec. 364.014, Health and Safety Code.)
726-14 Sec. 23.015. Dumping or Garbage Disposal Grounds. The
726-15 commissioners court shall determine the consideration to be paid to
726-16 acquire real property on which to locate dumping or garbage
726-17 disposal grounds. In determining where to locate dumping or
726-18 garbage disposal grounds, the commissioners court shall consider:
726-19 (1) the convenience of the people to be served; and
726-20 (2) the general health of, and the annoyance to, the
726-21 community to be served by the dumping or garbage disposal grounds.
726-22 (Sec. 364.015, Health and Safety Code.)
726-23 Sec. 23.016. Cost of Certain Required Alterations. The
726-24 relocation, raising, rerouting, changing of grade, or altering of
726-25 construction of a highway, railroad, electric transmission line,
726-26 telegraph or telephone property or facility, or pipeline made
726-27 necessary by the actions of a county shall be accomplished at the
727-1 sole expense of the county, which shall pay the cost of the
727-2 required activity as necessary to provide comparable replacement,
727-3 minus the net salvage value of any replaced facility. (Sec.
727-4 364.016, Health and Safety Code.)
727-5 (Sections 23.017-23.030 reserved for expansion)
727-6 SUBCHAPTER C. SOLID WASTE MANAGEMENT SYSTEMS
727-7 AND SERVICE CONTRACTS
727-8 Sec. 23.031. Public Agency Contracts. (a) A public agency
727-9 may contract with a county for the county to:
727-10 (1) make all or part of a solid waste disposal system
727-11 available to a public agency, a group of public agencies, or other
727-12 persons; and
727-13 (2) furnish solid waste collection, transportation,
727-14 handling, storage, or disposal services through the county's
727-15 system.
727-16 (b) The contract may:
727-17 (1) be for the duration agreed on by the parties;
727-18 (2) provide that the contract remains in effect until
727-19 bonds issued or to be issued by the county and refunding bonds
727-20 issued for those original bonds are paid;
727-21 (3) contain provisions to assure equitable treatment
727-22 of parties who contract with the county for solid waste collection,
727-23 transportation, handling, storage, or disposal services from the
727-24 same solid waste disposal system;
727-25 (4) provide for the sale or lease to or use by the
727-26 county of a solid waste disposal system owned or to be acquired by
727-27 the public agency;
728-1 (5) provide that the county will operate a solid waste
728-2 disposal system owned or to be acquired by the public agency;
728-3 (6) provide that the public agency is entitled to
728-4 continued performance of services after the amortization of the
728-5 county's investment in the disposal system during the useful life
728-6 of the system on payment of reasonable charges, reduced to take
728-7 into consideration the amortization; and
728-8 (7) contain any other provisions and requirements the
728-9 county and the public agency determine to be appropriate or
728-10 necessary.
728-11 (c) The contract must provide the method to determine the
728-12 amount the public agency will pay to the county.
728-13 (d) A municipality may provide in its contract that the
728-14 county has the right to use the streets, alleys, and public ways
728-15 and places in the municipality during the term of the contract.
728-16 (Sec. 364.031, Health and Safety Code.)
728-17 Sec. 23.032. Public Agency Payments. (a) Public agency
728-18 payments to a county for solid waste collection, transportation,
728-19 handling, storage, or disposal services may be made from income of
728-20 the public agency's solid waste disposal fund as provided by the
728-21 contract between the county and the public agency. The payments
728-22 are an operating expense of the fund, and the revenues of the fund
728-23 are to be applied toward those payments.
728-24 (b) Public agency payments to be made under the contract may
728-25 be made from revenues of the public agency's water, sewer,
728-26 electric, or gas system or a combination of utility systems.
728-27 (c) Unless the ordinance or resolution authorizing the
729-1 outstanding bonds of the public agency expressly reserves the right
729-2 to accord contract payments a position of parity with, or a
729-3 priority over, the public agency's bond requirements, the payments
729-4 under a contract are subordinate to amounts required to be paid
729-5 from the revenues of the utility system for principal of and
729-6 interest on bonds of the public agency that are:
729-7 (1) outstanding at the time the contract is made; and
729-8 (2) payable from those revenues. (Sec. 364.032,
729-9 Health and Safety Code.)
729-10 Sec. 23.033. Alternative Payment Procedure Using Tax Funds.
729-11 (a) A contract between a public agency and a county that is
729-12 authorized by the public agency's governing body is an obligation
729-13 against the public agency's taxing power to the extent provided by
729-14 the contract if:
729-15 (1) the public agency holds an election according to
729-16 applicable procedure provided by Chapter 1, Title 22, Revised
729-17 Statutes, relating to the issuance of bonds by a municipality; and
729-18 (2) at the election, it is determined that the public
729-19 agency's governing body may levy an ad valorem tax to make any
729-20 payments required of the public agency under the contract.
729-21 (b) Except for the levy of a tax under this section, an
729-22 election is not required for the exercise of a power granted by
729-23 this chapter.
729-24 (c) Only qualified voters of the public agency are entitled
729-25 to vote at an election held under this section, and except as
729-26 otherwise provided by this section and by Chapter 1, Title 22,
729-27 Revised Statutes, the Election Code governs an election under this
730-1 section.
730-2 (d) If the alternative procedure for payment provided by
730-3 this section is followed, payments under the contract may be:
730-4 (1) payable from and are solely an obligation against
730-5 the taxing power of the public agency; or
730-6 (2) payable both from taxes and from revenues as
730-7 provided by the contract.
730-8 (e) If the alternative procedure of public agency payment to
730-9 a county for disposal services provided by this section is not
730-10 followed, the county or a holder of county bonds is not entitled to
730-11 demand payment of the public agency's obligation from funds raised
730-12 or to be raised by taxation. (Sec. 364.033, Health and Safety
730-13 Code.)
730-14 Sec. 23.034. Solid Waste Disposal Service. (a) A public
730-15 agency or a county may:
730-16 (1) offer solid waste disposal service to persons in
730-17 its territory;
730-18 (2) require the use of the service by those persons;
730-19 (3) charge fees for the service; and
730-20 (4) establish the service as a utility separate from
730-21 other utilities in its territory.
730-22 (b) To aid enforcement of fee collection for the solid waste
730-23 disposal service, a public agency or county may suspend service to
730-24 a person who is delinquent in payment of solid waste disposal
730-25 service fees until the delinquent claim is fully paid. (Sec.
730-26 364.034, Health and Safety Code.)
730-27 Sec. 23.035. Public Agency Duty to Adjust Rates Charged.
731-1 (a) A public agency shall establish, maintain, and adjust the
731-2 rates charged by the public agency for solid waste disposal
731-3 services if:
731-4 (1) the public agency executes a contract with a
731-5 county under this chapter; and
731-6 (2) the payments under the contract are to be made
731-7 either wholly or partly from the revenues of the public agency's
731-8 solid waste disposal fund.
731-9 (b) The revenues of the public agency's solid waste disposal
731-10 fund, and any taxes levied in support, must be sufficient to pay:
731-11 (1) the expense of operating and maintaining the solid
731-12 waste disposal service or system; and
731-13 (2) the public agency's obligations to the county
731-14 under the contract and in connection with bonds issued or that may
731-15 be issued that are secured by revenues of the solid waste disposal
731-16 service or system.
731-17 (c) A contract between a public agency and a county may
731-18 require the use of consulting engineers and financial experts to
731-19 advise the public agency whether and at what time rates are to be
731-20 adjusted under this section. (Sec. 364.035, Health and Safety
731-21 Code.)
731-22 Sec. 23.036. Authority to Provide Disposal Services to More
731-23 Than One Person. A contract or group of contracts under this
731-24 chapter may provide that:
731-25 (1) a county may render concurrently to more than one
731-26 person services relating to the construction or operation of all or
731-27 part of a solid waste disposal system; and
732-1 (2) the cost of the services will be allocated among
732-2 the several persons as determined by the contract or group of
732-3 contracts. (Sec. 364.036, Health and Safety Code.)
732-4 (Sections 23.037-23.050 reserved for expansion)
732-5 SUBCHAPTER D. BONDS
732-6 Sec. 23.051. Authority to Issue Bonds. (a) To acquire,
732-7 construct, improve, enlarge, and repair all or part of a solid
732-8 waste disposal system, a county may issue bonds payable:
732-9 (1) from and secured by a pledge of all or part of the
732-10 revenues to accrue under a contract entered into under this
732-11 chapter; and
732-12 (2) from other income pledged by the county.
732-13 (b) Pending issuance of definitive bonds, a county may issue
732-14 negotiable interim bonds or obligations eligible for exchange or
732-15 substitution by use of the definitive bonds. (Sec. 364.051, Health
732-16 and Safety Code.)
732-17 Sec. 23.052. Terms; Form. (a) Bonds issued under this
732-18 chapter must be in the form and denomination and bear the rate of
732-19 interest prescribed by the commissioners court.
732-20 (b) The bonds may be:
732-21 (1) sold at a public or private sale at a price and on
732-22 the terms determined by the commissioners court; or
732-23 (2) exchanged for property or an interest in property
732-24 determined by the commissioners court to be necessary or convenient
732-25 to the purposes authorized by this chapter.
732-26 (c) The bonds are investment securities under Chapter 8,
732-27 Business & Commerce Code. (Sec. 364.052, Health and Safety Code.)
733-1 Sec. 23.053. Approval and Registration. (a) A county may
733-2 submit bonds that have been authorized by the commissioners court
733-3 and any record relating to their issuance to the attorney general
733-4 for examination as to their validity. If the bonds state that they
733-5 are secured by a pledge of proceeds of a contract between the
733-6 county and a public agency, the county may submit to the attorney
733-7 general a copy of the contract and the proceedings of the public
733-8 agency authorizing the contract.
733-9 (b) If the attorney general finds that the bonds have been
733-10 authorized and any contract has been made in accordance with state
733-11 law, the attorney general shall approve the bonds and contract and
733-12 the comptroller shall register the bonds.
733-13 (c) Following approval and registration, the bonds and the
733-14 contract are incontestable. (Sec. 364.053, Health and Safety
733-15 Code.)
733-16 Sec. 23.054. District Bond Validation by Suit. (a) As an
733-17 alternative for, or in addition to, the procedure provided by
733-18 Section 23.053, the board of directors of a district may validate
733-19 its bonds by filing suit in a district court in the manner and with
733-20 the effect provided by Chapter 400, Acts of the 66th Legislature,
733-21 1979 (Article 717m-1, Vernon's Texas Civil Statutes).
733-22 (b) The interest rate and sale price of the bonds need not
733-23 be fixed until after the termination of the validation proceedings
733-24 or suit.
733-25 (c) If the proposed bonds recite that they are secured by
733-26 the proceeds of a contract made by the district and one or more
733-27 public agencies, the petition must allege that fact and the notice
734-1 of the suit must mention that allegation and each public agency's
734-2 fund or revenues from which the contract is payable.
734-3 (d) The suit is a proceeding in rem, and the judgment is res
734-4 judicata as to the validity of the bonds and any contract and the
734-5 pledge of revenues. (Sec. 364.054, Health and Safety Code.)
734-6 Sec. 23.055. Investment and Use of Proceeds. (a) The
734-7 commissioners court may set aside from proceeds of a bond sale:
734-8 (1) interest to accrue on the bonds;
734-9 (2) administrative expenses to the estimated date when
734-10 the solid waste disposal system will become revenue producing; and
734-11 (3) reserve funds created by the resolution
734-12 authorizing the bonds.
734-13 (b) Proceeds from the sale of bonds may be invested, pending
734-14 their use, in the securities or time deposits as specified by the
734-15 resolution authorizing the issuance of the bonds or the trust
734-16 indenture securing the bonds.
734-17 (c) The earnings on the investments may be applied as
734-18 provided by the resolution or trust indenture. (Sec. 364.055,
734-19 Health and Safety Code.)
734-20 Sec. 23.056. Refunding of Bonds. A county may refund bonds
734-21 issued under this chapter on terms and conditions and bearing the
734-22 rate of interest prescribed by the commissioners court. (Sec.
734-23 364.056, Health and Safety Code.)
734-24 Sec. 23.057. Legal Investments; Security for Deposits.
734-25 (a) Bonds issued under this chapter are legal and authorized
734-26 investments for:
734-27 (1) a bank;
735-1 (2) a savings bank;
735-2 (3) a trust company;
735-3 (4) a savings and loan association;
735-4 (5) an insurance company;
735-5 (6) a fiduciary;
735-6 (7) a trustee; and
735-7 (8) a sinking fund of a municipality, school district,
735-8 or any other political corporation or subdivision of the state.
735-9 (b) The bonds may secure the deposits of public funds of the
735-10 state or of a political subdivision of the state. The bonds are
735-11 lawful and sufficient security for those deposits in an amount up
735-12 to their face value, if accompanied by all appurtenant unmatured
735-13 coupons. (Sec. 364.057, Health and Safety Code.)
735-14 Sec. 23.058. Adjustment of Rates and Changes to Maintain
735-15 Adequate Revenue. If bonds are outstanding, the commissioners
735-16 court shall establish, maintain, and collect rates and charges for
735-17 services furnished or made available by the solid waste disposal
735-18 system adequate to:
735-19 (1) pay maintenance and operation costs of and
735-20 expenses allocable to the solid waste disposal system and the
735-21 principal of and interest on the bonds; and
735-22 (2) provide and maintain funds created by the
735-23 resolution authorizing the bonds. (Sec. 364.058, Health and Safety
735-24 Code.)
735-25 (Sections 23.059-23.100 reserved for expansion)
735-26 SUBCHAPTER E. TRANSPORTERS OF GREASE TRAP, SAND TRAP,
735-27 AND SEPTIC WASTE
736-1 Sec. 23.101. Regulatory Program. The commissioners court of
736-2 a county may establish a program regulating transporters of grease
736-3 trap, sand trap, and septic waste. (Sec. 368.001, Health and
736-4 Safety Code.)
736-5 Sec. 23.102. Participation by Municipality in Regulatory
736-6 Program. The commissioners court may enter into a contract with a
736-7 municipality that provides the terms and conditions under which the
736-8 municipality may participate in the regulatory program. (Sec.
736-9 368.002, Health and Safety Code.)
736-10 Sec. 23.103. Permits. The commissioners court of a county
736-11 may:
736-12 (1) require a permit for trucks that transport grease
736-13 trap, sand trap, and septic waste, including trucks serving
736-14 unincorporated areas of the county;
736-15 (2) by order establish guidelines and procedures for
736-16 issuing permits to trucks that transport grease trap, sand trap,
736-17 and septic waste; and
736-18 (3) issue a single permit number that allows a
736-19 municipality participating in the county regulatory program the
736-20 option to add to that permit number a suffix unique to the
736-21 municipality. (Sec. 368.003, Health and Safety Code.)
736-22 Sec. 23.104. Inspections. The commissioners court of a
736-23 county may:
736-24 (1) coordinate with municipalities the inspection of
736-25 trucks that transport grease trap, sand trap, and septic waste;
736-26 (2) by order establish guidelines and procedures to
736-27 coordinate truck inspections; and
737-1 (3) assess an inspection fee sufficient to cover the
737-2 cost to the county of providing the inspection service. (Sec.
737-3 368.004, Health and Safety Code.)
737-4 Sec. 23.105. Contracts. The commissioners court of a county
737-5 may contract with a person to provide a service that is part of the
737-6 regulatory program. (Sec. 368.005, Health and Safety Code.)
737-7 Sec. 23.106. Forms. The commissioners court of a county may
737-8 develop a single manifest form with a uniform manifest registration
737-9 and numbering system to be used by the county and each
737-10 participating municipality. (Sec. 368.006, Health and Safety
737-11 Code.)
737-12 (Sections 23.107-23.120 reserved for expansion)
737-13 SUBCHAPTER F. REGULATION AND LICENSING OF
737-14 WASTE HAULERS
737-15 Sec. 23.121. Definitions. In this subchapter:
737-16 (1) "Waste" means:
737-17 (A) animal and vegetable waste materials
737-18 resulting from the handling, preparation, cooking, or consumption
737-19 of food;
737-20 (B) discarded paper, rags, cardboard, wood,
737-21 rubber, plastics, yard trimmings, fallen leaves, brush materials,
737-22 and similar combustible items; and
737-23 (C) discarded glass, crockery, tin or aluminum
737-24 cans, metal items, and similar items that are noncombustible at
737-25 ordinary incinerator temperatures.
737-26 (2) "Waste hauler" means a person who, for
737-27 compensation, transports waste by the use of a motor vehicle.
738-1 (Sec. 368.011, Health and Safety Code.)
738-2 Sec. 23.122. County Licensing and Regulation. To protect
738-3 the public health, safety, or welfare, the commissioners court of a
738-4 county with a population of less than 100,000 may by ordinance:
738-5 (1) require a waste hauler who transports waste in
738-6 unincorporated areas of the county to be licensed by the county;
738-7 (2) establish requirements for obtaining and renewing
738-8 a waste hauler license;
738-9 (3) impose a license issuance or renewal fee in an
738-10 amount that generates annually the approximate amount of revenue
738-11 needed to fund the licensing program for a year;
738-12 (4) establish standards governing the transportation
738-13 of waste in unincorporated areas of the county;
738-14 (5) establish grounds for suspending or revoking a
738-15 waste hauler license; and
738-16 (6) prescribe any other provisions necessary to
738-17 administer the licensing program. (Sec. 368.012, Health and Safety
738-18 Code.)
738-19 Sec. 23.123. Exemptions for Certain Waste Haulers.
738-20 (a) This subchapter does not apply to an entity that transports:
738-21 (1) material as part of a recycling program; or
738-22 (2) salt water, drilling fluids, or other waste
738-23 associated with the exploration, development, and production of
738-24 oil, gas, or geothermal resources.
738-25 (b) Except as provided by Subsection (c), a county may not
738-26 require a waste hauler license to be held by a waste hauler:
738-27 (1) while transporting waste on behalf of a
739-1 municipality or other governmental entity; or
739-2 (2) operating regularly in more than three counties.
739-3 (c) A county may require a waste hauler who transports waste
739-4 on behalf of a municipality or other governmental entity to have a
739-5 waste hauler license if the hauler deposits any part of that waste
739-6 in a county other than the county in which all or part of the
739-7 municipality or other governmental entity is located. (Sec.
739-8 368.013, Health and Safety Code.)
739-9 Sec. 23.124. Bond or Other Financial Assurance. (a) An
739-10 applicant for a waste hauler license must execute a surety bond or
739-11 provide other financial assurance that is payable for the use and
739-12 benefit of the county or any other person harmed by the waste
739-13 hauler's actions.
739-14 (b) The bond or other financial assurance must be in an
739-15 amount the commissioners court considers necessary or desirable
739-16 according to the risk of harm associated with the operation of the
739-17 waste hauling business.
739-18 (c) A bond executed under this section must comply with the
739-19 insurance laws of this state. (Sec. 368.014, Health and Safety
739-20 Code.)
739-21 Sec. 23.125. Fees. Fees or other money received by a county
739-22 under the licensing program shall be deposited to the credit of the
739-23 general fund of the county. (Sec. 368.015, Health and Safety
739-24 Code.)
739-25 Sec. 23.126. Conflict With Other Regulations. If a
739-26 requirement or standard established under Section 23.122 conflicts
739-27 with state law, a rule adopted under state law, or a municipal
740-1 ordinance or charter, the stricter provision prevails. (Sec.
740-2 368.016, Health and Safety Code.)
740-3 Sec. 23.127. Injunction. A county is entitled to
740-4 appropriate injunctive relief to prevent the violation or
740-5 threatened violation of an ordinance the county adopts under this
740-6 subchapter. (Sec. 368.017, Health and Safety Code.)
740-7 Sec. 23.128. Criminal Penalty. (a) If a county ordinance
740-8 adopted under this subchapter defines an offense for a violation of
740-9 the ordinance, the offense is a Class C misdemeanor.
740-10 (b) A separate offense occurs on each day on which all the
740-11 elements of the offense exist. (Sec. 368.018, Health and Safety
740-12 Code.)
740-13 CHAPTER 24. SOLID WASTE DISTRICTS
740-14 Subchapter A. Gaines County Solid Waste Management District Act
740-15 Sec. 24.001. Purpose. The purpose of this subchapter is to
740-16 establish an instrumentality to develop and carry out for Gaines
740-17 County a regional water quality protection program through solid
740-18 waste management and regulation of waste disposal in accordance
740-19 with state law. (V.A.C.S. Art. 4477-7j, Sec. 1.01.)
740-20 Sec. 24.002. Findings and declaration of policy. (a) The
740-21 legislature finds that:
740-22 (1) the quality of water in Gaines County may be
740-23 materially affected by the management of solid waste throughout the
740-24 county;
740-25 (2) a countywide or regional effort to provide for the
740-26 management of solid waste in accordance with state and federal law
740-27 is far more effective than each incorporated or unincorporated
741-1 community providing solid waste management services;
741-2 (3) solid waste, as well as other waste, may impair
741-3 water quality by seepage or drainage; and
741-4 (4) creation of the Gaines County Solid Waste
741-5 Management District would advance the established policy of this
741-6 state to maintain the quality of the water in the state consistent
741-7 with:
741-8 (A) the public health and public enjoyment;
741-9 (B) the propagation and protection of
741-10 terrestrial and aquatic life;
741-11 (C) the operation of existing industries; and
741-12 (D) the economic development of the state.
741-13 (b) The legislature finds that this subchapter is in
741-14 compliance with Article XVI, Sections 59(d) and (e), of the Texas
741-15 Constitution and that the legislature has the power and authority
741-16 to enact this subchapter.
741-17 (c) The legislature finds that all of the area included in
741-18 the district is benefited by the exercise of the power conferred by
741-19 this subchapter. (V.A.C.S. Art. 4477-7j, Sec. 1.02.)
741-20 Sec. 24.003. Definitions. In this subchapter:
741-21 (1) "Board" means the board of directors of the
741-22 district.
741-23 (2) "County" means Gaines County, Texas.
741-24 (3) "Director" means a member of the board.
741-25 (4) "District" means the Gaines County Solid Waste
741-26 Management District created under this subchapter.
741-27 (5) "Industrial solid waste" has the meaning assigned
742-1 by Section 20.003, Health and Safety Code.
742-2 (6) "Local government" means an incorporated
742-3 municipality, a county, or a water or other special district or
742-4 authority acting under Article III, Sections 52(b)(1) and (2), or
742-5 Article XVI, Section 59, of the Texas Constitution.
742-6 (7) "Municipal solid waste" has the meaning assigned
742-7 by Section 20.003, Health and Safety Code.
742-8 (8) "Outside the district" means the area contained in
742-9 counties adjacent to the district.
742-10 (9) "Person" means an individual, public or private
742-11 corporation, political subdivision, governmental agency,
742-12 municipality, copartnership, association, firm, trust, estate, or
742-13 any other legal entity.
742-14 (10) "Resource recovery facility" means a facility
742-15 used to store, handle, sort, bail, recycle, process, and recover
742-16 solid waste.
742-17 (11) "Sewage" has the meaning assigned by Section
742-18 15.002, Health and Safety Code.
742-19 (12) "Solid waste" has the meaning assigned by Section
742-20 20.003, Health and Safety Code.
742-21 (13) "Solid waste management system" means a system
742-22 for controlling all aspects of the collection, handling,
742-23 transportation, processing, recovery, and disposal of solid waste.
742-24 (14) "Water" means groundwater, percolating or
742-25 otherwise, lakes, bays, ponds, springs, rivers, streams, creeks,
742-26 and all other bodies of surface water, natural or artificial, that
742-27 are wholly or partially within the district.
743-1 (15) "Water pollution" means the alteration of the
743-2 physical, chemical, or biological quality of or the contamination
743-3 of water that renders the water harmful, detrimental, or injurious
743-4 to humans, animal life, vegetation, or property, or to public
743-5 health, safety, or welfare, or that impairs the usefulness or the
743-6 public enjoyment of the water for any lawful or reasonable purpose.
743-7 (V.A.C.S. Art. 4477-7j, Sec. 1.03.)
743-8 Sec. 24.004. Creation of district. Pursuant to Article XVI,
743-9 Section 59, of the Texas Constitution, a conservation and
743-10 reclamation district to be known as the Gaines County Solid Waste
743-11 Management District is created as a governmental agency and body
743-12 politic and corporate of the state. (V.A.C.S. Art. 4477-7j, Sec.
743-13 2.01.)
743-14 Sec. 24.005. Description. The district's territory consists
743-15 of the area within the boundaries of Gaines County. (V.A.C.S. Art.
743-16 4477-7j, Sec. 2.02.)
743-17 Sec. 24.006. Appointment of initial directors. (a) On or
743-18 after the effective date of this subchapter, the Commissioners
743-19 Court of Gaines County shall appoint three persons, the governing
743-20 body of the city of Seminole shall appoint two persons, and the
743-21 governing body of the city of Seagraves shall appoint two persons
743-22 to serve as initial directors of the district. The four persons
743-23 appointed by the governing bodies of the cities of Seminole and
743-24 Seagraves shall represent the municipalities within the county, and
743-25 the three persons appointed by the Commissioners Court of Gaines
743-26 County shall represent the unincorporated areas of the county. In
743-27 addition, the board of regents of The University of Texas System
744-1 shall appoint one person to serve as an ex-officio, nonvoting
744-2 director of the district.
744-3 (b) A vacancy on the initial board shall be filled in the
744-4 same manner as the original appointment for the unexpired term.
744-5 (c) The Commissioners Court of Gaines County and the
744-6 governing bodies of the cities of Seminole and Seagraves shall each
744-7 appoint one initial director to serve a term expiring on May 1 of
744-8 the first year after the year in which the original appointment is
744-9 made. In addition, the Commissioners Court of Gaines County shall
744-10 appoint two initial directors and the governing bodies of the
744-11 cities of Seminole and Seagraves shall each appoint one initial
744-12 director to serve terms expiring on May 1 of the second year after
744-13 the year in which the original appointment is made. The initial
744-14 ex-officio member serves a term expiring on May 1 of the second
744-15 year after the year in which the original appointment is made.
744-16 Successor directors serve two-year terms. (V.A.C.S. Art. 4477-7j,
744-17 Sec. 2.03.)
744-18 Sec. 24.007. Confirmation and tax election. The directors
744-19 shall call and hold an election within the boundaries of the
744-20 proposed district to determine if the proposed district will be
744-21 created and a tax authorized. (V.A.C.S. Art. 4477-7j, Sec. 2.04.)
744-22 Sec. 24.008. Notice of election. (a) Notice of the
744-23 confirmation and tax election shall state the day and places for
744-24 holding the election, the proposition to be voted on, and list the
744-25 appointed directors.
744-26 (b) The board shall publish the notice of the election one
744-27 time in one or more newspapers of general circulation in the
745-1 proposed district. The notice must be published before the 35th
745-2 day before the date set for the election. (V.A.C.S. Art. 4477-7j,
745-3 Sec. 2.05.)
745-4 Sec. 24.009. Ballot proposition. The ballot shall be
745-5 printed to permit voting for or against the proposition: "The
745-6 creation of the Gaines County Solid Waste Management District and
745-7 the levy of a maintenance and operating tax in an amount not to
745-8 exceed five cents on each $100 valuation." The ballot shall
745-9 include the names of the persons appointed as directors for the
745-10 district. (V.A.C.S. Art. 4477-7j, Sec. 2.06.)
745-11 Sec. 24.010. Canvassing returns. (a) Immediately after the
745-12 confirmation and tax election, the presiding judge of each polling
745-13 place shall deliver returns of the election to the board, and the
745-14 board shall canvass the returns and declare the result.
745-15 (b) If a majority of the votes cast at the election favor
745-16 creation of the district, the board shall declare the district
745-17 created and shall enter the results in its minutes. If a majority
745-18 of the votes cast at the election are against the creation of the
745-19 district, the board shall declare that the creation of the district
745-20 was defeated and shall enter the results in its minutes. The board
745-21 shall file a copy of the election results with the commission.
745-22 (c) If a majority of the voters at the election vote against
745-23 the creation of the district, the board may call and hold
745-24 additional confirmation and tax elections, but another election to
745-25 confirm creation of the district may not be called and held by the
745-26 board before the first anniversary of the most recent confirmation
745-27 and tax election. If the creation of the district is not confirmed
746-1 on or before the fifth anniversary of the effective date of this
746-2 subchapter, this subchapter expires. (V.A.C.S. Art. 4477-7j, Sec.
746-3 2.07.)
746-4 Sec. 24.011. Bond proposition at creation election. At an
746-5 election to confirm creation of the district and authorize the levy
746-6 of taxes, the board may include a separate proposition on the
746-7 ballot to approve the issuance by the district of bonds payable
746-8 wholly or partially from property taxes. The notice of the
746-9 election under Section 24.008 must state the bond proposition that
746-10 is to appear on the ballot. The ballot shall be printed to permit
746-11 voting for or against the proposition: "The issuance of bonds in
746-12 the amount of $__________ payable wholly (or partially) from
746-13 property taxes for (STATE PURPOSE FOR WHICH BOND PROCEEDS TO BE
746-14 USED) and the levy of taxes in payment of those bonds." If a
746-15 majority of the voters at the election approve the bond
746-16 proposition, the board shall declare the result and enter it in its
746-17 minutes, and the district, if its creation is confirmed, may issue
746-18 the bonds in the amount authorized for the purpose authorized and
746-19 may levy and collect taxes necessary to pay the principal of and
746-20 interest on the bonds. If a majority of the voters at the election
746-21 do not approve the bond proposition, the temporary board shall
746-22 declare the result and enter it in its minutes, and the district,
746-23 if its creation is confirmed, may not issue the bonds payable in
746-24 whole or in part by property taxes. The board shall file a copy of
746-25 the bond election results with the commission. (V.A.C.S. Art.
746-26 4477-7j, Sec. 2.08.)
746-27 Sec. 24.012. Board of directors. (a) The district is
747-1 governed by a board of directors composed of seven voting members
747-2 and one ex-officio nonvoting member who are appointed as provided
747-3 by this subchapter. However, the district shall change to a system
747-4 of electing the voting directors if:
747-5 (1) the Commissioners Court of Gaines County and the
747-6 governing bodies of the cities of Seminole and Seagraves each pass
747-7 a resolution calling for the election of the directors; or
747-8 (2) the board receives a petition signed by at least
747-9 150 registered voters of Gaines County calling for the election of
747-10 the directors.
747-11 (b) If the resolution is passed or the petition presented to
747-12 the board as provided by Subsection (a) of this section, a
747-13 directors' election shall be held on the first Saturday in May that
747-14 occurs after the resolution is passed or the petition presented.
747-15 The board by order may postpone the election date for one year if:
747-16 (1) the election will occur within 60 days after the
747-17 date the resolution is passed or the petition is presented; or
747-18 (2) the board determines that there is not sufficient
747-19 time to comply with the requirements of law and to order the
747-20 election.
747-21 (c) The change to a system of electing the voting directors
747-22 does not apply to or affect the ex-officio nonvoting director
747-23 appointed by the board of regents of The University of Texas
747-24 System. (V.A.C.S. Art. 4477-7j, Sec. 3.01.)
747-25 Sec. 24.013. Method of election. (a) If directors are
747-26 elected, one director shall be elected from each commissioner
747-27 precinct and three directors shall be elected from the district at
748-1 large.
748-2 (b) At the initial election of directors, the candidate
748-3 receiving the highest number of votes from a commissioner precinct
748-4 is the director for that precinct, and the three candidates
748-5 receiving the highest number of votes from the district at large
748-6 are the directors for the district at large. If two or more
748-7 persons tie for the third-highest vote, the Commissioners Court of
748-8 Gaines County shall select the third member from those trying for
748-9 the place.
748-10 (c) The candidates elected from the odd-numbered precincts
748-11 and the two candidates elected from the district at large who
748-12 receive the highest number of votes at the initial election serve
748-13 for a term of two years. The candidates elected from the
748-14 even-numbered precincts and the candidate elected from the district
748-15 at large who receives the third-highest number of votes at that
748-16 election serve for a term of one year.
748-17 (d) After the initial election of directors, an election
748-18 shall be held on the first Saturday in May each year and the
748-19 appropriate number of successor directors shall be elected for
748-20 two-year terms. (V.A.C.S. Art. 4477-7j, Sec. 3.02.)
748-21 Sec. 24.014. Qualifications for office. (a) To be eligible
748-22 to be appointed as, to be a candidate for, or to serve as a voting
748-23 director, a person must be:
748-24 (1) a resident of the district; and
748-25 (2) a qualified voter.
748-26 (b) In addition to the qualifications required by Subsection
748-27 (a) of this section, a person who is elected from a commissioner
749-1 precinct or who is appointed to fill a vacancy for a commissioner
749-2 precinct must be a resident of that commissioner precinct.
749-3 (c) Each voting director must execute a bond in the amount
749-4 of $5,000 with a corporate surety authorized to do business in this
749-5 state and conditioned on the faithful performance of the director's
749-6 duties. (V.A.C.S. Art. 4477-7j, Sec. 3.03.)
749-7 Sec. 24.015. Application for election. (a) A person who
749-8 wishes to have the person's name printed on the ballot at a
749-9 directors' election as a candidate for director shall file an
749-10 application with the secretary of the district.
749-11 (b) The application must specify the commissioner precinct
749-12 the candidate wishes to represent or specify that the candidate
749-13 wishes to represent the district at large. (V.A.C.S. Art. 4477-7j,
749-14 Sec. 3.04.)
749-15 Sec. 24.016. Beginning of director's term. A director shall
749-16 take office at the first regular meeting of the board in May
749-17 following the director's appointment or election and qualification.
749-18 (V.A.C.S. Art. 4477-7j, Sec. 3.05.)
749-19 Sec. 24.017. Vacancy on board. (a) If the directors are
749-20 appointed, a vacancy on the board shall be filled in the same
749-21 manner as the original appointment for the unexpired term.
749-22 (b) If the directors are elected, the vacancy of an elected
749-23 director's position on the board shall be filled by appointment of
749-24 the remaining members of the board until the next election of
749-25 directors for the district. If that position is not scheduled to
749-26 be filled at that election, the person elected to fill the position
749-27 serves only for the remainder of the unexpired term. (V.A.C.S.
750-1 Art. 4477-7j, Sec. 3.06.)
750-2 Sec. 24.018. Oath. Each director shall file the statement
750-3 and take the constitutional oath of office required of state
750-4 officers. (V.A.C.S. Art. 4477-7j, Sec. 3.07.)
750-5 Sec. 24.019. Organization of board. (a) After each annual
750-6 appointment or election of directors, the board shall hold a
750-7 regular meeting in May at the district office and shall organize by
750-8 electing from the members of the board one person to serve as
750-9 chairman, one person to serve as vice-chairman, and one person to
750-10 serve as secretary.
750-11 (b) A person selected to serve as chairman, vice-chairman,
750-12 or secretary serves in that capacity for a term of one year.
750-13 (c) The chairman shall preside over meetings of the board,
750-14 and in the chairman's absence the vice-chairman shall preside.
750-15 (d) The chairman, vice-chairman, and secretary shall perform
750-16 the duties and may exercise the powers specifically given them by
750-17 this subchapter or by orders of the board. (V.A.C.S. Art. 4477-7j,
750-18 Sec. 3.08.)
750-19 Sec. 24.020. Meeting and actions of the board. (a) The
750-20 board shall meet at least one time each month and may meet at any
750-21 other time.
750-22 (b) A majority of the voting members of the board constitute
750-23 a quorum for the transaction of business of the district.
750-24 (c) Except as otherwise provided by this subchapter, the
750-25 vote of a majority of the voting directors is required for board
750-26 action.
750-27 (d) The board shall adopt bylaws at its first meeting or as
751-1 soon after the first meeting as practicable. The board's bylaws
751-2 must prescribe the powers, duties, and procedures for removal from
751-3 a board office. (V.A.C.S. Art. 4477-7j, Sec. 3.09.)
751-4 Sec. 24.021. Other officers. (a) The board may appoint a
751-5 treasurer and an attorney for the district.
751-6 (b) The persons appointed under this section are entitled to
751-7 the compensation provided by the district's budget.
751-8 (c) The person appointed as treasurer shall execute a bond
751-9 in the amount determined by the board, payable to the district,
751-10 conditioned on the faithful performance of the treasurer's duties.
751-11 The district shall pay for the bond. (V.A.C.S. Art. 4477-7j, Sec.
751-12 3.10.)
751-13 Sec. 24.022. Interest in contract. A director who is
751-14 financially interested in a contract to be executed by the district
751-15 for the purchase of property or the construction of facilities
751-16 shall disclose that fact to the other directors and may not vote on
751-17 the acceptance of the contract. (V.A.C.S. Art. 4477-7j, Sec.
751-18 3.11.)
751-19 Sec. 24.023. Director's compensation. (a) A director is
751-20 entitled to receive $25 a day and reimbursement for actual and
751-21 necessary expenses incurred:
751-22 (1) for each day the director attends meetings of the
751-23 board; and
751-24 (2) for each day the director attends to the business
751-25 of the district that is authorized by board resolution or motion.
751-26 (b) A director is not entitled to receive a per diem
751-27 allowance for more than 30 days in any one calendar year.
752-1 (V.A.C.S. Art. 4477-7j, Sec. 3.12.)
752-2 Sec. 24.024. General manager; personnel. (a) The board may
752-3 employ a general manager for a term and salary set by the board.
752-4 (b) The general manager is the chief executive officer of
752-5 the district. Under policies established by the board, the general
752-6 manager is responsible to the board for:
752-7 (1) administering the directives of the board;
752-8 (2) keeping the district's records, including minutes
752-9 of the board's meetings;
752-10 (3) coordinating with state, federal, and local
752-11 agencies;
752-12 (4) developing plans and programs for the board's
752-13 approval;
752-14 (5) hiring, supervising, training, and discharging
752-15 district employees;
752-16 (6) contracting for or retaining technical,
752-17 scientific, legal, fiscal, and other professional services; and
752-18 (7) performing any other duty assigned to the general
752-19 manager by the board.
752-20 (c) The board may discharge the general manager on a
752-21 majority vote of all of the voting directors. (V.A.C.S. Art.
752-22 4477-7j, Sec. 3.13.)
752-23 Sec. 24.025. Director's and employee's bonds. (a) The
752-24 general manager and each employee of the district charged with the
752-25 collection, custody, or payment of any money of the district shall
752-26 execute a fidelity bond. The board shall approve the form, amount,
752-27 and surety of the bond.
753-1 (b) The district shall pay the premiums on the employees'
753-2 bonds under this section. (V.A.C.S. Art. 4477-7j, Sec. 3.14.)
753-3 Sec. 24.026. Principal office. The district shall maintain
753-4 its principal office inside the district's boundaries. (V.A.C.S.
753-5 Art. 4477-7j, Sec. 3.15.)
753-6 Sec. 24.027. Records. (a) The district shall keep complete
753-7 and accurate accounts of its business transactions in accordance
753-8 with generally accepted methods of accounting.
753-9 (b) The district shall keep complete and accurate minutes of
753-10 its meetings.
753-11 (c) The district shall maintain its accounts, contracts,
753-12 documents, minutes, and other records at its principal office.
753-13 (d) Neither the board nor its employees may disclose a
753-14 district record that relates to trade secrets or the economics of
753-15 an industry's operations. (V.A.C.S. Art. 4477-7j, Sec. 3.16.)
753-16 Sec. 24.028. Contracts. The board may enter into contracts
753-17 for administration or services as provided by this subchapter, and
753-18 those contracts shall be executed by the board in the name of the
753-19 district. (V.A.C.S. Art. 4477-7j, Sec. 3.17.)
753-20 Sec. 24.029. Supervision of district. The district is
753-21 subject to the continuing right of supervision by the state, in
753-22 accordance with state law. (V.A.C.S. Art. 4477-7j, Sec. 3.18.)
753-23 Sec. 24.030. Suits; payment of judgments. (a) The district
753-24 may, through its board, sue and be sued in any court of this state
753-25 in the name of the district. Service of process in a suit may be
753-26 had by serving the general manager or other officers appointed by
753-27 the board.
754-1 (b) The courts of this state shall take judicial notice of
754-2 the creation of the district.
754-3 (c) A court of this state that renders a money judgment
754-4 against the district may require the board to pay the judgment from
754-5 money in the district depository that is not dedicated to the
754-6 payment of any indebtedness of the district. (V.A.C.S. Art.
754-7 4477-7j, Sec. 3.19.)
754-8 Sec. 24.031. Seal. The board shall adopt a seal for the
754-9 district and may alter the form of the seal from time to time.
754-10 (V.A.C.S. Art. 4477-7j, Sec. 3.20.)
754-11 Sec. 24.032. General powers and duties. (a) The district
754-12 shall administer and enforce this subchapter and shall use its
754-13 facilities and powers to accomplish the purposes of this
754-14 subchapter.
754-15 (b) After notice and hearing, the board may adopt rules
754-16 necessary to carry out this subchapter. The board shall adopt
754-17 rules providing procedures for giving notice and holding hearings.
754-18 (c) The district shall prepare and adopt plans for and shall
754-19 purchase, obtain permits for, construct, acquire, own, operate,
754-20 maintain, repair, improve, and extend inside and outside the
754-21 boundaries of the district any works, improvements, landfills,
754-22 recycling facilities, waste-to-energy facilities, composting
754-23 facilities, transfer stations, storage sites, and other facilities,
754-24 plants, pipelines, equipment, and appliances necessary to
754-25 transport, process, dispose of, and control solid waste and to
754-26 protect groundwater within the district in accordance with state
754-27 law.
755-1 (d) The district shall acquire all permits required by state
755-2 law that are necessary to carry out this article.
755-3 (e) The district may conduct studies and research for the
755-4 disposal of solid waste and the protection of water within the
755-5 district.
755-6 (f) The regulatory powers of the district under this
755-7 subchapter extend to every person within the district.
755-8 (g) Except as expressly limited by this subchapter, the
755-9 district has all powers, rights, and privileges necessary and
755-10 convenient for accomplishing the purposes of this subchapter
755-11 conferred by general law on a conservation and reclamation district
755-12 created under Article XVI, Section 59, of the Texas Constitution.
755-13 (h) Subject only to the authority vested in other entities
755-14 by general law, including those vested in the commission by Chapter
755-15 10 and those vested in the commission by Chapter 20, the district
755-16 may control water pollution within the district.
755-17 (i) The powers granted to the district by this subchapter
755-18 are cumulative of all powers granted by other laws that are by
755-19 their terms applicable to the district.
755-20 (j) The district may not provide solid waste collection
755-21 services without an interlocal agreement approved by the county,
755-22 the city of Seminole, and the city of Seagraves. However, the
755-23 district shall purchase equipment, facilities, containers, and
755-24 other necessary items for collection services if the district
755-25 adopts a recycling program.
755-26 (k) The district may not contract with a person outside the
755-27 boundaries of the district to provide to that person solid waste
756-1 management services or any other service authorized under this
756-2 subchapter. (V.A.C.S. Art. 4477-7j, Sec. 4.01.)
756-3 Sec. 24.033. Gifts, grants, loans, and other funds. To
756-4 carry out any purposes or powers under this subchapter, the
756-5 district may apply for, accept, receive, and administer gifts,
756-6 grants, loans, and other funds available from any source.
756-7 (V.A.C.S. Art. 4477-7j, Sec. 4.02.)
756-8 Sec. 24.034. Consultation, contracts, and cooperation with
756-9 other governmental agencies and entities. To carry out any
756-10 purposes or powers under this subchapter, the district may advise,
756-11 consult, contract, and cooperate with the federal government and
756-12 its agencies, the state and its agencies, local governments, and
756-13 private entities. (V.A.C.S. Art. 4477-7j, Sec. 4.03.)
756-14 Sec. 24.035. Acquisition of property. The district may
756-15 acquire by gift, grant, devise, purchase, or lease any land,
756-16 easements, rights-of-way, and other property interests inside the
756-17 district necessary to carry out the powers and duties provided by
756-18 this subchapter. (V.A.C.S. Art. 4477-7j, Sec. 4.04.)
756-19 Sec. 24.036. Eminent domain. (a) The district may acquire
756-20 land within the district for the purposes authorized by Section
756-21 24.032(c) by condemnation if the board determines, after notice and
756-22 hearing, that it is necessary.
756-23 (b) The district must exercise the power of eminent domain
756-24 in the manner provided by Chapter 21, Property Code, but the
756-25 district is not required to:
756-26 (1) deposit in the trial court money or a bond as
756-27 provided by Section 21.021(a), Property Code;
757-1 (2) pay in advance or give bond or other security for
757-2 costs in the trial court;
757-3 (3) give bond for the issuance of a temporary
757-4 restraining order or a temporary injunction; or
757-5 (4) give bond for costs or supersedeas on an appeal or
757-6 writ of error.
757-7 (c) If the district, in the exercise of the power of eminent
757-8 domain, requires relocating, raising, lowering, rerouting, changing
757-9 the grade, or altering the construction of any railroad, highway,
757-10 pipeline, or electric transmission and electric distribution,
757-11 telegraph or telephone lines, conduits, poles or facilities, the
757-12 district must bear the actual cost of relocating, raising,
757-13 lowering, rerouting, changing the grade, or altering the
757-14 construction to provide comparable replacement without enhancement
757-15 of facilities, after deducting the net salvage value derived from
757-16 the old facility. (V.A.C.S. Art. 4477-7j, Sec. 4.05.)
757-17 Sec. 24.037. Authority to enter into construction,
757-18 renovation, and repair contracts. The district may contract with
757-19 any person to construct, renovate, or repair any of its works,
757-20 improvements, or facilities, or other plants, pipelines, equipment,
757-21 and appliances and, from time to time, make improvements to them.
757-22 (V.A.C.S. Art. 4477-7j, Sec. 4.06.)
757-23 Sec. 24.038. Bids on contracts. Contracts entered into
757-24 under Section 24.037 requiring an expenditure of more than $10,000
757-25 may be made only after competitive bidding as provided by
757-26 Subchapter B, Chapter 271, Local Government Code. (V.A.C.S. Art.
757-27 4477-7j, Sec. 4.07.)
758-1 Sec. 24.039. Attachments to contracts. A contract entered
758-2 into under Section 24.037 must contain, or have attached to it, the
758-3 specifications, plans, and details for work included in the
758-4 contract, and work shall be done according to those plans and
758-5 specifications under the supervision of the district. (V.A.C.S.
758-6 Art. 4477-7j, Sec. 4.08.)
758-7 Sec. 24.040. Execution and availability of contracts.
758-8 (a) A contract entered into under Section 24.037 must be in
758-9 writing and signed by the contractor and a representative of the
758-10 district designated by the board.
758-11 (b) The contract shall be kept in the district's office and
758-12 must be available for public inspection. (V.A.C.S. Art. 4477-7j,
758-13 Sec. 4.09.)
758-14 Sec. 24.041. CONTRACTOR'S BOND. (a) A contractor shall
758-15 execute a bond in an amount determined by the board, not to exceed
758-16 the contract price, payable to the district and approved by the
758-17 board, conditioned on the faithful performance of the obligations,
758-18 agreements, and covenants of the contract.
758-19 (b) The bond must provide that if the contractor defaults on
758-20 the contract, the contractor will pay to the district all damages
758-21 sustained as a result of the default. The bond shall be deposited
758-22 in the district's depository, and a copy of the bond shall be kept
758-23 in the district's office. (V.A.C.S. Art. 4477-7j, Sec. 4.10.)
758-24 Sec. 24.042. Monitoring work. (a) The board has control of
758-25 construction, renovation, or repairs being done for the district
758-26 under a contract entered into under Section 24.037 and shall
758-27 determine whether or not the contract is being fulfilled.
759-1 (b) The board shall have the construction, renovation, or
759-2 repair work inspected by engineers, inspectors, and personnel of
759-3 the district.
759-4 (c) During the progress of the work, the engineers,
759-5 inspectors, and personnel doing the inspections shall submit to the
759-6 board written reports that show whether or not the contractor is
759-7 complying with the contract.
759-8 (d) On completion of construction, renovation, or repair
759-9 work, the engineers, inspectors, and personnel shall submit to the
759-10 board a final detailed written report including information
759-11 necessary to show whether or not the contractor has fully complied
759-12 with the contract. (V.A.C.S. Art. 4477-7j, Sec. 4.11.)
759-13 Sec. 24.043. Payment for work. (a) The district shall pay
759-14 the contract price of construction, renovation, or repair contracts
759-15 in accordance with this section.
759-16 (b) The district shall make progress payments under
759-17 contracts monthly as the work proceeds or at more frequent
759-18 intervals as determined by the board.
759-19 (c) If requested by the board, the contractor shall furnish
759-20 an analysis of the total contract price showing the amount included
759-21 for each principal category of the work, in such detail as
759-22 requested, to provide a basis for determining progress payments.
759-23 (d) In making progress payments, 10 percent of the estimated
759-24 amount shall be retained until final completion and acceptance of
759-25 the contract work. However, if the board, at any time after 50
759-26 percent of the work has been completed, finds that satisfactory
759-27 progress is being made, it may authorize any of the remaining
760-1 progress payments to be made in full. Also, if the work is
760-2 substantially complete, the board, if it finds the amount retained
760-3 to be in excess of the amount adequate for the protection of the
760-4 district, may release to the contractor all or a portion of the
760-5 excess amount.
760-6 (e) On completion and acceptance of each separate project,
760-7 work, or other division of the contract, on which the price is
760-8 stated separately in the contract, payment may be made without
760-9 retention of a percentage.
760-10 (f) When work is completed according to the terms of the
760-11 contract, the board shall draw a warrant on the depository to pay
760-12 any balance due on the contract. (V.A.C.S. Art. 4477-7j, Sec.
760-13 4.12.)
760-14 Sec. 24.044. Contracts for purchase of vehicles, equipment,
760-15 and supplies over $10,000. (a) If the estimated amount of a
760-16 proposed contract for the purchase of vehicles, equipment, or
760-17 supplies is more than $10,000, the board shall ask for competitive
760-18 bids as provided by Section 24.038.
760-19 (b) This section does not apply to purchases of property
760-20 from public agencies or to contracts for personal or professional
760-21 services. (V.A.C.S. Art. 4477-7j, Sec. 4.13.)
760-22 Sec. 24.045. Entry on land. (a) The directors, the
760-23 engineer, and the employees of the district may go on any land
760-24 inside or outside the boundaries of the district to make surveys
760-25 and examine the land with reference to the location of works,
760-26 improvements, and waste disposal, treatment, and other facilities,
760-27 plants, pipelines, equipment, and appliances and to attend to
761-1 business of the district.
761-2 (b) Before a director, engineer, or employee enters on the
761-3 land, the landowner must grant written permission or five days'
761-4 written notice must be given to the landowner.
761-5 (c) If any activities of the district on the land cause
761-6 damages to the land or property, the land or property shall be
761-7 restored as nearly as possible to its original state. The district
761-8 shall pay the cost of the restoration. (V.A.C.S. Art. 4477-7j,
761-9 Sec. 4.14.)
761-10 Sec. 24.046. Right to use road right-of-way. (a) The
761-11 district has a right-of-way along and across all public state or
761-12 county roads or highways; provided that a governmental entity
761-13 having jurisdiction of such right-of-way may designate the place
761-14 upon the right-of-way the facilities of the district shall be
761-15 installed and may require the relocation of the facilities of the
761-16 district to accommodate any widening or changing of traffic lanes.
761-17 (b) The district may not proceed with any action to change,
761-18 alter, or damage facilities or property of the state without having
761-19 first obtained the written consent of the governmental entity
761-20 having control and jurisdiction of such facilities or property.
761-21 (V.A.C.S. Art. 4477-7j, Sec. 4.15.)
761-22 Sec. 24.047. Fees and charges. (a) The board may adopt and
761-23 enforce all necessary charges, fees, or rentals, in addition to
761-24 taxes, for providing any district facilities or services.
761-25 (b) The board may require a deposit for any services or
761-26 facilities furnished and may or may not provide that the deposit
761-27 will bear interest. The interest, if any, may accrue to the
762-1 deposit or be used to offset amounts due.
762-2 (c) The board may discontinue a facility or service to
762-3 prevent an abuse or enforce payment of an unpaid charge, fee, or
762-4 rental due the district, including taxes that have been due for not
762-5 less than six months. (V.A.C.S. Art. 4477-7j, Sec. 4.16.)
762-6 Sec. 24.048. Acquisition of existing facilities. If the
762-7 district acquires existing works, improvements, facilities, plants,
762-8 pipelines, equipment, and appliances that are completed, partially
762-9 completed, or under construction, the district may assume the
762-10 contracts and obligations of the previous owner and perform the
762-11 obligations of the previous owner in the same manner and to the
762-12 same extent that any other purchaser or assignee would be bound.
762-13 (V.A.C.S. Art. 4477-7j, Sec. 4.17.)
762-14 Sec. 24.049. Solid waste resource recovery facilities. The
762-15 district may construct or acquire and operate solid waste resource
762-16 recovery facilities inside the district. (V.A.C.S. Art. 4477-7j,
762-17 Sec. 4.18.)
762-18 Sec. 24.050. Regulation of solid waste management. The
762-19 district shall comply with all standards, laws, and rules relating
762-20 to the operation for all aspects of solid waste handling, including
762-21 storage, collection, recycling, incineration, sanitary landfill, or
762-22 composting. (V.A.C.S. Art. 4477-7j, Sec. 4.19.)
762-23 Sec. 24.051. On-site sewage disposal systems. (a) The
762-24 district may apply to the commission for designation as an
762-25 authorized agent to implement and enforce on-site sewage disposal
762-26 rules under Chapter 15.
762-27 (b) If the district finds that due to the nature of the soil
763-1 or drainage in the area it is necessary to prevent water pollution
763-2 that may injure the public health, the district by rule may:
763-3 (1) provide limits on the number and kind of septic
763-4 tanks in an area defined by the rule;
763-5 (2) prohibit the use of septic tanks in the area; or
763-6 (3) prohibit the installation of new septic tanks in
763-7 the area.
763-8 (c) The board shall consult the commission before the
763-9 adoption of a rule under Subsection (b).
763-10 (d) The board may not issue a rule under Subsection (b)
763-11 without first holding a public hearing in the area to be affected
763-12 by the rule. (V.A.C.S. Art. 4477-7j, Sec. 4.20.)
763-13 Sec. 24.052. Solid waste management contracts. (a) Unless
763-14 otherwise provided by this subchapter, the district may contract to
763-15 provide solid waste management services inside the district.
763-16 (b) The district shall set fees in a contract under
763-17 Subsection (a) of this section after considering:
763-18 (1) the quality of the waste;
763-19 (2) the quantity of the waste;
763-20 (3) the difficulty encountered in treating or
763-21 disposing of the waste;
763-22 (4) operation and maintenance expenses and debt
763-23 retirement services; and
763-24 (5) any other reasonable considerations. (V.A.C.S.
763-25 Art. 4477-7j, Sec. 4.21.)
763-26 Sec. 24.053. Areawide waste treatment. The powers and
763-27 duties conferred on the district are granted subject to the state
764-1 policy to encourage the development and use of regional and
764-2 integrated solid waste management systems to serve the needs of the
764-3 citizens of the state. (V.A.C.S. Art. 4477-7j, Sec. 4.22.)
764-4 Sec. 24.054. Fiscal year. (a) The district operates on the
764-5 fiscal year established by the board.
764-6 (b) The fiscal year may not be changed more than once in a
764-7 24-month period. (V.A.C.S. Art. 4477-7j, Sec. 5.01.)
764-8 Sec. 24.055. Annual audit. Annually, the board shall have
764-9 an audit made of the financial condition of the district.
764-10 (V.A.C.S. Art. 4477-7j, Sec. 5.02.)
764-11 Sec. 24.056. Annual budget. (a) The board shall prepare
764-12 and approve an annual budget for the district.
764-13 (b) The budget shall contain a complete financial statement,
764-14 including a statement of:
764-15 (1) the outstanding obligations of the district;
764-16 (2) the amount of cash on hand to the credit of each
764-17 fund of the district;
764-18 (3) the amount of money received by the district from
764-19 all sources during the previous year;
764-20 (4) the amount of money available to the district from
764-21 all sources during the ensuing year;
764-22 (5) the amount of the balances expected at the end of
764-23 the year in which the budget is being prepared;
764-24 (6) the estimated amount of revenues and balances
764-25 available to cover the proposed budget; and
764-26 (7) the estimated tax rate that will be required.
764-27 (V.A.C.S. Art. 4477-7j, Sec. 5.03.)
765-1 Sec. 24.057. Amending budget. After adoption, the annual
765-2 budget may be amended on the board's approval. (V.A.C.S. Art.
765-3 4477-7j, Sec. 5.04.)
765-4 Sec. 24.058. Limitation on expenditure. Money may not be
765-5 spent for an expense not included in the annual budget or an
765-6 amendment to it unless the board by order declares the expense to
765-7 be necessary. (V.A.C.S. Art. 4477-7j, Sec. 5.05.)
765-8 Sec. 24.059. Sworn statement. As soon as practicable after
765-9 the close of the fiscal year, the treasurer of the district shall
765-10 prepare for the board a sworn statement of the amount of money that
765-11 belongs to the district and an account of the disbursements of that
765-12 money. (V.A.C.S. Art. 4477-7j, Sec. 5.06.)
765-13 Sec. 24.060. Depository. (a) The board shall name one or
765-14 more banks to serve as depository for district funds.
765-15 (b) District funds, other than those transmitted to a bank
765-16 for payment of bonds issued by the district, shall be deposited as
765-17 received with the depository bank and must remain on deposit. This
765-18 section does not limit the power of the board to invest the
765-19 district's funds as provided by Section 24.061.
765-20 (c) Before the district deposits funds in a bank in an
765-21 amount that exceeds the maximum amount secured by the Federal
765-22 Deposit Insurance Corporation, the bank must execute a bond or
765-23 provide other security in an amount sufficient to secure from loss
765-24 the district's funds that exceed the amount secured by the Federal
765-25 Deposit Insurance Corporation. (V.A.C.S. Art. 4477-7j, Sec. 5.07.)
765-26 Sec. 24.061. Investments. (a) Funds of the district may be
765-27 invested and reinvested by the board or its authorized
766-1 representative in those investments specified by Article 836 or
766-2 837, Revised Statutes, or the Public Funds Investment Act of 1987
766-3 (Article 842a-2, Vernon's Texas Civil Statutes).
766-4 (b) Funds of the district may be placed in certificates of
766-5 deposit of state or national banks or state or federal savings and
766-6 loan associations within the state provided that funds are secured
766-7 in the manner required for the security of the funds of counties of
766-8 the state.
766-9 (c) The board by resolution may provide that an authorized
766-10 representative of the district may invest and reinvest the funds of
766-11 the district and provide for money to be withdrawn from the
766-12 appropriate accounts of the district for investments on terms the
766-13 board considers advisable. (V.A.C.S. Art. 4477-7j, Sec. 5.08.)
766-14 Sec. 24.062. Payment of expenses. (a) The district's
766-15 directors may pay all costs and expenses necessarily incurred in
766-16 the creation, organization, and operation of the district, legal
766-17 fees, and other incidental expenses and may reimburse any person
766-18 for money advanced for those purposes.
766-19 (b) Payments may be made from money obtained from the sale
766-20 of bonds issued by the district or out of taxes, fees, or other
766-21 revenues of the district. (V.A.C.S. Art. 4477-7j, Sec. 5.09.)
766-22 Sec. 24.063. Borrowing money. The district may borrow money
766-23 for any purpose authorized under this subchapter or any combination
766-24 of those purposes. (V.A.C.S. Art. 4477-7j, Sec. 5.10.)
766-25 Sec. 24.064. Authority to issue bonds. The board may issue
766-26 and sell bonds in the name of the district to acquire land and
766-27 construct works, improvements, and waste disposal, treatment, and
767-1 other facilities, plants, pipelines, equipment, and appliances as
767-2 provided by this subchapter. (V.A.C.S. Art. 4477-7j, Sec. 6.01.)
767-3 Sec. 24.065. Bond payment. The board may provide for the
767-4 payment of the principal of and interest on the bonds:
767-5 (1) from the levy and collection of property taxes on
767-6 all taxable property within the district;
767-7 (2) by pledging all or part of the designated revenues
767-8 from the ownership or operation of the district's works,
767-9 improvements, and facilities; or
767-10 (3) from a combination of the sources listed by
767-11 Subdivisions (1) and (2). (V.A.C.S. Art. 4477-7j, Sec. 6.02.)
767-12 Sec. 24.066. Bond election. (a) Bonds may not be issued by
767-13 the district until authorized by a majority vote of individuals
767-14 qualified to vote and actually voting in the area within the
767-15 boundaries of the district at an election called and held for that
767-16 purpose.
767-17 (b) The board may order a bond election. The order calling
767-18 the election must state the nature and the date of the election,
767-19 the hours during which the polls will be open, the location of the
767-20 polling places, the amount of bonds to be authorized, and the
767-21 maximum maturity of the bonds.
767-22 (c) Notice of a bond election must be given as provided by
767-23 the Election Code.
767-24 (d) At an election to authorize bonds, the ballot must be
767-25 printed to provide for voting for or against the issuance of bonds
767-26 and the levy of property taxes for payment of the bonds.
767-27 (e) The board shall canvass the returns and declare the
768-1 results of the election. If a majority of the votes cast at the
768-2 election favor the issuance of the bonds, the bonds may be issued
768-3 by the board, but if a majority of the votes cast at the election
768-4 do not favor issuance of the bonds, the bonds may not be issued.
768-5 (V.A.C.S. Art. 4477-7j, Sec. 6.03.)
768-6 Sec. 24.067. Terms; form. (a) The district may issue its
768-7 bonds in various series or issues.
768-8 (b) Bonds may mature serially or otherwise not more than 50
768-9 years after the date of issuance and shall bear interest at a rate
768-10 permitted by state law.
768-11 (c) The district's bonds and interest coupons, if any, are
768-12 investment securities under the terms of Chapter 8, Business &
768-13 Commerce Code, and may be issued registrable as to principal or as
768-14 to principal and interest or may be issued in book entry form and
768-15 may be made redeemable before maturity at the option of the
768-16 district or may contain a mandatory redemption provision.
768-17 (d) The district's bonds may be issued in the form,
768-18 denominations, and manner and under the terms, conditions, and
768-19 details and shall be signed and executed as provided by the board
768-20 in the resolution or order authorizing the bonds. (V.A.C.S. Art.
768-21 4477-7j, Sec. 6.04.)
768-22 Sec. 24.068. Bond provisions. (a) In the orders or
768-23 resolutions authorizing the issuance of bonds, including refunding
768-24 bonds, the board may provide for the flow of funds, the
768-25 establishment and maintenance of the interest and sinking fund, the
768-26 reserve fund, and other funds and may make additional covenants
768-27 with respect to the bonds and the pledged fees.
769-1 (b) The orders or resolutions of the board authorizing the
769-2 issuance of bonds may prohibit the further issuance of bonds or
769-3 other obligations payable from the pledged fees or may reserve the
769-4 right to issue additional bonds to be secured by a pledge of and
769-5 payable from the fees on a parity with or subordinate to the pledge
769-6 in support of the bonds being issued.
769-7 (c) The orders or resolutions of the board issuing bonds may
769-8 contain other provisions and covenants as the board may determine.
769-9 (d) The board may adopt and have executed any other
769-10 proceedings or instruments necessary and convenient in the issuance
769-11 of bonds. (V.A.C.S. Art. 4477-7j, Sec. 6.05.)
769-12 Sec. 24.069. Approval and registration. (a) Bonds issued
769-13 by the district and the records relating to their issuance must be
769-14 submitted to the attorney general for examination as to their
769-15 validity.
769-16 (b) If the attorney general finds that the bonds have been
769-17 authorized in accordance with the law, the attorney general shall
769-18 approve them, and the comptroller of public accounts shall register
769-19 the bonds.
769-20 (c) Following approval and registration, the bonds are
769-21 incontestable and are binding obligations according to their terms.
769-22 (V.A.C.S. Art. 4477-7j, Sec. 6.06.)
769-23 Sec. 24.070. Refunding bonds. (a) Refunding bonds of the
769-24 district may be issued to refund and pay off an outstanding
769-25 indebtedness the district has issued or assumed.
769-26 (b) The bonds must be issued in the manner provided by
769-27 Chapter 784, Acts of the 61st Legislature, Regular Session, 1969
770-1 (Article 717k-3, Vernon's Texas Civil Statutes).
770-2 (c) The refunding bonds may be sold and the proceeds applied
770-3 to the payment of outstanding indebtedness or may be exchanged in
770-4 whole or in part for not less than a similar principal amount of
770-5 outstanding indebtedness. If the refunding bonds are to be sold
770-6 and the proceeds applied to the payment of outstanding
770-7 indebtedness, the refunding bonds must be issued and payments made
770-8 in the manner provided by Chapter 503, Acts of the 54th
770-9 Legislature, Regular Session, 1955 (Article 717k, Vernon's Texas
770-10 Civil Statutes). (V.A.C.S. Art. 4477-7j, Sec. 6.07.)
770-11 Sec. 24.071. Legal investments; security for deposits.
770-12 (a) District bonds are legal and authorized investments for:
770-13 (1) a bank;
770-14 (2) a savings bank;
770-15 (3) a trust company;
770-16 (4) a savings and loan association;
770-17 (5) an insurance company;
770-18 (6) a fiduciary;
770-19 (7) a trustee;
770-20 (8) a guardian; and
770-21 (9) the sinking fund of a municipality, county, school
770-22 district, or other political subdivision of the state and other
770-23 public funds of the state and its agencies, including the permanent
770-24 school fund.
770-25 (b) District bonds may secure deposits of public funds of
770-26 the state or a municipality, county, school district, or other
770-27 political subdivision of the state. The bonds are lawful and
771-1 sufficient security for deposits to the extent of their value, if
771-2 accompanied by all unmatured coupons. (V.A.C.S. Art. 4477-7j, Sec.
771-3 6.08.)
771-4 Sec. 24.072. Mandamus by bondholders. In addition to all
771-5 other rights and remedies provided by law, if the district defaults
771-6 in the payment of principal, interest, or redemption price on its
771-7 bonds when due or if it fails to make payments into any fund or
771-8 funds created in the orders or resolutions authorizing the issuance
771-9 of the bonds or defaults in the observation or performance of any
771-10 other covenants, conditions, or obligations set forth in the orders
771-11 or resolutions authorizing the issuance of its bonds, the owners of
771-12 any of the bonds are entitled to a writ of mandamus issued by a
771-13 court of competent jurisdiction compelling and requiring the
771-14 district and its officials to observe and perform the covenants,
771-15 obligations, or conditions prescribed in the orders or resolutions
771-16 authorizing the issuance of the district's bonds. (V.A.C.S. Art.
771-17 4477-7j, Sec. 6.09.)
771-18 Sec. 24.073. Application of other laws. Bonds of the
771-19 district are considered bonds under the Bond Procedures Act of 1981
771-20 (Article 717k-6, Vernon's Texas Civil Statutes). (V.A.C.S. Art.
771-21 4477-7j, Sec. 6.10.)
771-22 Sec. 24.074. Tax status of bonds. Since the district
771-23 created under this Act is a public entity performing an essential
771-24 public function, bonds issued by the district, any transaction
771-25 relating to the bonds, and profits made in the sale of the bonds
771-26 are free from taxation by the state or by a municipality, county,
771-27 special district, or other political subdivision of the state.
772-1 (V.A.C.S. Art. 4477-7j, Sec. 7.01.)
772-2 Sec. 24.075. Levy of taxes. (a) The board may annually
772-3 levy taxes in the district in an amount necessary to pay the
772-4 principal of and interest on bonds issued by the district and the
772-5 expense of assessing and collecting taxes.
772-6 (b) The district may annually levy and collect a maintenance
772-7 and operating tax in an amount not to exceed five cents on each
772-8 $100 of assessed valuation of property in the district to pay
772-9 maintenance and operating expenses of the district.
772-10 (c) The combined tax rate for all purposes may not exceed 10
772-11 cents on each $100 of assessed valuation of property in the
772-12 district. (V.A.C.S. Art. 4477-7j, Sec. 7.02.)
772-13 Sec. 24.076. Board authority. (a) The board may levy taxes
772-14 for the entire year in which the district is created.
772-15 (b) The board shall levy taxes on all property within the
772-16 boundaries of the district subject to district taxation. (V.A.C.S.
772-17 Art. 4477-7j, Sec. 7.03.)
772-18 Sec. 24.077. Tax rate. In setting the tax rate, the board
772-19 shall take into consideration the income of the district from
772-20 sources other than taxation. On determination of the amount of tax
772-21 required to be levied, the board shall make the levy and certify it
772-22 to the tax collector. (V.A.C.S. Art. 4477-7j, Sec. 7.04.)
772-23 Sec. 24.078. Tax appraisal, assessment, and collection.
772-24 (a) The Tax Code governs the appraisal, assessment, and collection
772-25 of district taxes.
772-26 (b) The board may provide for the appointment of a tax
772-27 collector for the district or may contract for the collection of
773-1 taxes as provided by the Tax Code. (V.A.C.S. Art. 4477-7j, Sec.
773-2 7.05.)
773-3 Sec. 24.079. Expansion of district territory.
773-4 (a) Registered voters of a defined territory that is not included
773-5 in the district may file a petition with the secretary of the board
773-6 requesting the inclusion of the territory in the district. The
773-7 petition must be signed by at least 50 registered voters of the
773-8 territory or a majority of those voters, whichever is less.
773-9 (b) The board by order shall set a time and place to hold a
773-10 hearing on the petition to include the territory in the district.
773-11 The board shall set a date for the hearing that is after the 30th
773-12 day after the date the board issues the order.
773-13 (c) If after the hearing the board finds that annexation of
773-14 the territory into the district would be feasible and would benefit
773-15 the district, the board may approve the annexation by a resolution
773-16 entered in its minutes. The board is not required to include all
773-17 of the territory described in the petition if the board finds that
773-18 a modification or change is necessary or desirable.
773-19 (d) Annexation of territory is final when approved by a
773-20 majority of the voters at an election held in the district and by a
773-21 majority of the voters at a separate election held in the territory
773-22 to be annexed. If the district has outstanding debts or taxes, the
773-23 voters in the election to approve the annexation must also
773-24 determine if the annexed territory will assume its proportion of
773-25 the debts or taxes if added to the district.
773-26 (e) The election ballots shall be printed to provide for
773-27 voting for or against the following, as applicable:
774-1 (1) "Adding (description of territory to be added) to
774-2 the Gaines County Solid Waste Management District."
774-3 (2) "(Description of territory to be added) assuming
774-4 its proportionate share of the outstanding debts and taxes of the
774-5 Gaines County Solid Waste Management District, if it is added to
774-6 the district."
774-7 (f) The election shall be held after the 45th day and on or
774-8 before the 60th day after the date the election is ordered. The
774-9 election shall be ordered and notice of the election shall be given
774-10 in accordance with the Election Code. Section 41.001(a), Election
774-11 Code, does not apply to an election held under this section.
774-12 (V.A.C.S. Art. 4477-7j, Sec. 24.079.)
774-13 (Sections 24.080-24.100 reserved for expansion)
774-14 SUBCHAPTER B. UPPER SABINE VALLEY SOLID WASTE
774-15 MANAGEMENT DISTRICT ACT
774-16 Sec. 24.101. Purpose. The purpose of this subchapter is to
774-17 establish an instrumentality to develop and carry out a regional
774-18 water quality protection program through solid waste management and
774-19 regulation of waste disposal for the area encompassed by Upshur,
774-20 Wood, and Rains counties and by the portion of Smith County that is
774-21 north of Interstate Highway 20. (V.A.C.S. Art. 4477-7k, Sec.
774-22 1.01.)
774-23 Sec. 24.102. Findings and declaration of policy. (a) The
774-24 legislature finds that:
774-25 (1) the quality of water in East Texas is materially
774-26 affected by the disposal of waste throughout the region;
774-27 (2) a regional effort to study water pollution, plan
775-1 corrective and preventive measures, provide coordinated facilities
775-2 for waste disposal, and regulate waste disposal is far more
775-3 effective than efforts on a smaller scale;
775-4 (3) solid waste, as well as other waste, may impair
775-5 water quality by seepage or drainage; and
775-6 (4) creation of the Upper Sabine Valley Solid Waste
775-7 Management District would advance the established policy of this
775-8 state to maintain the quality of the water in the state consistent
775-9 with:
775-10 (A) the public health and public enjoyment;
775-11 (B) the propagation and protection of
775-12 terrestrial and aquatic life;
775-13 (C) the operation of existing industries; and
775-14 (D) the economic development of the state.
775-15 (b) The legislature finds that this subchapter is in
775-16 compliance with Article XVI, Sections 59(d) and (e), of the Texas
775-17 Constitution and that the legislature has the power and authority
775-18 to enact this subchapter.
775-19 (c) The legislature finds that all of the area included in
775-20 the district is benefited by the exercise of the power conferred by
775-21 this subchapter. (V.A.C.S. Art. 4477-7k, Sec. 1.02.)
775-22 Sec. 24.103. Definitions. In this subchapter:
775-23 (1) "Board" means the board of directors of the
775-24 district.
775-25 (2) "Director" means a member of the board.
775-26 (3) "District" means the Upper Sabine Valley Solid
775-27 Waste Management District created under this Act.
776-1 (4) "Industrial solid waste" has the meaning assigned
776-2 by Section 20.003.
776-3 (5) "Local government" means an incorporated
776-4 municipality, a county, or a water or other special district or
776-5 authority acting under Article III, Sections 52(b)(1) and (2), or
776-6 Article XVI, Section 59, of the Texas Constitution.
776-7 (6) "Municipal solid waste" has the meaning assigned
776-8 by Section 20.003.
776-9 (7) "Outside the district" means the area contained in
776-10 counties adjacent to the district.
776-11 (8) "Person" means an individual, public or private
776-12 corporation, political subdivision, governmental agency,
776-13 municipality, copartnership, association, firm, trust, estate, or
776-14 any other legal entity.
776-15 (9) "Resource recovery facility" means a facility used
776-16 to store, handle, sort, bail, recycle, process, and recover solid
776-17 waste.
776-18 (10) "Sewage" has the meaning assigned by Section
776-19 15.002.
776-20 (11) "Solid waste" has the meaning assigned by Section
776-21 20.003.
776-22 (12) "Solid waste management system" means a system
776-23 for controlling all aspects of the collection, handling,
776-24 transportation, processing, recovery, and disposal of solid waste.
776-25 (13) "Water" means groundwater, percolating or
776-26 otherwise, lakes, bays, ponds, springs, rivers, streams, creeks,
776-27 and all other bodies of surface water, natural or artificial, that
777-1 are wholly or partially within the district.
777-2 (14) "Water pollution" means the alteration of the
777-3 physical, chemical, or biological quality of or the contamination
777-4 of water that renders the water harmful, detrimental, or injurious
777-5 to humans, animal life, vegetation, or property, or to public
777-6 health, safety, or welfare, or that impairs the usefulness or the
777-7 public enjoyment of the water for any lawful or reasonable purpose.
777-8 (V.A.C.S. Art. 4477-7k, Sec. 1.03.)
777-9 Sec. 24.104. Creation of district. Pursuant to Article XVI,
777-10 Section 59, of the Texas Constitution, a conservation and
777-11 reclamation district to be known as the Upper Sabine Valley Solid
777-12 Waste Management District is created as a governmental agency and
777-13 body politic and corporate of the state. (V.A.C.S. Art. 4477-7k,
777-14 Sec. 2.01.)
777-15 Sec. 24.105. Description. Except as provided by Section
777-16 24.210 of this subchapter, the district's territory consists of the
777-17 area within the boundaries of Upshur, Wood, and Rains counties and
777-18 that portion of Smith County that is north of Interstate Highway
777-19 20. (V.A.C.S. Art. 4477-7k, Sec. 2.02.)
777-20 Sec. 24.106. Appointment of temporary directors. (a) On or
777-21 after the effective date of this subchapter, the commissioners
777-22 court of each county included in the proposed district shall each
777-23 appoint two persons to serve as temporary directors of the
777-24 district.
777-25 (b) Members of the temporary board serve until the persons
777-26 selected as directors under Section 24.116 have been appointed and
777-27 have qualified for office.
778-1 (c) A vacancy on the temporary board shall be filled by
778-2 appointment in the same manner as the original appointment.
778-3 (V.A.C.S. Art. 4477-7k, Sec. 2.03.)
778-4 Sec. 24.107. Confirmation and tax elections. (a) The
778-5 temporary directors shall call and hold a separate election in each
778-6 county within the boundaries of the proposed district to determine
778-7 if the proposed district will be created and a tax authorized. The
778-8 elections shall be held on the same day and within six months of
778-9 the effective date of this subchapter.
778-10 (b) Section 41.001(a), Election Code, does not apply to a
778-11 confirmation and tax election held under this section. (V.A.C.S.
778-12 Art. 4477-7k, Sec. 2.04.)
778-13 Sec. 24.108. Notice of election. (a) Notice of the
778-14 confirmation and tax elections shall state the day and places for
778-15 holding the elections and the proposition to be voted on.
778-16 (b) The temporary board shall publish the notice of the
778-17 elections one time in one or more newspapers of general circulation
778-18 in the proposed district. The notice must be published before the
778-19 35th day before the date set for the elections. (V.A.C.S. Art.
778-20 4477-7k, Sec. 2.05.)
778-21 Sec. 24.109. Ballot proposition. The ballot for the
778-22 elections shall be printed to permit voting for or against the
778-23 proposition: "The creation of the Upper Sabine Valley Solid Waste
778-24 Management District and the levy of a maintenance and operating tax
778-25 in an amount not to exceed three cents on each $100 valuation."
778-26 (V.A.C.S. Art. 4477-7k, Sec. 2.06.)
778-27 Sec. 24.110. Canvassing returns. (a) Immediately after the
779-1 confirmation and tax elections, the presiding judge of each polling
779-2 place shall deliver returns of the elections to the temporary
779-3 board, and the temporary board shall canvass the returns and
779-4 declare the results.
779-5 (b) If a majority of the votes cast at the election in one
779-6 or more counties favor creation of the district, the board shall
779-7 declare the district created and shall enter the results in its
779-8 minutes. If the election results are favorable in one or more
779-9 counties, but not in all counties, the temporary directors shall
779-10 set the boundaries of the district to include only the counties in
779-11 which the vote was favorable. If a majority of the votes cast at
779-12 each election are against the creation of the district, the board
779-13 shall declare that the creation of the district was defeated and
779-14 shall enter the results in its minutes. The board shall file a
779-15 copy of the election results with the commission.
779-16 (c) If a majority of the voters in each county vote against
779-17 the creation of the district, the board may call and hold
779-18 additional confirmation and tax elections, but another election to
779-19 confirm creation of the district may not be called and held by the
779-20 board before the first anniversary of the most recent confirmation
779-21 and tax elections. If the creation of the district is not
779-22 confirmed on or before August 26, 1996, this subchapter expires.
779-23 (V.A.C.S. Art. 4477-7k, Sec. 2.07.)
779-24 Sec. 24.111. Board of directors. (a) The district is
779-25 governed by a board of directors composed of not fewer than six
779-26 members who are appointed as provided by this subchapter.
779-27 (b) If the district is composed of only one county, the
780-1 commissioners court of that county shall appoint six persons to
780-2 serve as directors.
780-3 (c) If the district is composed of two counties, the
780-4 commissioners court of each county included in the district shall
780-5 each appoint three persons to serve as directors.
780-6 (d) If the district is composed of three or more counties,
780-7 the commissioners court of each county included in the district
780-8 shall each appoint two persons to serve as directors.
780-9 (e) At least one of the directors appointed by each
780-10 commissioners court shall represent the interests of municipalities
780-11 and of unincorporated communities with a population of 1,000 or
780-12 more, according to the most recent federal decennial census, that
780-13 are located in that county. (V.A.C.S. Art. 4477-7k, Sec. 3.01.)
780-14 Sec. 24.112. Qualifications of directors. (a) To be
780-15 eligible to be appointed as or to serve as a director, a person
780-16 must be:
780-17 (1) 18 years of age or older;
780-18 (2) a qualified voter; and
780-19 (3) a resident of the county of the appointing
780-20 commissioners court.
780-21 (b) If a member of a commissioners court or a municipal
780-22 government officer is appointed as a director, the member's or
780-23 officer's service as a director is considered an additional duty of
780-24 the member's or officer's existing office. The member or officer
780-25 is not entitled to a per diem allowance under Section 24.120, but
780-26 is entitled to reimbursement for actual and necessary expenses
780-27 incurred in performing official duties as a director.
781-1 (c) Each director must execute a bond in the amount of
781-2 $5,000 with a corporate surety authorized to do business in this
781-3 state and conditioned on the faithful performance of the director's
781-4 duties. The district shall pay the premiums on the directors'
781-5 bonds under this section. (V.A.C.S. Art. 4477-7k, Sec. 3.02.)
781-6 Sec. 24.113. Term of office. Except as provided by Sections
781-7 24.116 and 24.180, a director holds office for a term of four years
781-8 and until the director's successor has been appointed and has
781-9 qualified. (V.A.C.S. Art. 4477-7k, Sec. 3.03.)
781-10 Sec. 24.114. Vacancy on board. A vacancy on the board shall
781-11 be filled in the same manner as the original appointment for the
781-12 unexpired term. (V.A.C.S. Art. 4477-7k, Sec. 3.04.)
781-13 Sec. 24.115. Oath. Each director shall file the statement
781-14 and take the constitutional oath of office required of state
781-15 officers. (V.A.C.S. Art. 4477-7k, Sec. 3.05.)
781-16 Sec. 24.116. Initial meeting and organization. (a) As soon
781-17 as possible after all directors have been appointed and have
781-18 qualified, the county judge of the county included in the district
781-19 that has the largest population shall call a meeting of the board
781-20 and shall preside at the meeting until the directors have elected
781-21 from the board's membership a chairman, a vice-chairman, a
781-22 secretary, and a treasurer.
781-23 (b) A person selected as an officer serves for a term of one
781-24 year.
781-25 (c) At the initial meeting, the directors shall draw lots so
781-26 that one-half of the initial directors serve four-year terms that
781-27 begin on the date on which the initial meeting is held, and
782-1 one-half of the directors serve two-year terms that begin on that
782-2 date.
782-3 (d) The board shall adopt bylaws at the initial meeting or
782-4 as soon after the initial meeting as practicable. The bylaws must
782-5 prescribe the powers, duties, and procedures for removal from a
782-6 board office. (V.A.C.S. Art. 4477-7k, Sec. 3.06.)
782-7 Sec. 24.117. Meeting and actions of board. (a) The board
782-8 shall meet at least one time each month and may meet at any other
782-9 time provided by its bylaws.
782-10 (b) A majority of the members of the board constitute a
782-11 quorum for the transaction of business of the district.
782-12 (c) Except as otherwise provided by this subchapter, the
782-13 vote of a majority of directors is required for board action.
782-14 (V.A.C.S. Art. 4477-7k, Sec. 3.07.)
782-15 Sec. 24.118. Attorney; treasurer's bond. (a) The board may
782-16 appoint an attorney for the district.
782-17 (b) The person appointed under this section is entitled to
782-18 the compensation provided by the district's budget.
782-19 (c) The person elected as treasurer under Section 24.116(a)
782-20 shall execute a bond in the amount determined by the board, payable
782-21 to the district, and conditioned on the faithful performance of the
782-22 treasurer's duties. The district shall pay for the bond.
782-23 (V.A.C.S. Art. 4477-7k, Sec. 3.08.)
782-24 Sec. 24.119. Interest in contract. A director who is
782-25 financially interested in a contract to be executed by the district
782-26 for the purchase of property or the construction of facilities
782-27 shall disclose that fact to the other directors and may not vote on
783-1 the acceptance of the contract. (V.A.C.S. Art. 4477-7k, Sec.
783-2 3.09.)
783-3 Sec. 24.120. Director's compensation. (a) A director is
783-4 entitled to receive $50 a day and reimbursement for actual and
783-5 necessary expenses incurred:
783-6 (1) for each day the director attends meetings of the
783-7 board; and
783-8 (2) for each day the director attends to the business
783-9 of the district that is authorized by board resolution or motion.
783-10 (b) A director is not entitled to receive a per diem
783-11 allowance for more than 60 days in any one calendar year.
783-12 (V.A.C.S. Art. 4477-7k, Sec. 3.10.)
783-13 Sec. 24.121. General manager; personnel. (a) The board
783-14 shall employ a general manager for a term and salary set by the
783-15 board.
783-16 (b) The general manager is the chief executive officer of
783-17 the district. Under policies established by the board, the general
783-18 manager is responsible to the board for:
783-19 (1) administering the directives of the board;
783-20 (2) keeping the district's records, including minutes
783-21 of the board's meetings;
783-22 (3) coordinating with state, federal, and local
783-23 agencies;
783-24 (4) developing plans and programs for the board's
783-25 approval;
783-26 (5) hiring, supervising, training, and discharging
783-27 district employees;
784-1 (6) contracting for or retaining technical,
784-2 scientific, legal, fiscal, and other professional services; and
784-3 (7) performing any other duty assigned to the general
784-4 manager by the board.
784-5 (c) The board may discharge the general manager on a
784-6 majority vote of the directors. (V.A.C.S. Art. 4477-7k, Sec.
784-7 3.11.)
784-8 Sec. 24.122. Employees' bonds. (a) The general manager and
784-9 each employee of the district charged with the collection, custody,
784-10 or payment of any money of the district shall execute a fidelity
784-11 bond. The board shall approve the form, amount, and surety of the
784-12 bond.
784-13 (b) The district shall pay the premiums on the employees'
784-14 bonds under this section. (V.A.C.S. Art. 4477-7k, Sec. 3.12.)
784-15 Sec. 24.123. Principal office. The district shall maintain
784-16 its principal office inside the district's boundaries. (V.A.C.S.
784-17 Art. 4477-7k, Sec. 3.13.)
784-18 Sec. 24.124. Records. (a) The district shall keep complete
784-19 and accurate accounts of its business transactions in accordance
784-20 with generally accepted methods of accounting.
784-21 (b) The district shall keep complete and accurate minutes of
784-22 its meetings.
784-23 (c) The district shall keep its accounts, contracts,
784-24 documents, minutes, and other records at its principal office.
784-25 (d) Neither the board nor its employees may disclose a
784-26 district record that relates to trade secrets or the economics of
784-27 an industry's operations. (V.A.C.S. Art. 4477-7k, Sec. 3.14.)
785-1 Sec. 24.125. Contracts. The board may enter into contracts
785-2 as provided by this subchapter, and those contracts shall be
785-3 executed by the board in the name of the district. (V.A.C.S. Art.
785-4 4477-7k, Sec. 3.15.)
785-5 Sec. 24.126. Supervision of district. The district is
785-6 subject to the continuing right of supervision by the state in
785-7 accordance with state law. (V.A.C.S. Art. 4477-7k, Sec. 3.16.)
785-8 Sec. 24.127. Suits; payments of judgments. (a) The
785-9 district may, through its board, sue and be sued in any court of
785-10 this state in the name of the district. Service of process in a
785-11 suit may be had by serving the general manager.
785-12 (b) The courts of this state shall take judicial notice of
785-13 the creation of the district.
785-14 (c) A court of this state that renders a money judgment
785-15 against the district may require the board to pay the judgment from
785-16 money in the district depository that is not dedicated to the
785-17 payment of any indebtedness of the district. (V.A.C.S. Art.
785-18 4477-7k, Sec. 3.17.)
785-19 Sec. 24.128. Seal. The board shall adopt a seal for the
785-20 district and may alter the form of the seal from time to time.
785-21 (V.A.C.S. Art. 4477-7k, Sec. 3.18.)
785-22 Sec. 24.129. General powers and duties. (a) The district
785-23 shall administer and enforce this subchapter and shall use its
785-24 facilities and powers to accomplish the purposes of this
785-25 subchapter.
785-26 (b) After notice and hearing, the board may adopt rules
785-27 necessary to carry out this subchapter. The board shall adopt
786-1 rules providing procedures for giving notice and holding hearings.
786-2 (c) The district may prepare and adopt plans for and may
786-3 purchase, construct, acquire, own, operate, maintain, repair,
786-4 improve, and extend inside and outside the boundaries of the
786-5 district any works, improvements, waste disposal, treatment, and
786-6 other facilities, plants, pipelines, equipment, and appliances
786-7 necessary to collect, transport, process, dispose of, and control
786-8 domestic, industrial, and communal waterborne and solid waste
786-9 within the district.
786-10 (d) The district shall acquire all permits required by state
786-11 law that are necessary to carry out this article.
786-12 (e) The district shall conduct studies and research for the
786-13 control of water pollution and waste disposal within the district,
786-14 shall cooperate with the department and commission in any studies,
786-15 and shall use the results of those studies.
786-16 (f) The regulatory powers of the district under this
786-17 subchapter extend to every person within the district.
786-18 (g) Except as expressly limited by this subchapter, the
786-19 district has all powers, rights, and privileges necessary and
786-20 convenient for accomplishing the purposes of this subchapter
786-21 conferred by general law on a conservation and reclamation district
786-22 created under Article XVI, Section 59, of the Texas Constitution,
786-23 including specifically all powers, rights, and privileges conferred
786-24 by Subtitle B, Title 5, Health and Safety Code, on a local or
786-25 regional government.
786-26 (h) The powers granted to the district by this subchapter
786-27 are cumulative of all powers granted by other laws that are by
787-1 their terms applicable to the district.
787-2 (i) The district may enter into cooperative agreements with
787-3 local governments and other political subdivisions to jointly
787-4 operate solid waste management activities and to charge reasonable
787-5 fees for those services. (V.A.C.S. Art. 4477-7k, Sec. 4.01.)
787-6 Sec. 24.130. Gifts, grants, loans, and other funds. To
787-7 carry out any purposes or powers under this subchapter, the
787-8 district may apply for, accept, receive, and administer gifts,
787-9 grants, loans, and other funds available from any source.
787-10 (V.A.C.S. Art. 4477-7k, Sec. 4.02.)
787-11 Sec. 24.131. Consultation, contracts, and cooperation with
787-12 other governmental agencies and entities. To carry out any
787-13 purposes or powers under this subchapter, the district may advise,
787-14 consult, contract, and cooperate with the federal government and
787-15 its agencies, the state and its agencies, local governments, and
787-16 private entities. (V.A.C.S. Art. 4477-7k, Sec. 4.03.)
787-17 Sec. 24.132. Acquisition of property. The district may
787-18 acquire by gift, grant, devise, purchase, lease, or eminent domain
787-19 any land, easements, rights-of-way, and other property interests
787-20 necessary to carry out the powers and duties provided by this
787-21 subchapter. (V.A.C.S. Art. 4477-7k, Sec. 4.04.)
787-22 Sec. 24.133. Eminent domain. (a) The district may acquire
787-23 land for the purposes authorized by Section 24.129(c) by
787-24 condemnation if the board determines, after notice and hearing,
787-25 that it is necessary.
787-26 (b) The district must exercise the power of eminent domain
787-27 in the manner provided by Chapter 21, Property Code, but the
788-1 district is not required to:
788-2 (1) deposit in the trial court money or a bond as
788-3 provided by Section 21.021(a), Property Code;
788-4 (2) pay in advance or give bond or other security for
788-5 costs in the trial court;
788-6 (3) give bond for the issuance of a temporary
788-7 restraining order or a temporary injunction; or
788-8 (4) give bond for costs or supersedeas on an appeal or
788-9 writ of error.
788-10 (c) If the district, in the exercise of the power of eminent
788-11 domain, requires relocating, raising, lowering, rerouting, changing
788-12 the grade, or altering the construction of any railroad, highway,
788-13 pipeline, or electric transmission and electric distribution,
788-14 telegraph, or telephone lines, conduits, poles or facilities, the
788-15 district must bear the actual cost of relocating, raising,
788-16 lowering, rerouting, changing the grade, or altering the
788-17 construction to provide comparable replacement without enhancement
788-18 of facilities, after deducting the net salvage value derived from
788-19 the old facility. (V.A.C.S. Art. 4477-7k, Sec. 4.05.)
788-20 Sec. 24.134. Authority to enter into construction,
788-21 renovation, and repair contracts. The district may contract with
788-22 any person to construct, renovate, or repair any of its works,
788-23 improvements, waste disposal, treatment, or other facilities,
788-24 plants, pipelines, equipment, and appliances and, from time to
788-25 time, make improvements to them. (V.A.C.S. Art. 4477-7k, Sec.
788-26 4.06.)
788-27 Sec. 24.135. Bids on contracts. Contracts entered into
789-1 under Section 24.134 requiring an expenditure of more than $10,000
789-2 may be made only after competitive bidding as provided by
789-3 Subchapter B, Chapter 271, Local Government Code. (V.A.C.S. Art.
789-4 4477-7k, Sec. 4.07.)
789-5 Sec. 24.136. Attachments to contracts. A contract entered
789-6 into under Section 24.134 must contain, or have attached to it, the
789-7 specifications, plans, and details for work included in the
789-8 contract, and work shall be done according to those plans and
789-9 specifications under the supervision of the district. (V.A.C.S.
789-10 Art. 4477-7k, Sec. 4.08.)
789-11 Sec. 24.137. Execution and availability of contracts.
789-12 (a) A contract entered into under Section 24.134 must be in
789-13 writing and signed by the contractor and a representative of the
789-14 district designated by the board.
789-15 (b) The contract shall be kept in the district's office and
789-16 must be available for public inspection. (V.A.C.S. Art. 4477-7k,
789-17 Sec. 4.09.)
789-18 Sec. 24.138. Contractor's bond. (a) A contractor shall
789-19 execute a bond in an amount determined by the board, not to exceed
789-20 the contract price, payable to the district and approved by the
789-21 board, conditioned on the faithful performance of the obligations,
789-22 agreements, and covenants of the contract.
789-23 (b) The bond must provide that if the contractor defaults on
789-24 the contract, the contractor will pay to the district all damages
789-25 sustained as a result of the default. The bond shall be deposited
789-26 in the district's depository, and a copy of the bond shall be kept
789-27 in the district's office. (V.A.C.S. Art. 4477-7k, Sec. 4.10.)
790-1 Sec. 24.139. Monitoring work. (a) The board has control of
790-2 construction, renovation, or repairs being done for the district
790-3 under a contract entered into under Section 24.134 and shall
790-4 determine whether or not the contract is being fulfilled.
790-5 (b) The board shall have the construction, renovation, or
790-6 repair work inspected by engineers, inspectors, and personnel of
790-7 the district.
790-8 (c) During the progress of the work, the engineers,
790-9 inspectors, and personnel doing the inspections shall submit to the
790-10 board written reports that show whether or not the contractor is
790-11 complying with the contract.
790-12 (d) On completion of construction, renovation, or repair
790-13 work, the engineers, inspectors, and personnel shall submit to the
790-14 board a final detailed written report including information
790-15 necessary to show whether or not the contractor has fully complied
790-16 with the contract. (V.A.C.S. Art. 4477-7k, Sec. 4.11.)
790-17 Sec. 24.140. Payments for work. (a) The district shall pay
790-18 the contract price of construction, renovation, or repair contracts
790-19 in accordance with this section.
790-20 (b) The district shall make progress payments under
790-21 contracts monthly as the work proceeds or at more frequent
790-22 intervals as determined by the board.
790-23 (c) If requested by the board, the contractor shall furnish
790-24 an analysis of the total contract price showing the amount included
790-25 for each principal category of the work, in the detail requested,
790-26 to provide a basis for determining progress payments.
790-27 (d) In making progress payments, 10 percent of the estimated
791-1 amounts shall be retained until final completion and acceptance of
791-2 the contract work. However, if the board, at any time after 50
791-3 percent of the work has been completed, finds that satisfactory
791-4 progress is being made, it may authorize any of the remaining
791-5 progress payments to be made in full. Also, if the work is
791-6 substantially complete, the board, if it finds the amount retained
791-7 to be in excess of the amount adequate for the protection of the
791-8 district, may release to the contractor all or a portion of the
791-9 excess amount.
791-10 (e) On completion and acceptance of each separate project,
791-11 work, or other division of the contract on which the price is
791-12 stated separately in the contract, payment may be made without
791-13 retention of a percentage.
791-14 (f) When work is completed according to the terms of the
791-15 contract, the board shall draw a warrant on the depository to pay
791-16 any balance due on the contract. (V.A.C.S. Art. 4477-7k, Sec.
791-17 4.12.)
791-18 Sec. 24.141. Contracts for purchase of vehicles, equipment,
791-19 and supplies over $10,000. (a) If the estimated amount of a
791-20 proposed contract for the purchase of vehicles, equipment, or
791-21 supplies is more than $10,000, the board shall ask for competitive
791-22 bids as provided by Section 24.135.
791-23 (b) This section does not apply to purchase of property from
791-24 public agencies or to contracts for personal or professional
791-25 services. (V.A.C.S. Art. 4477-7k, Sec. 4.13.)
791-26 Sec. 24.142. Entry on land. (a) The directors, the
791-27 engineer, and the employees of the district may go on any land
792-1 inside or outside the boundaries of the district to make surveys
792-2 and examine the land with reference to the location of works,
792-3 improvements, and waste disposal, treatment, and other facilities,
792-4 plants, pipelines, equipment, and appliances, and to attend to
792-5 business of the district.
792-6 (b) Before a director, engineer, or employee enters on the
792-7 land, five days' written notice must be given to the landowner.
792-8 (c) If any activities of the district on the land cause
792-9 damages to the land or property, the land or property shall be
792-10 restored as nearly as possible to its original state. The district
792-11 shall pay the cost of the restoration. (V.A.C.S. Art. 4477-7k,
792-12 Sec. 4.14.)
792-13 Sec. 24.143. Right to use road right-of-way. (a) The
792-14 district has a right-of-way along and across all public state or
792-15 county roads or highways; provided that a governmental entity
792-16 having jurisdiction of such right-of-way may designate the place
792-17 upon the right-of-way the facilities of the district shall be
792-18 installed and may require the relocation of the facilities of the
792-19 district to accommodate any widening or changing of traffic lanes.
792-20 (b) The district may not proceed with any action to change,
792-21 alter, or damage facilities or property of the state without having
792-22 first obtained the written consent of the governmental entity
792-23 having control and jurisdiction of such facilities or property.
792-24 (V.A.C.S. Art. 4477-7k, Sec. 4.15.)
792-25 Sec. 24.144. Fees and charges. (a) The board may adopt and
792-26 enforce all necessary charges, fees, or rentals in addition to
792-27 taxes for providing any district facilities or services.
793-1 (b) The board may require a deposit for any services or
793-2 facilities furnished and may or may not provide that the deposit
793-3 will bear interest.
793-4 (c) The board may discontinue a facility or service to
793-5 prevent an abuse or enforce payment of an unpaid charge, fee, or
793-6 rental due the district, including taxes that have been due for not
793-7 less than six months. (V.A.C.S. Art. 4477-7k, Sec. 4.16.)
793-8 Sec. 24.145. Acquisition of existing facilities. If the
793-9 district acquires existing works, improvements, and waste disposal,
793-10 treatment, and other facilities, plants, pipelines, equipment, and
793-11 appliances that are completed, partially completed, or under
793-12 construction, the district may assume the contracts and obligations
793-13 of the previous owner and perform the obligations of the previous
793-14 owner in the same manner and to the same extent that any other
793-15 purchaser or assignee would be bound. (V.A.C.S. Art. 4477-7k, Sec.
793-16 4.17.)
793-17 Sec. 24.146. Solid waste resource recovery or recycling
793-18 facilities. The district may construct or acquire and operate
793-19 solid waste resource recovery or recycling facilities. (V.A.C.S.
793-20 Art. 4477-7k, Sec. 4.18.)
793-21 Sec. 24.147. Regulation of solid waste disposal. (a) The
793-22 district shall establish minimum standards of operation for all
793-23 aspects of solid waste handling, including storage, collection,
793-24 incineration, recycling, sanitary landfill, and composting.
793-25 (b) Before establishing the standards, the district shall:
793-26 (1) hold public hearings after giving public notice in
793-27 the time and manner prescribed by board rule;
794-1 (2) consult with the commission to ensure that the
794-2 standards are not inconsistent with established criteria; and
794-3 (3) find that the standards are reasonably necessary
794-4 to protect the public health or welfare from water pollution or
794-5 other environment harm.
794-6 (c) To amend standards, the district shall follow the same
794-7 procedures required for establishing standards.
794-8 (d) The district may make rules reasonably necessary to
794-9 implement solid waste disposal standards.
794-10 (e) The district may assume the exclusive authority to
794-11 exercise the powers granted to a county under Section 20.165
794-12 including the power to issue licenses and exercise municipal solid
794-13 waste management authority. If the district elects to exercise the
794-14 licensing authority granted under this subsection, it must adopt
794-15 and enforce rules for the management of municipal solid waste. The
794-16 rules must be compatible with and at least as stringent as those of
794-17 the commission and must be approved by the commission. (V.A.C.S.
794-18 Art. 4477-7k, Sec. 4.19.)
794-19 Sec. 24.148. On-site sewage disposal systems. (a) The
794-20 district may apply to the commission for designation as an
794-21 authorized agent to implement and enforce on-site sewage disposal
794-22 rules under Chapter 15.
794-23 (b) If the district finds that due to the nature of the soil
794-24 or drainage in the area it is necessary to prevent water pollution
794-25 that may injure the public health, the board by rule may:
794-26 (1) provide limits on the number and kind of septic
794-27 tanks in an area defined by the rule;
795-1 (2) prohibit the use of septic tanks in the area; or
795-2 (3) prohibit the installation of new septic tanks in
795-3 the area.
795-4 (c) The board shall consult with the commission before the
795-5 adoption of a rule under Subsection (b).
795-6 (d) The board may provide in the order for a gradual and
795-7 systematic reduction of the number or kind of septic tanks in the
795-8 area and, by rule, may provide for a system of licensing and
795-9 issuing permits for the installation of new septic tanks in the
795-10 area affected, in which event a person may not install septic tanks
795-11 in the area without a license or permit from the board.
795-12 (e) The board may not issue a rule under Subsection (b)
795-13 without first holding a public hearing in the area to be affected
795-14 by the rule. (V.A.C.S. Art. 4477-7k, Sec. 4.20.)
795-15 Sec. 24.149. Acquisition, construction, and operation of
795-16 disposal systems. The district may:
795-17 (1) acquire and provide by purchase, gift, or lease
795-18 any disposal systems inside or outside the district;
795-19 (2) construct and provide disposal systems inside or
795-20 outside the district;
795-21 (3) operate and sell any disposal systems that it
795-22 constructs or acquires;
795-23 (4) contract with a person to operate and maintain a
795-24 disposal system belonging to the person; and
795-25 (5) contract with a person to train or supervise
795-26 employees of a disposal system. (V.A.C.S. Art. 4477-7k, Sec.
795-27 4.21.)
796-1 Sec. 24.150. Waste disposal contracts. (a) The district
796-2 may contract to receive and to treat or dispose of waste from a
796-3 person in the district.
796-4 (b) The district shall set fees in a contract under
796-5 Subsection (a) of this section after considering:
796-6 (1) the quality of the waste;
796-7 (2) the quantity of the waste;
796-8 (3) the difficulty encountered in treating or
796-9 disposing of the waste;
796-10 (4) operation and maintenance expenses and debt
796-11 retirement services; and
796-12 (5) any other reasonable considerations. (V.A.C.S.
796-13 Art. 4477-7k, Sec. 4.22.)
796-14 Sec. 24.151. Area-wide waste treatment. The powers and
796-15 duties conferred on the district are granted subject to the state
796-16 policy to encourage the development and use of integrated area-wide
796-17 waste collection, treatment, and disposal systems to serve the
796-18 waste disposal needs of the citizens of the state, it being an
796-19 objective of the policy to avoid the economic burden to the people
796-20 and the impact on the quality of the water in the state that result
796-21 from the construction and operation of numerous small waste
796-22 collection, treatment, and disposal facilities to serve an area
796-23 when an integrated area-wide waste collection, treatment, and
796-24 disposal system for the area can be reasonably provided. (V.A.C.S.
796-25 Art. 4477-7k, Sec. 4.23.)
796-26 Sec. 24.152. Fiscal year. (a) The district operates on the
796-27 fiscal year established by the board.
797-1 (b) The fiscal year may not be changed more than once in a
797-2 24-month period. (V.A.C.S. Art. 4477-7k, Sec. 5.01.)
797-3 Sec. 24.153. Annual audit. Annually, the board shall have
797-4 an audit made of the financial condition of the district.
797-5 (V.A.C.S. Art. 4477-7k, Sec. 5.02.)
797-6 Sec. 24.154. Annual budget. (a) The board shall prepare
797-7 and approve an annual budget for the district.
797-8 (b) The budget shall contain a complete financial statement,
797-9 including a statement of:
797-10 (1) the outstanding obligations of the district;
797-11 (2) the amount of cash on hand to the credit of each
797-12 fund of the district;
797-13 (3) the amount of money received by the district from
797-14 all sources during the previous year;
797-15 (4) the amount of money available to the district from
797-16 all sources during the ensuing year;
797-17 (5) the amount of the balances expected at the end of
797-18 the year in which the budget is being prepared;
797-19 (6) the estimated amount of revenues and balances
797-20 available to cover the proposed budget; and
797-21 (7) the estimated tax rate that will be required.
797-22 (V.A.C.S. Art. 4477-7k, Sec. 5.03.)
797-23 Sec. 24.155. Amending budget. After adoption, the annual
797-24 budget may be amended on the board's approval. (V.A.C.S. Art.
797-25 4477-7k, Sec. 5.04.)
797-26 Sec. 24.156. Limitation on expenditures. Money may not be
797-27 spent for an expense not included in the annual budget or an
798-1 amendment to it unless the board by order declares the expense to
798-2 be necessary. (V.A.C.S. Art. 4477-7k, Sec. 5.05.)
798-3 Sec. 24.157. Sworn statement. As soon as practicable after
798-4 the close of the fiscal year, the treasurer of the district shall
798-5 prepare for the board a sworn statement of the amount of money that
798-6 belongs to the district and an account of the disbursements of that
798-7 money. (V.A.C.S. Art. 4477-7k, Sec. 5.06.)
798-8 Sec. 24.158. Depository. (a) The board shall name one or
798-9 more banks to serve as depository for district funds.
798-10 (b) District funds, other than those transmitted to a bank
798-11 for payment of bonds issued by the district, shall be deposited as
798-12 received with the depository bank and must remain on deposit. This
798-13 section does not limit the power of the board to invest the
798-14 district's funds as provided by Section 24.159.
798-15 (c) Before the district deposits funds in a bank in an
798-16 amount that exceeds the maximum amount secured by the Federal
798-17 Deposit Insurance Corporation, the bank must execute a bond or
798-18 provide other security in an amount sufficient to secure from loss
798-19 the district's funds that exceed the amount secured by the Federal
798-20 Deposit Insurance Corporation. (V.A.C.S. Art. 4477-7k, Sec. 5.07.)
798-21 Sec. 24.159. Investments. (a) Funds of the district may be
798-22 invested and reinvested by the board or its authorized
798-23 representative in those investments specified by Article 836 or
798-24 837, Revised Statutes, or the Public Funds Investment Act of 1987
798-25 (Article 842a-2, Vernon's Texas Civil Statutes).
798-26 (b) Funds of the district may be placed in certificates of
798-27 deposit of state or national banks or state or federal savings and
799-1 loan associations within the state provided that funds are secured
799-2 in the manner required for the security of the funds of counties of
799-3 the state.
799-4 (c) The board by resolution may provide that an authorized
799-5 representative of the district may invest and reinvest the funds of
799-6 the district and provide for money to be withdrawn from the
799-7 appropriate accounts of the district for investments on terms the
799-8 board considers advisable. (V.A.C.S. Art. 4477-7k, Sec. 5.08.)
799-9 Sec. 24.160. Payment of expenses. (a) The district's
799-10 directors may pay all costs and expenses necessarily incurred in
799-11 the creation, organization, and operation of the district, legal
799-12 fees, and other incidental expenses and may reimburse any person
799-13 for money advanced for those purposes.
799-14 (b) Payments may be made from money obtained from the sale
799-15 of bonds issued by the district or out of taxes, fees, or other
799-16 revenues of the district. (V.A.C.S. Art. 4477-7k, Sec. 5.09.)
799-17 Sec. 24.161. Borrowing money. The district may borrow money
799-18 for any purpose authorized under this subchapter or any combination
799-19 of those purposes. (V.A.C.S. Art. 4477-7k, Sec. 5.10.)
799-20 Sec. 24.162. Authority to issue bonds. The board may issue
799-21 and sell bonds in the name of the district to acquire land and
799-22 construct works, improvements, and waste disposal, treatment, and
799-23 other facilities, plants, pipelines, equipment, and appliances as
799-24 provided by this subchapter. (V.A.C.S. Art. 4477-7k, Sec. 6.01.)
799-25 Sec. 24.163. Bond payment. The board may provide for the
799-26 payment of the principal of and interest on the bonds:
799-27 (1) from the levy and collection of property taxes on
800-1 all taxable property within the district;
800-2 (2) by pledging all or part of the designated revenues
800-3 from the ownership or operation of the district's works,
800-4 improvements, and facilities; or
800-5 (3) from a combination of the sources listed by
800-6 Subdivisions (1) and (2). (V.A.C.S. Art. 4477-7k, Sec. 6.02.)
800-7 Sec. 24.164. Bond election. (a) Bonds may not be issued by
800-8 the district until authorized by a majority vote of individuals
800-9 qualified to vote and actually voting in the area within the
800-10 boundaries of the district at an election called and held for that
800-11 purpose.
800-12 (b) The board may order a bond election. The order calling
800-13 the election must state the nature and the date of the election,
800-14 the hours during which the polls will be open, the location of the
800-15 polling places, the amount of bonds to be authorized, and the
800-16 maximum maturity of the bonds.
800-17 (c) Notice of a bond election must be given as provided by
800-18 the Election Code.
800-19 (d) At an election to authorize bonds, the ballot must be
800-20 printed to provide for voting for or against the issuance of bonds
800-21 and the levy of property taxes for payment of the bonds.
800-22 (e) The board shall canvass the returns and declare the
800-23 results of the election. If a majority of the votes cast at the
800-24 election favor the issuance of the bonds, the bonds may be issued
800-25 by the board, but if a majority of the votes cast at the election
800-26 do not favor issuance of the bonds, the bonds may not be issued.
800-27 (V.A.C.S. Art. 4477-7k, Sec. 6.03.)
801-1 Sec. 24.165. Terms; form. (a) The district may issue its
801-2 bonds in various series or issues.
801-3 (b) Bonds may mature serially or otherwise not more than 50
801-4 years after the date of issuance and shall bear interest at a rate
801-5 permitted by state law.
801-6 (c) The district's bonds and interest coupons, if any, are
801-7 investment securities under the terms of Chapter 8, Business &
801-8 Commerce Code, and may be issued registrable as to principal or as
801-9 to principal and interest or may be issued in book entry form and
801-10 may be made redeemable before maturity at the option of the
801-11 district or may contain a mandatory redemption provision.
801-12 (d) The district's bonds may be issued in the form,
801-13 denominations, and manner and under the terms, conditions, and
801-14 details and shall be signed and executed as provided by the board
801-15 in the resolution or order authorizing the bonds. (V.A.C.S. Art.
801-16 4477-7k, Sec. 6.04.)
801-17 Sec. 24.166. Bond provisions. (a) In the orders or
801-18 resolutions authorizing the issuance of bonds, including refunding
801-19 bonds, the board may provide for the flow of funds, the
801-20 establishment and maintenance of the interest and sinking fund, the
801-21 reserve fund, and other funds and may make additional covenants
801-22 with respect to the bonds and the pledged fees.
801-23 (b) The orders or resolutions of the board authorizing the
801-24 issuance of bonds may prohibit the further issuance of bonds or
801-25 other obligations payable from the pledged fees or may reserve the
801-26 right to issue additional bonds to be secured by a pledge of and
801-27 payable from the fees on a parity with or subordinate to the pledge
802-1 in support of the bonds being issued.
802-2 (c) The orders or resolutions of the board issuing bonds may
802-3 contain other provisions and covenants as the board may determine.
802-4 (d) The board may adopt and have executed any other
802-5 proceedings or instruments necessary and convenient in the issuance
802-6 of bonds. (V.A.C.S. Art. 4477-7k, Sec. 6.05.)
802-7 Sec. 24.167. Approval and registration. (a) Bonds issued
802-8 by the district and the records relating to their issuance must be
802-9 submitted to the attorney general for examination as to their
802-10 validity.
802-11 (b) If the attorney general finds that the bonds have been
802-12 authorized in accordance with the law, the attorney general shall
802-13 approve them, and the comptroller of public accounts shall register
802-14 the bonds.
802-15 (c) Following approval and registration, the bonds are
802-16 incontestable and are binding obligations according to their terms.
802-17 (V.A.C.S. Art. 4477-7k, Sec. 6.06.)
802-18 Sec. 24.168. Refunding bonds. (a) Refunding bonds of the
802-19 district may be issued to refund and pay off an outstanding
802-20 indebtedness the district has issued or assumed.
802-21 (b) The bonds must be issued in the manner provided by
802-22 Chapter 784, Acts of the 61st Legislature, Regular Session, 1969
802-23 (Article 717k-3, Vernon's Texas Civil Statutes).
802-24 (c) The refunding bonds may be sold and the proceeds applied
802-25 to the payment of outstanding indebtedness or may be exchanged in
802-26 whole or in part for not less than a similar principal amount of
802-27 outstanding indebtedness. If the refunding bonds are to be sold
803-1 and the proceeds applied to the payment of outstanding
803-2 indebtedness, the refunding bonds must be issued and payments made
803-3 in the manner provided by Chapter 503, Acts of the 54th
803-4 Legislature, Regular Session, 1955 (Article 717k, Vernon's Texas
803-5 Civil Statutes). (V.A.C.S. Art. 4477-7k, Sec. 6.07.)
803-6 Sec. 24.169. Legal investments, security for deposits.
803-7 (a) District bonds are legal and authorized investments for:
803-8 (1) a bank;
803-9 (2) a savings bank;
803-10 (3) a trust company;
803-11 (4) a savings and loan association;
803-12 (5) an insurance company;
803-13 (6) a fiduciary;
803-14 (7) a trustee;
803-15 (8) a guardian; and
803-16 (9) the sinking fund of a municipality, county, school
803-17 district, or other political subdivision of the state and other
803-18 public funds of the state and its agencies, including the permanent
803-19 school fund.
803-20 (b) District bonds may secure deposits of public funds of
803-21 the state or a municipality, county, school district, or other
803-22 political subdivision of the state. The bonds are lawful and
803-23 sufficient security for deposits to the extent of their value, if
803-24 accompanied by all unmatured coupons. (V.A.C.S. Art. 4477-7k, Sec.
803-25 6.08.)
803-26 Sec. 24.170. Mandamus by bondholders. In addition to all
803-27 other rights and remedies provided by law, if the district defaults
804-1 in the payment of principal, interest, or redemption price on its
804-2 bonds when due or if it fails to make payments into any fund or
804-3 funds created in the orders or resolutions authorizing the issuance
804-4 of the bonds or defaults in the observation or performance of any
804-5 other covenants, conditions, or obligations set forth in the orders
804-6 or resolutions authorizing the issuance of its bonds, the owners of
804-7 any of the bonds are entitled to a writ of mandamus issued by a
804-8 court of competent jurisdiction compelling and requiring the
804-9 district and its officials to observe and perform the covenants,
804-10 obligations, or conditions prescribed in the orders or resolutions
804-11 authorizing the issuance of the district's bonds. (V.A.C.S. Art.
804-12 4477-7k, Sec. 6.09.)
804-13 Sec. 24.171. Application of other laws. Bonds of the
804-14 district are considered bonds under the Bond Procedures Act of 1981
804-15 (Article 717k-6, Vernon's Texas Civil Statutes). (V.A.C.S. Art.
804-16 4477-7k, Sec. 6.10.)
804-17 Sec. 24.172. Tax status of bonds. Since the district
804-18 created under this chapter is a public entity performing an
804-19 essential public function, bonds issued by the district, any
804-20 transaction relating to the bonds, and profits made in the sale of
804-21 the bonds are free from taxation by the state or by a municipality,
804-22 county, special district, or other political subdivision of the
804-23 state. (V.A.C.S. Art. 4477-7k, Sec. 7.01.)
804-24 Sec. 24.173. Levy of taxes. (a) The board may annually
804-25 levy taxes in the district in an amount necessary to pay the
804-26 principal of and interest on bonds issued by the district and the
804-27 expense of assessing and collecting taxes.
805-1 (b) The district may levy and collect a maintenance and
805-2 operating tax in an amount not to exceed three cents on each $100
805-3 of assessed valuation of property in the district to pay
805-4 maintenance and operating expenses of the district. (V.A.C.S. Art.
805-5 4477-7k, Sec. 7.02.)
805-6 Sec. 24.174. Board authority. (a) The board may levy taxes
805-7 for the entire year in which the district is created.
805-8 (b) The board shall levy taxes on all property within the
805-9 boundaries of the district subject to district taxation. (V.A.C.S.
805-10 Art. 4477-7k, Sec. 7.03.)
805-11 Sec. 24.175. Tax rate. In setting the tax rate, the board
805-12 shall take into consideration the income of the district from
805-13 sources other than taxation. On determination of the amount of tax
805-14 required to be levied, the board shall make the levy and certify it
805-15 to the tax collector. (V.A.C.S. Art. 4477-7k, Sec. 7.04.)
805-16 Sec. 24.176. Tax appraisal, assessment, and collection.
805-17 (a) The Tax Code governs the appraisal, assessment, and collection
805-18 of district taxes.
805-19 (b) The board may provide for the appointment of a tax
805-20 collector for the district or may contract for the collection of
805-21 taxes as provided by the Tax Code. (V.A.C.S. Art. 4477-7k, Sec.
805-22 7.05.)
805-23 Sec. 24.177. Annexation of territory. The board may annex
805-24 the territory within the boundaries of an adjacent county in the
805-25 manner provided by Sections 24.178-24.180. (V.A.C.S. Art. 4477-7k,
805-26 Sec. 8.01.)
805-27 Sec. 24.178. Petition. To initiate annexation proceedings,
806-1 the commissioners court of the adjacent county must petition the
806-2 board requesting the board to call an annexation election for the
806-3 territory within the petitioner's county. The petition must be in
806-4 writing and be endorsed by a majority of the members of the
806-5 commissioners court. (V.A.C.S. Art. 4477-7k, Sec. 8.02.)
806-6 Sec. 24.179. Hearing. (a) On receipt of the petition, the
806-7 board shall set a time and place to hold a hearing on the petition.
806-8 The board shall set a date for the hearing that is not later than
806-9 the 20th day after the date on which the board receives the
806-10 petition.
806-11 (b) The board shall publish notice of the place, time, date,
806-12 and purpose of the hearing in one or more newspapers with general
806-13 circulation in the district and in the county to be annexed. This
806-14 notice is in addition to the notice required under the open
806-15 meetings law, Chapter 271, Acts of the 60th Legislature, Regular
806-16 Session, 1967 (Article 6252-17, Vernon's Texas Civil Statutes).
806-17 (c) Any person may testify at the hearing for or against
806-18 annexation of the county to the district.
806-19 (d) At the conclusion of the hearing, the board shall
806-20 determine if an election should be held in the county to be annexed
806-21 to determine if the county should be annexed to the district.
806-22 (e) Annexation of a county is final when approved by a
806-23 majority of the voters at an election held in the county to be
806-24 annexed. If the district has outstanding debts or taxes, the
806-25 voters in the election to approve the annexation must also
806-26 determine if the annexed county will assume its proportion of the
806-27 debts or taxes if added to the district. An election in the
807-1 existing district accepting the addition of the county is not
807-2 required.
807-3 (f) The election ballots shall be printed to provide for
807-4 voting for or against the following, as applicable:
807-5 (1) "Adding (description of county to be added) to the
807-6 Upper Sabine Valley Solid Waste Management District."
807-7 (2) "(Description of county to be added) assuming its
807-8 proportionate share of the outstanding debts and taxes of the Upper
807-9 Sabine Valley Solid Waste Management District, if it is added to
807-10 the district."
807-11 (g) The election shall be held after the 45th day and on or
807-12 before the 60th day after the date the election is ordered. The
807-13 election shall be ordered and notice of the election shall be given
807-14 in accordance with the Election Code. Section 41.001(a), Election
807-15 Code, does not apply to an election held under this section.
807-16 (h) The board shall file a copy of the election results with
807-17 the commission. (V.A.C.S. Art. 4477-7k, Sec. 8.03.)
807-18 Sec. 24.180. Appointment of directors. (a) The
807-19 commissioners court of the annexed county shall appoint two
807-20 directors to serve on the district's board of directors.
807-21 (b) The newly appointed directors shall draw lots to
807-22 determine their initial terms of office. One new director shall
807-23 serve an initial term that coincides with the terms of district
807-24 directors that expire within two years and the other director shall
807-25 serve a term that expires within two to four years. (V.A.C.S. Art.
807-26 4477-7k, Sec. 8.04.)
807-27 Sec. 24.181. Exclusion from district. (a) At any time
808-1 before the district incurs bonded or other long term indebtedness,
808-2 the commissioners court of a county within the district may
808-3 petition the board to hold an election within the county to
808-4 determine if a majority of voters of that county want to exclude
808-5 the county from the district. On receipt of the petition, the
808-6 board shall enter an order authorizing the commissioners court to
808-7 call the election.
808-8 (b) After the issuance of bonds or other long term
808-9 indebtedness, a county commissioners court may petition the board
808-10 to hold an election to determine if the county should be excluded
808-11 from the district. Before authorizing the commissioners court to
808-12 call an election for this purpose, the board must obtain adequate
808-13 legal and financial assurances that the county will assume and pay
808-14 to the district its proportionate share, based on assessed
808-15 valuation of taxable property in the county and district, of the
808-16 district's outstanding debt if the county withdraws from the
808-17 district. After obtaining assurances the board determines to be
808-18 adequate, the board shall enter an order authorizing the
808-19 commissioners court of that county to call an election in that
808-20 county to determine if the county should be excluded from the
808-21 district. (V.A.C.S. Art. 4477-7k, Sec. 9.01.)
808-22 Sec. 24.182. Election. (a) Exclusion of a county is final
808-23 when approved by a majority of the voters at an election held in
808-24 the county to be excluded. If the district has outstanding bonds
808-25 or other long term obligations, the voters in the election to
808-26 approve the exclusion must also determine if the excluded county
808-27 will assume a duty to pay its proportion of the district's
809-1 outstanding indebtedness.
809-2 (b) The ballots for the election shall be printed to provide
809-3 for voting for or against the proposition, as applicable: "The
809-4 exclusion of __________ County from the Upper Sabine Valley Solid
809-5 Waste Management District and assumption by the county of a duty to
809-6 pay its proportionate share of the outstanding indebtedness of the
809-7 district."
809-8 (c) The election shall be held after the 45th day and on or
809-9 before the 60th day after the date the election is ordered. The
809-10 election shall be ordered and notice of the election shall be given
809-11 in accordance with the Election Code. Section 41.001(a), Election
809-12 Code, does not apply to an election held under this section.
809-13 (d) The board shall file a copy of the election results with
809-14 the commission. (V.A.C.S. Art. 4477-7k, Sec. 9.02.)
809-15 Sec. 24.183. Continued obligation for indebtedness. The
809-16 exclusion of a county under Section 24.182(b) does not relieve the
809-17 district of its obligation to perform and observe the covenants and
809-18 obligations or the conditions prescribed by the orders or
809-19 resolution authorizing the issuance of the district's bonds.
809-20 (V.A.C.S. Art. 4477-7k, Sec. 9.03.)
809-21 (Sections 24.184-24.200 reserved for expansion)
809-22 SUBCHAPTER C. VAN ZANDT COUNTY WASTE MANAGEMENT DISTRICT ACT
809-23 Sec. 24.201. Purpose. The purpose of this subchapter is to
809-24 establish an instrumentality for developing and carrying out for
809-25 Van Zandt County a regional water quality management program that
809-26 includes a waste disposal system and regulation of waste disposal.
809-27 (Sec. 1.01, Ch. 1256, 71st Leg., R.S., 1989.)
810-1 Sec. 24.202. Findings and Declaration of Policy. (a) The
810-2 legislature finds that:
810-3 (1) the quality of water in Van Zandt County is
810-4 materially affected by the disposal of waste throughout the county;
810-5 (2) a countywide effort to study water pollution, plan
810-6 corrective and preventive measures, provide coordinated facilities
810-7 for waste disposal, and regulate waste disposal is far more
810-8 effective than efforts on a smaller scale;
810-9 (3) solid waste, as well as other waste, may impair
810-10 water quality, including by seepage or drainage; and
810-11 (4) creation of the Van Zandt County Waste Disposal
810-12 District would advance the established policy of the state to
810-13 maintain the quality of the water in the state consistent with:
810-14 (A) the public health and public enjoyment;
810-15 (B) the propagation and protection of
810-16 terrestrial and aquatic life;
810-17 (C) the operation of existing industries; and
810-18 (D) the economic development of the state.
810-19 (b) The legislature finds that this subchapter is in
810-20 compliance with Sections 59(d) and (e) of Article XVI of the Texas
810-21 Constitution and that the legislature has the power and authority
810-22 to enact this subchapter.
810-23 (c) The legislature finds that all of the area included in
810-24 the district is benefitted by the exercise of the power conferred
810-25 by this subchapter. (Sec. 1.02, Ch. 1256, 71st Leg., R.S., 1989.)
810-26 Sec. 24.203. Definitions. In this subchapter:
810-27 (1) "Board" means the board of directors of the
811-1 district.
811-2 (2) "County" means Van Zandt County, Texas.
811-3 (3) "Director" means a member of the board.
811-4 (4) "Disposal system" means a system for disposing of
811-5 waste, including sewer systems and treatment facilities.
811-6 (5) "District" means the Van Zandt County Waste
811-7 Disposal District created under this subchapter.
811-8 (6) "Local government" means an incorporated
811-9 municipality, a county, a river authority, or a water or other
811-10 special district or authority acting under Article III, Sections
811-11 52(b)(1) and (2), or Article XVI, Section 59, of the Texas
811-12 Constitution.
811-13 (7) "Municipal solid waste" means solid waste
811-14 resulting from or incidental to municipal, community, commercial,
811-15 institutional, and recreational activities, including garbage,
811-16 rubbish, ashes, street cleanings, dead animals, abandoned
811-17 automobiles, and all other solid waste other than industrial solid
811-18 waste or hazardous waste.
811-19 (8) "Outside the district" means the area contained in
811-20 counties adjacent to the district.
811-21 (9) "Person" means an individual, public or private
811-22 corporation, political subdivision, governmental agency,
811-23 municipality, copartnership, association, firm, trust, estate, or
811-24 any other legal entity.
811-25 (10) "Recreational waste" means waterborne liquid,
811-26 gaseous, or solid substances that emanate from a public or private
811-27 park, beach, or recreational area.
812-1 (11) "Sewage" means waterborne human or animal waste.
812-2 (12) "Sewer system" means pipelines, conduits, canals,
812-3 pumping stations, force mains, and all other constructions,
812-4 devices, and appurtenant appliances used to transport waste.
812-5 (13) "Solid waste" means any putrescible or
812-6 nonputrescible discarded material, including garbage and refuse.
812-7 (14) "Treatment facility" means any plant, disposal
812-8 field, lagoon, incinerator, area devoted to sanitary landfills, or
812-9 other facility installed for the purpose of treating, neutralizing,
812-10 or stabilizing waste.
812-11 (15) "Waste" means sewage, municipal solid waste, or
812-12 recreational waste.
812-13 (16) "Water" means groundwater, percolating or
812-14 otherwise, lakes, bays, ponds, springs, rivers, streams, creeks,
812-15 and all other bodies of surface water, natural or artificial, that
812-16 are wholly or partially within the district.
812-17 (17) "Water pollution" means the alteration of the
812-18 physical, chemical, or biological quality of, or the contamination
812-19 of, water that renders the water harmful, detrimental, or injurious
812-20 to humans, animal life, vegetation, or property, or to public
812-21 health, safety, or welfare, or impairs the usefulness or the public
812-22 enjoyment of the water for any lawful or reasonable purpose. (Sec.
812-23 1.03, Ch. 1256, 71st Leg., R.S., 1989.)
812-24 Sec. 24.204. Creation of District. Pursuant to Article XVI,
812-25 Section 59, of the Texas Constitution, a conservation and
812-26 reclamation district to be known as the Van Zandt County Waste
812-27 Disposal District is created as a governmental agency and body
813-1 politic and corporate of the state. (Sec. 2.01, Ch. 1256, 71st
813-2 Leg., R.S., 1989.)
813-3 Sec. 24.205. Description. The district's territory consists
813-4 of the area within the Van Zandt County boundaries. (Sec. 2.02,
813-5 Ch. 1256, 71st Leg., R.S., 1989.)
813-6 Sec. 24.206. Appointment of Temporary Directors. (a) On
813-7 the effective date of this subchapter, the commissioners court of
813-8 the county shall appoint seven persons to serve as temporary
813-9 directors of the district. Four of the persons shall be
813-10 representatives from the municipalities within the county and three
813-11 shall be representatives from the unincorporated areas of the
813-12 county.
813-13 (b) Members of the temporary board serve until the persons
813-14 elected as directors under Section 24.207 have been elected and
813-15 have qualified for office.
813-16 (c) A vacancy on the temporary board shall be filled by
813-17 appointment of the remaining members of the temporary board. (Sec.
813-18 2.03, Ch. 1256, 71st Leg., R.S., 1989.)
813-19 Sec. 24.207. Confirmation and Directors' Election. (a) The
813-20 temporary directors shall call and hold an election within the
813-21 boundaries of the proposed district to determine if the proposed
813-22 district will be created and, if created, to elect directors for
813-23 the district. The election shall be held not later than six months
813-24 after the effective date of this subchapter.
813-25 (b) A person who desires to have the person's name printed
813-26 on the ballot as a candidate for director of the district shall
813-27 file a petition with the temporary board before the 35th day
814-1 preceding the date of the election.
814-2 (c) Section 41.001(a), Election Code, does not apply to a
814-3 confirmation and initial directors' election. (Sec. 2.04, Ch.
814-4 1256, 71st Leg., R.S., 1989.)
814-5 Sec. 24.208. Notice of Election. Notice of the confirmation
814-6 and directors' election shall state the day and places for holding
814-7 the election, the proposition to be voted on, and the candidates
814-8 for director. The temporary board shall publish the notice of the
814-9 election one time in one or more newspapers of general circulation
814-10 in the proposed district. The notice must be published before the
814-11 35th day before the date set for the election. (Sec. 2.05, Ch.
814-12 1256, 71st Leg., R.S., 1989.)
814-13 Sec. 24.209. Ballot Proposition. The ballot for the
814-14 election shall be printed to permit voting for or against the
814-15 proposition: "The creation of the Van Zandt County Waste Disposal
814-16 District." The ballot must include the names of the persons who
814-17 have filed as candidates for director. A voter is entitled to vote
814-18 for seven candidates for director. (Sec. 2.06, Ch. 1256, 71st
814-19 Leg., R.S., 1989.)
814-20 Sec. 24.210. Canvassing Returns. (a) Immediately after the
814-21 confirmation and directors' election, the presiding judge of each
814-22 polling place shall deliver returns of the election to the
814-23 temporary board, and the temporary board shall canvass the returns
814-24 and declare the result.
814-25 (b) If a majority of the votes cast at the election favor
814-26 creation of the district, the temporary board shall declare the
814-27 district created and shall enter the results in its minutes. If a
815-1 majority of the votes cast at the election are against the creation
815-2 of the district, the temporary board shall declare that the
815-3 creation of the district was defeated and shall enter the results
815-4 in its minutes. The temporary board shall file a copy of the
815-5 election results with the commission.
815-6 (c) If a majority of the voters at the election approve the
815-7 creation of the district, the temporary board shall declare the
815-8 seven candidates who received the highest number of votes to be
815-9 elected directors for the district. If two or more candidates tie
815-10 for the seventh highest vote for a director position, the
815-11 commissioners court shall select the seventh director by lot from
815-12 those tying for the position.
815-13 (d) After the directors elected at the confirmation and
815-14 directors' election have qualified for office, they shall draw lots
815-15 to determine their terms of office. Two of the directors serve
815-16 terms that expire at the first regular meeting of the board in May
815-17 following the second directors' election, two directors serve terms
815-18 that expire at the first regular meeting of the board in May
815-19 following the third directors' election, and the remaining three
815-20 directors serve terms that expire at the first regular meeting of
815-21 the board in May following the fourth directors' election.
815-22 (e) If a majority of the voters at the election vote against
815-23 the creation of the district, the temporary board may call and hold
815-24 additional confirmation and directors' elections, but another
815-25 election to confirm creation of the district may not be called and
815-26 held by the temporary board before the first anniversary of the
815-27 most recent confirmation and directors' election. If the district
816-1 is not created within five years after the effective date of this
816-2 subchapter, this subchapter expires. (Sec. 2.07, Ch. 1256, 71st
816-3 Leg., R.S., 1989.)
816-4 Sec. 24.211. Bond Proposition at Creation Election. At an
816-5 election to confirm creation of the district, the temporary board
816-6 may include a separate proposition on the ballot to approve the
816-7 issuance by the district of bonds payable wholly or partially from
816-8 property taxes. The notice of the election under Section 24.208
816-9 must state the bond proposition that is to appear on the ballot.
816-10 The ballot shall be printed to permit voting for or against the
816-11 proposition: "The issuance of bonds in the amount of $ (INSERT
816-12 AMOUNT) payable wholly (or partially) from property taxes for
816-13 (STATE PURPOSE FOR WHICH BOND PROCEEDS TO BE USED) and the levy of
816-14 taxes in payment of those bonds." If a majority of the voters at
816-15 the election approve the bond proposition, the temporary board
816-16 shall declare the result and enter it in its minutes, and the
816-17 district, if created, may issue the bonds in the amount authorized
816-18 for the purpose authorized and may levy and collect taxes necessary
816-19 to pay the principal of and interest on the bonds. If a majority
816-20 of the voters at the election do not approve the bond proposition,
816-21 the temporary board shall declare the result and enter it in its
816-22 minutes, and the district, if created, may not issue the bonds
816-23 payable in whole or in part by property taxes. The temporary board
816-24 shall file a copy of the bond election results with the commission.
816-25 (Sec. 2.08, Ch. 1256, 71st Leg., R.S., 1989.)
816-26 Sec. 24.212. Board of Directors. (a) The district is
816-27 governed by a board of directors composed of seven members, who are
817-1 elected as provided by this subchapter.
817-2 (b) One director shall be elected from each of the four
817-3 commissioners precincts in the county, and three directors shall be
817-4 elected from the district at large. (Sec. 3.01, Ch. 1256, 71st
817-5 Leg., R.S., 1989.)
817-6 Sec. 24.213. Qualifications of Directors. (a) To serve as
817-7 a director, a person must be:
817-8 (1) at least 18 years old;
817-9 (2) a qualified voter; and
817-10 (3) a resident of the area within the boundaries of
817-11 the district.
817-12 (b) In addition to the qualifications required by Subsection
817-13 (a) of this section, a person who is elected from a commissioners
817-14 precinct or who is appointed to fill a vacancy for a commissioners
817-15 precinct must be a resident of that commissioners precinct.
817-16 (c) Each director must execute a bond in the amount of
817-17 $5,000 with a corporate surety authorized to do business in this
817-18 state conditioned on the faithful performance of the director's
817-19 duties. (Sec. 3.02, Ch. 1256, 71st Leg., R.S., 1989.)
817-20 Sec. 24.214. Term of Office. A director holds office for a
817-21 term of four years and serves until the director's successor is
817-22 elected and has qualified. (Sec. 3.03, Ch. 1256, 71st Leg., R.S.,
817-23 1989.)
817-24 Sec. 24.215. Directors' Elections. Section 41.003, Election
817-25 Code, does not apply to a directors' election. (Sec. 3.03A, Ch.
817-26 1256, 71st Leg., R.S., 1989.)
817-27 Sec. 24.216. Election of Directors. (a) On the first
818-1 Tuesday after the first Monday in November in each even-numbered
818-2 year, an election shall be held in the district to elect the
818-3 appropriate number of directors to the board.
818-4 (b) A person who desires to have his name printed on the
818-5 ballot at a directors' election as a candidate for director shall
818-6 file a petition with the secretary of the district before the 30th
818-7 day preceding the date of the election. The petition must specify
818-8 the commissioners precinct the candidate wishes to represent or
818-9 specify that the candidate wishes to represent the district at
818-10 large. (Sec. 3.04, Ch. 1256, 71st Leg., R.S., 1989.)
818-11 Sec. 24.217. Beginning of Director's Term. A director shall
818-12 take office at the first regular meeting of the board in November
818-13 following his election to the board. (Sec. 3.05, Ch. 1256, 71st
818-14 Leg., R.S., 1989.)
818-15 Sec. 24.218. Vacancy on Board. A vacancy on the board shall
818-16 be filled by appointment of the remaining members of the board
818-17 until the next election of directors for the district. If that
818-18 position is not scheduled to be filled at that election, the person
818-19 elected to fill the position serves only for the remainder of the
818-20 unexpired term. (Sec. 3.06, Ch. 1256, 71st Leg., R.S., 1989.)
818-21 Sec. 24.219. Oath. Each director shall take the
818-22 constitutional oath of office required of state officers. (Sec.
818-23 3.07, Ch. 1256, 71st Leg., R.S., 1989.)
818-24 Sec. 24.220. Organization of Board. (a) Annually, the
818-25 board shall hold a regular meeting in November at the district
818-26 office and shall organize by electing from the members of the board
818-27 one person to serve as chairman, one person to serve as
819-1 vice-chairman, and one person to serve as secretary.
819-2 (b) A person selected to serve as chairman, vice-chairman,
819-3 or secretary serves in that capacity for a term of one year.
819-4 (c) The chairman shall preside over meetings of the board,
819-5 and in his absence the vice-chairman shall preside.
819-6 (d) The chairman, vice-chairman, and secretary shall perform
819-7 the duties and may exercise the powers specifically given them by
819-8 this subchapter or by orders of the board. (Sec. 3.08, Ch. 1256,
819-9 71st Leg., R.S., 1989.)
819-10 Sec. 24.221. Meetings and Actions of the Board. (a) The
819-11 board shall meet at least one time each month and may meet at any
819-12 other time provided by its bylaws.
819-13 (b) A majority of the members of the board constitute a
819-14 quorum for the transaction of business of the district.
819-15 (c) Except as otherwise provided by this subchapter, the
819-16 vote of a majority of directors is required for board action.
819-17 (d) The board shall adopt bylaws at its first meeting or as
819-18 soon after the first meeting as practicable. The board's bylaws
819-19 must prescribe the powers, duties, and procedures for removal from
819-20 a board office. (Sec. 3.09, Ch. 1256, 71st Leg., R.S., 1989.)
819-21 Sec. 24.222. Other Officers. (a) The board shall appoint a
819-22 treasurer and an attorney for the district.
819-23 (b) The persons appointed under this section are entitled to
819-24 the compensation provided by the district's budget.
819-25 (c) The person appointed as treasurer shall execute a bond
819-26 in the amount determined by the board, payable to the district,
819-27 conditioned on the faithful performance of the treasurer's duties.
820-1 The district shall pay for the bond. (Sec. 3.10, Ch. 1256, 71st
820-2 Leg., R.S., 1989.)
820-3 Sec. 24.223. Interest in Contract. A director who is
820-4 financially interested in a contract to be executed by the district
820-5 for the purchase of property or the construction of facilities
820-6 shall disclose that fact to the other directors and may not vote on
820-7 the acceptance of the contract. (Sec. 3.11, Ch. 1256, 71st Leg.,
820-8 R.S., 1989.)
820-9 Sec. 24.224. Director's Compensation. (a) A director is
820-10 entitled to receive $25 a day and reimbursement for actual and
820-11 necessary expenses incurred:
820-12 (1) for each day the director attends meetings of the
820-13 board; and
820-14 (2) for each day the director attends to the business
820-15 of the district that is authorized by board resolution or motion.
820-16 (b) A director is not entitled to receive a per diem
820-17 allowance for more than 120 days in any one calendar year. (Sec.
820-18 3.12, Ch. 1256, 71st Leg., R.S., 1989.)
820-19 Sec. 24.225. General Manager; Personnel. (a) The board
820-20 shall employ a general manager for a term and salary set by the
820-21 board.
820-22 (b) The general manager is the chief executive officer of
820-23 the district. Under policies established by the board, the
820-24 general manager is responsible to the board for:
820-25 (1) administering the directives of the board;
820-26 (2) keeping the district's records, including minutes
820-27 of the board's meetings;
821-1 (3) coordinating with state, federal, and local
821-2 agencies;
821-3 (4) developing plans and programs for the board's
821-4 approval;
821-5 (5) hiring, supervising, training, and discharging the
821-6 district's employees;
821-7 (6) contracting for or retaining technical,
821-8 scientific, legal, fiscal, and other professional services; and
821-9 (7) performing any other duties assigned to the
821-10 general manager by the board.
821-11 (c) The board may discharge the general manager on a
821-12 majority vote of all the qualified directors. (Sec. 3.13, Ch.
821-13 1256, 71st Leg., R.S., 1989.)
821-14 Sec. 24.226. Directors' and Employees' Bonds. (a) The
821-15 general manager and each employee of the district charged with the
821-16 collection, custody, or payment of any money of the district shall
821-17 execute a fidelity bond. The board shall approve the form, amount,
821-18 and surety of the bond.
821-19 (b) The district shall pay the premiums on the employees'
821-20 bonds under this section and the directors' bonds under Section
821-21 24.213(c). (Sec. 3.14, Ch. 1256, 71st Leg., R.S., 1989.)
821-22 Sec. 24.227. Principal Office. The district shall maintain
821-23 its principal office inside the district's boundaries. (Sec. 3.15,
821-24 Ch. 1256, 71st Leg., R.S., 1989.)
821-25 Sec. 24.228. Records. (a) The district shall keep complete
821-26 and accurate accounts of its business transactions in accordance
821-27 with generally accepted methods of accounting.
822-1 (b) The district shall keep complete and accurate minutes of
822-2 its meetings.
822-3 (c) The district shall keep its accounts, contracts,
822-4 documents, minutes, and other records at its principal office.
822-5 (d) Neither the board nor its employees shall disclose any
822-6 records that it has relating to trade secrets or economics of
822-7 operation of industries. (Sec. 3.16, Ch. 1256, 71st Leg., R.S.,
822-8 1989.)
822-9 Sec. 24.229. Contracts. The board may enter into contracts
822-10 as provided by this subchapter, and those contracts shall be
822-11 executed by the board in the name of the district. (Sec. 3.17, Ch.
822-12 1256, 71st Leg., R.S., 1989.)
822-13 Sec. 24.230. Supervision of District. The district is
822-14 subject to the continuing right of supervision by the state, to be
822-15 exercised by the commission under this subchapter and the Water
822-16 Code. (Sec. 3.18, Ch. 1256, 71st Leg., R.S., 1989.)
822-17 Sec. 24.231. Suits; Payment of Judgments. (a) The district
822-18 may, through its board, sue and be sued in any court of this state
822-19 in the name of the district. Service of process in a suit may be
822-20 had by serving the general manager.
822-21 (b) The courts of this state shall take judicial notice of
822-22 the creation of the district.
822-23 (c) A court of this state that renders a money judgment
822-24 against the district may require the board to pay the judgment from
822-25 money in the district depository that is not dedicated to the
822-26 payment of any indebtedness of the district. (Sec. 3.19, Ch. 1256,
822-27 71st Leg., R.S., 1989.)
823-1 Sec. 24.232. Seal. The board shall adopt a seal for the
823-2 district and may alter the form of the seal from time to time.
823-3 (Sec. 3.20, Ch. 1256, 71st Leg., R.S., 1989.)
823-4 Sec. 24.233. General Powers and Duties. (a) The district
823-5 shall administer and enforce this subchapter and shall use its
823-6 facilities and powers to accomplish the purposes of this
823-7 subchapter.
823-8 (b) After notice and hearing, the board may adopt rules
823-9 necessary to carry out this subchapter. The board shall adopt
823-10 rules providing procedures for giving notice and holding hearings
823-11 before the board.
823-12 (c) The district may prepare and adopt plans for and may
823-13 purchase, construct, acquire, own, operate, maintain, repair,
823-14 improve, and extend inside and outside the boundaries of the
823-15 district any works, improvements, waste disposal, treatment, and
823-16 other facilities, plants, pipelines, equipment, and appliances
823-17 necessary to collect, transport, process, dispose of, and control
823-18 waste within the district.
823-19 (d) The district shall acquire all necessary permits as
823-20 required by this code and other state law and that are necessary to
823-21 carry out this subchapter.
823-22 (e) The district shall conduct studies and research for the
823-23 control of water pollution and waste disposal within the district,
823-24 shall cooperate with the department and commission in any studies,
823-25 and shall use the results of those studies.
823-26 (f) The regulatory powers of the district under this
823-27 subchapter extend to every person.
824-1 (g) Except as expressly limited by this subchapter, the
824-2 district has all powers, rights, and privileges necessary and
824-3 convenient for accomplishing the purposes of this subchapter
824-4 conferred by general law on a conservation and reclamation district
824-5 created pursuant to Article XVI, Section 59, of the Texas
824-6 Constitution.
824-7 (h) Subject only to the authority vested by general law, and
824-8 particularly Chapters 10 and 20, the district may control water
824-9 pollution and waste disposal within the district.
824-10 (i) The powers granted to the district by this subchapter
824-11 are cumulative of all powers granted by other laws that are by
824-12 their terms applicable to the district. (Sec. 4.01, Ch. 1256, 71st
824-13 Leg., R.S., 1989.)
824-14 Sec. 24.234. Gifts, Grants, Loans, and Other Funds. To
824-15 carry out any purposes or powers under this subchapter, the
824-16 district may apply for, accept, receive, and administer gifts,
824-17 grants, loans, and other funds available from any source. (Sec.
824-18 4.02, Ch. 1256, 71st Leg., R.S., 1989.)
824-19 Sec. 24.235. Consultation, Contracts, and Cooperation with
824-20 Other Governmental Agencies and Entities. To carry out any
824-21 purposes or powers under this subchapter, the district may advise,
824-22 consult, contract, and cooperate with the federal government and
824-23 its agencies, the state and its agencies, local governments, and
824-24 private entities. (Sec. 4.03, Ch. 1256, 71st Leg., R.S., 1989.)
824-25 Sec. 24.236. Acquisition of Property. The district may
824-26 acquire by gift, grant, devise, purchase, lease, or condemnation
824-27 any land, easements, rights-of-way, and other property interests
825-1 necessary to carry out the powers and duties provided by this
825-2 subchapter. (Sec. 4.04, Ch. 1256, 71st Leg., R.S., 1989.)
825-3 Sec. 24.237. Eminent Domain. (a) The district may acquire
825-4 land within the boundaries of the district for the purposes
825-5 authorized by Section 24.233(c) by condemnation when the board
825-6 determines, after notice and hearing, that it is
825-7 (b) The right of eminent domain shall be exercised by the
825-8 district in the manner provided by Chapter 21, Property Code,
825-9 except that the district is not required to give bond for appeal or
825-10 bond for costs in a condemnation suit or other suit to which it is
825-11 a party and is not required to deposit double the amount of any
825-12 award in any suit.
825-13 (c) If the district, in the exercise of the power of eminent
825-14 domain, requires relocating, raising, lowering, rerouting, changing
825-15 the grade, or altering the construction of any railroad, highway,
825-16 pipeline, or electric transmission and electric distribution,
825-17 telegraph, or telephone lines, conduits, poles, or facilities, the
825-18 district must bear the actual cost of relocating, raising,
825-19 lowering, rerouting, changing the grade, or altering the
825-20 construction to provide comparable replacement without enhancement
825-21 of facilities, after deducting the net salvage value derived from
825-22 the old facility. (Sec. 4.05, Ch. 1256, 71st Leg., R.S., 1989.)
825-23 Sec. 24.238. Authority to Enter Into Construction,
825-24 Renovation, and Repair Contracts. The district may contract with
825-25 any person to construct, renovate, or repair any of its works,
825-26 improvements, waste disposal, treatment, or other facilities,
825-27 plants, pipelines, equipment, and appliances and, from time to
826-1 time, make improvements to them. (Sec. 4.06, Ch. 1256, 71st Leg.,
826-2 R.S., 1989.)
826-3 Sec. 24.239. Bids on Contracts. Contracts entered into
826-4 under Section 24.238 requiring an expenditure of more than $5,000
826-5 may be made only after competitive bidding as provided by
826-6 Subchapter B, Chapter 271, Local Government Code. (Sec. 4.07, Ch.
826-7 1256, 71st Leg., R.S., 1989.)
826-8 Sec. 24.240. Attachments to Contracts. A contract entered
826-9 into under Section 24.238 must contain, or have attached to it, the
826-10 specifications, plans, and details for work included in the
826-11 contract, and work shall be done according to those plans and
826-12 specifications under the supervision of the district. (Sec. 4.08,
826-13 Ch. 1256, 71st Leg., R.S., 1989.)
826-14 Sec. 24.241. Execution and Availability of Contracts. (a)
826-15 A contract entered into under Section 24.238 must be in writing and
826-16 signed by the contractor and a representative of the district
826-17 designated by the board.
826-18 (b) The contract shall be kept in the district's office and
826-19 must be available for public inspection. (Sec. 4.09, Ch. 1256,
826-20 71st Leg., R.S., 1989.)
826-21 Sec. 24.242. Contractor's Bond. (a) A contractor shall
826-22 execute a bond in an amount determined by the board, not to exceed
826-23 the contract price, payable to the district and approved by the
826-24 board, conditioned on the faithful performance of the obligations,
826-25 agreements, and covenants of the contract.
826-26 (b) The bond must provide that if the contractor defaults on
826-27 the contract, the contractor will pay to the district all damages
827-1 sustained as a result of the default. The bond shall be deposited
827-2 in the district's depository, and a copy of the bond shall be kept
827-3 in the district's office. (Sec. 4.10, Ch. 1256, 71st Leg., R.S.,
827-4 1989.)
827-5 Sec. 24.243. Monitoring Work. (a) The board has control of
827-6 construction, renovation, or repairs being done for the district
827-7 under a contract entered into under Section 24.238 and shall
827-8 determine whether or not the contract is being fulfilled.
827-9 (b) The board shall have the construction, renovation, or
827-10 repair work inspected by engineers, inspectors, and personnel of
827-11 the district.
827-12 (c) During the progress of the work, the engineers,
827-13 inspectors, and personnel doing the inspections shall submit to the
827-14 board written reports that show whether or not the contractor is
827-15 complying with the contract.
827-16 (d) On completion of construction, renovation, or repair
827-17 work, the engineers, inspectors, and personnel shall submit to the
827-18 board a final detailed written report including information
827-19 necessary to show whether or not the contractor has fully complied
827-20 with the contract. (Sec. 4.11, Ch. 1256, 71st Leg., R.S., 1989.)
827-21 Sec. 24.244. Payment for Work. (a) The district shall pay
827-22 the contract price of construction, renovation, or repair contracts
827-23 in accordance with this section.
827-24 (b) The district shall make progress payments under
827-25 contracts monthly as the work proceeds or at more frequent
827-26 intervals as determined by the board.
827-27 (c) If requested by the board, the contractor shall furnish
828-1 an analysis of the total contract price showing the amount included
828-2 for each principal category of the work, in such detail as
828-3 requested, to provide a basis for determining progress payments.
828-4 (d) In making progress payments, 10 percent of the estimated
828-5 amount shall be retained until final completion and acceptance of
828-6 the contract work. However, if the board, at any time after 50
828-7 percent of the work has been completed, finds that satisfactory
828-8 progress is being made, it may authorize any of the remaining
828-9 progress payments to be made in full. Also, if the work is
828-10 substantially complete, the board, if it finds the amount retained
828-11 to be in excess of the amount adequate for the protection of the
828-12 district, may release to the contractor all or a portion of the
828-13 excess amount.
828-14 (e) On completion and acceptance of each separate project,
828-15 work, or other division of the contract, on which the price is
828-16 stated separately in the contract, payment may be made without
828-17 retention of a percentage.
828-18 (f) When work is completed according to the terms of the
828-19 contract, the board shall draw a warrant on the depository to pay
828-20 any balance due on the contract. (Sec. 4.12, Ch. 1256, 71st Leg.,
828-21 R.S., 1989.)
828-22 Sec. 24.245. Contracts for Purchase of Vehicles, Equipment,
828-23 and Supplies Over $10,000. (a) If the estimated amount of a
828-24 proposed contract for the purchase of vehicles, equipment, or
828-25 supplies is more than $10,000, the board shall ask for competitive
828-26 bids as provided by Section 24.239.
828-27 (b) This section does not apply to purchases of property
829-1 from public agencies or to contracts for personal or professional
829-2 services. (Sec. 4.13, Ch. 1256, 71st Leg., R.S., 1989.)
829-3 Sec. 24.246. Entry on Land. (a) The directors, the
829-4 engineer, and the employees of the district may go on any land
829-5 inside or outside the boundaries of the district to make surveys
829-6 and examine the land with reference to the location of works,
829-7 improvements, waste disposal, treatment, and other facilities,
829-8 plants, pipelines, equipment, and appliances and to attend to
829-9 business of the district.
829-10 (b) Before a director, engineer, or employee enters on the
829-11 land, five days' written notice must be given to the landowner.
829-12 (c) If any activities of the district on the land cause
829-13 damages to the land or property, the land or property shall be
829-14 restored as nearly as possible to its original state. The district
829-15 shall pay the cost of the restoration. (Sec. 4.14, Ch. 1256, 71st
829-16 Leg., R.S., 1989.)
829-17 Sec. 24.247. Right to Use Road Right-of-Way. The district
829-18 has a right-of-way along and across all public state or county
829-19 roads or highways, but the district shall restore the roads and
829-20 highways crossed, as nearly as possible, to their previous
829-21 condition of use at the sole expense of the district. (Sec. 4.15,
829-22 Ch. 1256, 71st Leg., R.S., 1989.)
829-23 Sec. 24.248. Fees and Charges. (a) The board may adopt and
829-24 enforce all necessary charges, fees, or rentals, in addition to
829-25 taxes, for providing any district facilities or services.
829-26 (b) The board may require a deposit for any services or
829-27 facilities furnished and may or may not provide that the deposit
830-1 will bear interest.
830-2 (c) The board may discontinue a facility or service to
830-3 prevent an abuse or enforce payment of an unpaid charge, fee, or
830-4 rental due the district, including taxes that have been due for not
830-5 less than six months. (Sec. 4.16, Ch. 1256, 71st Leg., R.S.,
830-6 1989.)
830-7 Sec. 24.249. Acquisition of Existing Facilities. If the
830-8 district acquires existing works, improvements, waste disposal,
830-9 treatment, and other facilities, plants, pipelines, equipment, and
830-10 appliances that are completed, partially completed, or under
830-11 construction, the district may assume the contracts and obligations
830-12 of the previous owner and perform the obligations of the previous
830-13 owner in the same manner and to the same extent that any other
830-14 purchaser or assignee would be bound. (Sec. 4.17, Ch. 1256, 71st
830-15 Leg., R.S., 1989.)
830-16 Sec. 24.250. Municipal Solid Waste Resource Recovery
830-17 Facilities. The district may construct or acquire and operate
830-18 municipal solid waste resource recovery facilities. (Sec. 4.18,
830-19 Ch. 1256, 71st Leg., R.S., 1989.)
830-20 Sec. 24.251. Regulation of Municipal Solid Waste Disposal.
830-21 (a) The district shall establish minimum standards of operation
830-22 for all aspects of municipal solid waste handling, including
830-23 storage, collection, incineration, sanitary landfill, or
830-24 composting.
830-25 (b) Before establishing the standards, the district shall:
830-26 (1) hold public hearings after giving public notice in
830-27 the time and manner prescribed by board rule;
831-1 (2) consult with the commission to ensure that the
831-2 standards are not inconsistent with established criteria; and
831-3 (3) find that the standards are reasonably necessary
831-4 for protection of public health or welfare from water pollution or
831-5 other environmental harm.
831-6 (c) To amend standards, the district shall follow the same
831-7 procedures required for establishing standards.
831-8 (d) The district may make rules reasonably necessary to
831-9 implement municipal solid waste disposal standards.
831-10 (e) The district may assume the exclusive authority to
831-11 exercise the powers granted to a county under Sections
831-12 20.151-20.164, including the power to issue licenses and exercise
831-13 municipal solid waste management authority. If the district elects
831-14 to exercise the licensing authority granted under this subsection,
831-15 it must adopt and enforce rules for the management of municipal
831-16 solid waste. The rules must be compatible with and at least as
831-17 stringent as those of the commission and must be approved by the
831-18 commission. (Sec. 4.19, Ch. 1256, 71st Leg., R.S., 1989.)
831-19 Sec. 24.252. Septic Tanks. (a) If the district finds that
831-20 due to the nature of the soil or drainage in the area it is
831-21 necessary to prevent water pollution that may injure the public
831-22 health, the district by rule may:
831-23 (1) provide limits on the number and kind of septic
831-24 tanks in an area defined by the rule;
831-25 (2) prohibit the use of septic tanks in the area; or
831-26 (3) prohibit the installation of new septic tanks in
831-27 the area.
832-1 (b) The board shall consult with the commission before the
832-2 adoption of a rule under Subsection (a).
832-3 (c) The board may provide in the order for a gradual and
832-4 systematic reduction of the number or kind of septic tanks in the
832-5 area and, by rule, may provide for a system of licensing and
832-6 issuing permits for the installation of new septic tanks in the
832-7 area affected, in which event no person may install septic tanks in
832-8 the area without a license or permit from the board.
832-9 (d) The board may not issue a rule under Subsection (a)
832-10 without first holding a public hearing in the area to be affected
832-11 by the rule. (Sec. 4.20, Ch. 1256, 71st Leg., R.S., 1989.)
832-12 Sec. 24.253. Acquisition, Construction, and Operation of
832-13 Disposal Systems. The district may:
832-14 (1) acquire and provide by purchase, gift, or lease
832-15 any disposal systems inside or outside the district;
832-16 (2) construct and provide disposal systems inside or
832-17 outside the district;
832-18 (3) operate and sell any disposal systems that it
832-19 constructs or acquires;
832-20 (4) contract with a person to operate and maintain a
832-21 disposal system belonging to the person; and
832-22 (5) contract with a person to train or supervise
832-23 employees of a disposal system. (Sec. 4.21, Ch. 1256, 71st Leg.,
832-24 R.S., 1989.)
832-25 Sec. 24.254. Waste Disposal Contracts. (a) The district
832-26 may contract to receive and to treat or dispose of waste from a
832-27 person in the district.
833-1 (b) In contracts under Subsection (a), the district shall
833-2 set fees by considering:
833-3 (1) the quality of the waste;
833-4 (2) the quantity of the waste;
833-5 (3) the difficulty encountered in treating or
833-6 disposing of the waste;
833-7 (4) operation and maintenance expenses and debt
833-8 retirement services; and
833-9 (5) any other reasonable considerations. (Sec. 4.22,
833-10 Ch. 1256, 71st Leg., R.S., 1989.)
833-11 Sec. 24.255. Areawide Waste Treatment. The powers and
833-12 duties conferred on the district are granted subject to the policy
833-13 of the state to encourage the development and use of integrated
833-14 areawide waste collection, treatment, and disposal systems to serve
833-15 the waste disposal needs of the citizens of the state, it being an
833-16 objective of the policy to avoid the economic burden to the people
833-17 and the impact on the quality of the water in the state that result
833-18 from the construction and operation of numerous small waste
833-19 collection, treatment, and disposal facilities to serve an area
833-20 when an integrated areawide waste collection, treatment, and
833-21 disposal system for the area can be reasonably provided. (Sec.
833-22 4.23, Ch. 1256, 71st Leg., R.S., 1989.)
833-23 Sec. 24.256. Fiscal Year. (a) The district operates on the
833-24 fiscal year established by the board.
833-25 (b) The fiscal year may not be changed more than once in a
833-26 24-month period. (Sec. 5.01, Ch. 1256, 71st Leg., R.S., 1989.)
833-27 Sec. 24.257. Annual Audit. Annually, the board shall have
834-1 an audit made of the financial condition of the district. (Sec.
834-2 5.02, Ch. 1256, 71st Leg., R.S., 1989.)
834-3 Sec. 24.258. Annual Budget. (a) The board shall prepare
834-4 and approve an annual budget for the district.
834-5 (b) The budget shall contain a complete financial statement,
834-6 including a statement of:
834-7 (1) the outstanding obligations of the district;
834-8 (2) the amount of cash on hand to the credit of each
834-9 fund of the district;
834-10 (3) the amount of money received by the district from
834-11 all sources during the previous year;
834-12 (4) the amount of money available to the district from
834-13 all sources during the ensuing year;
834-14 (5) the amount of the balances expected at the end of
834-15 the year in which the budget is being prepared;
834-16 (6) the estimated amount of revenues and balances
834-17 available to cover the proposed budget; and
834-18 (7) the estimated tax rate that will be required.
834-19 (Sec. 5.03, Ch. 1256, 71st Leg., R.S., 1989.)
834-20 Sec. 24.259. Amending Budget. After adoption, the annual
834-21 budget may be amended on the board's approval. (Sec. 5.04, Ch.
834-22 1256, 71st Leg., R.S., 1989.)
834-23 Sec. 24.260. Limitation on Expenditures. Money may not be
834-24 spent for an expense not included in the annual budget or an
834-25 amendment to it unless the board by order declares the expense to
834-26 be necessary. (Sec. 5.05, Ch. 1256, 71st Leg., R.S., 1989.)
834-27 Sec. 24.261. Sworn Statement. As soon as practicable after
835-1 the close of the fiscal year, the treasurer of the district shall
835-2 prepare for the board a sworn statement of the amount of money that
835-3 belongs to the district and an account of the disbursements of that
835-4 money. (Sec. 5.06, Ch. 1256, 71st Leg., R.S., 1989.)
835-5 Sec. 24.262. Depository. (a) The board shall name one or
835-6 more banks to serve as depository for district funds.
835-7 (b) District funds, other than those transmitted to a bank
835-8 of payment for bonds issued by the district, shall be deposited as
835-9 received with the depository bank and must remain on deposit. This
835-10 section does not limit the power of the board to invest the
835-11 district's funds as provided by Section 24.263.
835-12 (c) Before the district deposits funds in a bank in an
835-13 amount that exceeds the maximum amount secured by the Federal
835-14 Deposit Insurance Corporation, the bank must execute a bond or
835-15 provide other security in an amount sufficient to secure from loss
835-16 the district's funds that exceed the amount secured by the Federal
835-17 Deposit Insurance Corporation. (Sec. 5.07, Ch. 1256, 71st Leg.,
835-18 R.S., 1989.)
835-19 Sec. 24.263. Investments. (a) Funds of the district may be
835-20 invested and reinvested by the board or its authorized
835-21 representative in those investments specified by Article 836 or
835-22 837, Revised Statutes, or the Public Funds Investment Act of 1987
835-23 (Article 842a-2, Vernon's Texas Civil Statutes).
835-24 (b) Funds of the district may be placed in certificates of
835-25 deposit of state or national banks or state or federal savings and
835-26 loan associations within the state provided that the funds are
835-27 secured in the manner required for the security of the funds of
836-1 counties of the state.
836-2 (c) The board by resolution may provide that an authorized
836-3 representative of the district may invest and reinvest the funds of
836-4 the district and provide for money to be withdrawn from the
836-5 appropriate accounts of the district for investments on terms the
836-6 board considers advisable. (Sec. 5.08, Ch. 1256, 71st Leg., R.S.,
836-7 1989.)
836-8 Sec. 24.264. Payment of Expenses. (a) The district's
836-9 directors may pay all costs and expenses necessarily incurred in
836-10 the creation, organization, and operation of the district, legal
836-11 fees, and other incidental expenses and may reimburse any person
836-12 for money advanced for those purposes.
836-13 (b) Payments may be made from money obtained from the sale
836-14 of bonds issued by the district or out of taxes, fees, or other
836-15 revenues of the district. (Sec. 5.09, Ch. 1256, 71st Leg., R.S.,
836-16 1989.)
836-17 Sec. 24.265. Authority to Issue Bonds. The board may issue
836-18 and sell bonds in the name of the district to acquire land and
836-19 construct works, improvements, waste disposal, treatment, and other
836-20 facilities, plants, pipelines, equipment, and appliances as
836-21 provided by this subchapter. (Sec. 6.01, Ch. 1256, 71st Leg.,
836-22 R.S., 1989.)
836-23 Sec. 24.266. Bond Payment. The board may provide for the
836-24 payment of the principal of and interest on the bonds:
836-25 (1) from the levy and collection of property taxes on
836-26 all taxable property within the district;
836-27 (2) by pledging all or part of the designated revenues
837-1 from the ownership or operation of the district's works,
837-2 improvements, and facilities; or
837-3 (3) from a combination of the sources listed by
837-4 Subdivisions (1) and (2). (Sec. 6.02, Ch. 1256, 71st Leg., R.S.,
837-5 1989.)
837-6 Sec. 24.267. Bond Election. (a) Bonds may not be issued by
837-7 the district until authorized by a majority vote of individuals
837-8 qualified to vote and actually voting in the area within the
837-9 boundaries of the district at an election called and held for that
837-10 purpose.
837-11 (b) The board may order a bond election. The order calling
837-12 the election must state the nature and the date of the election,
837-13 the hours during which the polls will be open, the location of the
837-14 polling places, the amount of bonds to be authorized, and the
837-15 maximum maturity of the bonds.
837-16 (c) Notice of a bond election must be given as provided by
837-17 Section 24.208 for the confirmation and directors' election.
837-18 (d) At an election to authorize bonds, the ballot must be
837-19 printed to provide for voting for or against the issuance of bonds
837-20 and the levy of property taxes for payment of the bonds.
837-21 (e) The board shall canvass the returns and declare the
837-22 results of the election. If a majority of the votes cast at the
837-23 election favor the issuance of the bonds, the bonds may be issued
837-24 by the board, but if a majority of the votes cast at the election
837-25 do not favor issuance of the bonds, the bonds may not be issued.
837-26 (Sec. 6.03, Ch. 1256, 71st Leg., R.S., 1989.)
837-27 Sec. 24.268. Terms; Form. (a) The district may issue its
838-1 bonds in various series or issues.
838-2 (b) Bonds may mature serially or otherwise not more than 50
838-3 years after the date of issuance and shall bear interest at a rate
838-4 permitted by state law.
838-5 (c) The district's bonds and interest coupons, if any, are
838-6 investment securities under the terms of Chapter 8, Business &
838-7 Commerce Code, and may be issued registrable as to principal or as
838-8 to principal and interest or may be issued in book entry form and
838-9 may be made redeemable before maturity at the option of the
838-10 district or may contain a mandatory redemption provision.
838-11 (d) The district's bonds may be issued in the form,
838-12 denominations, and manner and under the terms, conditions, and
838-13 details and shall be signed and executed as provided by the board
838-14 in the resolution or order authorizing the bonds. (Sec. 6.04, Ch.
838-15 1256, 71st Leg., R.S., 1989.)
838-16 Sec. 24.269. Bond Provisions. (a) In the orders or
838-17 resolutions authorizing the issuance of bonds, including refunding
838-18 bonds, the board may provide for the flow of funds, the
838-19 establishment and maintenance of the interest and sinking fund, the
838-20 reserve fund, and other funds and may make additional covenants
838-21 with respect to the bonds and the pledged fees.
838-22 (b) The orders or resolutions of the board authorizing the
838-23 issuance of bonds may prohibit the further issuance of bonds or
838-24 other obligations payable from the pledged fees or may reserve the
838-25 right to issue additional bonds to be secured by a pledge of and
838-26 payable from the fees on a parity with or subordinate to the pledge
838-27 in support of the bonds being issued.
839-1 (c) The orders or resolutions of the board issuing bonds may
839-2 contain other provisions and covenants as the board may determine.
839-3 (d) The board may adopt and have executed any other
839-4 proceedings or instruments necessary and convenient in the issuance
839-5 of bonds. (Sec. 6.05, Ch. 1256, 71st Leg., R.S., 1989.)
839-6 Sec. 24.270. Approval and Registration. (a) Bonds issued
839-7 by the district and the records relating to their issuance must be
839-8 submitted to the attorney general for examination as to their
839-9 validity.
839-10 (b) If the attorney general finds that the bonds have been
839-11 authorized in accordance with law, the attorney general shall
839-12 approve them, and the comptroller of public accounts shall register
839-13 the bonds.
839-14 (c) Following approval and registration, the bonds are
839-15 incontestable and are binding obligations according to their terms.
839-16 (Sec. 6.06, Ch. 1256, 71st Leg., R.S., 1989.)
839-17 Sec. 24.271. Refunding Bonds. (a) Refunding bonds of the
839-18 district may be issued to refund and pay off an outstanding
839-19 indebtedness the district has issued or assumed.
839-20 (b) The bonds must be issued in the manner provided by
839-21 Chapter 784, Acts of the 61st Legislature, Regular Session, 1969
839-22 (Article 717k-3, Vernon's Texas Civil Statutes).
839-23 (c) The refunding bonds may be sold and the proceeds applied
839-24 to the payment of outstanding indebtedness or may be exchanged in
839-25 whole or in part for not less than a similar principal amount of
839-26 outstanding indebtedness. If the refunding bonds are to be sold
839-27 and the proceeds applied to the payment of outstanding
840-1 indebtedness, the refunding bonds must be issued and payments made
840-2 in the manner provided by Chapter 503, Acts of the 54th
840-3 Legislature, Regular Session, 1955 (Article 717k, Vernon's Texas
840-4 Civil Statutes). (Sec. 6.07, Ch. 1256, 71st Leg., R.S., 1989.)
840-5 Sec. 24.272. Legal Investments; Security for Deposits. (a)
840-6 District bonds are legal and authorized investments for:
840-7 (1) a bank;
840-8 (2) a savings bank;
840-9 (3) a trust company;
840-10 (4) a savings and loan association;
840-11 (5) an insurance company;
840-12 (6) a fiduciary;
840-13 (7) a trustee;
840-14 (8) a guardian; and
840-15 (9) the sinking fund of a municipality, county, school
840-16 district, or other political subdivision of the state and other
840-17 public funds of the state and its agencies, including the permanent
840-18 school fund.
840-19 (b) District bonds may secure deposits of public funds of
840-20 the state or a municipality, county, school district, or other
840-21 political subdivision of the state. The bonds are lawful and
840-22 sufficient security for deposits to the extent of their value, if
840-23 accompanied by all unmatured coupons. (Sec. 6.08, Ch. 1256, 71st
840-24 Leg., R.S., 1989.)
840-25 Sec. 24.273. Mandamus by Bondholders. In addition to all
840-26 other rights and remedies provided by law, if the district defaults
840-27 in the payment of principal, interest, or redemption price on its
841-1 bonds when due or if it fails to make payments into any fund or
841-2 funds created in the orders or resolutions authorizing the issuance
841-3 of the bonds or defaults in the observation or performance of any
841-4 other covenants, conditions, or obligations set forth in the orders
841-5 or resolutions authorizing the issuance of its bonds, the owners of
841-6 any of the bonds are entitled to a writ of mandamus issued by a
841-7 court of competent jurisdiction compelling and requiring the
841-8 district and its officials to observe and perform the covenants,
841-9 obligations, or conditions prescribed in the orders or resolutions
841-10 authorizing the issuance of the district's bonds. (Sec. 6.09, Ch.
841-11 1256, 71st Leg., R.S., 1989.)
841-12 Sec. 24.274. Application of Other Laws. Bonds of the
841-13 district are considered bonds under the Bond Procedures Act of 1981
841-14 (Article 717k-6, Vernon's Texas Civil Statutes). (Sec. 6.10, Ch.
841-15 1256, 71st Leg., R.S., 1989.)
841-16 Sec. 24.275. Tax Status of Bonds. Since the district
841-17 created under this chapter is a public entity performing an
841-18 essential public function, bonds issued by the district, any
841-19 transaction relating to the bonds, and profits made in the sale of
841-20 the bonds are free from taxation by the state or by a municipality,
841-21 county, special district, or other political subdivision of the
841-22 state. (Sec. 7.01, Ch. 1256, 71st Leg., R.S., 1989.)
841-23 Sec. 24.276. Levy of Taxes. The board may annually levy
841-24 taxes in the district in an amount necessary to pay the principal
841-25 of and interest on bonds issued by the district and the expense of
841-26 assessing and collecting taxes. (Sec. 7.02, Ch. 1256, 71st Leg.,
841-27 R.S., 1989.)
842-1 Sec. 24.277. Maintenance and Operating Tax. On approval of
842-2 a majority of the voters in the district at an election called for
842-3 that purpose, the district may levy and collect a maintenance and
842-4 operating tax in an amount not to exceed five cents on each $100 of
842-5 assessed valuation of property in the district to pay maintenance
842-6 and operating expenses of the district. The maintenance and
842-7 operating tax election shall be held in the manner provided by this
842-8 Act for the confirmation and directors' election. (Sec. 7.03, Ch.
842-9 1256, 71st Leg., R.S., 1989.)
842-10 Sec. 24.278. Board Authority. (a) The board may levy taxes
842-11 for the entire year in which the district is created.
842-12 (b) The board shall levy taxes on all property within the
842-13 boundaries of the district subject to district taxation. (Sec.
842-14 7.04, Ch. 1256, 71st Leg., R.S., 1989.)
842-15 Sec. 24.279. Tax Rate. In setting the tax rate, the board
842-16 shall take into consideration the income of the district from
842-17 sources other than taxation. On determination of the amount of tax
842-18 required to be levied, the board shall make the levy and certify it
842-19 to the tax collector. (Sec. 7.05, Ch. 1256, 71st Leg., R.S.,
842-20 1989.)
842-21 Sec. 24.280. Tax Appraisal, Assessment, and Collection. (a)
842-22 The Tax Code governs the appraisal, assessment, and collection of
842-23 district taxes.
842-24 (b) The board may provide for the appointment of a tax
842-25 collector for the district or may contract for the collection of
842-26 taxes as provided by the Tax Code. (Sec. 7.06, Ch. 1256, 71st
842-27 Leg., R.S., 1989.)
843-1 CHAPTER 25. LITTER
843-2 SUBCHAPTER A. GENERAL PROVISIONS
843-3 Sec. 25.001. Short Title. This chapter may be cited as the
843-4 Texas Litter Abatement Act. (Sec. 365.001, Health and Safety
843-5 Code.)
843-6 Sec. 25.002. Effect of Other Laws. (a) The pollution of
843-7 water in the state is controlled by Chapter 10 and other applicable
843-8 law.
843-9 (b) The regulation of litter on public beaches is controlled
843-10 by Subchapters C and D, Chapter 61, Natural Resources Code.
843-11 (c) The Parks and Wildlife Commission may adopt rules to
843-12 govern the disposal of garbage, refuse, and sewage in state parks,
843-13 public water in state parks, historic sites, scientific areas, and
843-14 forts under the control of the Parks and Wildlife Department.
843-15 (Secs. 365.002, 365.003, 365.004, Health and Safety Code.)
843-16 (Sections 25.003-25.020 reserved for expansion)
843-17 SUBCHAPTER B. CERTAIN ACTIONS PROHIBITED; PENALTIES
843-18 Sec. 25.021. Definitions. In this subchapter:
843-19 (1) "Approved solid waste site" means:
843-20 (A) a solid waste site permitted by the
843-21 commission;
843-22 (B) a solid waste site licensed by a county
843-23 under Chapter 20; or
843-24 (C) a designated collection area for ultimate
843-25 disposal at a permitted or licensed municipal solid waste site.
843-26 (2) "Boat" means a vehicle, including a barge,
843-27 airboat, motorboat, or sailboat, used for transportation on water.
844-1 (3) "Commercial purpose" means the purpose of economic
844-2 gain.
844-3 (4) "Commercial vehicle" means a vehicle that is
844-4 operated by a person for a commercial purpose or that is owned by a
844-5 business or commercial enterprise.
844-6 (5) "Dispose" and "dump" mean to discharge, deposit,
844-7 inject, spill, leak, or place litter on or into land or water.
844-8 (6) "Litter" means:
844-9 (A) decayable waste from a public or private
844-10 establishment, residence, or restaurant, including animal and
844-11 vegetable waste material from a market or storage facility handling
844-12 or storing produce or other food products, or the handling,
844-13 preparation, cooking, or consumption of food, but not including
844-14 sewage, body wastes, or industrial by-products; or
844-15 (B) nondecayable solid waste, except ashes, that
844-16 consists of:
844-17 (i) combustible waste material, including
844-18 paper, rags, cartons, wood, excelsior, furniture, rubber, plastics,
844-19 yard trimmings, leaves, or similar materials;
844-20 (ii) noncombustible waste material,
844-21 including glass, crockery, tin or aluminum cans, metal furniture,
844-22 and similar materials that do not burn at ordinary incinerator
844-23 temperatures of 1800 degrees Fahrenheit or less; and
844-24 (iii) discarded or worn-out manufactured
844-25 materials and machinery, including motor vehicles and parts of
844-26 motor vehicles, tires, aircraft, farm implements, building or
844-27 construction materials, appliances, and scrap metal.
845-1 (7) "Motor vehicle" has the meaning assigned by
845-2 Section 2(b), Uniform Act Regulating Traffic on Highways (Article
845-3 6701d, Vernon's Texas Civil Statutes).
845-4 (8) "Public highway" means the entire width between
845-5 property lines of a road, street, way, thoroughfare, bridge, public
845-6 beach, or park in this state, not privately owned or controlled, if
845-7 any part of the road, street, way, thoroughfare, bridge, public
845-8 beach, or park:
845-9 (A) is opened to the public for vehicular
845-10 traffic;
845-11 (B) is used as a public recreational area; or
845-12 (C) is under the state's legislative
845-13 jurisdiction through its police power. (Sec. 365.011, Health and
845-14 Safety Code.)
845-15 Sec. 25.022. Disposal of Litter; Criminal Penalties. (a) A
845-16 person commits an offense if the person disposes or allows or
845-17 permits the disposal of litter at a place that is not an approved
845-18 solid waste site, including a place on or within 300 feet of a
845-19 public highway, on a right-of-way, on other public or private
845-20 property, or into inland or coastal water of the state.
845-21 (b) A person commits an offense if the person receives
845-22 litter for disposal at a place that is not an approved solid waste
845-23 site, regardless of whether the litter or the land on which the
845-24 litter is disposed is owned or controlled by the person.
845-25 (c) A person commits an offense if the person transports
845-26 litter to a place that is not an approved solid waste site for
845-27 disposal at the site.
846-1 (d) An offense under this section is a Class C misdemeanor
846-2 if the litter to which the offense applies weighs 15 pounds or less
846-3 or has a volume of 13 gallons or less.
846-4 (e) An offense under this section is a Class B misdemeanor
846-5 if the litter to which the offense applies weighs more than 15
846-6 pounds but less than 500 pounds or has a volume of more than 13
846-7 gallons but less than 100 cubic feet.
846-8 (f) An offense under this section is a Class A misdemeanor
846-9 if:
846-10 (1) the litter to which the offense applies weighs 500
846-11 pounds or more or has a volume of 100 cubic feet or more; or
846-12 (2) the litter is disposed for a commercial purpose
846-13 and weighs more than five pounds or has a volume of more than 13
846-14 gallons.
846-15 (g) If it is shown on the trial of the defendant for an
846-16 offense under this section that the defendant has previously been
846-17 convicted of an offense under this section, the punishment for the
846-18 offense is increased to the punishment for the next highest
846-19 category. (Sec. 365.012, Health and Safety Code.)
846-20 Sec. 25.023. Rules and Standards; Criminal Penalty.
846-21 (a) The commission shall adopt rules and standards regarding
846-22 processing and treating litter disposed in violation of this
846-23 subchapter.
846-24 (b) A person commits an offense if the person violates a
846-25 rule adopted under this section.
846-26 (c) An offense under this section is a Class A misdemeanor.
846-27 (Sec. 365.013, Health and Safety Code.)
847-1 Sec. 25.024. Application of Subchapter; Defenses;
847-2 Presumptions. (a) This subchapter does not apply to farmers:
847-3 (1) in handling anything necessary to grow, handle,
847-4 and care for livestock; or
847-5 (2) in erecting, operating, and maintaining
847-6 improvements necessary to handle, thresh, and prepare agricultural
847-7 products or for conservation projects.
847-8 (b) A person who dumps more than five pounds or 13 gallons
847-9 of litter from a commercial vehicle in violation of this subchapter
847-10 is presumed to be dumping the litter for a commercial purpose.
847-11 (c) It is an affirmative defense to prosecution under
847-12 Section 25.022 that:
847-13 (1) the storage, processing, or disposal took place on
847-14 land owned or leased by the defendant;
847-15 (2) the defendant received the litter from another
847-16 person;
847-17 (3) the defendant, after exercising due diligence, did
847-18 not know and reasonably could not have known that litter was
847-19 involved; and
847-20 (4) the defendant did not receive, directly or
847-21 indirectly, compensation for the receipt, storage, processing, or
847-22 treatment. (Sec. 365.014, Health and Safety Code.)
847-23 Sec. 25.025. Injunction; Venue; Recovery of Costs. (a) A
847-24 district attorney, a county attorney, or the attorney general may
847-25 bring a civil suit for an injunction to prevent or restrain a
847-26 violation of this subchapter. A person affected or to be affected
847-27 by a violation is entitled to seek injunctive relief to enjoin the
848-1 violation.
848-2 (b) Venue for a prosecution of a criminal offense under this
848-3 subchapter or for a civil suit for injunctive relief under this
848-4 subchapter is in the county in which the defendant resides, the
848-5 county in which the offense or violation occurred, or in Travis
848-6 County.
848-7 (c) In a suit for relief under this section, the prevailing
848-8 party may recover its reasonable attorney fees, court costs, and
848-9 reasonable investigative costs incurred in relation to the
848-10 proceeding. (Sec. 365.015, Health and Safety Code.)
848-11 Sec. 25.026. Disposal of Litter in a Cave; Criminal Penalty.
848-12 (a) A person commits an offense if the person disposes litter, a
848-13 dead animal, sewage, or any chemical in a cave.
848-14 (b) An offense under this section is a Class C misdemeanor
848-15 unless:
848-16 (1) it is shown on the trial of the defendant that the
848-17 defendant previously has been convicted once of an offense under
848-18 this section, in which event the offense is a Class A misdemeanor;
848-19 or
848-20 (2) it is shown on the trial of the defendant that the
848-21 defendant previously has been convicted two or more times of an
848-22 offense under this section, in which event the offense is a felony
848-23 of the third degree. (Sec. 365.016, Health and Safety Code.)
848-24 (Sections 25.027-25.030 reserved for expansion)
848-25 SUBCHAPTER C. SPECIAL PROVISIONS
848-26 Sec. 25.031. Litter, Garbage, Refuse, and Rubbish in Lake
848-27 Sabine. The governing body of Port Arthur by ordinance may
849-1 prohibit the depositing or placing of litter, garbage, refuse, or
849-2 rubbish into or on the waters of Lake Sabine within the municipal
849-3 limits. (Sec. 365.031, Health and Safety Code.)
849-4 Sec. 25.032. Throwing Certain Substances in or Near Lake
849-5 Lavon; Criminal Penalty. (a) The definitions provided by Section
849-6 25.021 apply to this section.
849-7 (b) A person commits an offense if the person throws,
849-8 leaves, or causes to be thrown or left wastepaper, glass, metal, a
849-9 tin can, refuse, garbage, waste, discarded or soiled personal
849-10 property, or any other noxious or poisonous substance in the water
849-11 of or near Lake Lavon in Collin County if the substance is
849-12 detrimental to fish or to a person fishing in Lake Lavon.
849-13 (c) An offense under this section is a Class C misdemeanor
849-14 unless it is shown on the trial of the defendant that the defendant
849-15 has previously been convicted of an offense under this section, in
849-16 which event the offense is a Class A misdemeanor. (Sec. 365.032,
849-17 Health and Safety Code.)
849-18 Sec. 25.033. Discarding Refuse in Certain County Parks;
849-19 Criminal Penalty. (a) The definitions provided by Section 25.021
849-20 apply to this section.
849-21 (b) In this section, "beach" means an area in which the
849-22 public has acquired a right of use or an easement and that borders
849-23 on the seaward shore of the Gulf of Mexico or extends from the line
849-24 of mean low tide to the line of vegetation bordering on the Gulf of
849-25 Mexico.
849-26 (c) This section applies only to a county park located in a
849-27 county that has the Gulf of Mexico as one boundary, but does not
850-1 apply to a beach located in that park.
850-2 (d) A person commits an offense if the person discards in a
850-3 county park any junk, garbage, rubbish, or other refuse in a place
850-4 that is not an officially designated refuse container or disposal
850-5 unit.
850-6 (e) An offense under this section is a Class C misdemeanor
850-7 unless it is shown on the trial of the defendant that the defendant
850-8 has previously been convicted of an offense under this section, in
850-9 which event the offense is a Class A misdemeanor. (Sec. 365.033,
850-10 Health and Safety Code.)
850-11 Sec. 25.034. County Regulation of Litter Near Public
850-12 Highway; Criminal Penalty. (a) The commissioners court of a
850-13 county may:
850-14 (1) by order prohibit the accumulation of litter for
850-15 more than 30 days on a person's property within 50 feet of a public
850-16 highway in the county;
850-17 (2) provide for the removal and disposition of litter
850-18 accumulated near a public highway in violation of an order adopted
850-19 under this section; and
850-20 (3) provide for the assessment against a person who
850-21 owns the property from which litter is removed under Subdivision
850-22 (2) of the costs incurred by the county in removing and disposing
850-23 of the litter.
850-24 (b) Before the commissioners court takes any action to
850-25 remove or dispose of litter under this section, the court shall
850-26 send a notice by certified mail to the record owners of the
850-27 property on which the litter is accumulated in violation of an
851-1 order adopted under this section. The court may not remove or
851-2 dispose of the litter or assess the costs of the removal or
851-3 disposition against a property owner before the 30th day after the
851-4 date the notice is sent under this subsection.
851-5 (c) If a person assessed costs under this section does not
851-6 pay the costs within 60 days after the date of assessment:
851-7 (1) a lien in favor of the county attaches to the
851-8 property from which the litter was removed to secure the payment of
851-9 the costs and interest accruing at an annual rate of 10 percent on
851-10 any unpaid part of the costs; and
851-11 (2) the commissioners court shall file a record of the
851-12 lien in the office of the county clerk.
851-13 (d) The violation of an order adopted under this section is
851-14 a Class C misdemeanor.
851-15 (e) In this section:
851-16 (1) "Litter" has the meaning assigned by Section
851-17 25.021 except that the term does not include equipment used for
851-18 agricultural purposes.
851-19 (2) "Public highway" has the meaning assigned by
851-20 Section 25.021. (Sec. 365.034, Health and Safety Code.)
851-21 (Chapters 26-29 reserved for expansion)
851-22 TITLE 4. AIR QUALITY
851-23 CHAPTER 30. CLEAN AIR ACT
851-24 SUBCHAPTER A. GENERAL PROVISIONS
851-25 Sec. 30.001. Short Title. This chapter may be cited as the
851-26 Texas Clean Air Act. (Sec. 382.001, Health and Safety Code.)
851-27 Sec. 30.002. Policy and Purpose. (a) The policy of this
852-1 state and the purpose of this chapter are to safeguard the state's
852-2 air resources from pollution by controlling or abating air
852-3 pollution and emissions of air contaminants, consistent with the
852-4 protection of public health, general welfare, and physical
852-5 property, including the esthetic enjoyment of air resources by the
852-6 public and the maintenance of adequate visibility.
852-7 (b) It is intended that this chapter be vigorously enforced
852-8 and that violations of this chapter or any rule or order of the
852-9 commission result in expeditious initiation of enforcement actions
852-10 as provided by this chapter. (Sec. 382.002, Health and Safety
852-11 Code.)
852-12 Sec. 30.003. Definitions. In this chapter:
852-13 (1) "Administrator" means the Administrator of the
852-14 United States Environmental Protection Agency.
852-15 (2) "Air contaminant" means particulate matter,
852-16 radioactive material, dust, fumes, gas, mist, smoke, vapor, or
852-17 odor, including any combination of those items, produced by
852-18 processes other than natural.
852-19 (3) "Air pollution" means the presence in the
852-20 atmosphere of one or more air contaminants or combination of air
852-21 contaminants in such concentration and of such duration that:
852-22 (A) are or may tend to be injurious to or to
852-23 adversely affect human health or welfare, animal life, vegetation,
852-24 or property; or
852-25 (B) interfere with the normal use or enjoyment
852-26 of animal life, vegetation, or property.
852-27 (4) "Facility" means a discrete or identifiable
853-1 structure, device, item, equipment, or enclosure that constitutes
853-2 or contains a stationary source, including appurtenances other than
853-3 emission control equipment. A mine, quarry, well test, or road is
853-4 not considered to be a facility.
853-5 (5) "Federal source" means a facility, group of
853-6 facilities, or other source that is subject to the permitting
853-7 requirements of Title IV or V of the federal Clean Air Act
853-8 Amendments of 1990 (Pub. L. No. 101-549) and includes:
853-9 (A) an affected source as defined by Section 402
853-10 of the federal Clean Air Act (42 U.S.C. Section 7651a) as added by
853-11 Section 401 of the federal Clean Air Act Amendments of 1990
853-12 (Pub. L. No. 101-549);
853-13 (B) a major source as defined by Title III of
853-14 the federal Clean Air Act Amendments of 1990 (Pub. L. No. 101-549);
853-15 (C) a major source as defined by Title V of the
853-16 federal Clean Air Act Amendments of 1990 (Pub. L. No. 101-549);
853-17 (D) a source subject to the standards or
853-18 regulations under Section 111 or 112 of the federal Clean Air Act
853-19 (42 U.S.C. Sections 7411 and 7412);
853-20 (E) a source required to have a permit under
853-21 Part C or D of Title I of the federal Clean Air Act (42 U.S.C.
853-22 Sections 7470 et seq. and 7501 et seq.);
853-23 (F) a major stationary source or major emitting
853-24 facility under Section 302 of the federal Clean Air Act (42 U.S.C.
853-25 Section 7602); and
853-26 (G) any other stationary source in a category
853-27 designated by the United States Environmental Protection Agency as
854-1 subject to the permitting requirements of Title V of the federal
854-2 Clean Air Act Amendments of 1990 (Pub. L. No. 101-549).
854-3 (6) "Local government" means a health district
854-4 established under Chapter 121, Health and Safety Code, a county, or
854-5 a municipality.
854-6 (7) "Modification of existing facility" means any
854-7 physical change in, or change in the method of operation of, a
854-8 stationary source in a manner that increases the amount of any air
854-9 pollutant emitted by the source into the atmosphere or that results
854-10 in the emission of any air pollutant not previously emitted. The
854-11 term does not include:
854-12 (A) insignificant increases in the amount of any
854-13 air pollutant emitted that is authorized by one or more board
854-14 exemptions;
854-15 (B) insignificant increases at a permitted
854-16 facility; or
854-17 (C) maintenance or replacement of equipment
854-18 components that do not increase or tend to increase the amount or
854-19 change the characteristics of the air contaminants emitted into the
854-20 atmosphere.
854-21 (8) "Person" means an individual, corporation,
854-22 organization, government or governmental subdivision or agency,
854-23 business trust, partnership, association, or any other legal
854-24 entity.
854-25 (9) "Select-use technology" means a technology that
854-26 involves simultaneous combustion of natural gas with other fuels in
854-27 fossil fuel-fired boilers. The term includes cofiring, gas reburn,
855-1 and enhanced gas reburn/sorbent injection.
855-2 (10) "Source" means a point of origin of air
855-3 contaminants, whether privately or publicly owned or operated.
855-4 (11) "Well test" means the testing of an oil or gas
855-5 well for a period of time less than 72 hours that does not
855-6 constitute a major source or major modification under any provision
855-7 of the federal Clean Air Act (42 U.S.C. Section 7401 et seq.).
855-8 (Sec. 382.003, Health and Safety Code.)
855-9 Sec. 30.004. Effect on Private Remedies. This chapter does
855-10 not affect the right of a private person to pursue a common law
855-11 remedy available to abate or recover damages for a condition of
855-12 pollution or other nuisance, or for both abatement and recovery of
855-13 damages. (Sec. 382.004, Health and Safety Code.)
855-14 Sec. 30.005. Remedies Supplemental. The remedies provided
855-15 by this chapter to prevent, abate, or penalize violations of the
855-16 board's rules, orders, or permits or the causing of or contributing
855-17 to air pollution are supplemental to other causes of actions and
855-18 remedies available to the state at common law or by other statutes.
855-19 (Sec. 382.005, Health and Safety Code.)
855-20 (Sections 30.006-30.010 reserved for expansion)
855-21 SUBCHAPTER B. POWERS AND DUTIES OF COMMISSION
855-22 Sec. 30.011. General Powers and Duties. (a) The commission
855-23 shall:
855-24 (1) administer this chapter;
855-25 (2) establish the level of quality to be maintained in
855-26 the state's air; and
855-27 (3) control the quality of the state's air.
856-1 (b) The commission shall seek to accomplish the purposes of
856-2 this chapter through the control of air contaminants by all
856-3 practical and economically feasible methods.
856-4 (c) The commission has the powers necessary or convenient to
856-5 carry out its responsibilities. (Sec. 382.011, Health and Safety
856-6 Code.)
856-7 Sec. 30.012. State Air Control Plan. The commission shall
856-8 prepare and develop a general, comprehensive plan for the proper
856-9 control of the state's air. (Sec. 382.012, Health and Safety
856-10 Code.)
856-11 Sec. 30.013. Air Quality Control Regions. The commission
856-12 may designate air quality control regions based on jurisdictional
856-13 boundaries, urban-industrial concentrations, and other factors,
856-14 including atmospheric areas, necessary to provide adequate
856-15 implementation of air quality standards. (Sec. 382.013, Health and
856-16 Safety Code.)
856-17 Sec. 30.014. Emission Inventory. The commission may require
856-18 a person whose activities cause emissions of air contaminants to
856-19 submit information to enable the commission to develop an inventory
856-20 of emissions of air contaminants in this state. (Sec. 382.014,
856-21 Health and Safety Code.)
856-22 Sec. 30.015. Clean Fuel Incentive Surcharge. (a) The
856-23 commission shall levy a clean fuel incentive surcharge of 20 cents
856-24 per MMBtu on fuel oil used between April 15 and October 15 of each
856-25 year in an industrial or utility boiler that is:
856-26 (1) capable of using natural gas; and
856-27 (2) located in a consolidated metropolitan statistical
857-1 area or metropolitan statistical area with a population of 350,000
857-2 or more that has not met federal ambient air quality standards for
857-3 ozone.
857-4 (b) The commission may not levy the clean fuel incentive
857-5 surcharge on:
857-6 (1) waste oils, used oils, or hazardous waste-derived
857-7 fuels burned for purposes of energy recovery or disposal, if the
857-8 commission or the United States Environmental Protection Agency
857-9 approves or permits the burning;
857-10 (2) fuel oil used during:
857-11 (A) any period of full or partial natural gas
857-12 curtailment;
857-13 (B) any period when there is a failure to
857-14 deliver sufficient quantities of natural gas to satisfy contractual
857-15 obligations to the purchaser; or
857-16 (C) a catastrophic event as defined by Section
857-17 30.078;
857-18 (3) fuel oil used between April 15 and October 15 in
857-19 equipment testing or personnel training up to an aggregate of the
857-20 equivalent of 48 hours full-load operation; or
857-21 (4) any firm engaged in fixed price contracts with
857-22 public works agencies for contracts entered into before August 28,
857-23 1989. (Sec. 382.0145, Health and Safety Code.)
857-24 Sec. 30.016. Alternative Fuels and Select-Use Technologies.
857-25 (a) In adopting rules, the commission shall encourage and may
857-26 allow the use of natural gas and other alternative fuels, as well
857-27 as select-use technologies, that will reduce emissions.
858-1 (b) Any orders or determinations made under this section
858-2 must be consistent with Section 30.025. (Sec. 382.0171, Health and
858-3 Safety Code.)
858-4 Sec. 30.017. International Border Areas. In order to
858-5 qualify for the exceptions provided by Section 179B of the federal
858-6 Clean Air Act (42 U.S.C. Section 7509a), as added by Section 818 of
858-7 the federal Clean Air Act Amendments of 1990 (Pub. L. No. 101-549),
858-8 the commission, in developing rules and control programs to be
858-9 included in an implementation plan for an international border
858-10 area, shall ensure that the plan or revision:
858-11 (1) meets all requirements applicable to the plan or
858-12 revision under Title I of the federal Clean Air Act Amendments of
858-13 1990 (Pub. L. No. 101-549), other than a requirement that the plan
858-14 or revision demonstrates attainment and maintenance of the relevant
858-15 national ambient air quality standards by the attainment date
858-16 specified by the applicable provision of Title I of the federal
858-17 Clean Air Act Amendments of 1990 (Pub. L. No. 101-549) or by a
858-18 regulation adopted under that provision; and
858-19 (2) would be adequate to attain and maintain the
858-20 relevant national ambient air quality standards by the attainment
858-21 date specified by the applicable provision of Title I of the
858-22 federal Clean Air Act Amendments of 1990 (Pub. L. No. 101-549) or
858-23 by a regulation adopted under that provision, but for emissions
858-24 emanating from outside the United States. (Sec. 382.0172, Health
858-25 and Safety Code.)
858-26 Sec. 30.018. Outdoor Burning of Waste and Combustible
858-27 Material. The commission by rule may control and prohibit the
859-1 outdoor burning of waste and combustible material and may include
859-2 requirements concerning the particular method to be used to control
859-3 or abate the emission of air contaminants resulting from that
859-4 burning. (Sec. 382.018, Health and Safety Code.)
859-5 Sec. 30.019. Methods Used to Control and Reduce Emissions
859-6 From Land Vehicles. (a) The commission by rule may provide
859-7 requirements concerning the particular method to be used to control
859-8 and reduce emissions from engines used to propel land vehicles.
859-9 (b) The commission may not require, as a condition precedent
859-10 to the initial sale of a vehicle or vehicular equipment, the
859-11 inspection, certification, or other approval of any feature or
859-12 equipment designed to control emissions from motor vehicles if that
859-13 feature or equipment has been certified, approved, or otherwise
859-14 authorized under federal law.
859-15 (c) The commission or any other state agency may not adopt a
859-16 rule requiring the use of Stage II vapor recovery systems that
859-17 control motor vehicle refueling emissions at a gasoline dispensing
859-18 facility in this state until the United States Environmental
859-19 Protection Agency determines that the use of the system is required
859-20 for compliance with the federal Clean Air Act (42 U.S.C. 7401 et
859-21 seq.), except the commission may adopt rules requiring such vapor
859-22 recovery systems installed in nonattainment areas if it can be
859-23 demonstrated to be necessary for the attainment of federal ozone
859-24 ambient air quality standards or, following appropriate health
859-25 studies and in consultation with the Texas Department of Health, it
859-26 is determined to be necessary for the protection of public health.
859-27 (Sec. 382.019, Health and Safety Code.)
860-1 Sec. 30.020. Commercial Infectious Waste Incinerators.
860-2 (a) The commission shall adopt rules prescribing the most
860-3 effective emissions control technology reasonably available to
860-4 control emissions of air contaminants from a commercial infectious
860-5 waste incinerator.
860-6 (b) Rules adopted under this section must require that the
860-7 prescribed emissions control technology be installed as soon as
860-8 practicable at each commercial infectious waste incinerator.
860-9 (c) In this section, "commercial infectious waste
860-10 incinerator" means a facility that accepts for incineration
860-11 infectious waste generated outside the property boundaries of the
860-12 facility. (Sec. 382.0195, Health and Safety Code.)
860-13 Sec. 30.021. Control of Emissions From Facilities That
860-14 Handle Certain Agricultural Products. (a) The commission, when it
860-15 determines that the control of air pollution is necessary, shall
860-16 adopt rules concerning the control of emissions of particulate
860-17 matter from plants at which grain, seed, legumes, or vegetable
860-18 fibers are handled, loaded, unloaded, dried, manufactured, or
860-19 processed according to a formula derived from the process weight of
860-20 the materials entering the process.
860-21 (b) A person affected by a rule adopted under this section
860-22 may use:
860-23 (1) the process weight method to control and measure
860-24 the emissions from the plant; or
860-25 (2) any other method selected by that person that the
860-26 commission or the executive director, if authorized by the
860-27 commission, finds will provide adequate emission control efficiency
861-1 and measurement. (Sec. 382.020, Health and Safety Code.)
861-2 Sec. 30.022. Special Problems Related to Air Contaminant
861-3 Emissions. Consistent with applicable federal law, the commission
861-4 by rule may control air contaminants as necessary to protect
861-5 against adverse effects related to:
861-6 (1) acid deposition;
861-7 (2) stratospheric changes, including depletion of
861-8 ozone; and
861-9 (3) climatic changes, including global warming. (Sec.
861-10 382.0205, Health and Safety Code.)
861-11 Sec. 30.023. Sampling Methods and Procedures. (a) The
861-12 commission may prescribe the sampling methods and procedures to be
861-13 used in determining violations of and compliance with the
861-14 commission's rules, variances, and orders, including:
861-15 (1) ambient air sampling;
861-16 (2) stack-sampling;
861-17 (3) visual observation; or
861-18 (4) any other sampling method or procedure generally
861-19 recognized in the field of air pollution control.
861-20 (b) The commission may prescribe new sampling methods and
861-21 procedures if:
861-22 (1) in the commission's judgment, existing methods or
861-23 procedures are not adequate to meet the needs and objectives of the
861-24 commission's rules, variances, and orders; and
861-25 (2) the scientific applicability of the new methods or
861-26 procedures can be satisfactorily demonstrated to the commission.
861-27 (Sec. 382.021, Health and Safety Code.)
862-1 Sec. 30.024. Investigations. The executive director may
862-2 make or require the making of investigations:
862-3 (1) that the executive director considers advisable in
862-4 administering this chapter and the commission's rules, orders, and
862-5 determinations, including investigations of violations and general
862-6 air pollution problems or conditions; or
862-7 (2) as requested or directed by the commission. (Sec.
862-8 382.022, Health and Safety Code.)
862-9 Sec. 30.025. Factors in Issuing Orders and Determinations.
862-10 In issuing an order and making a determination, the commission
862-11 shall consider the facts and circumstances bearing on the
862-12 reasonableness of emissions, including:
862-13 (1) the character and degree of injury to or
862-14 interference with the public's health and physical property;
862-15 (2) the source's social and economic value;
862-16 (3) the question of priority of location in the area
862-17 involved; and
862-18 (4) the technical practicability and economic
862-19 reasonableness of reducing or eliminating the emissions resulting
862-20 from the source. (Sec. 382.024, Health and Safety Code.)
862-21 Sec. 30.026. Orders Relating to Controlling Air Pollution.
862-22 (a) If the commission determines that air pollution exists, the
862-23 commission may order any action indicated by the circumstances to
862-24 control the condition.
862-25 (b) The commission shall grant to the owner or operator of a
862-26 source time to comply with its orders as provided for by commission
862-27 rules. Those rules must provide for time for compliance gauged to
863-1 the general situations that the hearings on proposed rules indicate
863-2 are necessary. (Sec. 382.025, Health and Safety Code.)
863-3 Sec. 30.027. Orders Issued Under Emergencies. (a) When it
863-4 appears to the commission or the executive director that there
863-5 exists a generalized condition of air pollution that creates an
863-6 emergency requiring immediate action to protect human health or
863-7 safety, the commission or the executive director shall, with the
863-8 governor's concurrence, order any person causing or contributing to
863-9 the air pollution immediately to reduce or discontinue the emission
863-10 of air contaminants.
863-11 (b) If the commission or the executive director finds that
863-12 emissions from one or more sources are causing imminent danger to
863-13 human health or safety, but that there is not a generalized
863-14 condition of air pollution under Subsection (a), the commission or
863-15 the executive director may order the persons responsible for the
863-16 emissions immediately to reduce or discontinue the emissions.
863-17 (c) An order issued under this section must set a time and
863-18 place of a hearing to be held before the commission as soon after
863-19 the order is issued as practicable.
863-20 (d) Section 2.206, relating to notice of a hearing, does not
863-21 apply to a hearing under this section, but a general notice of the
863-22 hearing shall be given that is, in the judgment of the commission
863-23 or the executive director, practicable under the circumstances.
863-24 The commission shall affirm, modify, or set aside the order not
863-25 later than 24 hours after the hearing begins and without
863-26 adjournment of the hearing.
863-27 (e) This section does not limit any power that the governor
864-1 or other officer may have to declare an emergency and to act on the
864-2 basis of that declaration if the power is conferred by law or
864-3 inheres in the office. (Sec. 382.026, Health and Safety Code.)
864-4 Sec. 30.028. Prohibition on Commission Action Relating to
864-5 Air Conditions Existing Solely in Commercial and Industrial
864-6 Facilities. (a) The commission may not adopt a rule,
864-7 determination, or order that:
864-8 (1) relates to air conditions existing solely within
864-9 buildings and structures used for commercial and industrial plants,
864-10 works, or shops if the source of the offending air contaminants is
864-11 under the control of the person who owns or operates the plants,
864-12 works, or shops; or
864-13 (2) affects the relations between employers and their
864-14 employees relating to or arising out of an air condition from a
864-15 source under the control of the person who owns or operates the
864-16 plants, works, or shops.
864-17 (b) This section does not limit or restrict the authority or
864-18 powers granted to the board under Sections 30.018 and 30.023.
864-19 (Sec. 382.027, Health and Safety Code.)
864-20 Sec. 30.029. Variances. (a) This chapter does not prohibit
864-21 the granting of a variance.
864-22 (b) A variance is an exceptional remedy that may be granted
864-23 only on demonstration that compliance with a provision of this
864-24 chapter or commission rule or order results in an arbitrary and
864-25 unreasonable taking of property. (Sec. 382.028, Health and Safety
864-26 Code.)
864-27 Sec. 30.030. Small Business Stationary Source Assistance
865-1 Program. (a) The commission shall establish a small business
865-2 stationary source technical and environmental compliance assistance
865-3 program.
865-4 (b) The program shall include:
865-5 (1) mechanisms to develop, collect, and coordinate
865-6 information about compliance methods and technologies for small
865-7 business stationary sources and to encourage cooperation between
865-8 those sources and other persons to achieve compliance with
865-9 applicable air quality laws;
865-10 (2) mechanisms to assist small business stationary
865-11 sources with pollution prevention and the prevention and detection
865-12 of accidental releases, including information about alternative
865-13 technologies, process changes, products, and methods of operation
865-14 to reduce air pollution;
865-15 (3) an ombudsman to help small business stationary
865-16 sources meet the requirements of the federal Clean Air Act
865-17 Amendments of 1990 (Pub. L. No. 101-549);
865-18 (4) a compliance assistance program to help small
865-19 business stationary sources identify the requirements for and
865-20 obtain required permits in a timely and efficient manner;
865-21 (5) notification procedures to assure that small
865-22 business stationary sources receive notice of their rights and
865-23 obligations under the federal Clean Air Act Amendments of 1990
865-24 (Pub. L. No. 101-549) in time to identify applicable requirements
865-25 and evaluate and implement appropriate compliance methods;
865-26 (6) auditing services or referrals for small business
865-27 stationary source operations to determine compliance with the
866-1 federal Clean Air Act Amendments of 1990 (Pub. L. No. 101-549); and
866-2 (7) procedures for considering a request by a small
866-3 business stationary source to modify work practices, technological
866-4 compliance methods, or an implementation schedule requirement that
866-5 precedes a compliance date, taking into account the technological
866-6 and financial capability of that source.
866-7 (c) The program shall include a compliance advisory panel
866-8 that consists of the following seven members:
866-9 (1) two members who are not owners or representatives
866-10 of owners of small business stationary sources, selected by the
866-11 governor to represent the public;
866-12 (2) two members who are owners or who represent owners
866-13 of small business stationary sources, selected by the speaker of
866-14 the house of representatives;
866-15 (3) two members who are owners or who represent owners
866-16 of small business stationary sources, selected by the lieutenant
866-17 governor; and
866-18 (4) one member selected by the chairman of the
866-19 commission to represent that agency.
866-20 (d) The compliance advisory panel shall:
866-21 (1) give advisory opinions on the effectiveness of the
866-22 program, the difficulties of implementing the program, and the
866-23 incidence and severity of enforcement;
866-24 (2) report periodically to the administrator regarding
866-25 the program's compliance with requirements of the Paperwork
866-26 Reduction Act of 1980 (Pub. L. No. 96-511), the Regulatory
866-27 Flexibility Act (5 U.S.C. Section 601 et seq.), and the Equal
867-1 Access to Justice Act (Pub. L. No. 96-481);
867-2 (3) review information the program provides to small
867-3 business stationary sources to assure the information is
867-4 understandable to nonexperts; and
867-5 (4) distribute opinions, reports, and information
867-6 developed by the panel.
867-7 (e) The commission shall enter into a memorandum of
867-8 understanding with the Texas Department of Commerce to coordinate
867-9 assistance to any small business in applying for permits from the
867-10 commission.
867-11 (f) The commission may adopt rules reasonably necessary to
867-12 implement this section in compliance with Section 507 of the
867-13 federal Clean Air Act (42 U.S.C. Section 7661f), as added by
867-14 Section 501 of the federal Clean Air Act Amendments of 1990
867-15 (Pub. L. No. 101-549) and regulations adopted under that Act.
867-16 (g) In this section:
867-17 (1) "Program" means the small business stationary
867-18 source technical and environmental compliance assistance program.
867-19 (2) "Small business stationary source" has the meaning
867-20 assigned by Section 507(c) of the federal Clean Air Act (42 U.S.C.
867-21 Section 7661f), as added by Section 501 of the federal Clean Air
867-22 Act Amendments of 1990 (Pub. L. No. 101-549). (Sec. 382.0365,
867-23 Health and Safety Code.)
867-24 Sec. 30.031. Vehicle Emissions Inspection and Maintenance
867-25 Program. (a) The commission by resolution may request the Public
867-26 Safety Commission to establish a vehicle emissions inspection and
867-27 maintenance program under Section 142, Uniform Act Regulating
868-1 Traffic on Highways (Article 6701d, Vernon's Texas Civil Statutes),
868-2 in accordance with this section and rules adopted under this
868-3 section. The commission by rule may establish, implement, and
868-4 administer a program requiring emissions-related inspections of
868-5 motor vehicles to be performed at inspection facilities consistent
868-6 with the requirements of the federal Clean Air Act (42 U.S.C.
868-7 Section 7401 et seq.).
868-8 (b) The commission by rule may require emissions-related
868-9 inspection and maintenance of land vehicles, including testing
868-10 exhaust emissions, examining emission control devices and systems,
868-11 verifying compliance with applicable standards, and other
868-12 requirements as provided by federal law or regulation.
868-13 (c) If the program is established under this section, the
868-14 commission:
868-15 (1) shall adopt vehicle emissions inspection and
868-16 maintenance requirements for certain areas as required by federal
868-17 law or regulation; and
868-18 (2) may adopt vehicle emissions inspection and
868-19 maintenance requirements for counties not subject to a specific
868-20 federal requirement in response to a formal request by resolutions
868-21 adopted by the county and the most populous municipality within the
868-22 county according to the most recent federal decennial census.
868-23 (d) A program initiated under this section may not include
868-24 registration-based enforcement unless the Texas Department of
868-25 Transportation elects to include the program in its registration
868-26 enforcement system.
868-27 (e) On adoption of a resolution by the commission and after
869-1 proper notice, the Texas Department of Transportation shall
869-2 implement a system that requires, as a condition of registering a
869-3 vehicle under Section 2, Chapter 88, General Laws, Acts of the 41st
869-4 Legislature, 2nd Called Session, 1929 (Article 6675a-2, Vernon's
869-5 Texas Civil Statutes), in a county that is included in a vehicle
869-6 emissions inspection and maintenance program under Section 142,
869-7 Uniform Act Regulating Traffic on Highways (Article 6701d, Vernon's
869-8 Texas Civil Statutes), that the owner of the vehicle hold a valid
869-9 vehicle emissions inspection certificate issued for the vehicle
869-10 under that Act within the 12 months preceding the application for
869-11 registration. The Texas Department of Transportation shall
869-12 implement such a system when it is required by any provision of
869-13 federal or state law, including any provision of the Texas air
869-14 quality state implementation plan. The commission may require or
869-15 accept verification of compliance other than a vehicle inspection
869-16 certificate. The alternative verification of compliance shall be
869-17 in a form determined through joint rule making by the commission
869-18 and the Texas Department of Transportation.
869-19 (f) The commission may assess fees for vehicle
869-20 emissions-related inspections performed at inspection or
869-21 reinspection facilities authorized and licensed by the commission
869-22 in amounts reasonably necessary to recover the costs of developing,
869-23 administering, evaluating, and enforcing the vehicle emissions
869-24 inspection and maintenance program. If the program relies on
869-25 privately operated or contractor-operated inspection or
869-26 reinspection stations, an appropriate portion of the fee as
869-27 determined by commission rule may be retained by the station owner
870-1 or operator to recover the cost of performing the inspections and
870-2 provide a reasonable margin of profit. Any portion of the fee
870-3 collected by the board is a Clean Air Act fee under Section 30.077.
870-4 (g) The commission shall examine the efficacy of annually
870-5 inspecting diesel vehicles for compliance with applicable federal
870-6 emission standards, compliance with an opacity or other
870-7 emissions-related standard established by commission rule, or both
870-8 and shall implement that inspection program if the commission
870-9 determines the program would minimize emissions. For purposes of
870-10 this subsection, a diesel engine not used in a vehicle registered
870-11 for use on public highways is not a diesel vehicle.
870-12 (h) The commission may not establish vehicle fuel content
870-13 standards to provide for vehicle fuel content for clean motor
870-14 vehicle fuels other than those standards promulgated by the United
870-15 States Environmental Protection Agency unless specifically
870-16 authorized by the legislature or unless it is demonstrated to be
870-17 necessary for the attainment of federal ozone ambient air quality
870-18 standards or, following appropriate health studies and in
870-19 consultation with the Texas Department of Health, it is determined
870-20 to be necessary for the protection of public health. (Sec.
870-21 382.037, Health and Safety Code.)
870-22 Sec. 30.032. Attainment Program. (a) The commission shall
870-23 coordinate with federal, state, and local transportation planning
870-24 agencies to develop and implement transportation programs and other
870-25 measures necessary to demonstrate and maintain attainment of
870-26 national ambient air quality standards and to protect the public
870-27 from exposure to hazardous air contaminants from motor vehicles.
871-1 (b) Participating agencies include the Texas Department of
871-2 Transportation and metropolitan planning organizations designated
871-3 by the governor. (Sec. 382.039, Health and Safety Code.)
871-4 (Sections 30.033-30.050 reserved for expansion)
871-5 SUBCHAPTER C. PERMITS
871-6 Sec. 30.051. Permitting Authority of Commission; Rules.
871-7 (a) The commission may issue a permit:
871-8 (1) to construct a new facility or modify an existing
871-9 facility that may emit air contaminants; or
871-10 (2) to operate a federal source.
871-11 (b) The commission may issue:
871-12 (1) special permits for certain facilities;
871-13 (2) a general permit for numerous similar sources; or
871-14 (3) a single permit for multiple facilities located at
871-15 the same site.
871-16 (c) The commission may issue a federal operating permit for
871-17 a source in violation only if the operating permit incorporates a
871-18 compliance plan for the source, as equipped by Section 503 of the
871-19 federal Clean Air Act (42 U.S.C. Section 7661b), as added by
871-20 Section 501 of the federal Clean Air Act Amendments of 1990
871-21 (Pub. L. No. 101-549) and any rules adopted by the commission, as a
871-22 condition of the permit.
871-23 (d) The commission shall adopt rules as necessary to comply
871-24 with changes in federal law or regulations applicable to permits
871-25 issued under this chapter. (Sec. 382.051, Health and Safety Code.)
871-26 Sec. 30.052. Permit Consolidation and Amendment. (a) The
871-27 commission may consolidate into a single permit:
872-1 (1) any permits, special permits, or exemptions for a
872-2 facility or source issued by the Texas Air Control Board before
872-3 December 1, 1991; or
872-4 (2) any permit issued by the Texas Air Control Board
872-5 or commission on or after December 1, 1991, with any permits,
872-6 special permits, or exemptions issued or qualified for by that
872-7 date.
872-8 (b) Consistent with the rules adopted under Subsection (d)
872-9 and the limitations of this chapter, including limitations that
872-10 apply to the modification of an existing facility, the commission
872-11 may amend, revise, or modify a permit.
872-12 (c) The commission may allow changes within a permitted
872-13 facility or a facility that has filed a timely and complete
872-14 application for a federal operating permit under Section 30.062
872-15 without requiring a permit revision if:
872-16 (1) the changes are not modifications under any
872-17 provision of Title I of the federal Clean Air Act Amendments of
872-18 1990 (Pub. L. No. 101-549);
872-19 (2) the changes do not cause emissions in excess of
872-20 emissions allowable under the permit;
872-21 (3) the changes do not alter any permit condition; and
872-22 (4) the facility notifies the commission in writing at
872-23 least seven days in advance of the proposed changes, unless the
872-24 commission by rule provides a different time frame for emergencies.
872-25 (d) The commission by rule shall develop criteria and
872-26 administrative procedures to implement Subsections (b) and (c).
872-27 (e) When multiple facilities have been consolidated into a
873-1 single permit under this section and the consolidated permit is
873-2 reopened for consideration of an amendment relating to one or more
873-3 facilities authorized by that permit, the permit is not considered
873-4 reopened with respect to facilities for which an amendment,
873-5 revision, or modification is not sought unless this chapter
873-6 specifically authorizes or requires that additional reopening in
873-7 order to protect the public's health and physical property. (Sec.
873-8 382.0511, Health and Safety Code.)
873-9 Sec. 30.053. Modification of Existing Facility. In
873-10 determining whether a proposed change at an existing facility is a
873-11 modification, the commission may not consider the effect on
873-12 emissions of:
873-13 (1) any air pollution control method applied to a
873-14 source; or
873-15 (2) any decreases in emissions from other sources.
873-16 (Sec. 382.0512, Health and Safety Code.)
873-17 Sec. 30.054. Permit Conditions. The commission may
873-18 establish by rule and enforce permit conditions consistent with
873-19 this chapter and rules adopted by the commission. (Sec. 382.0513,
873-20 Health and Safety Code.)
873-21 Sec. 30.055. Sampling and Monitoring. The commission may
873-22 require, at the expense of the permit holder and as a condition of
873-23 the permit:
873-24 (1) sampling and monitoring of a permitted source or
873-25 facility; and
873-26 (2) a regular periodic report of sampling and
873-27 monitoring results. (Sec. 382.0514, Health and Safety Code.)
874-1 Sec. 30.056. Application for Permit. A person applying for
874-2 a permit shall submit to the commission:
874-3 (1) a permit application;
874-4 (2) copies of all plans and specifications necessary
874-5 to determine if the facility or source will comply with applicable
874-6 federal and state air control statutes, rules, and regulations and
874-7 the intent of this chapter; and
874-8 (3) any other information the commission considers
874-9 necessary. (Sec. 382.0515, Health and Safety Code.)
874-10 Sec. 30.057. Notice to State Senator and Representative. On
874-11 receiving an application for a construction permit, a special
874-12 permit, or an operating permit for a facility that may emit air
874-13 contaminants, the commission shall send notice of the application
874-14 to the state senator and representative who represent the area in
874-15 which the facility is or will be located. (Sec. 382.0516, Health
874-16 and Safety Code.)
874-17 Sec. 30.058. Determination of Administrative Completion of
874-18 Application. The commission shall determine when an application
874-19 filed under Section 30.059 or Section 30.062 is administratively
874-20 complete. On determination, the commission by mail shall notify
874-21 the applicant and any interested party who has requested
874-22 notification. If the number of interested parties who have
874-23 requested notification makes it impracticable for the commission to
874-24 notify those parties by mail, the commission shall notify those
874-25 parties by publication using the method prescribed by Section
874-26 2.206(b). (Sec. 382.0517, Health and Safety Code.)
874-27 Sec. 30.059. Preconstruction Permit. (a) Before work is
875-1 begun on the construction of a new facility or a modification of an
875-2 existing facility that may emit air contaminants, the person
875-3 planning the construction or modification must obtain a permit from
875-4 the commission.
875-5 (b) The commission shall grant within a reasonable time a
875-6 permit to construct or modify a facility if, from the information
875-7 available to the commission, including information presented at any
875-8 hearing held under Section 30.066(d), the commission finds:
875-9 (1) the proposed facility for which a permit or a
875-10 special permit is sought will use at least the best available
875-11 control technology, considering the technical practicability and
875-12 economic reasonableness of reducing or eliminating the emissions
875-13 resulting from the facility; and
875-14 (2) no indication that the emissions from the facility
875-15 will contravene the intent of this chapter, including protection of
875-16 the public's health and physical property.
875-17 (c) In considering the issuance, amendment, or renewal of a
875-18 permit, the commission may consider any adjudicated decision or
875-19 compliance proceeding within the five years before the date on
875-20 which the application was filed that addressed the applicant's past
875-21 performance and compliance with the laws of this state, another
875-22 state, or the United States governing air contaminants or with the
875-23 terms of any permit or order issued by the commission.
875-24 (d) If the commission finds that the emissions from the
875-25 proposed facility will contravene the standards under Subsection
875-26 (b) or will contravene the intent of this chapter, the commission
875-27 may not grant the permit or a special permit and shall set out in a
876-1 report to the applicant its specific objections to the submitted
876-2 plans of the proposed facility.
876-3 (e) If the person applying for a permit or a special permit
876-4 makes the alterations in the person's plans and specifications to
876-5 meet the commission's specific objections, the commission shall
876-6 grant the permit or special permit. If the person fails or refuses
876-7 to alter the plans and specifications, the commission may not grant
876-8 the permit or special permit. The commission may refuse to accept
876-9 a person's new application until the commission's objections to the
876-10 plans previously submitted by that person are satisfied.
876-11 (f) A person may operate a facility or source under a permit
876-12 issued under this section if:
876-13 (1) the facility or source is not required to obtain a
876-14 federal operating permit under Section 30.062; and
876-15 (2) within the time and in the manner prescribed by
876-16 commission rule, the permit holder demonstrates that:
876-17 (A) the facility complies with all terms of the
876-18 existing preconstruction permit; and
876-19 (B) operation of the facility or source will not
876-20 violate the intent of this chapter or standards adopted by the
876-21 commission.
876-22 (g) Subsections (a)-(d) do not apply to a person who has
876-23 executed a contract or has begun construction for an addition,
876-24 alteration, or modification to a new or an existing facility on or
876-25 before August 30, 1971, and who has complied with the requirements
876-26 of the law from which former Section 382.060, Health and Safety
876-27 Code, was derived as it existed on November 30, 1991. To qualify
877-1 for any exemption under this subsection, a contract may not have a
877-2 beginning construction date later than February 29, 1972. (Sec.
877-3 382.0518, Health and Safety Code.)
877-4 Sec. 30.060. Permit to Construct or Modify Facility Within
877-5 3,000 Feet of School. In considering the issuance of a permit to
877-6 construct or modify a facility within 3,000 feet of an elementary,
877-7 junior high, or senior high school, the commission shall consider
877-8 possible adverse short-term or long-term side effects of air
877-9 contaminants or nuisance odors from the facility on the individuals
877-10 attending the school facilities. (Sec. 382.052, Health and Safety
877-11 Code.)
877-12 Sec. 30.061. Prohibition on Issuance of Construction Permit
877-13 for Lead Smelting Plant at Certain Locations. (a) The commission
877-14 may not grant a construction permit for a lead smelting plant at a
877-15 site:
877-16 (1) located within 3,000 feet of an individual's
877-17 residence; and
877-18 (2) at which lead smelting operations have not been
877-19 conducted before August 31, 1987.
877-20 (b) This section does not apply to:
877-21 (1) a modification of a lead smelting plant in
877-22 operation on August 31, 1987;
877-23 (2) a lead smelting plant or modification of a plant
877-24 with the capacity to produce not more than 200 pounds of lead each
877-25 hour; or
877-26 (3) a lead smelting plant that, when the plant began
877-27 operation, was located more than 3,000 feet from the nearest
878-1 residence.
878-2 (c) In this section, "lead smelting plant" means a facility
878-3 operated as a smeltery for processing lead. (Sec. 382.053, Health
878-4 and Safety Code.)
878-5 Sec. 30.062. Federal Operating Permit. A person may not
878-6 operate a federal source unless the person has obtained a federal
878-7 operating permit from the commission under Sections 30.063 and
878-8 30.064. (Sec. 382.054, Health and Safety Code.)
878-9 Sec. 30.063. Administration and Enforcement of Federal
878-10 Operating Permit. (a) The commission may:
878-11 (1) require a federal source subject to Title III of
878-12 the federal Clean Air Act Amendments of 1990 (Pub. L. No. 101-549)
878-13 to comply with that Act and regulations adopted under that Act;
878-14 (2) require an existing facility or source to use, at
878-15 a minimum, any applicable maximum achievable control technology
878-16 required by the board or by the United States Environmental
878-17 Protection Agency;
878-18 (3) require a new or modified facility or source
878-19 subject to Title III of the federal Clean Air Act Amendments of
878-20 1990 (Pub. L. No. 101-549) to use, at a minimum, the more stringent
878-21 of:
878-22 (A) the best available control technology,
878-23 considering the technical practicability and economic
878-24 reasonableness of reducing or eliminating emissions from the
878-25 proposed facility or source; or
878-26 (B) any applicable maximum achievable control
878-27 technology (MACT), including any MACT developed pursuant to Section
879-1 112(g) of the federal Clean Air Act (42 U.S.C. Section 7412), as
879-2 amended by Section 301 of the federal Clean Air Act Amendments of
879-3 1990 (Pub. L. No. 101-549), required by the commission or by the
879-4 United States Environmental Protection Agency;
879-5 (4) establish maximum achievable control technology
879-6 requirements on a case-by-case basis if the United States
879-7 Environmental Protection Agency does not adopt those requirements;
879-8 (5) issue initial permits with terms not to exceed
879-9 five years for federal sources under Title IV or V of the federal
879-10 Clean Air Act Amendments of 1990 (Pub. L. No. 101-549), with
879-11 five-year terms for all subsequently issued or renewed permits;
879-12 (6) administer the use of emissions allowances under
879-13 Section 408 of the federal Clean Air Act (42 U.S.C. Section 7651g),
879-14 as amended by Section 401 of the federal Clean Air Act Amendments
879-15 of 1990 (Pub. L. No. 101-549);
879-16 (7) reopen and revise an affected federal permit with
879-17 a term of three years or more remaining in order to incorporate
879-18 requirements under the federal Clean Air Act (42 U.S.C. Section
879-19 7401 et seq.) adopted after the permit is issued; and
879-20 (8) incorporate a federal implementation plan as a
879-21 condition of a permit issued by the commission.
879-22 (b) The commission by rule shall provide for objection by
879-23 the administrator to the issuance of any operating or general
879-24 permit subject to Title V of the federal Clean Air Act Amendments
879-25 of 1990 (Pub. L. No. 101-549) and shall authorize the administrator
879-26 to revoke and reissue, terminate, or modify a permit.
879-27 (c) This section does not affect the permit requirements of
880-1 Section 30.059, except that the commission may consolidate with an
880-2 existing permit issued under this section a permit required by
880-3 Section 30.059.
880-4 (d) Subsection (a)(3) does not prohibit the applicability of
880-5 at least the best available control technology to a new or modified
880-6 facility or source under Section 30.059(b)(1).
880-7 (e) This section is effective upon publication of notice of
880-8 approval of permitting program under the federal Clean Air Act
880-9 Amendments of 1990 (Pub. L. No. 101-549). (Sec. 382.0541, Health
880-10 and Safety Code.)
880-11 Sec. 30.064. Issuance of Federal Operating Permit; Appeal of
880-12 Delay. (a) The commission shall grant a permit required by
880-13 Section 30.062 not later than 18 months after the date on which the
880-14 commission receives an administratively complete application if,
880-15 from information available to the commission, including information
880-16 presented at any hearing held under Section 30.067, the commission
880-17 finds that the facility or source for which the permit is sought
880-18 meets the requirements of Subsection (b).
880-19 (b) A facility or source is eligible for a permit required
880-20 by Section 30.062 if:
880-21 (1) emissions from the facility or source will comply
880-22 with the intent of this chapter, including protection of the
880-23 public's health and physical property;
880-24 (2) the facility or source will use, at a minimum, any
880-25 applicable maximum achievable control technology required by the
880-26 commission or by the United States Environmental Protection Agency;
880-27 (3) for a new or modified source or facility subject
881-1 to Title III of the federal Clean Air Act Amendments of 1990
881-2 (Pub. L. No. 101-549), the source or facility will use, at a
881-3 minimum, the more stringent of:
881-4 (A) the best available control technology,
881-5 considering the technical practicability and economic
881-6 reasonableness of reducing or eliminating the emissions from the
881-7 proposed facility or source; or
881-8 (B) any applicable maximum achievable control
881-9 technology required by the commission or by the United States
881-10 Environmental Protection Agency; and
881-11 (4) emissions from the facility or source will comply
881-12 with all applicable requirements of:
881-13 (A) Title III of the federal Clean Air Act
881-14 Amendments of 1990 (Pub. L. No. 101-549);
881-15 (B) Title IV of the federal Clean Air Act
881-16 Amendments of 1990 (Pub. L. No. 101-549);
881-17 (C) Sections 111 and 112 of the federal Clean
881-18 Air Act (42 U.S.C. Sections 7411 and 7412);
881-19 (D) Parts C and D of Title I of the federal
881-20 Clean Air Act (42 U.S.C. Sections 7470 et seq. and 7501 et seq.);
881-21 (E) the state implementation plan requirements
881-22 approved by the United States Environmental Protection Agency;
881-23 (F) this chapter and rules adopted under this
881-24 chapter; and
881-25 (G) the federal Clean Air Act (42 U.S.C. Section
881-26 7401 et seq.), as revised.
881-27 (c) If the commission does not act on a permit application
882-1 or permit renewal application within 18 months of the date on which
882-2 the commission receives an administratively complete application, a
882-3 person affected by the commission's failure to act may obtain
882-4 judicial review under Section 2.151. A reviewing court may order
882-5 the commission to act on the application without additional delay
882-6 if it finds that the commission's failure to act is arbitrary or
882-7 unreasonable.
882-8 (d) In considering the issuance, amendment, or renewal of a
882-9 permit, the commission may consider any adjudicated decision or
882-10 compliance proceeding within the five years before the date on
882-11 which the application was filed that addressed the applicant's past
882-12 performance and compliance with the laws of this state, another
882-13 state, or the United States governing air contaminants or with the
882-14 terms of any permit or order issued by the commission.
882-15 (e) Subsection (b)(3) does not prohibit the applicability of
882-16 at least the best available control technology to a new or modified
882-17 facility or source under Section 30.059(b)(1).
882-18 (f) This section is effective on publication of notice of
882-19 approval of permitting program under the federal Clean Air Act
882-20 Amendments of 1990 (Pub. L. No. 101-549). (Sec. 382.0542, Health
882-21 and Safety Code.)
882-22 Sec. 30.065. Review and Renewal of Permit. (a) Subject to
882-23 Section 30.063(a)(5), a permit issued or renewed by the commission
882-24 on or after December 1, 1991, is subject to review every five years
882-25 after the date of issuance to determine whether the authority to
882-26 operate should be renewed. A permit issued before December 1,
882-27 1991, is subject to review 15 years after the date of issuance.
883-1 (b) The commission by rule shall establish:
883-2 (1) a deadline by which the holder of a permit must
883-3 submit an application for review of the permit;
883-4 (2) the general requirements that must be met by the
883-5 applicant; and
883-6 (3) the procedures for reviewing and acting on review
883-7 applications.
883-8 (c) Not less than 180 days before the date on which the
883-9 renewal application is due, the commission shall provide written
883-10 notice to the permit holder, by registered or certified mail, that
883-11 the permit is scheduled for review in accordance with this section.
883-12 The notice must include a description of the procedure for filing a
883-13 review application and the information to be included in the
883-14 application.
883-15 (d) In determining whether and under which conditions a
883-16 permit should be renewed, the commission shall consider, at a
883-17 minimum:
883-18 (1) whether the facility is or has been in substantial
883-19 compliance with this chapter and the terms of the existing permit;
883-20 (2) the condition and effectiveness of existing
883-21 emission control equipment and practices; and
883-22 (3) all applicable requirements of the federal Clean
883-23 Air Act Amendments of 1990 (Pub. L. No. 101-549).
883-24 (e) The commission shall impose as a condition for renewal
883-25 of a permit any applicable requirements of Title V of the federal
883-26 Clean Air Act Amendments of 1990 (Pub. L. No. 101-549), as well as
883-27 those requirements determined to be economically reasonable and
884-1 technically practicable considering the age of the facility and the
884-2 effect of its emissions on the surrounding area. The commission
884-3 may not impose requirements less stringent than those of the
884-4 existing permit unless the commission determines that a proposed
884-5 change will meet the requirements of Sections 30.059 and 30.063.
884-6 (f) In this subsection, a "reasonable time" may not exceed
884-7 the time limitations established by the United States Environmental
884-8 Protection Agency for federal sources under Title IV or V of the
884-9 federal Clean Air Act Amendments of 1990 (Pub. L. No. 101-549).
884-10 The commission shall renew a permit within a reasonable time after
884-11 the date on which a complete application is filed or, if the
884-12 commission determines that the facility will not meet the
884-13 requirements for renewing the permit, shall:
884-14 (1) set out in a report to the applicant the basis for
884-15 the commission's determination; and
884-16 (2) establish a schedule, to which the applicant must
884-17 adhere in meeting the commission's requirements, that:
884-18 (A) includes a final date for meeting the
884-19 commission's requirements; and
884-20 (B) requires completion of that action as
884-21 expeditiously as possible.
884-22 (g) If the applicant meets the commission's requirements in
884-23 accordance with the schedule, the commission shall renew the
884-24 permit. If the applicant does not meet those requirements in
884-25 accordance with the schedule, the applicant must show in a
884-26 contested case proceeding why the permit should not expire
884-27 immediately. The applicant's permit is effective until:
885-1 (1) the final date specified by the commission's
885-2 report to the applicant;
885-3 (2) the existing permit is renewed; or
885-4 (3) the date specified by a commission order issued
885-5 following a contested case proceeding held under this section.
885-6 (h) If the holder of a permit to whom the commission has
885-7 mailed notice of this section does not apply for review of that
885-8 permit by the date specified by the commission under this section:
885-9 (1) a permit issued on or after December 1, 1991,
885-10 expires five years after the date on which the permit is originally
885-11 issued or, if the permit has been renewed, five years after the
885-12 date on which the permit is last renewed; and
885-13 (2) a permit issued before December 1, 1991, expires
885-14 15 years after the date on which the permit is originally issued
885-15 or, if the permit has been renewed before December 1, 1991, 15
885-16 years after the date on which the permit is last renewed.
885-17 (i) This section does not affect the commission's authority
885-18 to begin enforcement action under Sections 30.082-30.084. (Sec.
885-19 382.055, Health and Safety Code.)
885-20 Sec. 30.066. Notice of Intent to Obtain Permit or Permit
885-21 Review; Hearing. (a) An applicant for a permit under Section
885-22 30.059 or 30.062 or a permit renewal review under Section 30.065
885-23 shall publish notice of intent to obtain the permit or permit
885-24 review. The applicant shall publish the notice at least once in a
885-25 newspaper of general circulation in the municipality in which the
885-26 facility is located or is proposed to be located or in the
885-27 municipality nearest to the location or proposed location of the
886-1 facility. The commission by rule shall prescribe when notice must
886-2 be published and may require publication of additional notice.
886-3 (b) The notice must include:
886-4 (1) a description of the location or proposed location
886-5 of the facility;
886-6 (2) a statement that a person who may be affected by
886-7 emissions of air contaminants from the facility or proposed
886-8 facility is entitled to request a hearing from the commission;
886-9 (3) a description of the manner in which the
886-10 commission may be contacted for further information; and
886-11 (4) any other information the commission by rule
886-12 requires.
886-13 (c) At the site of a facility or proposed facility for which
886-14 a permit application or permit review application is submitted, the
886-15 applicant shall place a sign declaring the filing of an application
886-16 for a permit or permit review for a facility at the site and
886-17 stating the manner in which the board may be contacted for further
886-18 information. The commission shall adopt any rule necessary to
886-19 carry out this subsection.
886-20 (d) Except as provided by Section 30.067, the commission or
886-21 its delegate shall hold a public hearing on the permit application
886-22 or permit review application before granting the permit or renewal
886-23 if a person who may be affected by the emissions, or a member of
886-24 the legislature from the general area in which the facility or
886-25 proposed facility is located, requests a hearing within the period
886-26 set by commission rule. The commission is not required to hold a
886-27 hearing if the basis of a request by a person who may be affected
887-1 is determined to be unreasonable. (Sec. 382.056, Health and Safety
887-2 Code.)
887-3 Sec. 30.067. Federal Operating Permit: Hearing. (a) The
887-4 following public hearings shall be conducted under this section
887-5 only and not under the Administrative Procedure and Texas Register
887-6 Act (Article 6252-13a, Vernon's Texas Civil Statutes):
887-7 (1) a public hearing on a permit application for a
887-8 federal operating permit under Sections 30.062-30.064 that is not
887-9 subject to Section 30.059; or
887-10 (2) a public hearing on an application for renewal of
887-11 a federal operating permit under Section 30.065.
887-12 (b) On determination that an application for a federal
887-13 operating permit under Sections 30.062-30.064 or a renewal of a
887-14 federal operating permit under Section 30.065 is administratively
887-15 complete and before the beginning of the public comment period, the
887-16 commission shall prepare a draft permit.
887-17 (c) The commission or its designee shall hold a public
887-18 hearing on a permit or renewal application before granting the
887-19 permit or renewal if within the public comment period a person who
887-20 may be affected by the emissions or a member of the legislature
887-21 from the general area in which the facility is located requests a
887-22 hearing. The commission is not required to hold a hearing if the
887-23 basis of the request by a person who may be affected is determined
887-24 to be unreasonable.
887-25 (d) The following shall be available for public inspection
887-26 in at least one location in the general area where the facility is
887-27 located:
888-1 (1) information submitted by the application, subject
888-2 to applicable confidentiality laws;
888-3 (2) the executive director's analysis of the proposed
888-4 action; and
888-5 (3) a copy of the draft permit.
888-6 (e) The commission shall hold a public comment period on a
888-7 permit application or permit renewal application under Sections
888-8 30.062-30.064 or 30.065. Any person may submit a written statement
888-9 to the commission during the public comment period. The executive
888-10 director shall receive public comment for 30 days after the date on
888-11 which notice of the public comment period is published. The
888-12 executive director may extend or reopen the comment period if the
888-13 director finds an extension or reopening to be appropriate.
888-14 (f) Notice of the public comment period and opportunity for
888-15 a hearing under this section shall be published in accordance with
888-16 Section 30.066.
888-17 (g) Any person may submit an oral or written statement
888-18 concerning the application at the hearing. The individual holding
888-19 the hearing may set reasonable limits on the time allowed for oral
888-20 statements at the hearing. The public comment period extends to
888-21 the close of the hearing and may be further extended or reopened if
888-22 the executive director finds an extension or reopening to be
888-23 appropriate.
888-24 (h) Any person, including the applicant, who believes that
888-25 any condition of the draft permit is inappropriate or that the
888-26 executive director's preliminary decision to issue or deny a permit
888-27 is inappropriate must raise all reasonably ascertainable issues and
889-1 submit all reasonably available arguments supporting that position
889-2 by the end of the public comment period.
889-3 (i) The executive director shall consider all comments
889-4 received during the public comment period and at the public hearing
889-5 in determining whether to issue the permit and what conditions
889-6 should be included if a permit is issued.
889-7 (j) This section is effective upon publication of notice of
889-8 approval of permitting program under the federal Clean Air Act
889-9 Amendments of 1990 (Pub. L. No. 101-549). (Sec. 382.0561, Health
889-10 and Safety Code.)
889-11 Sec. 30.068. Notice of Decision. (a) The executive
889-12 director shall send notice of a decision on a federal operating
889-13 permit by first-class mail to the applicant and all persons who
889-14 comment during the public comment period or at the public hearing.
889-15 The notice shall include a response to any comment submitted during
889-16 the public comment period and shall identify any change in the
889-17 conditions of the draft permit and the reasons for the change.
889-18 (b) The notice required by Subsection (a) shall:
889-19 (1) state that any person affected by the decision of
889-20 the executive director may appeal the decision to the commission
889-21 not later than the 30th day after the date on which notice was
889-22 mailed;
889-23 (2) state the date by which an appeal must be filed;
889-24 (3) explain the appeal process and explain that an
889-25 appeal is a contested case hearing before the commission; and
889-26 (4) state that a letter to the commission stating that
889-27 the person is appealing the decision constitutes an appeal of the
890-1 decision.
890-2 (c) This section is effective upon publication of notice of
890-3 approval of permitting program under the federal Clean Air Act
890-4 Amendments of 1990 (Pub. L. No. 101-549). (Sec. 382.0562, Health
890-5 and Safety Code.)
890-6 Sec. 30.069. Appeal to Board. (a) Any person, including
890-7 the applicant, affected by a decision of the executive director
890-8 under Section 30.067 may appeal the decision to the commission not
890-9 later than the 30th day after the date on which notice was mailed.
890-10 The issues on appeal must be identified with specificity in the
890-11 request for a contested case hearing.
890-12 (b) An appeal under this section is a contested case hearing
890-13 under the Administrative Procedure and Texas Register Act (Article
890-14 6252-13a, Vernon's Texas Civil Statutes).
890-15 (c) The filing of an appeal to the commission under this
890-16 section does not affect a permit issued by the executive director.
890-17 A final order by the commission reversing or modifying the
890-18 executive director's decision takes effect when it becomes final
890-19 and appealable.
890-20 (d) This section is effective upon publication of notice of
890-21 approval of permitting program under the federal Clean Air Act
890-22 Amendments of 1990 (Pub. L. No. 101-549). (Sec. 382.0563, Health
890-23 and Safety Code.)
890-24 Sec. 30.070. Notification to Other Governmental Entities.
890-25 The commission by rule shall allow for notification of and review
890-26 by the administrator and affected states of any permit application
890-27 or draft permit prepared under Sections 30.062-30.064 if
891-1 notification and review is requested. (Sec. 382.0564, Health and
891-2 Safety Code.)
891-3 Sec. 30.071. Exemption. (a) Consistent with Section
891-4 30.052, the commission by rule may exempt from the requirements of
891-5 Section 30.059 and Sections 30.062-30.064 changes within a
891-6 permitted facility and certain types of facilities if it is found
891-7 on investigation that such changes or types of facilities will not
891-8 make a significant contribution of air contaminants to the
891-9 atmosphere, except as prohibited by the federal Clean Air Act
891-10 Amendments of 1990 (Pub. L. No. 101-549). The commission may not
891-11 exempt any source or facility or any modification of an existing
891-12 facility defined as "major" under the federal Clean Air Act
891-13 Amendments of 1990 (Pub. L. No. 101-549) or regulations adopted
891-14 under that Act.
891-15 (b) The commission shall adopt rules specifically defining
891-16 the terms and conditions for an exemption under this section in a
891-17 nonattainment area as defined by Title I of the federal Clean Air
891-18 Act (42 U.S.C. Section 7401 et seq.). (Sec. 382.057, Health and
891-19 Safety Code.)
891-20 Sec. 30.072. Limitation on Commission Exemption for
891-21 Construction of Certain Concrete Plants. (a) A person may not
891-22 begin construction on any concrete plant that performs wet
891-23 batching, dry batching, or central mixing under an exemption
891-24 adopted by the commission under Section 30.071 unless the person
891-25 has complied with the notice and opportunity for hearing provisions
891-26 under Section 30.066.
891-27 (b) This section does not apply to a concrete plant located
892-1 temporarily in the right-of-way, or contiguous to the right-of-way,
892-2 of a public works project.
892-3 (c) For purposes of this section, only those persons
892-4 actually residing in a permanent residence within 440 yards of the
892-5 proposed plant may request a hearing under Section 30.066(d) as a
892-6 person who may be affected. (Sec. 382.058, Health and Safety
892-7 Code.)
892-8 Sec. 30.073. Revocation of Permit or Exemption. (a) The
892-9 commission may revoke and reissue, terminate, or modify a permit or
892-10 exemption issued under this chapter if the commission determines
892-11 that:
892-12 (1) any of the terms of the permit or exemption are
892-13 being violated; or
892-14 (2) emissions from the proposed facility will
892-15 contravene air pollution control standards set by the commission or
892-16 will contravene the intent of this chapter.
892-17 (b) The commission may:
892-18 (1) begin proceedings to revoke and reissue,
892-19 terminate, or modify a permit if a violation at a facility is
892-20 continued after 180 days following the date on which the notice of
892-21 violation is provided under Section 30.082; and
892-22 (2) consider good faith efforts to correct the
892-23 violation in deciding whether to revoke and reissue, terminate, or
892-24 modify a permit or exemption. (Sec. 382.059, Health and Safety
892-25 Code.)
892-26 Sec. 30.074. Denial of Application for Permit; Assistance
892-27 Provided by Certain Former Employees. (a) The commission shall
893-1 deny an application for the issuance, amendment, renewal, or
893-2 transfer of a permit and may not issue, amend, renew, or transfer
893-3 the permit if the commission determines that a former employee:
893-4 (1) participated personally and substantially as an
893-5 employee in the commission's review, evaluation, or processing of
893-6 the application before leaving employment with the commission; and
893-7 (2) after leaving employment with the commission,
893-8 provided assistance to the applicant for the issuance, amendment,
893-9 renewal, or transfer of the permit, including assistance with
893-10 preparation or presentation of the application or legal
893-11 representation of the applicant.
893-12 (b) The commission shall provide an opportunity for a
893-13 hearing to an applicant before denying an application under this
893-14 section.
893-15 (c) Action taken under this section does not prejudice any
893-16 application other than an application in which the former employee
893-17 provided assistance.
893-18 (d) In this section, "former employee" means a person:
893-19 (1) who was previously employed by the commission as a
893-20 supervisory or exempt employee; and
893-21 (2) whose duties during employment with the commission
893-22 included involvement in or supervision of the commission's review,
893-23 evaluation, or processing of applications. (Sec. 382.0591, Health
893-24 and Safety Code.)
893-25 Sec. 30.075. Delegation of Powers and Duties. The
893-26 commission may delegate to the executive director the powers and
893-27 duties under Sections 30.051-30.065, 30.071, and 30.073. An
894-1 applicant or a person affected by a decision of the executive
894-2 director may appeal to the commission any decision made by the
894-3 executive director under those sections. (Sec. 382.061, Health and
894-4 Safety Code.)
894-5 Sec. 30.076. Operating Permit Fee. (a) The commission
894-6 shall adopt, charge, and collect an annual fee based on emissions
894-7 for each source that either:
894-8 (1) is subject to permitting requirements of Title IV
894-9 or V of the federal Clean Air Act Amendments of 1990 (Pub. L. No.
894-10 101-549); or
894-11 (2) is based on plant operations, and the rate of
894-12 emissions at the time the fee is due would be subject to the
894-13 permitting requirements if the requirements were in effect on that
894-14 date.
894-15 (b) Fees imposed under this section shall be at least
894-16 sufficient to cover all reasonably necessary direct and indirect
894-17 costs of developing and administering the permit program under
894-18 Titles IV and V of the federal Clean Air Act Amendments of 1990
894-19 (Pub. L. No. 101-549), including the reasonable costs of:
894-20 (1) reviewing and acting on any application for a
894-21 Title IV or V permit;
894-22 (2) implementing and enforcing the terms and
894-23 conditions of a Title IV or V permit, excluding any court costs or
894-24 other costs associated with any enforcement action;
894-25 (3) emissions and ambient monitoring;
894-26 (4) preparing generally applicable regulations or
894-27 guidance;
895-1 (5) modeling, analyses, and demonstrations; and
895-2 (6) preparing inventories and tracking emissions.
895-3 (c) The commission by rule may provide for the automatic
895-4 annual increase of fees imposed under this section by the
895-5 percentage, if any, by which the consumer price index for the
895-6 preceding calendar year exceeds the consumer price index for
895-7 calendar year 1989. For purposes of this subsection:
895-8 (1) the consumer price index for any calendar year is
895-9 the average of the Consumer Price Index for All Urban Consumers
895-10 published by the United States Department of Labor as of the close
895-11 of the 12-month period ending on August 31 of each calendar year;
895-12 and
895-13 (2) the revision of the consumer price index that is
895-14 most consistent with the consumer price index for calendar year
895-15 1989 shall be used.
895-16 (d) The commission may not impose a fee for any amount of
895-17 emissions of an air contaminant regulated under the federal Clean
895-18 Air Act Amendments of 1990 (Pub. L. No. 101-549) in excess of 4,000
895-19 tons per year from any source.
895-20 (e) This section does not restrict the authority of the
895-21 commission under Section 2.176 to impose fees on sources not
895-22 subject to the permitting requirements of Title IV or V of the
895-23 federal Clean Air Act Amendments of 1990 (Pub. L. No. 101-549).
895-24 (Sec. 382.0621, Health and Safety Code.)
895-25 Sec. 30.077. Clean Air Act Fees. (a) Clean Air Act fees
895-26 consist of:
895-27 (1) fees collected by the commission under Sections
896-1 2.176, 30.031, and 30.076 and as otherwise provided by law; and
896-2 (2) $2 of each advance payment collected by the
896-3 Department of Public Safety for inspection certificates for
896-4 vehicles other than mopeds under Section 141(c), Uniform Act
896-5 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
896-6 Statutes).
896-7 (b) Clean Air Act fees shall be deposited in the state
896-8 treasury to the credit of the clean air fund and shall be used to
896-9 safeguard the air resources of the state. All unexpended and
896-10 unobligated money remaining in the fund on the last day of each
896-11 fiscal biennium shall be transferred to the credit of the general
896-12 revenue fund.
896-13 (c) The commission shall request the appropriation of
896-14 sufficient money to safeguard the air resources of the state,
896-15 including payments to the Public Safety Commission for incidental
896-16 costs of administering the vehicle emissions inspection and
896-17 maintenance program, except that after the date of delegation of
896-18 the state's permitting program under Title V of the federal Clean
896-19 Air Act Amendments of 1990 (Pub. L. No. 101-549), fees collected
896-20 under Section 30.076(a) may be appropriated only to cover costs of
896-21 developing and administering the federal permit program under
896-22 Titles IV and V of the federal Clean Air Act Amendments of 1990
896-23 (Pub. L. No. 101-549).
896-24 (d)(1) Through the option of contracting for air pollution
896-25 control services, including but not limited to compliance and
896-26 permit inspections and complaint response, the board may utilize
896-27 appropriated money to purchase services from units of local
897-1 government meeting each of the following criteria:
897-2 (A) the unit of local government received
897-3 federal fiscal year 1990 funds from the United States Environmental
897-4 Protection Agency pursuant to Section 105 of the federal Clean Air
897-5 Act (42 U.S.C. Section 7405) for the operation of an air pollution
897-6 program by formal agreement;
897-7 (B) the local unit of government is in a
897-8 federally designated nonattainment area subject to implementation
897-9 plan requirements, including automobile emission inspection and
897-10 maintenance programs, under Title I of the federal Clean Air Act
897-11 Amendments of 1990 (Pub. L. No. 101-549); and
897-12 (C) the local unit of government has not caused
897-13 the United States Environmental Protection Agency to provide
897-14 written notification that a deficiency in the quality or quantity
897-15 of services provided by its air pollution program is jeopardizing
897-16 compliance with a state implementation plan, a federal program
897-17 delegation agreement, or any other federal requirement for which
897-18 federal sanctions can be imposed.
897-19 (2) The commission may request appropriations of
897-20 sufficient money to contract for services of local units of
897-21 government meeting the eligibility criteria of this subsection to
897-22 ensure that the combination of federal and state funds annually
897-23 available for an air pollution program is equal to or greater than
897-24 the program costs for the operation of an air quality program by
897-25 the local unit of government. The commission is encouraged to fund
897-26 an air pollution program operated by a local unit of government
897-27 meeting the eligibility criteria of this subsection in a manner the
898-1 commission deems an effective means of addressing federal and state
898-2 requirements. The services to be provided by an eligible local
898-3 unit of government under a contractual arrangement under this
898-4 subsection shall be at least equal in quality and quantity to the
898-5 services the local unit of government committed to provide in
898-6 agreements under which it received its federal 1990 air pollution
898-7 grant. The commission and the local units of government meeting
898-8 the eligibility criteria of this subsection may agree to more
898-9 extensive contractual arrangements.
898-10 (3) Nothing in this subsection shall prohibit a local
898-11 unit of government from voluntarily discontinuing an air pollution
898-12 program and thereby relinquishing this responsibility to the state.
898-13 (Sec. 382.0622, Health and Safety Code.)
898-14 Sec. 30.078. Issuance of Emergency Order Because of
898-15 Catastrophe. (a) The commission or the executive director, on
898-16 delegation of authority from the commission, by emergency order may
898-17 authorize immediate action for the addition, replacement, or repair
898-18 of facilities or control equipment necessitated by a catastrophe
898-19 occurring in this state, and the emission of air contaminants
898-20 during the addition, replacement, or repair of those facilities, if
898-21 the actions and emissions are otherwise precluded under this
898-22 chapter.
898-23 (b) An order issued under this section must:
898-24 (1) be limited to a reasonable time specified by the
898-25 order;
898-26 (2) authorize action only on:
898-27 (A) property on which the catastrophe occurred;
899-1 or
899-2 (B) other property that is owned by the owner or
899-3 operator of the damaged facility and that produces the same
899-4 intermediates, products, or by-products; and
899-5 (3) contain a schedule for submission of a complete
899-6 application under Section 30.051.
899-7 (c) Under Subsection (b)(2)(B), the person applying for an
899-8 emergency order must demonstrate that there will be no more than a
899-9 de minimis increase in the predicted concentration of the air
899-10 contaminants at or beyond the property line of the other property.
899-11 The board shall review and act on an application submitted as
899-12 provided by Subsection (b)(3) without regard to construction
899-13 activity under an order under this section.
899-14 (d) To receive an emergency order under this section, a
899-15 person must submit a sworn application to the board or executive
899-16 director. The application must contain any information the
899-17 commission requires and:
899-18 (1) a description of the catastrophe;
899-19 (2) a statement that:
899-20 (A) the construction and emissions are essential
899-21 to prevent loss of life, serious injury, severe property damage, or
899-22 severe economic loss not attributable to the applicant's actions
899-23 and are necessary for the addition, replacement, or repair of a
899-24 facility or control equipment necessitated by the catastrophe;
899-25 (B) there are no practicable alternatives to the
899-26 proposed construction and emissions; and
899-27 (C) the emissions will not cause or contribute
900-1 to air pollution;
900-2 (3) an estimate of the dates on which the proposed
900-3 construction or emissions, or both, will begin and end;
900-4 (4) an estimate of the date on which the facility will
900-5 begin operation; and
900-6 (5) a description of the quantity and type of air
900-7 contaminants proposed to be emitted.
900-8 (e) The commission or executive director may issue an
900-9 emergency order under this section after providing the notice and
900-10 opportunity for hearing that the commission or executive director
900-11 considers practicable under the circumstances. If the commission
900-12 requires notice and hearing before issuing the order, it shall give
900-13 notice not later than the 10th day before the date set for the
900-14 hearing.
900-15 (f) Notice of the issuance of an emergency order shall be
900-16 provided in accordance with commission rules.
900-17 (g) If the commission or executive director issues an
900-18 emergency order under this section without a hearing, the order
900-19 shall set a time and place for a hearing to be held before the
900-20 commission or its designee as soon after the emergency order is
900-21 issued as practicable.
900-22 (h) Section 2.206, relating to notice of a hearing, does not
900-23 apply to a hearing on an emergency order, but such general notice
900-24 of the hearing shall be given that in the judgment of the
900-25 commission or the executive director is practicable under the
900-26 circumstances.
900-27 (i) At or following the hearing, the commission shall
901-1 affirm, modify, or set aside the emergency order. A hearing on an
901-2 emergency order shall be conducted in accordance with the
901-3 Administrative Procedure and Texas Register Act (Article 6252-13a,
901-4 Vernon's Texas Civil Statutes) and commission rules.
901-5 (j) In this section, "catastrophe" means an unforeseen
901-6 event, including an act of God, an act of war, severe weather,
901-7 explosions, fire, or similar occurrences beyond the reasonable
901-8 control of the operator that makes a facility or its functionally
901-9 related appurtenances inoperable. (Sec. 382.063, Health and Safety
901-10 Code.)
901-11 (Sections 30.079-30.080 reserved for expansion)
901-12 SUBCHAPTER D. PENALTIES AND ENFORCEMENT
901-13 Sec. 30.081. Enforcement Proceedings. The commission, or
901-14 the executive director after notification to the commission, may
901-15 cause legal proceedings to be instituted in a court of competent
901-16 jurisdiction to compel compliance with this chapter or the
901-17 commission's rules, orders, or other decisions. (Sec. 382.081,
901-18 Health and Safety Code.)
901-19 Sec. 30.082. Enforcement by Suit; Notice and Orders.
901-20 (a) If the executive director finds that a person has violated, is
901-21 violating, or is threatening to violate any provision of this
901-22 chapter or of any commission rule or order, the executive director
901-23 shall within five days notify that person of the apparent
901-24 violation. Failure of the executive director to issue notice does
901-25 not relieve a person of liability under this chapter.
901-26 (b) The commission or the executive director may cause a
901-27 suit to be instituted in a district court for:
902-1 (1) injunctive relief to restrain the person from
902-2 continuing the violation or threat of violation; or
902-3 (2) the assessment and recovery of a civil penalty as
902-4 provided by Section 30.085(c); or
902-5 (3) both injunctive relief and civil penalty.
902-6 (c) Notwithstanding Subsection (b), if the apparent
902-7 violation or threat of violation of a nonclerical requirement
902-8 continues later than the 30th day after the date on which notice is
902-9 received under Subsection (a), the executive director shall
902-10 institute proceedings under Section 2.210(b) to issue an
902-11 appropriate order providing for compliance within 180 days of the
902-12 notice of the violation.
902-13 (d) Under Subsection (c) if the commission determines that
902-14 good faith efforts to correct the violation have been made, the
902-15 commission may adopt an order under Section 2.210(b) providing for
902-16 compliance later than the 180th day after issuance of the notice
902-17 under Subsection (a). It is intended that "good faith effort" be
902-18 strictly interpreted by the commission while giving due
902-19 consideration to economic reasonableness and technical
902-20 practicability.
902-21 (e) Notwithstanding Subsection (b) and except as provided by
902-22 Subsection (f), if a violation of an order issued under Subsection
902-23 (c) continues later than the 180th day after the date on which the
902-24 original notice of violation is received, the commission or
902-25 executive director shall:
902-26 (1) institute a suit, as provided by Subsection (b)
902-27 for civil penalties and appropriate injunctive relief;
903-1 (2) begin an action under Section 30.073 to revoke a
903-2 permit or exemption;
903-3 (3) begin an action for administrative penalties under
903-4 Section 30.088; or
903-5 (4) pursue a combination of the remedies under this
903-6 subsection.
903-7 (f) The commission or executive director shall cause a suit
903-8 to be instituted as provided by Subsection (b) if a person:
903-9 (1) is alleged to be constructing or operating a
903-10 facility at a new plant site without a permit in violation of state
903-11 law; or
903-12 (2) has been the subject of two or more finally issued
903-13 administrative penalty orders under this chapter for violations
903-14 occurring at the same plant site within two years immediately
903-15 before the first alleged violation currently under investigation at
903-16 that site.
903-17 (g) Violations that were reported by the violator or
903-18 violations consisting of errors in recordkeeping or in
903-19 self-reporting submissions may not be considered in determining
903-20 whether Subsection (f) applies.
903-21 (h) Even though the criteria of Subsection (f) are met, the
903-22 attorney general's office and the executive director may agree to
903-23 resolve any of the alleged violations, before or after referral, by
903-24 administrative order issued by the appropriate regulatory agency
903-25 with the approval of the attorney general.
903-26 (i) At the request of the commission or the executive
903-27 director, the attorney general shall institute and conduct a suit
904-1 in the name of the state for injunctive relief, recovery of the
904-2 civil penalty, or both.
904-3 (j) The commission shall consult with the attorney general's
904-4 office for assistance in determining whether referral to the
904-5 attorney general for enforcement is mandatory under Subsection (f)
904-6 or whether referral is appropriate for the disposition of
904-7 enforcement matters under this chapter. If referral is determined
904-8 to be mandatory or appropriate, the commission shall consult with
904-9 the attorney general's office for assistance in determining whether
904-10 criminal or civil enforcement action should be taken. The
904-11 commission shall use all available enforcement options. (Sec.
904-12 382.082, Health and Safety Code.)
904-13 Sec. 30.083. Emergency Suit. If an apparent violation or
904-14 threat of violation of an order of the commission would materially
904-15 affect human health and safety, a suit under Section 30.082 shall
904-16 be immediately instituted. (Sec. 382.083, Health and Safety Code.)
904-17 Sec. 30.084. Injunction. (a) On application for injunctive
904-18 relief and a finding that a person is violating or threatening to
904-19 violate any provision of this chapter or any commission rule or
904-20 order, a district court shall grant the injunctive relief warranted
904-21 by the facts.
904-22 (b) The court shall grant, without a bond or other
904-23 undertaking by the commission, any prohibiting or mandatory
904-24 injunctions the facts may warrant, including temporary restraining
904-25 orders after notice and hearing, temporary injunctions, and
904-26 permanent injunctions.
904-27 (c) The commission or the executive director may seek an
905-1 injunction or cause a suit for injunctive relief to be instituted
905-2 to stop:
905-3 (1) work on a facility that is:
905-4 (A) being done without a construction permit,
905-5 special permit, or exemption required under this chapter; or
905-6 (B) in violation of the terms of a permit,
905-7 special permit, or exemption issued under this chapter; and
905-8 (2) the operation of a facility that:
905-9 (A) is operating without an operating permit
905-10 required under this chapter; or
905-11 (B) is operating in violation of the terms of an
905-12 operating permit issued under this chapter. (Sec. 382.084, Health
905-13 and Safety Code.)
905-14 Sec. 30.085. Unauthorized Emissions Prohibited; Civil
905-15 Penalty. (a) Except as authorized by a commission rule or order,
905-16 a person may not cause, suffer, allow, or permit the emission of
905-17 any air contaminant or the performance of any activity that causes
905-18 or contributes to, or that will cause or contribute to, air
905-19 pollution.
905-20 (b) A person may not cause, suffer, allow, or permit the
905-21 emission of any air contaminant or the performance of any activity
905-22 in violation of this chapter or of any commission rule or order.
905-23 (c) A person who violates any provision of this chapter or
905-24 any commission rule or order is subject to a civil penalty of not
905-25 less than $50 or more than $25,000 for each day of violation and
905-26 for each act of violation, as the court or jury considers proper.
905-27 (d) The state is entitled to half of a civil penalty
906-1 recovered in a suit brought under this chapter by one or more local
906-2 governments. The remainder shall be equally divided among the
906-3 local governments that first brought the suit. (Sec. 382.085,
906-4 Health and Safety Code.)
906-5 Sec. 30.086. Venue and Procedure. (a) A suit for
906-6 injunctive relief, for recovery of a civil penalty, or for both may
906-7 be brought in the county in which the defendant resides or in the
906-8 county in which the violation or threat of violation occurs.
906-9 (b) An action brought under this chapter takes precedence
906-10 over other cases of a different nature on the docket of the
906-11 appellate court. (Sec. 382.086, Health and Safety Code.)
906-12 Sec. 30.087. Report on Enforcement Actions Taken. (a) The
906-13 commission shall prepare a monthly report on enforcement actions
906-14 taken and the resolution of those actions.
906-15 (b) The report must be an agenda item for commission
906-16 discussion at each regularly scheduled meeting.
906-17 (c) If an enforcement action involves a suit filed for
906-18 injunctive relief or civil penalties or both, the report must state
906-19 the actual or projected time for resolution of the suit.
906-20 (d) Copies of the report and minutes of the meeting
906-21 reflecting action taken by the commission relating to the report
906-22 shall be filed with the governor and the attorney general. (Sec.
906-23 382.087, Health and Safety Code.)
906-24 Sec. 30.088. Administrative Penalty. (a) A person may be
906-25 assessed a civil penalty as provided by this section if the person
906-26 violates this chapter or a rule or order adopted or permit issued
906-27 under this chapter and no local government has instituted a lawsuit
907-1 and is diligently prosecuting that lawsuit against the same person
907-2 for the same violation under Section 30.114.
907-3 (b) The penalty for each violation may not exceed $10,000 a
907-4 day for each violation. Each day that a continuing violation
907-5 occurs may be considered a separate violation.
907-6 (c) In determining the amount of the penalty, the commission
907-7 shall consider:
907-8 (1) the seriousness of the violation, including the
907-9 nature, circumstances, extent, and gravity of the prohibited acts
907-10 and the hazard or potential hazard to the public health or safety;
907-11 (2) the history of previous violations;
907-12 (3) the amount necessary to deter future violations;
907-13 (4) efforts to correct the violation; and
907-14 (5) any other matters that justice may require.
907-15 (d) If the executive director, after an investigation,
907-16 concludes that a violation has occurred, the executive director may
907-17 issue a preliminary report:
907-18 (1) stating the facts that support the conclusion;
907-19 (2) recommending that a civil penalty under this
907-20 section be imposed; and
907-21 (3) recommending the amount of the penalty.
907-22 (e) Not later than the 10th day after the date on which the
907-23 report is issued, the executive director shall give written notice
907-24 of the report to the person charged. The notice must include:
907-25 (1) a brief summary of the charges;
907-26 (2) a statement of the recommended penalty amount; and
907-27 (3) a statement of the right of the person charged to
908-1 a hearing on the occurrence of the violation, the amount of the
908-2 penalty, or both.
908-3 (f) Not later than the 20th day after the date on which
908-4 notice is received, the person charged may give to the commission
908-5 written consent to the executive director's report, including the
908-6 recommended penalty, or make a written request for a hearing.
908-7 (g) If the person charged with the violation consents to the
908-8 penalty recommended by the executive director or does not respond
908-9 to the notice on time, the commission by order shall assess that
908-10 penalty or order a hearing to be held on the recommendations in the
908-11 executive director's report. If the commission assesses the
908-12 penalty recommended by the report, the commission shall give
908-13 written notice to the person charged of its decision and the person
908-14 charged shall pay the penalty.
908-15 (h) If the person charged requests or the commission orders
908-16 a hearing, the executive director shall order a hearing. The
908-17 hearing shall be held by a hearing examiner designated by the
908-18 commission. The hearing examiner shall make findings of fact and
908-19 promptly issue to the commission a written decision as to the
908-20 occurrence of the violation and a recommendation on the amount of
908-21 the proposed penalty if a penalty is warranted. Based on the
908-22 findings of fact and the recommendations of the hearing examiner,
908-23 the commission by order may find a violation has occurred and may
908-24 assess a civil penalty or may find that no violation has occurred.
908-25 All proceedings under this subsection are subject to the
908-26 Administrative Procedure and Texas Register Act (Article 6252-13a,
908-27 Vernon's Texas Civil Statutes).
909-1 (i) The commission shall give notice of its decision to the
909-2 person charged, and if the commission finds that a violation
909-3 occurred and a penalty has been assessed, the commission shall:
909-4 (1) give to the person charged written notice of:
909-5 (A) the commission's findings;
909-6 (B) the amount of the penalty; and
909-7 (C) the person's right to judicial review of the
909-8 commission's order; and
909-9 (2) publish notice of those decisions in the Texas
909-10 Register within 10 days. (Sec. 382.088, Health and Safety Code.)
909-11 Sec. 30.089. Payment of Administrative Penalty. (a) Not
909-12 later than the 30th day after the date on which the order issued
909-13 under Section 30.088 is final, the person charged shall pay the
909-14 penalty in full or file a petition for judicial review.
909-15 (b) If the person files a petition for judicial review of
909-16 the amount of the penalty, the fact of the violation, or both, the
909-17 person, within the time provided by Subsection (a), shall:
909-18 (1) send the amount to the commission for placement in
909-19 an escrow account; or
909-20 (2) post with the commission a supersedeas bond in a
909-21 form approved by the commission for the amount of the penalty, the
909-22 bond to be effective until judicial review of the order or decision
909-23 is final.
909-24 (c) A person who fails to comply with Subsection (b) waives
909-25 the right to judicial review. If the person charged does not send
909-26 the money or post the bond, the commission or the executive
909-27 director may forward the matter to the attorney general for
910-1 enforcement.
910-2 (d) Judicial review of the order or decision of the
910-3 commission assessing the penalty shall be under Section 19,
910-4 Administrative Procedure and Texas Register Act (Article 6252-13a,
910-5 Vernon's Texas Civil Statutes).
910-6 (e) If the penalty under Section 30.088 is reduced or not
910-7 assessed, the commission shall:
910-8 (1) remit to the person charged the appropriate amount
910-9 plus accrued interest if the penalty has been paid; or
910-10 (2) execute a release of the bond if a supersedeas
910-11 bond has been posted.
910-12 (f) The accrued interest on amounts remitted by the
910-13 commission under Subsection (e) shall be paid:
910-14 (1) at a rate equal to the rate charged on loans to
910-15 depository institutions by the New York Federal Reserve Bank; and
910-16 (2) for the period beginning on the date the penalty
910-17 is paid to the commission under Subsection (a) and ending on the
910-18 date the penalty is remitted.
910-19 (g) Payment of an administrative penalty under this section
910-20 is full and complete satisfaction of the violation for which the
910-21 administrative penalty is assessed and precludes any other civil or
910-22 criminal penalty for the same violation. (Sec. 382.089, Health and
910-23 Safety Code.)
910-24 Sec. 30.090. Penalty May Not be Imposed for Violation Under
910-25 Certain Conditions. A penalty that would otherwise be imposed by
910-26 this chapter on a person who violates this chapter or a rule,
910-27 variance, determination, or order issued under this chapter may not
911-1 be imposed on a person if the violation is caused by an act of God
911-2 or a war, strike, riot, or other catastrophe. (Sec. 382.090,
911-3 Health and Safety Code.)
911-4 Sec. 30.091. Criminal Offenses. (a) A person commits an
911-5 offense if the person:
911-6 (1) intentionally or knowingly, with respect to the
911-7 person's conduct, violates:
911-8 (A) Section 30.059(a);
911-9 (B) Section 30.062;
911-10 (C) Section 30.066(a);
911-11 (D) Section 30.072(a); or
911-12 (E) an order, permit, rule, or exemption issued
911-13 under this chapter;
911-14 (2) intentionally or knowingly fails to pay a fee
911-15 required by this chapter or by a rule adopted or order issued under
911-16 this chapter;
911-17 (3) intentionally or knowingly makes or causes to be
911-18 made any false material statement, representation, or certification
911-19 in, or omits material information from, or knowingly alters,
911-20 conceals, or does not file or maintain any notice, application,
911-21 record, report, plan, or other document required to be filed or
911-22 maintained by this chapter or by a rule adopted or permit or order
911-23 issued under this chapter;
911-24 (4) intentionally or knowingly fails to notify or
911-25 report to the commission as required by this chapter or by a rule
911-26 adopted or permit or order issued under this chapter;
911-27 (5) intentionally or knowingly tampers with, modifies,
912-1 disables, or fails to use a required monitoring device; tampers
912-2 with, modifies, or disables a monitoring device; or falsifies,
912-3 fabricates, or omits data from a monitoring device, unless done in
912-4 strict compliance with this chapter or a permit, rule, variance, or
912-5 other order issued by the commission;
912-6 (6) recklessly, with respect to the person's conduct,
912-7 emits an air contaminant that places any other person in imminent
912-8 danger of death or serious bodily injury unless the emission is
912-9 made in strict compliance with this chapter or a permit, rule,
912-10 variance, or other order issued by the commission; or
912-11 (7) intentionally or knowingly, with respect to the
912-12 person's conduct, emits an air contaminant with the knowledge that
912-13 the person is placing any other person in imminent danger of death
912-14 or serious bodily injury unless the emission is made in strict
912-15 compliance with this chapter or a permit, rule, variance, or other
912-16 order issued by the commission.
912-17 (b) Each day a violation under this section occurs is a
912-18 separate offense.
912-19 (c) In this section, "serious bodily injury" has the meaning
912-20 assigned by Section 1.07, Penal Code. (Sec. 382.091, Health and
912-21 Safety Code.)
912-22 Sec. 30.092. Criminal Penalties. (a) An offense under
912-23 Section 30.091(a)(1) is punishable for an individual by a fine of
912-24 not more than $50,000 or less than $1,000, confinement in jail not
912-25 to exceed 180 days, or both fine and confinement and, for a
912-26 corporation or association, by a fine of not more than $100,000 or
912-27 less than $1,000.
913-1 (b) An offense under Section 30.091(a)(2) is punishable for
913-2 an individual by a fine of not more than twice the amount of the
913-3 required fee, confinement in jail not to exceed 90 days, or both
913-4 fine and confinement and, for a corporation or association, by a
913-5 fine of not more than twice the amount of the required fee.
913-6 (c) An offense under Sections 30.091(a)(3)-(5) is punishable
913-7 for an individual by a fine of not more than $100,000 or less than
913-8 $500, confinement in jail not to exceed one year, or both fine and
913-9 confinement and, for a corporation or association, by a fine of not
913-10 more than $250,000 or less than $1,000.
913-11 (d) An offense under Section 30.091(a)(6) is punishable for
913-12 an individual by a fine of not more than $100,000 or less than
913-13 $1,000, confinement in jail not to exceed one year, or both fine
913-14 and confinement and, for a corporation or association, by a fine of
913-15 not more than $250,000 or less than $2,500.
913-16 (e) An offense under Section 30.091(a)(7) is punishable for
913-17 an individual by a fine of not more than $150,000 or less than
913-18 $1,500, confinement in the institutional division of the Texas
913-19 Department of Criminal Justice not to exceed five years, or both
913-20 fine and confinement and, for a corporation or association, by a
913-21 fine of not more than $300,000 or less than $3,000.
913-22 (f) If it is shown at the trial of a defendant that the
913-23 defendant has previously been convicted of an offense under this
913-24 section, the maximum punishment may be doubled with respect to both
913-25 the fine and imprisonment.
913-26 (g) In this section, "corporation" and "association" have
913-27 the meanings assigned by Section 1.07, Penal Code, except that the
914-1 terms do not include a government. (Sec. 382.092, Health and
914-2 Safety Code.)
914-3 Sec. 30.093. Proof of Knowledge. In determining whether a
914-4 defendant who is an individual knew that the violation placed
914-5 another person in imminent danger of death or serious bodily
914-6 injury, the defendant is responsible only for the defendant's
914-7 actual awareness or actual belief possessed. Knowledge possessed
914-8 by a person other than the defendant may not be attributed to the
914-9 defendant. To prove a defendant's actual knowledge, however,
914-10 circumstantial evidence may be used, including evidence that the
914-11 defendant took affirmative steps to be shielded from relevant
914-12 information. (Sec. 382.093, Health and Safety Code.)
914-13 Sec. 30.094. Affirmative Defenses. It is an affirmative
914-14 defense to prosecution under this chapter that:
914-15 (1) the conduct charged was freely consented to by the
914-16 person endangered and that the danger and conduct charged were
914-17 reasonably foreseeable hazards of an occupation, a business, or a
914-18 profession or medical treatment or medical or scientific
914-19 experimentation conducted by professionally approved methods and
914-20 the person endangered had been made aware of the risks involved
914-21 before giving consent; or
914-22 (2) the person charged was an employee who was
914-23 carrying out the employee's normal activities and was acting under
914-24 orders from his employer, unless the person charged engaged in
914-25 knowing and intentional violations. (Sec. 382.094, Health and
914-26 Safety Code.)
914-27 Sec. 30.095. Assistance in Prosecution by Attorney General.
915-1 (a) The commission or the executive director shall consult with
915-2 the attorney general concerning possible criminal prosecution of an
915-3 alleged violation. At the specific request of the commission or
915-4 the executive director, the attorney general may institute the
915-5 procedures established by Subsection (b).
915-6 (b) The attorney general, after evaluating the case, may:
915-7 (1) notify the prosecuting attorney in the county in
915-8 which the violation allegedly occurred; and
915-9 (2) offer the investigative, technical, and litigation
915-10 assistance of the attorney general's office in any prosecution of
915-11 the alleged violation brought by the prosecuting attorney.
915-12 (c) The attorney general may establish a section within the
915-13 attorney general's office to provide the investigative, technical,
915-14 and litigation assistance authorized by this section. (Sec.
915-15 382.095, Health and Safety Code.)
915-16 Sec. 30.096. Public Participation. Before the commission
915-17 approves a consent order or settlement agreement settling a civil
915-18 or administrative enforcement action under this chapter to which
915-19 the State of Texas or the commission is a party or before the court
915-20 signs a judgment or other agreement settling a judicial enforcement
915-21 action other than an enforcement action under Section 113 or 120 or
915-22 Title II of the federal Clean Air Act (42 U.S.C. Section 7401 et
915-23 seq.), the commission or the attorney general, as appropriate,
915-24 shall permit the public to comment in writing on the proposed
915-25 order, judgment, or other agreement. Notice of the opportunity to
915-26 comment shall be published in the Texas Register not later than the
915-27 30th day before the date on which the public comment period closes.
916-1 The commission or the attorney general, as appropriate, shall
916-2 promptly consider any written comments and may withdraw or withhold
916-3 consent to the proposed order, judgment, or other agreement if the
916-4 comments disclose facts or considerations that indicate that the
916-5 consent is inappropriate, improper, inadequate, or inconsistent
916-6 with the requirements of this chapter. No further notice of
916-7 changes to the proposed order, judgment, or other agreement must be
916-8 published if those changes arise from comments submitted in
916-9 response to a previous notice. This section does not apply to
916-10 criminal enforcement proceedings. (Sec. 382.096, Health and Safety
916-11 Code.)
916-12 (Sections 30.097-30.110 reserved for expansion)
916-13 SUBCHAPTER E. AUTHORITY OF LOCAL GOVERNMENTS
916-14 Sec. 30.111. Inspections; Power to Enter Property. (a) A
916-15 local government has the same power and is subject to the same
916-16 restrictions as the commission under Section 2.201 to inspect the
916-17 air and to enter public or private property in its territorial
916-18 jurisdiction to determine if:
916-19 (1) the level of air contaminants in an area in its
916-20 territorial jurisdiction and the emissions from a source meet the
916-21 levels set by:
916-22 (A) the commission; or
916-23 (B) a municipality's governing body under
916-24 Section 30.113; or
916-25 (2) a person is complying with this chapter or a rule,
916-26 variance, or order issued by the commission.
916-27 (b) A local government shall send the results of its
917-1 inspections to the commission when requested by the commission.
917-2 (Sec. 382.111, Health and Safety Code.)
917-3 Sec. 30.112. Recommendations to Board. A local government
917-4 may make recommendations to the commission concerning a rule,
917-5 determination, variance, or order of the commission that affects an
917-6 area in the local government's territorial jurisdiction. The
917-7 commission shall give maximum consideration to a local government's
917-8 recommendations. (Sec. 382.112, Health and Safety Code.)
917-9 Sec. 30.113. Authority of Municipalities. (a) A
917-10 municipality has the powers and rights as are otherwise vested by
917-11 law in the municipality to:
917-12 (1) abate a nuisance; and
917-13 (2) enact and enforce an ordinance for the control and
917-14 abatement of air pollution, or any other ordinance, not
917-15 inconsistent with this chapter or the commission's rules or orders.
917-16 (b) An ordinance enacted by a municipality must be
917-17 consistent with this chapter and the commission's rules and orders
917-18 and may not make unlawful a condition or act approved or authorized
917-19 under this chapter or the commission's rules or orders. (Sec.
917-20 382.113, Health and Safety Code.)
917-21 Sec. 30.114. Enforcement by Local Governments. (a) If it
917-22 appears that a violation or threat of violation of Section 30.085
917-23 or of a commission rule, variance, or order has occurred or is
917-24 occurring in a local government's jurisdiction, excluding its
917-25 extraterritorial jurisdiction, the local government, in the same
917-26 manner as the commission under Sections 30.082-30.084, may bring
917-27 suit through the local government's attorney for injunctive relief,
918-1 civil penalties, or both, against the person who committed, is
918-2 committing, or is threatening to commit the violation.
918-3 (b) The court shall grant, without a bond or other
918-4 undertaking by the local government, any prohibitory or mandatory
918-5 injunctions the facts may warrant, including temporary restraining
918-6 orders after notice and hearing, temporary injunctions, and
918-7 permanent injunctions.
918-8 (c) A local government may not exercise the enforcement
918-9 power provided under this section unless its governing body adopts
918-10 a resolution authorizing the exercise of the power.
918-11 (d) In a suit brought by a local government under this
918-12 section, the commission is a necessary and indispensable party.
918-13 (Sec. 382.114, Health and Safety Code.)
918-14 Sec. 30.115. Cooperative Agreements. A local government may
918-15 execute cooperative agreements with the commission or other local
918-16 governments:
918-17 (1) to provide for the performance of air quality
918-18 management, inspection, and enforcement functions and to provide
918-19 technical aid and educational services to a party to the agreement;
918-20 and
918-21 (2) for the transfer of money or property from a party
918-22 to the agreement to another party to the agreement for the purpose
918-23 of air quality management, inspection, enforcement, technical aid,
918-24 and education. (Sec. 382.115, Health and Safety Code.)
918-25 (Sections 30.116-30.130 reserved for expansion)
918-26 SUBCHAPTER F. ALTERNATIVE FUELS
918-27 Sec. 30.131. Definitions. In this subchapter:
919-1 (1) "Emissions" means emissions of oxides of nitrogen,
919-2 volatile organic compounds, carbon monoxide, particulates, or any
919-3 combination of those substances.
919-4 (2) "Fleet vehicle" means a vehicle required to be
919-5 registered under Chapter 88, General Laws, Acts of the 41st
919-6 Legislature, 2nd Called Session, 1929 (Article 6675a-2, Vernon's
919-7 Texas Civil Statutes).
919-8 (3) "Mass transit authority" means a transportation or
919-9 transit authority or department established under Chapter 141, Acts
919-10 of the 63rd Legislature, Regular Session, 1973 (Article 1118x,
919-11 Vernon's Texas Civil Statutes), Chapter 683, Acts of the 66th
919-12 Legislature, Regular Session, 1979 (Article 1118y, Vernon's Texas
919-13 Civil Statutes), or Article 1118z, Revised Statutes, that operates
919-14 a mass transit system under any of those laws. (Sec. 382.131,
919-15 Health and Safety Code.)
919-16 Sec. 30.132. Metropolitan Areas Affected. Rules adopted by
919-17 the commission under Sections 30.133 through 30.136 apply only to a
919-18 consolidated metropolitan statistical area or a metropolitan
919-19 statistical area with a population of 350,000 or more that has not
919-20 met federal ambient air quality standards for ozone, carbon
919-21 monoxide, oxides of nitrogen, or particulates. (Sec. 382.132,
919-22 Health and Safety Code.)
919-23 Sec. 30.133. Mass Transit Fleet Vehicles. (a) The
919-24 commission by rule shall require a mass transit authority to ensure
919-25 that its vehicles can operate on compressed natural gas or other
919-26 alternative fuels that result in comparably lower emissions.
919-27 (b) Rules adopted under this section must require a mass
920-1 transit authority to have its fleet vehicles able to operate on
920-2 compressed natural gas or other alternative fuel according to the
920-3 following schedule:
920-4 (1) not later than September 1, 1994, at least 30
920-5 percent of the vehicles; and
920-6 (2) not later than September 1, 1996, at least 50
920-7 percent of the vehicles.
920-8 (c) Contingent on the commission's review, not later than
920-9 December 31, 1996, of the alternative fuels program established by
920-10 this section and the commission's determination that the program is
920-11 reducing emissions, is projected to be effective in improving
920-12 overall air quality, and is necessary to the attainment of federal
920-13 ambient air quality standards in the affected areas, the rules must
920-14 require a mass transit authority, not later than September 1, 1998,
920-15 to have at least 90 percent of its fleet vehicles able to operate
920-16 on compressed natural gas or other alternative fuel. (Sec.
920-17 382.133, Health and Safety Code.)
920-18 Sec. 30.134. Local Government and Private Fleet Vehicles.
920-19 (a) This section applies only to:
920-20 (1) a local government that operates primarily in an
920-21 affected area a fleet of more than 15 vehicles, excluding law
920-22 enforcement and emergency vehicles; and
920-23 (2) a private person that operates primarily in an
920-24 affected area a fleet of more than 25 vehicles, excluding emergency
920-25 vehicles.
920-26 (b) If the commission determines under Section 30.133 that
920-27 the alternative fuels program is reducing emissions, is projected
921-1 to be effective in improving overall air quality, and is necessary
921-2 to comply with federal ambient air quality standards for ozone,
921-3 carbon monoxide, oxides of nitrogen, or particulates in the
921-4 affected areas, the commission by rule shall require a local
921-5 government or a private person to ensure that its vehicles can
921-6 operate on compressed natural gas or other alternative fuels that
921-7 reduce total annual emissions from motor vehicles in the area.
921-8 (c) Rules adopted under this section must require a local
921-9 government or private person to have its fleet vehicles able to
921-10 operate on compressed natural gas or other alternative fuel
921-11 according to the following schedule:
921-12 (1) not later than September 1, 1998, at least 30
921-13 percent of the vehicles;
921-14 (2) not later than September 1, 2000, at least 50
921-15 percent of the vehicles; and
921-16 (3) not later than September 1, 2002, at least 90
921-17 percent of the vehicles. (Sec. 382.134, Health and Safety Code.)
921-18 Sec. 30.135. Dual Fuel Conversion. The percentage
921-19 requirements of Sections 30.133 and 30.134 may be met by the dual
921-20 fuel conversion or capability of gasoline-powered or diesel-powered
921-21 vehicles to operate also on compressed natural gas or other
921-22 alternative fuels that result in comparably lower emissions. (Sec.
921-23 382.135, Health and Safety Code.)
921-24 Sec. 30.136. Exceptions. (a) The commission may make
921-25 exceptions to rules adopted under Sections 30.133 and 30.134 if:
921-26 (1) a firm engaged in fixed price contracts with
921-27 public works agencies can demonstrate that compliance with the
922-1 requirements of those sections would result in substantial economic
922-2 harm to the firm under a contract entered into before September 1,
922-3 1997;
922-4 (2) the commission determines that the affected
922-5 vehicles will be operating primarily in an area that does not have
922-6 or cannot reasonably be expected to establish a central refueling
922-7 station for alternative fuels; or
922-8 (3) the affected entity is unable to secure financing
922-9 provided by or arranged through the proposed supplier or suppliers
922-10 of compressed natural gas or other alternative fuels sufficient to
922-11 cover the additional costs of alternative fueling.
922-12 (b) To qualify for an exception under Subsection (a), an
922-13 affected entity must provide data requested by the commission to
922-14 document the unavailability of a refueling station or of financing
922-15 to cover the additional costs of alternative fueling. (Sec.
922-16 382.136, Health and Safety Code.)
922-17 Sec. 30.137. Data Collection. An affected entity shall
922-18 support the commission in collecting reasonable information needed
922-19 to determine air quality benefits from use of alternative fuels in
922-20 affected areas. (Sec. 382.137, Health and Safety Code.)
922-21 Sec. 30.138. Evaluation of Alternative Fuels Use. (a) In
922-22 conjunction with the development of state implementation plans for
922-23 achieving and maintaining compliance with federal ambient air
922-24 quality standards under the federal Clean Air Act (42 U.S.C.
922-25 Section 7401 et seq.), the commission shall evaluate and determine,
922-26 for areas required by federal law to have state implementation
922-27 plans, the effectiveness of and need for the use of compressed
923-1 natural gas and other alternative fuels in vehicles.
923-2 (b) The evaluation and determination must include:
923-3 (1) the uses of compressed natural gas or other
923-4 alternative fuels required by Sections 30.133 and 30.134; and
923-5 (2) additional or different uses of compressed natural
923-6 gas or other alternative fuels.
923-7 (c) In making evaluations and determinations under this
923-8 section, the commission shall:
923-9 (1) review reports received by the commission on
923-10 alternative fuels programs;
923-11 (2) consult with a reporting entity on the
923-12 contribution the entity's program is making toward achieving and
923-13 maintaining compliance with federal ambient air quality standards;
923-14 and
923-15 (3) consider for each category of vehicles the factors
923-16 required for the development of state implementation plans under
923-17 the federal Clean Air Act (42 U.S.C. Section 7401 et seq.) and this
923-18 chapter.
923-19 (d) Before making a determination under this subchapter, the
923-20 commission shall solicit comments from the Department of Public
923-21 Safety and the Railroad Commission of Texas concerning any effect
923-22 on public safety. (Sec. 382.138, Health and Safety Code.)
923-23 Sec. 30.139. Additional Alternative Fuels Use. (a) If,
923-24 after considering the factors listed in Section 30.138, the
923-25 commission determines that the use of compressed natural gas or
923-26 other alternative fuels for certain categories of motor vehicles is
923-27 effective and necessary for achieving and maintaining compliance
924-1 with federal ambient air quality standards, the commission by rule
924-2 shall require those uses in addition to uses required elsewhere in
924-3 this subchapter.
924-4 (b) If, after considering the factors listed in Section
924-5 30.138, the commission determines that the additional uses are
924-6 appropriate, the commission may establish and implement programs
924-7 encouraging the use of compressed natural gas or other alternative
924-8 fuels for certain categories of vehicles. (Sec. 382.139, Health
924-9 and Safety Code.)
924-10 Sec. 30.140. Studies; Pilot Programs. (a) In connection
924-11 with the evaluations and determinations required under Section
924-12 30.138 and encouraging the use of natural gas or other alternative
924-13 fuels, the commission may conduct or have conducted appropriate
924-14 studies or pilot programs.
924-15 (b) A study or pilot program may assess the feasibility of
924-16 adopting vehicle emission standards more stringent than those
924-17 adopted by the United States Environmental Protection Agency under
924-18 the federal Clean Air Act (42 U.S.C. Section 7401 et seq.). (Sec.
924-19 382.140, Health and Safety Code.)
924-20 Sec. 30.141. Report Required. The commission shall report
924-21 biennially its evaluations and determinations on the use of
924-22 compressed natural gas or other alternative fuels and recommend
924-23 legislative changes necessary to implement an effective and
924-24 feasible program for the use of compressed natural gas and other
924-25 alternative fuels. The report shall be submitted to the governor
924-26 and the legislature not later than the 30th day before the
924-27 commencement of each regular legislative session. (Sec. 382.141,
925-1 Health and Safety Code.)
925-2 CHAPTER 31. CLEAN AIR FINANCING ACT
925-3 SUBCHAPTER A. GENERAL PROVISIONS
925-4 Sec. 31.001. Short Title. This chapter may be cited as the
925-5 Clean Air Financing Act. (Sec. 383.001, Health and Safety Code.)
925-6 Sec. 31.002. Policy and Purpose. (a) The policy of the
925-7 state and the purpose of this chapter are to:
925-8 (1) safeguard state air resources from emissions of
925-9 air contaminants and other pollution;
925-10 (2) protect public health, general welfare, physical
925-11 property, and the esthetic enjoyment of air resources by the
925-12 public; and
925-13 (3) maintain adequate visibility.
925-14 (b) It is the policy of the state that the control of air
925-15 pollution is essential to the well-being and survival of state
925-16 inhabitants and the protection of the environment. The control,
925-17 prevention, and abatement of air pollution will conserve and
925-18 develop state natural resources, within the meaning of Article XVI,
925-19 Section 59(a), of the Texas Constitution, by preventing further
925-20 damage to the environment. (Sec. 383.002, Health and Safety Code.)
925-21 Sec. 31.003. Definitions. In this chapter:
925-22 (1) "Air contaminant" has the meaning assigned by
925-23 Section 30.003.
925-24 (2) "Air pollution" has the meaning assigned by
925-25 Section 30.003.
925-26 (3) "Bond" includes a note.
925-27 (4) "Coastal basin" means an area that:
926-1 (A) is defined and designated as a coastal basin
926-2 as of April 26, 1973, by the Texas Water Development Board, and as
926-3 a separate unit that has the purpose of water development and
926-4 interwatershed transfers; and
926-5 (B) has boundaries determined by a contour map
926-6 filed in the office of the Texas Water Development Board.
926-7 (5) "Control facility" means a facility that has been
926-8 certified by the commission, or by the executive director if the
926-9 commission authorizes, as being designed to reduce or eliminate air
926-10 pollution.
926-11 (6) "Disposal system" has the meaning assigned by
926-12 Section 30.003(10), Water Code.
926-13 (7) "District" means a district or authority created
926-14 under Article XVI, Section 59, or Article III, Section 52, of the
926-15 Texas Constitution, but does not include a district or authority
926-16 located entirely within a river authority unless the district or
926-17 authority:
926-18 (A) has all or part of at least two
926-19 municipalities within its boundaries;
926-20 (B) is governed by Chapter 56, 60, 61, 62, or
926-21 63, Water Code; or
926-22 (C) is created for the primary purpose of
926-23 navigation of its coastal and inland waters.
926-24 (8) "Issuer" means a municipality, county, or
926-25 district.
926-26 (9) "Real property" means land, a structure, a
926-27 franchise or interest in land, water, land under water, riparian
927-1 rights, air rights, or another thing or right pertaining to that
927-2 property, including an easement, right-of-way, use, lease, license,
927-3 or other incorporeal hereditament, or an estate, interest, or legal
927-4 or equitable right, including a term for years or lien on that
927-5 property because of a judgment, mortgage, or other reason.
927-6 (10) "Resolution" means the action, including an order
927-7 or ordinance, that authorizes bonds and that is taken by the
927-8 governing body of an issuer.
927-9 (11) "River authority" has the meaning assigned by
927-10 Section 30.003(4), Water Code.
927-11 (12) "River basin" means an area that:
927-12 (A) is defined and designated as a river basin
927-13 as of April 26, 1973, by the Texas Water Development Board, and as
927-14 a separate unit that has the purpose of water development and
927-15 interwatershed transfers; and
927-16 (B) has boundaries determined by a contour map
927-17 filed in the office of the Texas Water Development Board.
927-18 (13) "Security agreement" means a trust indenture or
927-19 other instrument securing bonds. (Sec. 383.003, Health and Safety
927-20 Code.)
927-21 Sec. 31.004. Certification of Control Facility by Board.
927-22 The commission may prescribe necessary criteria and procedures for
927-23 certifying a control facility and may limit certification to
927-24 confirmation that a proposed facility is intended to control air
927-25 pollution. Certification of a control facility's adequacy or
927-26 expected performance or of other specifications is not necessary.
927-27 (Sec. 383.004, Health and Safety Code.)
928-1 Sec. 31.005. Adoption of Alternate Procedure. If a court
928-2 holds that a procedure under this chapter violates the United
928-3 States Constitution or Texas Constitution, an issuer by resolution
928-4 may provide an alternate procedure that conforms to those
928-5 constitutions. (Sec. 383.005, Health and Safety Code.)
928-6 Sec. 31.006. Effect of Chapter on Other Law. (a) This
928-7 chapter does not limit the authority of the commission, a district,
928-8 or a local government in performing a power or duty provided by
928-9 other law. This chapter does not limit the authority of the
928-10 commission or a local government to adopt and enforce rules or
928-11 carry out duties under Chapter 30.
928-12 (b) Chapter 30 shall be enforced without regard to ownership
928-13 of a control facility financed under this chapter.
928-14 (c) This chapter does not affect the right of a private
928-15 person to pursue, against a person who contracts with an issuer
928-16 under this chapter, a common-law remedy to abate or recover damages
928-17 for a condition of pollution or other nuisance. A person
928-18 purchasing or using a control facility under contract with an
928-19 issuer may not assert the defense of sovereign immunity because of
928-20 the issuer's ownership of the control facility.
928-21 (d) An issuer may use other law not in conflict with this
928-22 chapter to the extent convenient or necessary to carry out a power
928-23 or authority expressly or impliedly granted by this chapter. (Sec.
928-24 383.006, Health and Safety Code.)
928-25 (Sections 31.007-31.010 reserved for expansion)
928-26 SUBCHAPTER B. OPERATION OF CONTROL FACILITY
928-27 Sec. 31.011. Authority to Acquire and Transfer Property.
929-1 (a) An issuer may acquire, construct, and improve a control
929-2 facility and may acquire real property as the issuer considers
929-3 appropriate for the control facility.
929-4 (b) An issuer may enter into a lease or other contract under
929-5 which another person uses or acquires the issuer's control
929-6 facility. An issuer may sell a control facility, by installment
929-7 payments or otherwise, to any person on conditions the issuer
929-8 considers desirable. (Sec. 383.011, Health and Safety Code.)
929-9 Sec. 31.012. Location of Control Facility. (a) A control
929-10 facility may be located on the property of any person.
929-11 (b) A control facility of a municipality must be located in
929-12 whole or in part within:
929-13 (1) the boundaries of the municipality; or
929-14 (2) the municipality's extraterritorial jurisdiction,
929-15 as determined under Chapter 42, Local Government Code.
929-16 (c) A control facility of a river authority may be located
929-17 outside the river authority's boundaries if it is located in whole
929-18 or in part within the river authority's river basin or a coastal
929-19 basin adjoining the river authority's boundaries. A control
929-20 facility of a river authority may be located anywhere in the state
929-21 if it is financed at the same time and with the same bond issue as
929-22 a control facility located within the river authority's boundaries
929-23 or located in whole or in part within the river authority's river
929-24 basin or a coastal basin adjoining the river authority's
929-25 boundaries.
929-26 (d) A control facility of a county or a district other than
929-27 a river authority must be located in whole or in part within the
930-1 county's or district's boundaries. (Sec. 383.012, Health and Safety
930-2 Code.)
930-3 Sec. 31.013. Contracts. (a) A lease or other contract
930-4 entered into under this chapter may be for the term agreed to by
930-5 the parties. The lease or other contract may provide that it
930-6 continues in effect until specified bonds or refunding bonds issued
930-7 in place of the specified bonds are fully paid.
930-8 (b) The provisions of Article 5160, Revised Statutes, that
930-9 relate to performance and payment bonds apply to a construction
930-10 contract let by an issuer, except that an issuer is not required to
930-11 receive construction bids on a project.
930-12 (c) The Bond and Warrant Law of 1931 (Article 2368a,
930-13 Vernon's Texas Civil Statutes) and any other law requiring
930-14 competitive bids do not apply to a construction contract for a
930-15 project authorized by this chapter. (Sec. 383.013, Health and
930-16 Safety Code.)
930-17 Sec. 31.014. Cost of Certain Required Alterations. The
930-18 relocation, raising, lowering, rerouting, changing of grade, or
930-19 altering of construction of a highway, railroad, electric
930-20 transmission line, telegraph or telephone property or facility, or
930-21 pipeline made necessary by the actions of an issuer shall be
930-22 accomplished at the sole expense of the issuer, who shall pay the
930-23 cost of the required activity as necessary to provide comparable
930-24 replacement, minus the net salvage value of any replaced facility.
930-25 The issuer shall pay that amount from the proceeds of bonds issued
930-26 to finance a control facility. (Sec. 383.014, Health and Safety
930-27 Code.)
931-1 Sec. 31.015. Taxation. (a) An issuer is not required to
931-2 pay a tax or other assessment on a control facility or part of a
931-3 control facility.
931-4 (b) Bonds issued under this chapter, the transfer of the
931-5 bonds, and income from the bonds are exempt from taxation in this
931-6 state.
931-7 (c) This chapter does not affect state law relating to an ad
931-8 valorem tax imposed on a person who is not a public agency or
931-9 political subdivision or on an interest held by such a person. A
931-10 control facility purchased or used under this chapter is subject to
931-11 ad valorem taxation payable by the person contracting with the
931-12 issuer for the facility's purchase or use as if the contract
931-13 created a leasehold. (Sec. 383.015, Health and Safety Code.)
931-14 (Sections 383.016-383.020 reserved for expansion)
931-15 SUBCHAPTER C. BONDS
931-16 Sec. 31.021. Authority to Issue. (a) An issuer may issue
931-17 negotiable bonds, payable from revenues of the issuer, to pay costs
931-18 related to the acquisition, construction, or improvement of a
931-19 control facility, including:
931-20 (1) the cost of real property acquired for the control
931-21 facility;
931-22 (2) finance charges;
931-23 (3) interest before and during construction and for a
931-24 period the issuer finds reasonable after completion of
931-25 construction;
931-26 (4) expenses incurred for architectural, engineering,
931-27 and legal services;
932-1 (5) expenses incurred for plans, specifications,
932-2 surveys, and estimates;
932-3 (6) expenses incurred in placing the control facility
932-4 in operation;
932-5 (7) expenses of administration; and
932-6 (8) other expenses necessary or incident to the
932-7 acquisition, construction, or improvement.
932-8 (b) The bonds may be issued in more than one series and from
932-9 time to time as required to carry out the purposes of this chapter.
932-10 (c) Pending issuance of definitive bonds, the issuer may
932-11 authorize the delivery of negotiable interim bonds eligible for
932-12 exchange or substitution by use of the definitive bonds.
932-13 (d) An issuer may not issue bonds to acquire an existing
932-14 control facility solely for the purpose of leasing or selling it
932-15 back to the person from whom it was acquired or to another person
932-16 controlled by that person, unless the control facility is to be
932-17 substantially improved before it is leased or sold back to such a
932-18 person. (Sec. 383.021, Health and Safety Code.)
932-19 Sec. 31.022. Form and Procedure. (a) Bonds under this
932-20 chapter must be authorized by resolution. The bonds must:
932-21 (1) be signed by the presiding officer or assistant
932-22 presiding officer of the governing body;
932-23 (2) be attested by the secretary of the governing
932-24 body; and
932-25 (3) have the seal of the issuer impressed, printed, or
932-26 lithographed on the bonds.
932-27 (b) The bonds may have the characteristics and bear the
933-1 designation determined by the governing body of the issuer, except
933-2 that the designation must include for each control facility to be
933-3 financed with the bonds:
933-4 (1) the name of each person using or purchasing the
933-5 control facility;
933-6 (2) the name of each person guaranteeing the
933-7 contractual obligations of each person using or purchasing the
933-8 control facility; or
933-9 (3) a statement, if applicable, that a group of
933-10 persons will be using or purchasing the control facility.
933-11 (c) The governing body may authorize a required signature to
933-12 be printed or lithographed on the bonds. The issuer may adopt or
933-13 use the signature of a person who has been an officer, regardless
933-14 of whether the person is an officer when the bonds are delivered to
933-15 a purchaser. (Sec. 383.022, Health and Safety Code.)
933-16 Sec. 31.023. Terms. Bonds issued under this chapter must
933-17 mature serially or otherwise not more than 40 years after they are
933-18 issued. The bonds may:
933-19 (1) bear interest at a rate and be sold at a price or
933-20 under terms that the governing body of the issuer determines to be
933-21 the most advantageous reasonably obtainable;
933-22 (2) be made callable before maturity at times and
933-23 prices prescribed in the resolution authorizing the bonds;
933-24 (3) be in coupon form; and
933-25 (4) be registrable as to principal or as to principal
933-26 and interest. (Sec. 383.023, Health and Safety Code.)
933-27 Sec. 31.024. Approval and Registration. (a) An issuer
934-1 shall submit bonds that have been authorized by its governing body,
934-2 including refunding bonds and the record relating to the bond
934-3 issuance, to the attorney general for examination as to their
934-4 validity. If the bonds state that they are secured by a pledge of
934-5 proceeds of a lease or other contract previously entered into by
934-6 the issuer, the issuer may submit the contract with the bonds.
934-7 (b) If the bonds have been authorized in accordance with
934-8 state law and any contract has been made in accordance with state
934-9 law, the attorney general shall approve the bonds and contract and
934-10 the comptroller shall register the bonds.
934-11 (c) Following approval and registration, the bonds and
934-12 contract are incontestable. (Sec. 383.024, Health and Safety
934-13 Code.)
934-14 Sec. 31.025. Pledge of Revenue as Security; Election.
934-15 (a) An issuer's bonds may be secured, as specified by the
934-16 resolution or a security agreement, by a pledge of all or part of
934-17 the revenues of the issuer derived from:
934-18 (1) the use or sale of a control facility or disposal
934-19 system; or
934-20 (2) services rendered by a disposal system.
934-21 (b) Except as provided by Section 31.026, before a
934-22 municipality or county issues bonds secured under Subsection (a),
934-23 the municipality or county must publish notice of its intention to
934-24 issue the bonds at least once in a newspaper of general circulation
934-25 within the boundaries of the municipality or county. Not later
934-26 than 30 days after the date of the publication, not less than 10
934-27 percent of the qualified voters of the municipality or county may
935-1 file a petition with the clerk or secretary of the governing body
935-2 requesting the governing body to order an election on the issuance
935-3 of the bonds. On the filing of the petition, the governing body
935-4 shall order an election to be held in the municipality or county to
935-5 determine whether the bonds may be issued as indicated in the
935-6 notice. The governing body shall set the date of the election in
935-7 accordance with Section 41.001, Election Code. If the majority of
935-8 voters who vote at the election approve the issuance of the bonds,
935-9 the governing body may issue the bonds. If a petition is not filed
935-10 within the period provided by this subsection, the governing body
935-11 may issue the bonds without an election.
935-12 (c) The governing body shall fix and periodically revise
935-13 payments under a lease or other contract for the use or sale of a
935-14 control facility so that the payments and other pledged revenue
935-15 will be sufficient to pay the bonds and interest on the bonds as
935-16 they mature and become due and to maintain reserve or other funds
935-17 as provided by the resolution or security agreement. The governing
935-18 body may direct the investment of money in the funds created by the
935-19 resolution or security agreement. (Sec. 383.025, Health and Safety
935-20 Code.)
935-21 Sec. 31.026. Pledge of Other Utility Revenue; Election.
935-22 (a) In addition to the security under Section 31.025, a
935-23 municipality's or county's bonds may be secured, as specified by
935-24 the resolution or a security agreement, by a pledge of other
935-25 utility revenue of the municipality or county.
935-26 (b) Before issuing bonds secured by other utility revenue,
935-27 the governing body must order an election to determine whether the
936-1 bonds may be issued. The governing body shall set the date of the
936-2 election in accordance with Section 41.001, Election Code. The
936-3 manner of holding the election is governed by Chapter 1, Title 22,
936-4 Revised Statutes. If the majority of voters who vote at the
936-5 election approve the issuance of the bonds, the governing body may
936-6 issue the bonds. (Sec. 383.026, Health and Safety Code.)
936-7 Sec. 31.027. Security May Apply to Additional Bonds. A
936-8 pledge under Section 31.025 or 31.026 may reserve the right, under
936-9 conditions specified by the pledge, to issue additional bonds to be
936-10 on a parity with or subordinate to the bonds secured by the pledge.
936-11 Bonds issued under this chapter may be combined in the same issue
936-12 with bonds issued for other purposes authorized by law. (Sec.
936-13 383.027, Health and Safety Code.)
936-14 Sec. 31.028. Trusts as Security. (a) The governing body
936-15 may additionally secure bonds, including refunding bonds, by a
936-16 trust indenture under which the trustee may be a bank having trust
936-17 powers located inside or outside the state.
936-18 (b) Regardless of any mortgage, deed of trust lien, or
936-19 security interest under Section 31.029, the trust indenture may:
936-20 (1) contain any provision that the governing body
936-21 prescribes for the security of the bonds and the preservation of
936-22 the trust estate;
936-23 (2) provide for amendment or modification of the trust
936-24 indenture;
936-25 (3) condition the right to spend the issuer's money or
936-26 sell an issuer's control facility on approval of a registered
936-27 professional engineer selected as provided by the trust indenture;
937-1 (4) contain provisions governing issuance of bonds to
937-2 replace lost, stolen, or mutilated bonds; and
937-3 (5) otherwise provide for protecting and enforcing a
937-4 bondholder's rights and remedies as is reasonable, proper, and
937-5 lawful. (Sec. 383.028, Health and Safety Code.)
937-6 Sec. 31.029. Other Security. (a) The bonds may be
937-7 additionally secured by a mortgage, deed of trust lien, or security
937-8 interest in a designated control facility of the governing body and
937-9 all property and rights appurtenant to the control facility.
937-10 (b) The mortgage, deed of trust lien, or security interest
937-11 may give the trustee the power to operate the control facility,
937-12 sell the control facility to pay the debt, or take any other action
937-13 to secure the bonds.
937-14 (c) A purchaser at a sale under a mortgage or deed of trust
937-15 lien is the absolute owner of the control facility and rights
937-16 purchased. (Sec. 383.029, Health and Safety Code.)
937-17 Sec. 31.030. Action by Bondholders. (a) The resolution or
937-18 a security agreement may provide that on default in the payment of
937-19 principal of or interest on the bonds, or threatened default under
937-20 conditions stated in the resolution or security agreement, and on
937-21 petition of the holders of outstanding bonds, a court of competent
937-22 jurisdiction may appoint a receiver to collect and receive pledged
937-23 income.
937-24 (b) The resolution or security agreement may limit or
937-25 qualify the rights of less than all of the holders of outstanding
937-26 bonds payable from the same source to institute or prosecute
937-27 litigation affecting the issuer's property or income. (Sec.
938-1 383.030, Health and Safety Code.)
938-2 Sec. 31.031. Investment and Use of Proceeds. (a) The
938-3 governing body may set aside amounts from the proceeds of the sale
938-4 of bonds for payment into an interest and sinking fund and reserve
938-5 funds and may provide for this in the resolution or a security
938-6 agreement. All expenses of issuing and selling the bonds must be
938-7 paid from the proceeds of the sale of the bonds.
938-8 (b) Proceeds from the sale of bonds may be invested in:
938-9 (1) direct or indirect obligations of the United
938-10 States government or an agency of the United States government that
938-11 mature in a manner specified by the resolution or a security
938-12 agreement; or
938-13 (2) certificates of deposit of a bank or trust company
938-14 if the deposits are secured by obligations described by Subdivision
938-15 (1).
938-16 (c) A bank or trust company with trust powers may be
938-17 designated as depository for proceeds of bonds or of lease or other
938-18 contract revenue. The bank or trust company shall furnish
938-19 indemnifying bonds or pledge securities as required by the issuer
938-20 to secure the deposits. (Sec. 383.031, Health and Safety Code.)
938-21 Sec. 31.032. Refunding Bonds. (a) A governing body may
938-22 issue refunding bonds to refund the principal of, interest on, and
938-23 any redemption premium applicable to outstanding bonds. The
938-24 refunding bonds may:
938-25 (1) refund more than one series of outstanding bonds
938-26 and combine the revenue pledged to the outstanding bonds for the
938-27 security of the refunding bonds; and
939-1 (2) be secured by other or additional revenues and
939-2 deed of trust liens.
939-3 (b) The provisions of this chapter relating to issuance of
939-4 bonds, security for bonds, approval by the attorney general, and
939-5 remedies of bondholders apply to refunding bonds.
939-6 (c) The comptroller shall register refunding bonds:
939-7 (1) on the surrender and cancellation of the original
939-8 bonds; or
939-9 (2) without surrender and cancellation of the original
939-10 bonds if:
939-11 (A) the resolution authorizing the refunding
939-12 bonds provides that their proceeds be deposited in the bank where
939-13 the original bonds are payable; and
939-14 (B) the refunding bonds are issued in an amount
939-15 sufficient to pay the principal of, interest on, and any redemption
939-16 premium applicable to the original bonds up to their option date or
939-17 maturity date. (Sec. 383.032, Health and Safety Code.)
939-18 Sec. 31.033. Legal Investments; Security for Deposits.
939-19 (a) Bonds issued under this chapter are legal and authorized
939-20 investments for:
939-21 (1) a bank;
939-22 (2) a savings bank;
939-23 (3) a trust company;
939-24 (4) a savings and loan association;
939-25 (5) an insurance company;
939-26 (6) a fiduciary;
939-27 (7) a trustee; and
940-1 (8) a sinking fund of a municipality, county, school
940-2 district, or other political corporation or subdivision of the
940-3 state.
940-4 (b) The bonds may secure the deposits of public funds of the
940-5 state or a municipality, county, school district, or other
940-6 political corporation or subdivision of the state. The bonds are
940-7 lawful and sufficient security for those deposits in an amount up
940-8 to their face value, if accompanied by all appurtenant unmatured
940-9 coupons. (Sec. 383.033, Health and Safety Code.)
940-10 Sec. 31.034. Bonds Not General Obligation. The bonds are
940-11 special obligations payable solely from revenues pledged to their
940-12 payment and are not general obligations of the governing body, the
940-13 issuer, or the state. A bondholder may not demand payment from
940-14 money obtained from a tax or other revenue of the issuer, excluding
940-15 revenues pledged to the payment of the bonds. (Sec. 383.034,
940-16 Health and Safety Code.)
940-17 (Chapters 32-49 reserved for expansion)
940-18 TITLE 5. ENVIRONMENTAL QUALITY
940-19 CHAPTER 50. TOXIC CHEMICAL RELEASE REPORTING
940-20 Sec. 50.001. Short Title. This chapter may be cited as the
940-21 Texas Toxic Chemical Release Reporting Act. (Sec. 370.001, Health
940-22 and Safety Code.)
940-23 Sec. 50.002. Definitions. In this chapter:
940-24 (1) "Administrator" means the administrator of the
940-25 United States Environmental Protection Agency.
940-26 (2) "Environment" means water, air, and land and the
940-27 interrelationship that exists among and between water, air, and
941-1 land and all living things.
941-2 (3) "Facility" means all buildings, equipment,
941-3 structures, and other stationary items that are located on a single
941-4 site or on contiguous or adjacent sites and are owned or operated
941-5 by the same person or by any person who controls, is controlled by,
941-6 or is under common control with that person.
941-7 (4) "Manufacture" means to produce, prepare, import,
941-8 or compound a toxic chemical.
941-9 (5) "Person" means an individual, trust, firm,
941-10 joint-stock company, corporation, including a government
941-11 corporation, partnership, association, state, commission,
941-12 municipality or other political subdivision of a state, or
941-13 interstate body.
941-14 (6) "Process" means to prepare a toxic chemical, after
941-15 its manufacture, for distribution in commerce:
941-16 (A) in the same form or physical state as, or in
941-17 a different form or physical state from, the form in which the
941-18 chemical was received by the person preparing the chemical; or
941-19 (B) as part of an article containing the toxic
941-20 chemical.
941-21 (7) "Release" means any spilling, leaking, pumping,
941-22 pouring, emitting, emptying, discharging, injecting, escaping,
941-23 leaching, dumping, or otherwise disposing into the environment any
941-24 toxic chemical. The term includes the abandonment or discarding of
941-25 barrels, containers, and other closed receptacles of any toxic
941-26 chemical.
941-27 (8) "Threshold amount" means the amount established by
942-1 the administrator under the Emergency Planning and Community
942-2 Right-to-Know Act of 1986 (42 U.S.C. Section 11001 et seq.).
942-3 (9) "Toxic chemical" means a chemical designated as a
942-4 toxic chemical by the administrator under the Emergency Planning
942-5 and Community Right-to-Know Act of 1986 (42 U.S.C. Section 11001 et
942-6 seq.).
942-7 (10) "Toxic chemical release form" means the form
942-8 published by the administrator under the Emergency Planning and
942-9 Community Right-to-Know Act of 1986 (42 U.S.C. Section 11001 et
942-10 seq.). (Sec. 370.002, Health and Safety Code.)
942-11 Sec. 50.003. Toxic Chemical Release Form Required of Certain
942-12 Facilities. (a) The owner or operator of a facility shall submit
942-13 a toxic chemical release form to the executive director if the
942-14 facility:
942-15 (1) has 10 or more full-time employees and a standard
942-16 industrial classification code between 20 and 39 that was in effect
942-17 on July 1, 1985, or has been designated as a facility subject to
942-18 these requirements by the administrator; and
942-19 (2) manufactured, processed, or otherwise used a toxic
942-20 chemical in excess of the threshold amount during the calendar year
942-21 for which a toxic chemical release form is required.
942-22 (b) The owner or operator of a facility subject to
942-23 Subsection (a) shall submit a toxic chemical release form for each
942-24 toxic chemical manufactured, processed, or otherwise used at the
942-25 facility during the preceding calendar year in a quantity exceeding
942-26 the threshold amount.
942-27 (c) The form shall be submitted not later than July 1 of
943-1 each year and must contain data that reflect each release that
943-2 occurred during the preceding calendar year. The administrator may
943-3 modify the frequency with which a report must be submitted under
943-4 this section as provided under the Emergency Planning and Community
943-5 Right-to-Know Act of 1986 (42 U.S.C. Section 11001 et seq.). (Sec.
943-6 370.003, Health and Safety Code.)
943-7 Sec. 50.004. Threshold Amounts for Reporting. (a) The
943-8 threshold amounts for purposes of reporting a toxic chemical under
943-9 Section 50.003 are as follows:
943-10 (1) for a toxic chemical used, but not manufactured or
943-11 processed, at a facility, 10,000 pounds of the toxic chemical used
943-12 at the facility during the preceding calendar year; or
943-13 (2) for a toxic chemical manufactured or processed at
943-14 a facility, 25,000 pounds of the toxic chemical manufactured or
943-15 processed at the facility during the preceding calendar year.
943-16 (b) The administrator may establish a threshold amount for a
943-17 toxic chemical different from the amount established under
943-18 Subsection (a). (Sec. 370.004, Health and Safety Code.)
943-19 Sec. 50.005. Use of Available Data. (a) To provide the
943-20 information required on the toxic chemical release form, the owner
943-21 or operator of a facility may use:
943-22 (1) readily available data, including monitoring data,
943-23 collected under other law; or
943-24 (2) reasonable estimates of the amounts involved if
943-25 data under Subdivision (1) are not readily available.
943-26 (b) This section does not require monitoring or measurement
943-27 of the quantities, concentration, or frequency of a toxic chemical
944-1 released into the environment beyond the monitoring and measurement
944-2 required under other law or regulation.
944-3 (c) To ensure consistency, data must be expressed in common
944-4 units, as designated by the administrator. (Sec. 370.005, Health
944-5 and Safety Code.)
944-6 Sec. 50.006. Public Information. (a) A toxic chemical
944-7 release form required under this chapter is intended to provide
944-8 information to the public, including federal, state, and local
944-9 governments and citizens of the communities surrounding a facility
944-10 covered under Section 50.003.
944-11 (b) A toxic chemical release form shall be made available in
944-12 a manner consistent with the Emergency Planning and Community
944-13 Right-to-Know Act of 1986 (42 U.S.C. Section 11001 et seq.) and the
944-14 open records law, Chapter 424, Acts of the 63rd Legislature,
944-15 Regular Session, 1973 (Article 6252-17a, Vernon's Texas Civil
944-16 Statutes). (Sec. 370.006, Health and Safety Code.)
944-17 Sec. 50.007. Enforcement and Penalties. (a) Any person,
944-18 other than a governmental entity, who violates this chapter is
944-19 liable to the commission for a civil penalty not to exceed $10,000
944-20 for each violation.
944-21 (b) The commission may assess any civil penalty for which a
944-22 person is liable under this section by administrative order or may
944-23 refer an action to assess and collect the penalty to the attorney
944-24 general. (Sec. 371.009, Health and Safety Code.)
944-25 CHAPTER 51. USED OIL COLLECTION, MANAGEMENT, AND RECYCLING
944-26 SUBCHAPTER A. GENERAL PROVISIONS
944-27 Sec. 51.001. Short Title. This chapter may be cited as the
945-1 Used Oil Collection, Management, and Recycling Act. (Sec. 371.001,
945-2 Health and Safety Code.)
945-3 Sec. 51.002. Findings. The legislature finds that:
945-4 (1) when properly managed, used oil is a valuable
945-5 energy resource, the reuse of which may make a significant
945-6 contribution toward energy efficiency and conservation;
945-7 (2) recycling used oil to produce fuel requires
945-8 significantly less energy than is needed to refine crude oil into
945-9 fuel;
945-10 (3) millions of gallons of used oil generated each
945-11 year by private citizens in the state are not available for
945-12 recycling because of improper disposal practices and the lack of
945-13 collection facilities;
945-14 (4) although there is a reliable system for the
945-15 collection and recycling of used oil generated by business and
945-16 industry, private citizens have only limited access to that system
945-17 and often dispose of their used oil on land or in landfills,
945-18 sewers, drainage systems, septic tanks, surface waters or
945-19 groundwaters, watercourses, or marine waters;
945-20 (5) improper disposal of this used oil is both a
945-21 significant environmental problem and a waste of a valuable energy
945-22 resource; and
945-23 (6) adequate public funds are required to provide for
945-24 the proper collection, management, and recycling of used oil.
945-25 (Sec. 371.002, Health and Safety Code.)
945-26 Sec. 51.003. Definitions. In this chapter:
945-27 (1) "Automotive oil" means any lubricating oils
946-1 intended for use in an internal combustion engine, crankcase,
946-2 transmission, gear box, or differential for an automobile, bus, or
946-3 truck.
946-4 (2) "Do-it-yourself (DIY) used oil" means used oil
946-5 that is generated by a person who changes the person's own
946-6 automotive oil.
946-7 (3) "Generator" means a person whose act or process
946-8 produces used oil.
946-9 (4) "Public used oil collection center" means:
946-10 (A) an automotive service facility that in the
946-11 course of business accepts for recycling small quantities of used
946-12 oil from private citizens;
946-13 (B) a facility that stores used oil in
946-14 aboveground tanks and in the course of business accepts for
946-15 recycling small quantities of used oil from private citizens; and
946-16 (C) a publicly sponsored collection facility
946-17 that is designated and authorized by the department to accept for
946-18 recycling small quantities of used oil from private citizens.
946-19 (5) "Reclaiming" means using methods, other than
946-20 rerefining, to remove insoluble impurities from used oil and making
946-21 the used oil suitable for further use as a lubricant or petroleum
946-22 product. The term includes settling, heating, dehydration,
946-23 filtration, or centrifuging.
946-24 (6) "Recycling" means:
946-25 (A) preparing used oil for reuse as a petroleum
946-26 product by rerefining, reclaiming, or other means; or
946-27 (B) using used oil as a lubricant or petroleum
947-1 product instead of using a petroleum product made from new oil.
947-2 (7) "Rerefining" means applying refining processes to
947-3 used oil to produce high-quality base stocks for lubricants or
947-4 other petroleum products.
947-5 (8) "Used oil" means any oil that has been refined
947-6 from crude oil or a synthetic oil that, as a result of use,
947-7 storage, or handling, has become unsuitable for its original
947-8 purpose because of impurities or the loss of original properties,
947-9 but that may be suitable for further use and is recyclable. (Sec.
947-10 371.003, Health and Safety Code.)
947-11 (Sections 51.004-51.020 reserved for expansion)
947-12 SUBCHAPTER B. USED OIL RECYCLING PROGRAM
947-13 Sec. 51.021. Public Education. The commission shall conduct
947-14 an education program to inform the public of the need for and
947-15 benefits of collection and recycling of used oil. The program
947-16 shall:
947-17 (1) establish, maintain, and publicize a used oil
947-18 information center that prepares and disperses materials and
947-19 information explaining laws and rules regulating used oil and
947-20 informing the public of places and methods for proper recycling of
947-21 used oil;
947-22 (2) encourage the voluntary establishment of used oil
947-23 collection and recycling programs by private businesses and
947-24 organizations and by local governments and provide technical
947-25 assistance to persons who organize those programs; and
947-26 (3) encourage local governments to procure recycled
947-27 automotive and industrial oils and oils blended with recycled oils,
948-1 if those oils meet equipment manufacturer's specifications. (Sec.
948-2 371.021, Health and Safety Code.)
948-3 Sec. 51.022. Notice by Retail Dealer. A retail dealer who
948-4 annually sells directly to the public more than 500 gallons of oil
948-5 in containers for use off-premises shall post in a prominent place
948-6 a sign provided by the commission informing the public that
948-7 improper disposal of used oil is prohibited by law. The sign shall
948-8 also prominently display the toll-free telephone number of the
948-9 state used oil information center established under Section 51.021.
948-10 (Sec. 371.022, Health and Safety Code.)
948-11 Sec. 51.023. Grants to Local Governments. (a) The
948-12 commission shall develop a grant program for local governments that
948-13 encourages the collection, reuse, and recycling of DIY used oil.
948-14 (b) A grant may be made for any project approved by the
948-15 commission. The commission shall consider for grant assistance any
948-16 local government project that uses one or more of the following
948-17 programs:
948-18 (1) curbside pickup of containers of DIY used oil by a
948-19 local government or its representative;
948-20 (2) retrofitting of municipal solid waste equipment to
948-21 facilitate curbside pickup of DIY used oil;
948-22 (3) establishment of publicly operated DIY used oil
948-23 collection centers at landfills, fire stations, or other public
948-24 places;
948-25 (4) provision of containers and other materials and
948-26 supplies that can be used to store DIY used oil for pickup or
948-27 delivery to a used oil collection center in an environmentally
949-1 sound manner; and
949-2 (5) any other activity the commission determines will
949-3 encourage the proper recycling of DIY used oil.
949-4 (c) The commission by rule shall establish procedures for
949-5 the application for and criteria for the award of grants under this
949-6 section. (Sec. 371.023, Health and Safety Code.)
949-7 Sec. 51.024. Collection Facilities. (a) All businesses
949-8 that change motor oil for the public and all appropriate government
949-9 agencies are encouraged to serve as public used oil collection
949-10 centers.
949-11 (b) A public used oil collection center annually shall:
949-12 (1) register with the commission; and
949-13 (2) report to the commission the amounts of used oil
949-14 collected by the center from the public.
949-15 (c) The commission shall adopt rules governing the
949-16 registration of and reporting by public used oil collection
949-17 centers.
949-18 (d) The commission by rule shall adopt standards for
949-19 managing and operating a public used oil collection center.
949-20 (e) The commission may impose a registration fee in an
949-21 amount sufficient to cover the cost of registering public used oil
949-22 collection centers. (Sec. 371.024, Health and Safety Code.)
949-23 Sec. 51.025. Limitation of Liability. (a) A person may not
949-24 recover from the owner, operator, or lessor of a registered public
949-25 used oil collection center any damages or costs of response actions
949-26 at another location resulting from a release or threatened release
949-27 of used oil collected at the center if:
950-1 (1) the owner, operator, or lessor of the collection
950-2 center does not mix the used oil collected with any hazardous waste
950-3 or polychlorinated biphenyls (PCBs);
950-4 (2) the owner, operator, or lessor of the collection
950-5 center does not accept used oil that the owner, operator, or lessor
950-6 knows contains hazardous waste or PCBs; and
950-7 (3) the collection center is in compliance with
950-8 management standards adopted by the department.
950-9 (b) For purposes of this section, the owner, operator, or
950-10 lessor of a public used oil collection center may presume that a
950-11 quantity of less than five gallons of used oil accepted at any one
950-12 time from any member of the public is not mixed with a hazardous
950-13 waste or PCBs, provided that the owner, operator, or lessor acts in
950-14 good faith.
950-15 (c) This section applies only to activities directly related
950-16 to the collection of used oil by a public used oil collection
950-17 center. This section does not apply to grossly negligent
950-18 activities related to the operation of a used oil collection
950-19 center.
950-20 (d) This section does not affect or modify the obligations
950-21 or liability of any person other than the owner, operator, or
950-22 lessor of the collection center under any other provisions of state
950-23 or federal law, including common law, for injury or damage
950-24 resulting from a release of used oil or hazardous substances.
950-25 (e) This section does not affect or modify the obligations
950-26 or liability of any owner, operator, or lessor of a collection
950-27 center with regard to services other than accepting used oil from
951-1 the public. (Sec. 371.025, Health and Safety Code.)
951-2 Sec. 51.026. Registration of Persons Transporting,
951-3 Marketing, or Recycling Used Oil. (a) A person who transports
951-4 over public highways of this state more than 500 gallons of used
951-5 oil annually, who markets more than 500 gallons of used oil
951-6 annually, or who recycles more than 10,000 gallons of used oil
951-7 annually shall register annually with the commission on forms
951-8 prescribed by the commission and in accordance with commission
951-9 rules.
951-10 (b) The commission shall develop a registration program for
951-11 transporters, marketers, and recyclers of used oil.
951-12 (c) The commission shall adopt rules governing registration
951-13 and reporting of used oil transporters, marketers, and recyclers.
951-14 The rules shall require that a used oil transporter, marketer, or
951-15 recycler:
951-16 (1) register annually with the commission;
951-17 (2) report annually the sources of used oil
951-18 transported, marketed, or recycled during the preceding year, the
951-19 quantity of used oil received, the date of receipt, and the
951-20 destination or end use of the used oil;
951-21 (3) provide evidence of familiarity with applicable
951-22 state laws and rules and management procedures applicable to used
951-23 oil transportation, marketing, or recycling; and
951-24 (4) provide proof of liability insurance or other
951-25 evidence of financial responsibility for any liability that may be
951-26 incurred in transporting, marketing, or recycling used oil.
951-27 (d) The commission by rule shall adopt reasonable management
952-1 and safety standards for the transportation, marketing, and
952-2 recycling of used oil.
952-3 (e) The commission may impose a registration fee in an
952-4 amount sufficient to cover the cost of registering used oil
952-5 transporters, marketers, and recyclers.
952-6 (f) A utility or industrial generator of used oil that
952-7 transports its own used oil from one generator-owned or
952-8 generator-operated facility to another or that recycles its own
952-9 used oil for use in its operations is not required to register or
952-10 report under this section. (Sec. 371.026, Health and Safety Code.)
952-11 Sec. 51.027. Gifts and Grants. The commission may apply
952-12 for, request, solicit, contract for, receive, and accept gifts,
952-13 grants, donations, and other assistance from any source to carry
952-14 out its powers and duties under this chapter. (Sec. 371.027,
952-15 Health and Safety Code.)
952-16 Sec. 51.028. Rules. The commission may adopt any rules
952-17 necessary to carry out the purposes of this chapter. (Sec.
952-18 371.028, Health and Safety Code.)
952-19 (Sections 51.029-51.040 reserved for expansion)
952-20 SUBCHAPTER C. CERTAIN ACTIONS PROHIBITED; PENALTIES
952-21 Sec. 51.041. Actions Prohibited. (a) A person may not
952-22 collect, transport, store, recycle, use, discharge, or dispose of
952-23 used oil in any manner that endangers the public health or welfare
952-24 or endangers or damages the environment.
952-25 (b) A person commits an offense if the person:
952-26 (1) intentionally discharges used oil into a sewer,
952-27 drainage system, septic tank, surface water or groundwater,
953-1 watercourse, or marine water;
953-2 (2) knowingly mixes or commingles used oil with solid
953-3 waste that is to be disposed of in landfills or directly disposes
953-4 of used oil on land or in landfills;
953-5 (3) intentionally mixes or commingles used oil with
953-6 hazardous waste or other hazardous substances or PCBs;
953-7 (4) transports, markets, or recycles used oil within
953-8 the state without first complying with the registration
953-9 requirements of Section 51.026 and rules adopted under that
953-10 section;
953-11 (5) applies used oil to roads or land for dust
953-12 suppression, weed abatement, or other similar uses that introduce
953-13 used oil into the environment; or
953-14 (6) violates an order of the commission to cease and
953-15 desist any activity prohibited by this section or any rule
953-16 applicable to a prohibited activity.
953-17 (c) It is an exception to the application of Subsection (b)
953-18 if a person unknowingly disposes into a landfill any used oil that
953-19 has not been properly segregated or separated by the generator from
953-20 other solid wastes.
953-21 (d) It is an exception to the application of Subsection
953-22 (b)(2) if the mixing or commingling of used oil with solid waste
953-23 that is to be disposed of in landfills is incident to and the
953-24 unavoidable result of the mechanical shredding of motor vehicles,
953-25 appliances, or other items of scrap, used, or obsolete metals.
953-26 (Sec. 371.041, Health and Safety Code.)
953-27 Sec. 51.042. Criminal Penalties. (a) Except as provided by
954-1 Subsection (b), an offense under Section 51.041 is a Class C
954-2 misdemeanor.
954-3 (b) If it is shown on the trial of an offense under Section
954-4 51.041 that the defendant has previously been convicted of an
954-5 offense under Section 51.041, the offense is a Class A misdemeanor.
954-6 (Sec. 371.042, Health and Safety Code.)
954-7 Sec. 51.043. Civil Penalty. (a) Except as provided by
954-8 Subsection (c), a person who violates this chapter or a rule or
954-9 order adopted under this chapter is liable for a civil penalty of
954-10 not less than $100 or more than $500 for each act of violation and
954-11 for each day of violation.
954-12 (b) A civil penalty recovered in a suit brought by a local
954-13 government under this section shall be divided equally between the
954-14 state and the local government that brought the suit. The state
954-15 shall deposit its recovery to the credit of the used oil recycling
954-16 fund.
954-17 (c) The penalty imposed by this section does not apply to
954-18 failure to pay a fee under Section 2.183 or failure to file a
954-19 report under Section 51.024 or 51.026.
954-20 (d) The commission, a local government in whose jurisdiction
954-21 the violation occurs, or the state may bring suit to recover a
954-22 penalty under this section. (Sec. 371.043, Health and Safety
954-23 Code.)
954-24 Sec. 51.044. Injunctive Relief. (a) If it appears that a
954-25 violation or threat of violation of this chapter or any rule or
954-26 order adopted under this chapter has occurred or is about to occur
954-27 and is causing or may cause immediate injury or constitutes a
955-1 significant threat to the health, welfare, or personal property of
955-2 a citizen or a local government, the commission, the local
955-3 government, or the state may bring suit in district court for
955-4 injunctive relief to restrain the violation or the threat of
955-5 violation.
955-6 (b) In a suit for injunctive relief, the court may grant any
955-7 injunctive or mandatory relief warranted by the facts, including a
955-8 temporary restraining order, a temporary injunction, or a permanent
955-9 injunction. Injunctive relief shall be granted without the
955-10 requirement for a bond or other undertaking by any governmental
955-11 entity seeking the injunction. (Sec. 371.044, Health and Safety
955-12 Code.)
955-13 Sec. 51.045. Venue. A suit for injunctive relief, for
955-14 recovery of a civil penalty, or both, may be brought in:
955-15 (1) the county in which the defendant resides;
955-16 (2) the county in which the violation or threat of
955-17 violation occurs; or
955-18 (3) Travis County. (Sec. 371.045, Health and Safety
955-19 Code.)
955-20 CHAPTER 52. RECYCLING
955-21 SUBCHAPTER A. RECYCLING PROGRAMS
955-22 Sec. 52.001. Definitions. In this subchapter:
955-23 (1) "Compost" is the disinfected and stabilized
955-24 product of the decomposition process that is used or sold for use
955-25 as a soil amendment, artificial top soil, growing medium amendment,
955-26 or other similar uses.
955-27 (2) "Composting" means the controlled biological
956-1 decomposition of organic materials through microbial activity.
956-2 Depending on the specific application, composting can serve as both
956-3 a volume reduction and a waste treatment measure. A beneficial
956-4 organic composting activity is an appropriate waste management
956-5 solution that shall divert compatible materials from the solid
956-6 waste stream that cannot be recycled into higher grade uses and
956-7 convert these materials into a useful product that can serve as a
956-8 soil amendment or mulch.
956-9 (3) "Life-cycle cost benefit analysis" means a method
956-10 of comparing the total costs of products over their lifetimes based
956-11 on initial maintenance costs which include the initial cost,
956-12 maintenance costs, and other related expenses.
956-13 (4) "Postconsumer waste" means a material or product
956-14 that has served its intended use and has been discarded after
956-15 passing through the hands of a final user. For the purpose of this
956-16 subchapter, the term does not include industrial or hazardous
956-17 waste.
956-18 (5) "Recyclable material" means material that has been
956-19 recovered or diverted from the non-hazardous solid waste stream for
956-20 purposes of reuse, recycling, or reclamation, a substantial portion
956-21 of which is consistently used in the manufacture of products which
956-22 may otherwise be produced using raw or virgin materials.
956-23 Recyclable material is not solid waste. However, recyclable
956-24 material may become solid waste at such time, if any, as it is
956-25 abandoned or disposed of rather than recycled, whereupon it will be
956-26 solid waste with respect only to the party actually abandoning or
956-27 disposing of the material.
957-1 (6) "Recycled material" means materials, goods, or
957-2 products that consist of recyclable material or materials derived
957-3 from postconsumer waste, industrial waste, or hazardous waste which
957-4 may be used in place of a raw or virgin material in manufacturing a
957-5 new product.
957-6 (7) "Recycled product" means a product which meets the
957-7 requirements for recycled material content as prescribed by the
957-8 rules established by the department described in Section 52.007.
957-9 (8) "Recycling" means a process by which materials
957-10 that have served their intended use or are scrapped, discarded,
957-11 used, surplus, or obsolete are collected, separated, or processed
957-12 and returned to use in the form of raw materials in the production
957-13 of new products. Except for mixed municipal solid waste
957-14 composting, that is, composting of the typical mixed solid waste
957-15 stream generated by residential, commercial, and/or institutional
957-16 sources, recycling includes the composting process if the compost
957-17 material is put to beneficial reuse.
957-18 (9) "State agency" means a department, commission,
957-19 board, office, council, or other agency in the executive branch of
957-20 government that is created by the constitution or a statute of this
957-21 state and has authority not limited to a geographical portion of
957-22 the state. The term does not include a university system or
957-23 institution of higher education as defined by Section 61.003,
957-24 Education Code.
957-25 (10) "Virgin material" means a raw material used in
957-26 manufacturing that has not yet become a product.
957-27 (11) "Yard waste" means leaves, grass clippings, yard
958-1 and garden debris, and brush, including clean woody vegetative
958-2 material not greater than six inches in diameter, that results from
958-3 landscaping maintenance and land-clearing operations. The term
958-4 does not include stumps, roots, or shrubs with intact root balls.
958-5 (Sec. 361.421, Health and Safety Code.)
958-6 Sec. 52.002. State Recycling Goal. (a) It is the state's
958-7 goal to achieve by January 1, 1994, the recycling of at least 40
958-8 percent of the state's total municipal solid waste stream.
958-9 (b) In this section, "total municipal solid waste stream"
958-10 means the sum of the state's total municipal solid waste that is
958-11 disposed of as solid waste, measured in tons, and the total number
958-12 of tons of recyclable material that has been diverted or recovered
958-13 from the total municipal solid waste and recycled.
958-14 (c) The commission shall establish rules and reporting
958-15 requirements through which progress toward achieving the
958-16 established recycling goals can be measured. The rules may take
958-17 into consideration those ongoing community recycling programs where
958-18 substantial progress has already been achieved. The commission may
958-19 also establish a limit on the amount of credit that may be given to
958-20 certain high-volume materials in measuring recycling progress.
958-21 (Sec. 361.422, Health and Safety Code.)
958-22 Sec. 52.003. Market Development Study and Implementation
958-23 Program. (a) The General Land Office, in cooperation with the
958-24 commission, the Railroad Commission of Texas, and the Texas
958-25 Department of Commerce, shall initiate, coordinate, and conduct a
958-26 comprehensive market development study that quantifies the
958-27 potential benefits and costs of recycling in order to provide the
959-1 groundwork for an economic development strategy that focuses on the
959-2 state's waste management priorities established by Section 20.022
959-3 and that includes development of recycling industries and markets
959-4 as an integrated component.
959-5 (b) The study shall:
959-6 (1) identify existing economic and regulatory
959-7 incentives and disincentives for creating an optimal market
959-8 development strategy;
959-9 (2) analyze the market development implications of:
959-10 (A) the state's waste management policies and
959-11 regulations;
959-12 (B) existing and potential markets for plastic,
959-13 glass, paper, lead-acid batteries, tires, compost, scrap gypsum,
959-14 and other recyclable materials; and
959-15 (C) the state's tax structure and overall
959-16 economic base;
959-17 (3) examine and make policy recommendations regarding
959-18 the need for changes in or the development of:
959-19 (A) economic policies that affect
959-20 transportation, such as those embodied in freight rate schedules;
959-21 (B) tax incentives and disincentives;
959-22 (C) the availability of financial capital
959-23 including grants, loans, and venture capital;
959-24 (D) enterprise zones;
959-25 (E) managerial and technical assistance;
959-26 (F) job-training programs;
959-27 (G) strategies for matching market supply and
960-1 market demand for recyclable materials, including intrastate and
960-2 interstate coordination;
960-3 (H) the state recycling goal;
960-4 (I) public-private partnerships;
960-5 (J) research and development;
960-6 (K) government procurement policies;
960-7 (L) educational programs for the public,
960-8 corporate and regulated communities, and government entities; and
960-9 (M) public health and safety regulatory
960-10 policies; and
960-11 (4) establish a comprehensive statewide strategy to
960-12 expand markets for recycled products in Texas.
960-13 (c) In preparing the study, the responsible agencies may
960-14 obtain research and development and technical assistance from the
960-15 Hazardous Waste Research Center at Lamar University at Beaumont or
960-16 other similar institutions.
960-17 (d) The General Land Office shall develop and carry out a
960-18 program designed to implement the comprehensive statewide strategy
960-19 established pursuant to Subsection (b)(4). (Sec. 361.423, Health
960-20 and Safety Code.)
960-21 Sec. 52.004. Recycling Awareness Campaign. In order to
960-22 raise public awareness and involvement in recycling and to increase
960-23 markets for recycled products, the General Land Office shall
960-24 develop and implement a statewide promotional campaign which
960-25 includes:
960-26 (1) public service announcements on radio and
960-27 television;
961-1 (2) a statewide information network to inform the
961-2 public of recycling opportunities in their region of the state; and
961-3 (3) efforts to encourage business, industry, and
961-4 government to purchase recycled products. (Sec. 361.424, Health
961-5 and Safety Code.)
961-6 Sec. 52.005. Governmental Entity Recycling. (a) A state
961-7 agency, state court or judicial agency, a university system or
961-8 institution of higher education, a county, municipality, school
961-9 district, or special district shall:
961-10 (1) in cooperation with the State Purchasing and
961-11 General Services Commission or the commission establish a program
961-12 for the separation and collection of all recyclable materials
961-13 generated by the entity's operations, including, at a minimum,
961-14 aluminum, high-grade office paper, and corrugated cardboard;
961-15 (2) provide procedures for collecting and storing
961-16 recyclable materials, containers for recyclable materials, and
961-17 procedures for making contractual or other arrangements with buyers
961-18 of recyclable materials;
961-19 (3) evaluate the amount of recyclable material
961-20 recycled and modify the recycling program as necessary to ensure
961-21 that all recyclable materials are effectively and practicably
961-22 recycled; and
961-23 (4) establish educational and incentive programs to
961-24 encourage maximum employee participation.
961-25 (b) The commission by order shall exempt a school district
961-26 or a city with a population of less than 5,000 from compliance with
961-27 this section if the commission finds that compliance would work a
962-1 hardship on the district or the city. The commission shall adopt
962-2 rules for administering this subsection. (Sec. 361.425, Health and
962-3 Safety Code.)
962-4 Sec. 52.006. Governmental Entity Preference for Recycled
962-5 Products. (a) A state agency, state court, or judicial agency not
962-6 subject to the State Purchasing and General Services Act (Article
962-7 601b, Vernon's Texas Civil Statutes), a county, municipality,
962-8 school district, junior or community college district, or special
962-9 district shall give preference in purchasing to products made of
962-10 recycled materials if the products meet applicable specifications
962-11 as to quantity and quality.
962-12 (b) An entity subject to this section regularly shall review
962-13 and revise its procurement procedures and specifications for the
962-14 purchase of goods, supplies, equipment, and materials in order to:
962-15 (1) eliminate procedures and specifications that
962-16 explicitly discriminate against products made of recycled
962-17 materials;
962-18 (2) encourage the use of products made of recycled
962-19 materials; and
962-20 (3) ensure to the maximum extent economically feasible
962-21 that the entity purchases products that may be recycled when they
962-22 have served their intended use.
962-23 (c) In developing new procedures and specifications, the
962-24 entity shall encourage the use of recycled products and products
962-25 that may be recycled or reused.
962-26 (d) The commission by order shall exempt a school district
962-27 or a city with a population of less than 5,000 from compliance with
963-1 this section if the commission finds that compliance would work a
963-2 hardship on the district or the city. The commission shall adopt
963-3 rules for administering this subsection. (Sec. 361.426, Health and
963-4 Safety Code.)
963-5 Sec. 52.007. Specifications for Recycled Products. (a) The
963-6 commission, in consultation with the State Purchasing and General
963-7 Services Commission, shall promulgate rules to establish guidelines
963-8 which specify the percent of the total content of a product which
963-9 must consist of recycled material for the product to be a "recycled
963-10 product."
963-11 (b) The guidelines established under this section shall
963-12 specify a minimum percent of the recycled material in a product
963-13 which must be postconsumer waste.
963-14 (c) The guidelines established under this section shall be
963-15 classified by types of products.
963-16 (d) The commission's guidelines shall be established taking
963-17 into consideration the guidelines promulgated by the Environmental
963-18 Protection Agency for federal procurement of recycled products as
963-19 authorized by the Solid Waste Disposal Act (42 U.S.C. Section 3259
963-20 et seq.). (Sec. 361.427, Health and Safety Code.)
963-21 Sec. 52.008. Composting Program. The commission shall put
963-22 in place a composting program that is capable of achieving at least
963-23 a 15 percent reduction in the amount of the municipal solid waste
963-24 stream that is disposed of in landfills by January 1, 1994. (Sec.
963-25 361.428, Health and Safety Code.)
963-26 Sec. 52.009. Household Hazardous Waste. The commission
963-27 shall develop standards for household hazardous waste diversion
964-1 programs such as collection facilities or waste collection days for
964-2 cities, counties, or regions. The commission's waste management
964-3 financial assistance program described in Section 22.092 shall be
964-4 expanded to include matching grants for costs of planning and
964-5 implementing approved household hazardous waste diversion programs,
964-6 excluding costs of disposal. (Sec. 361.429, Health and Safety
964-7 Code.)
964-8 Sec. 52.010. Newsprint Recycling Program. (a) It is the
964-9 policy of this state that recycling of all paper products including
964-10 old newspapers is vital to our economy and the preservation of our
964-11 environment. It is the purpose of this section to promote the
964-12 state's policy by encouraging newspaper publishers to promote
964-13 recycling through purchase of recycled products and by cooperating
964-14 with local community organizations to establish and promote
964-15 community collection efforts for all paper products.
964-16 (b) In order to observe and promote this policy the
964-17 newspaper publishers of Texas will work with state officials and
964-18 state agencies to identify potential sites and offer economic
964-19 incentives in order to attract additional de-inking facilities and
964-20 recycled newsprint mills to Texas.
964-21 (c) The newspaper publishers of Texas will also assist and
964-22 participate in the market development study and implementation
964-23 program established by Section 52.003.
964-24 (d) The commission shall promulgate rules and regulations
964-25 which establish a newsprint recycling program for the state.
964-26 (e) The program shall include guidelines which set goals for
964-27 the use of recycled newsprint by newspaper publishers, using the
965-1 following target percentages of recycled newsprint in the total
965-2 newsprint consumption of each newspaper publisher:
965-3 (1) 10 percent by the end of the calendar year 1993;
965-4 (2) 20 percent by the end of the calendar year 1997;
965-5 and
965-6 (3) 30 percent by the end of the calendar year 2000.
965-7 (f) Smaller newspapers may find it difficult to implement
965-8 use of recycled newsprint. Therefore, larger newspapers will be
965-9 responsible for the necessary consumption to allow the percentages
965-10 specified in Subsection (e) to represent total consumption of
965-11 recycled newsprint by all Texas newspapers.
965-12 (g) In this section:
965-13 (1) "Newspaper" means a publication that is sold and
965-14 that is printed on newsprint and published, printed, and
965-15 distributed in the state, both daily and non-daily, to disseminate
965-16 current news and information of general interest to the public.
965-17 (2) "Recycled newsprint" means newsprint which meets
965-18 the specified guidelines under Section 52.007 to be classified as a
965-19 recycled product.
965-20 (h) Publishers of newspapers subject to regulation under the
965-21 newsprint recycling program shall submit annually, on or before
965-22 January 31, a report to the commissioner which states the
965-23 percentage of recycled newsprint used by the publisher in the
965-24 preceding year, and, if the target percentage is not met, the
965-25 publisher must include in the report:
965-26 (1) whether the publisher is able to obtain sufficient
965-27 quantities of recycled newsprint at competitive prices and of
966-1 satisfactory quality;
966-2 (2) whether the publisher has attempted to obtain
966-3 recycled newsprint from every producer of recycled newsprint that
966-4 offered to sell recycled newsprint to the publisher during the
966-5 preceding calendar year; and
966-6 (3) the publisher's efforts to obtain recycled
966-7 newsprint, including the name and address of each producer of
966-8 recycled newsprint that the publisher contacted and the name and
966-9 telephone number of the contact person at each of the producers.
966-10 (i) The executive director shall develop forms for and
966-11 regulations governing the submission of the reports required by
966-12 this subsection.
966-13 (j) If the executive director determines that newspaper
966-14 publishers are not voluntarily meeting the target percentages
966-15 prescribed by this section for the program, the commission may
966-16 adopt mandatory enforcement measures. (Sec. 361.430, Health and
966-17 Safety Code.)
966-18 Sec. 52.011. Intrastate Transportation of Recyclable
966-19 Materials. (a) The Railroad Commission of Texas shall set maximum
966-20 intrastate rates for motor carriers transporting recyclable
966-21 materials and shall set such maximum rates at a level which is
966-22 comparable to interstate rates for transportation of recyclable
966-23 materials which are assessed by interstate motor carriers providing
966-24 the same kind, class, and quality of service. Evidence of
966-25 interstate services and interstate rates shall be presented at any
966-26 rate proceeding before the railroad commission relating to
966-27 recyclable materials in accordance with the railroad commission's
967-1 applicable rules of procedure and evidence, as well as in
967-2 accordance with the applicable provisions of the Administrative
967-3 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
967-4 Civil Statutes).
967-5 (b) The railroad commission shall issue limited common
967-6 carrier certificates, limited specialized motor carrier
967-7 certificates, or contract carrier permits to those persons who
967-8 desire to engage in the business of transporting recyclable
967-9 materials for hire over the highways of this state. The railroad
967-10 commission shall adopt simplified rules for the granting of such
967-11 limited certificates or permits of recyclable materials for hire.
967-12 The rules shall provide for the issuance of permits on the showing
967-13 of fitness, public necessity, and the ability to meet requisite
967-14 safety standards by the applicant. In considering the issue of
967-15 public necessity, the railroad commission shall consider that
967-16 efficient transportation of recyclable materials is essential to
967-17 development of an effective statewide recycling program. (Sec.
967-18 361.431, Health and Safety Code.)
967-19 (Sections 52.012-52.020 reserved for expansion)
967-20 SUBCHAPTER B. METALS RECYCLING ACTIVITIES; TRANSACTIONS INVOLVING
967-21 LEAD-ACID BATTERIES, FUEL TANKS, OR PCB-CONTAINING CAPACITORS
967-22 Sec. 52.021. Definitions. In this subchapter:
967-23 (1) "Metals recycling activity" means any business
967-24 that is predominantly engaged in:
967-25 (A) performing the manufacturing process by
967-26 which scrap, used, or obsolete ferrous or nonferrous metals are
967-27 converted into raw material products consisting of prepared grades
968-1 and having an existing or potential economic value, by methods
968-2 other than the exclusive use of hand tools, including processing,
968-3 sorting, cutting, classifying, cleaning, baling, wrapping,
968-4 shredding, shearing, or changing the physical form of those metals;
968-5 or
968-6 (B) the use of those raw material products in
968-7 the manufacture of producer or consumer goods.
968-8 (2) "Motor vehicle" has the meaning assigned by
968-9 Section 2(b), Uniform Act Regulating Traffic on Highways (Article
968-10 6701d, Vernon's Texas Civil Statutes).
968-11 (3) "PCB-containing capacitor" means a capacitor that
968-12 contains polychlorinated biphenyls and is regulated under the
968-13 federal Toxic Substances Control Act (15 U.S.C. Section 2601 et
968-14 seq.).
968-15 (4) "Person" means an individual, corporation,
968-16 partnership, sole proprietorship, or other business entity. (Sec.
968-17 1, V.A.C.S. Art. 9009b.)
968-18 Sec. 52.022. Transactions involving lead-acid batteries,
968-19 fuel tanks, or PCB-containing capacitors. (a) A person may not
968-20 sell, convey, or otherwise transfer to a metals recycling activity
968-21 a lead-acid battery, fuel tank, or PCB-containing capacitor that is
968-22 included with other types of scrap, used, or obsolete metals
968-23 without first obtaining from the metals recycling activity to which
968-24 the lead-acid battery, fuel tank, or PCB-containing capacitor is
968-25 being sold, conveyed, or transferred a written and signed
968-26 acknowledgment that the scrap, used, or obsolete metals include one
968-27 or more lead-acid batteries, fuel tanks, or PCB-containing
969-1 capacitors.
969-2 (b) A person may not sell, convey, or otherwise transfer to
969-3 a metals recycling activity any of the following that contain or
969-4 enclose a lead-acid battery, fuel tank, or PCB-containing capacitor
969-5 or of which a lead-acid battery, fuel tank, or PCB-containing
969-6 capacitor is a part:
969-7 (1) a motor vehicle;
969-8 (2) a motor vehicle that has been junked, flattened,
969-9 dismantled, or changed so that it has lost its character as a motor
969-10 vehicle;
969-11 (3) an appliance; or
969-12 (4) any other item of scrap, used, or obsolete metal.
969-13 (Sec. 2, V.A.C.S. Art. 9009b.)
969-14 Sec. 52.023. Exemptions. This subchapter does not apply to:
969-15 (1) the sale, conveyance, or transfer by or on behalf
969-16 of a metals recycling activity; or
969-17 (2) the sale, conveyance, or transfer of a lead-acid
969-18 battery, fuel tank, or PCB-containing capacitor that is not:
969-19 (A) included with other types of scrap, used, or
969-20 obsolete metals; or
969-21 (B) contained or enclosed in, or a part of:
969-22 (i) a motor vehicle;
969-23 (ii) a motor vehicle that has been junked,
969-24 flattened, dismantled, or changed so that it has lost its character
969-25 as a motor vehicle;
969-26 (iii) an appliance; or
969-27 (iv) any other item of scrap, used, or
970-1 obsolete metal. (Sec. 3, V.A.C.S. Art. 9009b.)
970-2 Sec. 52.024. Notification and posting. A metals recycling
970-3 activity shall post in a conspicuous location a notice that is
970-4 readily visible to a person selling materials to the metals
970-5 recycling activity. The notice must be no smaller than 24 inches
970-6 horizontally by 18 inches vertically and must contain the following
970-7 language:
970-8 TEXAS LAW PROHIBITS:
970-9 1. THE SALE OF A WHOLE, FLATTENED, OR JUNKED MOTOR VEHICLE,
970-10 AN APPLIANCE, OR ANY OTHER SCRAP METAL ITEM CONTAINING A LEAD-ACID
970-11 BATTERY, FUEL TANK, OR PCB-CONTAINING CAPACITOR; AND
970-12 2. THE SALE OF LEAD-ACID BATTERIES, FUEL TANKS, OR
970-13 PCB-CONTAINING CAPACITORS INCLUDED WITH OTHER SCRAP METALS WITHOUT
970-14 OUR PRIOR WRITTEN ACKNOWLEDGMENT.
970-15 VIOLATION OF THIS LAW IS A MISDEMEANOR.
970-16 (Sec. 4, V.A.C.S. Art. 9009b.)
970-17 Sec. 52.025. Criminal penalty. A person who violates this
970-18 subchapter is guilty of a misdemeanor and on conviction is
970-19 punishable by a fine of not more than $1,000, by confinement in the
970-20 county jail for not more than 60 days, or by both fine and
970-21 confinement. (Sec. 5, V.A.C.S. Art. 9009b.)
970-22 CHAPTER 53. POLLUTION PREVENTION
970-23 Sec. 53.001. Definitions. In this chapter:
970-24 (1) "Acute hazardous waste" means hazardous waste
970-25 listed by the administrator of the United States Environmental
970-26 Protection Agency under the federal Solid Waste Disposal Act, as
970-27 amended by the Resource Conservation and Recovery Act of 1976 (42
971-1 U.S.C. Section 6901 et seq.), because the waste meets the criteria
971-2 for listing hazardous waste identified in 40 C.F.R. Section
971-3 261.11(a)(2).
971-4 (2) "Conditionally exempt small-quantity generator"
971-5 means a generator that does not accumulate more than 1,000
971-6 kilograms of hazardous waste at any one time on his facility and
971-7 who generates less than 100 kilograms of hazardous waste in any
971-8 given month.
971-9 (3) "Committee" means the waste reduction advisory
971-10 committee established by Section 4.013.
971-11 (4) "Environment" means water, air, and land and the
971-12 interrelationship that exists among and between water, air, land,
971-13 and all living things.
971-14 (5) "Facility" means all buildings, equipment,
971-15 structures, and other stationary items located on a single site or
971-16 on contiguous or adjacent sites that are owned or operated by a
971-17 person who is subject to this chapter or by a person who controls,
971-18 is controlled by, or is under common control with a person subject
971-19 to this chapter.
971-20 (6) "Generator" and "generator of hazardous waste"
971-21 have the meaning assigned by Section 2.175.
971-22 (7) "Large-quantity generator" means a generator that
971-23 generates, through ongoing processes and operations at a facility:
971-24 (A) more than 1,000 kilograms of hazardous waste
971-25 in a month; or
971-26 (B) more than one kilogram of acute hazardous
971-27 waste in a month.
972-1 (8) "Media" and "medium" mean air, water, and land
972-2 into which waste is emitted, released, discharged, or disposed.
972-3 (9) "Pollutant" or "contaminant" includes any element,
972-4 substance, compound, disease-causing agent, or mixture that after
972-5 release into the environment and on exposure, ingestion,
972-6 inhalation, or assimilation into any organism, either directly from
972-7 the environment or indirectly by ingestion through food chains,
972-8 will or may reasonably be anticipated to cause death, disease,
972-9 behavioral abnormalities, cancer, genetic mutation, physiological
972-10 malfunctions, including malfunctions in reproduction, or physical
972-11 deformations in the organism or its offspring. The term does not
972-12 include petroleum, crude oil, or any fraction of crude oil that is
972-13 not otherwise specifically listed or designated as a hazardous
972-14 substance under Sections 101(14)(A) through (F) of the
972-15 environmental response law, nor does it include natural gas,
972-16 natural gas liquids, liquefied natural gas, synthetic gas of
972-17 pipeline quality, or mixtures of natural gas and synthetic gas.
972-18 (10) "Source reduction" has the meaning assigned by
972-19 the federal Pollution Prevention Act of 1990, Pub. L. No. 101-508,
972-20 Section 6603, 104 Stat. 1388.
972-21 (11) "Waste minimization" means a practice that
972-22 reduces the environmental or health hazards associated with
972-23 hazardous wastes, pollutants, or contaminants. Examples may
972-24 include reuse, recycling, neutralization, and detoxification.
972-25 (Sec. 361.501, Health and Safety Code.)
972-26 Sec. 53.002. Policy and Goals for Source Reduction and Waste
972-27 Minimization. (a) It is the policy of the state to reduce
973-1 pollution at its source and to minimize the impact of pollution in
973-2 order to reduce risk to public health and the environment and
973-3 continue to enhance the quality of air, land, and waters of the
973-4 state where feasible.
973-5 (b) Source reduction is the primary goal of the state in
973-6 implementing this policy because hazardous wastes, pollutants, and
973-7 contaminants that are not generated or produced pose no threat to
973-8 the environment and eliminate societal management and disposal
973-9 costs.
973-10 (c) To further promote this policy, hazardous wastes,
973-11 pollutants, and contaminants that cannot be reduced at the source
973-12 should be minimized wherever possible. Waste minimization, while
973-13 secondary in preference to source reduction, is an important means
973-14 for achieving more effective protection of public health and the
973-15 environment while moving toward source reduction. (Sec. 361.502,
973-16 Health and Safety Code.)
973-17 Sec. 53.003. Agency Plans. (a) Consistent with state and
973-18 federal regulations, to achieve the policies stated in Section
973-19 53.002, the commission by rule shall, to the maximum extent that is
973-20 technologically and economically feasible, develop plans to reduce
973-21 the release of pollutants or contaminants into the air.
973-22 (b) Consistent with state and federal regulations, to
973-23 achieve the policies stated in Section 53.002, to the maximum
973-24 extent that is technologically and economically feasible, the
973-25 commission shall:
973-26 (1) develop plans to reduce the release of pollutants
973-27 or contaminants into water; and
974-1 (2) establish reasonable goals for the reduction of
974-2 the volume of hazardous waste generated in the state and the amount
974-3 of pollutants and contaminants using source reduction and waste
974-4 minimization.
974-5 (c) In order to effectively use resources, the commission by
974-6 rule shall develop a list of pollutants or contaminants and the
974-7 level of releases of those pollutants or contaminants subject to
974-8 source reduction and waste minimization planning. (Sec. 361.503,
974-9 Health and Safety Code.)
974-10 Sec. 53.004. Application. (a) Except as provided by
974-11 Subsection (b), this chapter applies to the following persons:
974-12 (1) all large-quantity generators of hazardous waste;
974-13 (2) all generators other than large-quantity
974-14 generators and conditionally exempt small-quantity generators; and
974-15 (3) persons subject to Section 313, Title III,
974-16 Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C.
974-17 Section 11023) whose releases exceed the levels established under
974-18 Section 53.003(c).
974-19 (b) The commission by rule shall establish one or more
974-20 schedules for the application of the requirements of this chapter
974-21 to designated classes of persons described by Subsection (a). The
974-22 schedule shall provide for the inclusion of all persons described
974-23 by Subsection (a) on a date to be determined by the commission, and
974-24 until that date this chapter applies only to those persons
974-25 designated by rule of the commission.
974-26 (c) This chapter does not apply to a facility regulated by
974-27 the Railroad Commission of Texas under Section 91.101 or 141.012,
975-1 Natural Resources Code. (Sec. 361.504, Health and Safety Code.)
975-2 Sec. 53.005. Source Reduction and Waste Minimization Plans.
975-3 (a) Persons identified under Section 53.004(a)(1) or (a)(3) shall
975-4 prepare a source reduction and waste minimization plan. Plans
975-5 developed under this section must contain a separate component
975-6 addressing source reduction activities and a separate component
975-7 addressing waste minimization activities. The plan must include,
975-8 at a minimum:
975-9 (1) an initial survey that identifies:
975-10 (A) for facilities subject to Section
975-11 53.004(a)(1), activities that generate hazardous waste; and
975-12 (B) for facilities subject to Section
975-13 53.004(a)(3), activities that result in the release of pollutants
975-14 or contaminants designated under Section 53.003(c);
975-15 (2) based on the initial survey, a prioritized list of
975-16 economically and technologically feasible source reduction and
975-17 waste minimization projects;
975-18 (3) an explanation of source reduction or waste
975-19 minimization projects to be undertaken, with a discussion of
975-20 technical and economic considerations, and environmental and human
975-21 health risks considered in selecting each project to be undertaken;
975-22 (4) an estimate of the type and amount of reduction
975-23 anticipated;
975-24 (5) a schedule for the implementation of each source
975-25 reduction and waste minimization project;
975-26 (6) source reduction and waste minimization goals for
975-27 the entire facility, including incremental goals to aid in
976-1 evaluating progress;
976-2 (7) an explanation of employee awareness and training
976-3 programs to aid in accomplishing source reduction and waste
976-4 minimization goals;
976-5 (8) certification by the owner of the facility, or, if
976-6 the facility is owned by a corporation, by an officer of the
976-7 corporation that owns the facility who has the authority to commit
976-8 the corporation's resources to implement the plan, that the plan is
976-9 complete and correct;
976-10 (9) an executive summary of the plan; and
976-11 (10) identification of cases in which the
976-12 implementation of a source reduction or waste minimization activity
976-13 designed to reduce risk to human health or the environment may
976-14 result in the release of a different pollutant or contaminant or
976-15 may shift the release to another medium.
976-16 (b) The source reduction and waste minimization plan may
976-17 include:
976-18 (1) a discussion of the person's previous efforts at
976-19 the facility to reduce risk to human health and the environment or
976-20 to reduce the generation of hazardous waste or the release of
976-21 pollutants or contaminants;
976-22 (2) a discussion of the effect changes in
976-23 environmental regulations have had on the achievement of the source
976-24 reduction and waste minimization goals;
976-25 (3) the effect that events the person could not
976-26 control have had on the achievement of the source reduction and
976-27 waste minimization goals;
977-1 (4) a description of projects that have reduced the
977-2 generation of hazardous waste or the release of pollutants or
977-3 contaminants; and
977-4 (5) a discussion of the operational decisions made at
977-5 the facility that have affected the achievement of the source
977-6 reduction or waste minimization goals or other risk reduction
977-7 efforts.
977-8 (c) The commission shall adopt rules for the development of
977-9 simplified, as appropriate, source reduction and waste minimization
977-10 plans and reports for persons identified under Section
977-11 53.004(a)(2).
977-12 (d) The commission shall provide information to aid in the
977-13 preparation of source reduction and waste minimization plans to be
977-14 prepared by a person under this section. (Sec. 361.505, Health and
977-15 Safety Code.)
977-16 Sec. 53.006. Source Reduction and Waste Minimization Annual
977-17 Report. (a) A person required to develop a source reduction and
977-18 waste minimization plan for a facility under this chapter shall
977-19 submit to the commission an annual report and a current executive
977-20 summary according to any schedule developed under Section 53.004.
977-21 (b) The annual report shall comply with rules adopted by the
977-22 commission. The report shall detail the facility's progress in
977-23 implementing the source reduction and waste minimization plan and
977-24 include:
977-25 (1) an assessment of the progress toward the
977-26 achievement of the facility source reduction goal and the facility
977-27 waste minimization goal;
978-1 (2) a statement to include, for facilities subject to
978-2 Section 53.004(a)(1), the amount of hazardous waste generated and,
978-3 for facilities subject to Section 53.004(a)(3), the amount of the
978-4 release of pollutants or contaminants designated under Section
978-5 53.003(c) in the year preceding the report, and a comparison of
978-6 those amounts with the amounts generated or released in a base year
978-7 selected by the commission; and
978-8 (3) any modification to the plan.
978-9 (c) The annual report may include:
978-10 (1) a discussion of the person's previous effort at
978-11 the facility to reduce hazardous waste or the release of pollutants
978-12 or contaminants through source reduction or waste minimization;
978-13 (2) a discussion of the effect changes in
978-14 environmental regulations have had on the achievement of the source
978-15 reduction and waste minimization goals;
978-16 (3) the effect that events the person could not
978-17 control have had on the achievement of the source reduction and
978-18 waste minimization goals; and
978-19 (4) a discussion of the operational decisions the
978-20 person has made that have affected the achievement of the source
978-21 reduction and waste minimization goals.
978-22 (d) The annual report shall contain a separate component
978-23 addressing source reduction activities and a separate component
978-24 addressing waste minimization activities. (Sec. 361.506, Health
978-25 and Safety Code.)
978-26 Sec. 53.007. Administrative Completeness. (a) The
978-27 commission may review a source reduction and waste minimization
979-1 plan or annual report to determine whether the plan or report
979-2 complies with this chapter and rules adopted under Section 53.004,
979-3 53.005, or 53.006, as appropriate.
979-4 (b) Failure to have a source reduction and waste
979-5 minimization plan in accordance with Sections 53.004 and 53.005 or
979-6 failure to submit a source reduction and waste minimization annual
979-7 report in accordance with Section 53.006 is a violation of this
979-8 chapter and Chapter 20. (Sec. 361.507, Health and Safety Code.)
979-9 Sec. 53.008. Confidentiality. (a) A source reduction and
979-10 waste minimization plan shall be maintained at each facility owned
979-11 or operated by a person who is subject to this chapter and shall be
979-12 available to commission personnel for inspection. The source
979-13 reduction and waste minimization plan is not a public record for
979-14 the purposes of the open records law, Chapter 424, Acts of the 63rd
979-15 Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
979-16 Texas Civil Statutes).
979-17 (b) The executive summary and the annual report are public
979-18 records. On request, the person shall make available to the public
979-19 a copy of the executive summary or annual report.
979-20 (c) If an owner or operator of a facility for which a source
979-21 reduction and waste minimization plan has been prepared shows to
979-22 the satisfaction of the commission that an executive summary,
979-23 annual report, or portion of a summary or report prepared under
979-24 this chapter would divulge a trade secret if made public, the
979-25 commission shall classify as confidential the summary, report, or
979-26 portion of the summary or report.
979-27 (d) To the extent that a plan, executive summary, annual
980-1 report, or portion of a plan, summary, or annual report would
980-2 otherwise qualify as a trade secret, an action by the commission or
980-3 an employee of the commission does not affect its status as a trade
980-4 secret.
980-5 (e) Information classified by the commission as confidential
980-6 under this section is not a public record for purposes of the open
980-7 records law, Chapter 424, Acts of the 63rd Legislature, Regular
980-8 Session, 1973 (Article 6252-17a, Vernon's Texas Civil Statutes),
980-9 and may not be used in a public hearing or disclosed to a person
980-10 outside the commission unless a court decides that the information
980-11 is necessary for the determination of an issue being decided at the
980-12 public hearing. (Sec. 361.508, Health and Safety Code.)
980-13 Sec. 53.009. Source Reduction and Waste Minimization
980-14 Assistance. (a) The office of pollution prevention established
980-15 under Section 2.103 shall assist generators of hazardous waste and
980-16 owners or operators of facilities that release pollutants or
980-17 contaminants in reducing the volume, toxicity, and adverse public
980-18 health and environmental effects of hazardous waste generated or
980-19 pollutants or contaminants released in the state. To provide the
980-20 assistance, the office may:
980-21 (1) compile, organize, and make available for
980-22 distribution information on source reduction and waste minimization
980-23 technologies and procedures;
980-24 (2) compile and make available for distribution to
980-25 business and industry a list of consultants on source reduction and
980-26 waste minimization technologies and procedures and a list of
980-27 researchers at state universities who can assist in source
981-1 reduction and waste minimization activities;
981-2 (3) sponsor and conduct conferences and individualized
981-3 workshops on source reduction and waste minimization for specific
981-4 classes of business or industry;
981-5 (4) facilitate and promote the transfer of source
981-6 reduction and waste minimization technologies and procedures among
981-7 businesses and industries;
981-8 (5) if appropriate, develop and distribute model
981-9 source reduction and waste minimization plans for the major classes
981-10 of business or industry, as identified by the office, that generate
981-11 and subsequently treat, store, or dispose of hazardous waste or
981-12 that release a pollutant or contaminant in the state;
981-13 (6) develop and make available for distribution
981-14 recommended source reduction and waste minimization audit
981-15 procedures for use by business or industry in conducting internal
981-16 source reduction and waste minimization audits;
981-17 (7) provide to business and industry, as resources
981-18 allow, on-site assistance in identifying potential source reduction
981-19 and waste minimization techniques and practices and in conducting
981-20 internal source reduction and waste minimization audits;
981-21 (8) compile and make available for distribution
981-22 information on tax benefits available to business or industry for
981-23 implementing source reduction and waste minimization technologies
981-24 and practices;
981-25 (9) establish procedures for setting priorities among
981-26 key industries and businesses for receiving assistance from the
981-27 office;
982-1 (10) develop the information base and data collection
982-2 programs necessary to set program priorities and to evaluate
982-3 progress in source reduction and waste minimization;
982-4 (11) develop training programs and materials for state
982-5 and local regulatory personnel and private business and industry
982-6 regarding the nature and applicability of source reduction and
982-7 waste minimization practices;
982-8 (12) produce a biennial report on source reduction and
982-9 waste minimization activities, achievements, problems, and goals,
982-10 including a biennial work plan;
982-11 (13) participate in existing state, federal, and
982-12 industrial networks of individuals and groups involved in source
982-13 reduction and waste minimization; and
982-14 (14) publicize to business and industry, and
982-15 participate in and support, waste exchange programs.
982-16 (b) The commission shall provide education and training to
982-17 river authorities, municipalities, and public groups on source
982-18 reduction and waste minimization technologies and practices.
982-19 (c) The commission shall develop incentives to promote the
982-20 implementation of source reduction and waste minimization,
982-21 including:
982-22 (1) commission recommendations to the governor for
982-23 awards in recognition of source reduction and waste minimization
982-24 efforts;
982-25 (2) an opportunity by rules of the commission for an
982-26 owner or operator of a facility to be exempted from the
982-27 requirements of this chapter on meeting appropriate criteria for
983-1 practical economic and technical completion of the source reduction
983-2 and waste minimization plan for the facility; and
983-3 (3) expedited review of a permit amendment application
983-4 if the amendment is necessary to implement a source reduction and
983-5 waste minimization project, considering only the directly affected
983-6 parts of the permit.
983-7 (d) The commission shall work closely with the Gulf Coast
983-8 Hazardous Substance Research Center to identify areas in which the
983-9 center could perform research in the development of alternative
983-10 technologies or conduct related projects to promote source
983-11 reduction and waste minimization. (Sec. 361.509, Health and Safety
983-12 Code.)
983-13 Sec. 53.010. Report to Legislature. Notwithstanding any
983-14 other reporting requirement, the commission shall prepare a
983-15 biennial report to the presiding officers of the legislature and
983-16 the governor concerning the implementation of this chapter. The
983-17 report must include:
983-18 (1) the status of the technical assistance program;
983-19 (2) a description of progress toward reducing the
983-20 volume of hazardous waste generated and the amount of pollutants
983-21 and contaminants in the state;
983-22 (3) an analysis of and recommendations for changes to
983-23 source reduction and waste minimization programs, including
983-24 consideration of additional enforcement provisions; and
983-25 (4) an identification of any other needed pollution
983-26 prevention activities. (Sec. 361.510, Health and Safety Code.)
983-27 CHAPTER 54. WATER SAVING PERFORMANCE STANDARDS
984-1 Sec. 54.001. Definitions. In this chapter:
984-2 (1) "Plumbing fixture" means a sink faucet, lavatory
984-3 faucet, faucet aerator, shower head, urinal, toilet, flush valve
984-4 toilet, or drinking water fountain.
984-5 (2) "Toilet" means a toilet or water closet except a
984-6 wall-mounted toilet that employs a flushometer or flush valve.
984-7 (Sec. 372.001, Health and Safety Code.)
984-8 Sec. 54.002. Water Saving Performance Standards. (a) A
984-9 person may not sell, offer for sale, distribute, or import into
984-10 this state a plumbing fixture for use in this state unless:
984-11 (1) the plumbing fixture meets the water saving
984-12 performance standards provided by Subsection (b); and
984-13 (2) the plumbing fixture is listed by the commission
984-14 under Subsection (c).
984-15 (b) The water saving performance standards for a plumbing
984-16 fixture are those established by the American National Standards
984-17 Institute or the following standards, whichever are more
984-18 restrictive:
984-19 (1) for a sink or lavatory faucet or a faucet aerator,
984-20 maximum flow may not exceed 2.2 gallons of water per minute at a
984-21 pressure of 60 pounds per square inch when tested according to
984-22 testing procedures adopted by the board;
984-23 (2) for a shower head, maximum flow may not exceed
984-24 2.75 gallons of water per minute at a constant pressure over 80
984-25 pounds per square inch when tested according to testing procedures
984-26 adopted by the board;
984-27 (3) for a urinal and the associated flush valve, if
985-1 any, maximum flow may not exceed an average of one gallon of water
985-2 per flushing when tested according to the hydraulic performance
985-3 requirements adopted by the board;
985-4 (4) for a toilet, maximum flow may not exceed an
985-5 average of 1.6 gallons of water per flushing when tested according
985-6 to the hydraulic performance requirements adopted by the board;
985-7 (5) for a wall-mounted toilet that employs a
985-8 flushometer or flush valve, maximum flow may not exceed an average
985-9 of two gallons of water per flushing or the flow rate established
985-10 by the American National Standards Institute for ultra-low flush
985-11 toilets, whichever is lower; and
985-12 (6) a drinking water fountain must be self-closing.
985-13 (c) The commission shall make and maintain a current list of
985-14 plumbing fixtures that are certified to the commission by the
985-15 manufacturer or importer to meet the water saving performance
985-16 standards established by Subsection (b). To have a plumbing
985-17 fixture included on the list, a manufacturer or importer must
985-18 supply to the commission, in the form prescribed by the commission,
985-19 the identification and the performance specifications of the
985-20 plumbing fixture. The commission may test a listed fixture to
985-21 determine the accuracy of the manufacturer's or importer's
985-22 certification and shall remove from the list a fixture the
985-23 commission finds to be inaccurately certified.
985-24 (d) The commission may assess against a manufacturer or an
985-25 importer a reasonable fee for an inspection of a product to
985-26 determine the accuracy of the manufacturer's or importer's
985-27 certification in an amount determined by the commission to cover
986-1 the expenses incurred in the administration of this chapter. A fee
986-2 received by the commission under this subsection shall be deposited
986-3 in the state treasury to the credit of the commission and may be
986-4 used only for the administration of this chapter.
986-5 (e) The commission shall, to the extent appropriate and
986-6 practical, employ the standards designated American National
986-7 Standards by the American National Standards Institute in
986-8 determining or evaluating performance standards or testing
986-9 procedures under this chapter.
986-10 (f) This section does not apply to:
986-11 (1) a plumbing fixture that has been ordered by or is
986-12 in the inventory of a building contractor or a wholesaler or
986-13 retailer of plumbing fixtures on January 1, 1992;
986-14 (2) a fixture, such as a safety shower or aspirator
986-15 faucet, that, because of the fixture's specialized function, cannot
986-16 meet the standards provided by this section;
986-17 (3) a fixture originally installed before January 1,
986-18 1992, that is removed and reinstalled in the same building on or
986-19 after that date; or
986-20 (4) a fixture imported only for use at the importer's
986-21 domicile. (Sec. 372.002, Health and Safety Code.)
986-22 Sec. 54.003. Labeling Requirements. (a) A person may not
986-23 sell, offer for sale, distribute, or import into this state a
986-24 plumbing fixture unless the plumbing fixture, including each
986-25 component of a toilet, flush valve toilet, or urinal, and the
986-26 associated packaging are marked and labeled in accordance with the
986-27 rules adopted by the commission.
987-1 (b) The commission shall adopt rules for the marking or
987-2 labeling of plumbing fixtures. The rules must require information
987-3 concerning water-saving measures to be included in required marks
987-4 or labels. In developing marking or labeling requirements, the
987-5 shall consider the technological and economical feasibility of a
987-6 mark or label.
987-7 (c) The commission by rule shall prohibit the sale, offering
987-8 for sale, distribution, or importation into this state of a new
987-9 commercial or residential clothes-washing machine, dish-washing
987-10 machine, or lawn sprinkler unless:
987-11 (1) the manufacturer has furnished to the commission,
987-12 in the form prescribed by the commission, the identification and
987-13 performance specifications of the device; and
987-14 (2) the clothes-washing or dish-washing machine or
987-15 lawn sprinkler is labeled in accordance with rules adopted by the
987-16 commission with a statement that describes the device's water use
987-17 characteristics.
987-18 (d) Rules adopted or amended under this section shall be
987-19 developed by the commission in conjunction with a technical
987-20 advisory panel of designated representatives of the Texas Water
987-21 Development Board and the Texas State Board of Plumbing Examiners.
987-22 (e) This section shall not apply to those clothes-washing or
987-23 dish-washing machines that are subject to and in compliance with
987-24 the labeling requirements of the National Appliance Energy
987-25 Conservation Act of 1987, Public Law 100-12. (Sec. 372.003, Health
987-26 and Safety Code.)
987-27 Sec. 54.004. Administrative Penalty. (a) A person who
988-1 violates this chapter or a rule adopted under this chapter shall be
988-2 assessed an administrative penalty in an amount not to exceed
988-3 $5,000 for each violation and for each day of a continuing
988-4 violation.
988-5 (b) A person against whom an administrative penalty is
988-6 assessed is entitled to notice and a hearing on the assessment of
988-7 the penalty, as provided by rule of the commission.
988-8 (c) Not later than the 30th day after the date on which the
988-9 executive director's order assessing the administrative penalty is
988-10 final, the person assessed shall pay the full amount of the penalty
988-11 or file a petition for judicial review. If the person seeks
988-12 judicial review, the person shall send the amount of the penalty to
988-13 the executive director for placement in escrow or post with the
988-14 executive director a bond in a form approved by the executive
988-15 director for the amount of the penalty, the bond to be effective
988-16 until judicial review of the order is final. A person who fails to
988-17 comply with this subsection waives judicial review.
988-18 (d) The executive director may request enforcement by the
988-19 attorney general if the person assessed the penalty fails to comply
988-20 with this section.
988-21 (e) Judicial review of the order assessing the penalty is
988-22 under Section 19, Administrative Procedure and Texas Register Act
988-23 (Article 6252-13a, Vernon's Texas Civil Statutes).
988-24 (f) An administrative penalty collected under this section
988-25 shall be deposited in the state treasury to the credit of the
988-26 general revenue fund. (Sec. 372.004, Health and Safety Code.)
988-27 Sec. 54.005. Civil Penalty; Injunction. (a) A person who
989-1 violates this chapter or a rule adopted under this chapter is
989-2 subject to a civil penalty not to exceed $5,000 for each violation
989-3 and each day of a continuing violation.
989-4 (b) If it appears that a person has violated, is violating,
989-5 or is threatening to violate this chapter or a rule adopted under
989-6 this chapter, the commission, a county, or a municipality may bring
989-7 a civil action in a district court in Travis County, the county in
989-8 which the defendant resides, or the county where the violation
989-9 occurred, is occurring, or is threatened for:
989-10 (1) injunctive relief to restrain the person from
989-11 continuing the violation or threat of violation;
989-12 (2) the assessment of a civil penalty for a violation;
989-13 or
989-14 (3) both injunctive relief and a civil penalty.
989-15 (c) The commission is an indispensable party in a suit
989-16 brought by a county or municipality under this section.
989-17 (d) A district court shall grant injunctive relief, assess a
989-18 civil penalty, or both, as warranted by the facts, if the court
989-19 finds that the person has violated or is violating this chapter or
989-20 a rule adopted under this chapter.
989-21 (e) In a suit to enjoin a violation of this chapter or a
989-22 rule adopted under this chapter, the court shall grant the state,
989-23 commission, county, or municipality, without bond or other
989-24 undertaking, any injunction that the facts warrant, including a
989-25 temporary restraining order, temporary injunction, or permanent
989-26 injunction.
989-27 (f) A civil penalty recovered in a suit brought by a county
990-1 or municipality under this section shall be divided equally between
990-2 the state and the county or municipality that first brought the
990-3 suit. The state's share of any civil penalty shall be deposited in
990-4 the state treasury to the credit of the general revenue fund.
990-5 (g) At the request of the department, the attorney general
990-6 shall bring and conduct a suit in the name of the state for
990-7 injunctive relief, to recover a civil penalty, or both. (Sec.
990-8 372.005, Health and Safety Code.)
990-9 SECTION 2. CONFORMING AMENDMENT. Section 12.081, Water
990-10 Code, is transferred to Subchapter C, Chapter 50, Water Code,
990-11 renumbered, and amended to read as follows:
990-12 Sec. 50.065 <12.081>. Continuing Right of Supervision of
990-13 Districts and Authorities Created Under Article III, Section 52 and
990-14 Article XVI, Section 59 of the Texas Constitution. (a) The powers
990-15 and duties of all districts and authorities created under Article
990-16 III, Section 52 and Article XVI, Section 59 of the Texas
990-17 Constitution are subject to the continuing right of supervision of
990-18 the State of Texas by and through the commission or its successor,
990-19 and this supervision may include but is not limited to the
990-20 authority to:
990-21 (1) inquire into the competence, fitness, and
990-22 reputation of the officers and directors of any district or
990-23 authority;
990-24 (2) require, on its own motion or on complaint by any
990-25 person, audits or other financial information, inspections,
990-26 evaluations, and engineering reports;
990-27 (3) issue subpoenas for witnesses to carry out its
991-1 authority under this subsection;
991-2 (4) institute investigations and hearings using
991-3 examiners appointed by the commission;
991-4 (5) issue rules necessary to supervise the districts
991-5 and authorities, except that such rules shall not apply to water
991-6 quality ordinances adopted by any river authority which meet or
991-7 exceed minimum requirements established by the commission <Texas
991-8 Water Commission>; and
991-9 (6) the right of supervision granted herein shall not
991-10 apply to matters relating to electric utility operations.
991-11 (b) The commission shall prepare and submit to the governor,
991-12 lieutenant governor, and speaker of the house a report of any
991-13 findings made under this section.
991-14 SECTION 3. CONFORMING AMENDMENT. Section 12.083, Water
991-15 Code, is transferred to Subchapter J, Chapter 50, Water Code,
991-16 renumbered, and amended to read as follows:
991-17 Sec. 50.333 <12.083>. Districts; Creation, Investigations
991-18 and Bonds. (a) The commission succeeds to the duties and
991-19 responsibilities of the Texas Water Rights Commission with regard
991-20 to the creation of districts as defined by Section 50.001(1) of
991-21 this code and to approve or disapprove the issuance of the bonds of
991-22 all such districts.
991-23 (b) The executive director shall investigate and report on
991-24 the organization and feasibility of all districts as defined by
991-25 Section 50.001(1) of this code.
991-26 SECTION 4. CONFORMING AMENDMENT. Section 12.082, Water
991-27 Code, is transferred to Subchapter C, Chapter 53, Water Code,
992-1 renumbered, and amended to read as follows:
992-2 Sec. 53.0631 <12.082>. Duty to Investigate Fresh Water
992-3 Supply District Projects. (a) In this section "designated<:>
992-4 <(1) "District" means fresh water supply district.>
992-5 <(2) "Designated> agent" means any licensed engineer
992-6 selected by the executive director of the Texas Natural Resource
992-7 Conservation Commission to perform the functions specified in this
992-8 section.
992-9 (b) The Texas Natural Resource Conservation Commission
992-10 <commission> shall investigate and report on the organization and
992-11 feasibility of all districts created under this chapter <Chapter 53
992-12 of this code> which issue bonds under the provisions of this <that>
992-13 chapter.
992-14 (c) A district that wants to issue bonds for any purpose
992-15 shall submit to the commission a written application for
992-16 investigation, together with a copy of the engineer's report and a
992-17 copy of the data, profiles, maps, plans, and specifications made in
992-18 connection with the engineer's report.
992-19 (d) The executive director or his designated agent shall
992-20 examine the application and other information and shall visit the
992-21 project and carefully inspect it. The executive director or his
992-22 designated agent may ask for and shall be supplied with additional
992-23 data and information requisite to a reasonable and careful
992-24 investigation of the project and proposed improvements.
992-25 (e) The executive director or his designated agent shall
992-26 file with the commission written suggestions for changes and
992-27 improvements and shall furnish a copy of the suggestions to the
993-1 board <of the district>. If the commission finally approves or
993-2 refuses to approve the project or the issuance of bonds for the
993-3 improvements it shall make a full written report, file it in its
993-4 office, and furnish a copy of the report to the board <of the
993-5 district>.
993-6 (f) During the course of construction of the project and
993-7 improvements, no substantial alterations shall be made in the plans
993-8 and specifications without the approval of the executive director.
993-9 The executive director or his designated agent has full authority
993-10 to inspect the improvements at any time during construction to
993-11 determine if the project is being constructed in accordance with
993-12 approved plans and specifications.
993-13 (g) If the executive director finds that the project is not
993-14 being constructed in accordance with the approved plans and
993-15 specifications, the executive director immediately shall notify in
993-16 writing by certified mail each member of the board <of the
993-17 district> and the board <its> manager. If, within 10 days after
993-18 the notice is mailed, the board <of the district> does not take
993-19 steps to insure that the project is being constructed in accordance
993-20 with the approved plans and specifications, the executive director
993-21 shall give written notice of that fact to the attorney general.
993-22 (h) After the attorney general receives the notice, he may
993-23 bring an action for injunctive relief, or he may bring quo warranto
993-24 proceedings against the directors. Venue for either of these
993-25 actions is exclusively in the district of Travis County.
993-26 SECTION 5. CONFORMING AMENDMENT. Subchapter C, Chapter 27,
993-27 Water Code, is transferred to Title 3, Natural Resources Code,
994-1 renumbered as Chapter 118, and amended to read as follows:
994-2 CHAPTER 118 <SUBCHAPTER C>. OIL AND GAS WASTE
994-3 Sec. 118.001 <27.031>. Permit From Railroad Commission. (a)
994-4 No person may continue using a disposal well or begin drilling a
994-5 disposal well or converting an existing well into a disposal well
994-6 to dispose of oil and gas waste without first obtaining a permit
994-7 from the railroad commission.
994-8 (b) Except as inconsistent with this chapter, Chapter 13,
994-9 Environment Code, applies to the administration and enforcement,
994-10 and penalties of this chapter. The crimes and penalties provided
994-11 by Subchapter D, Chapter 13, Environment Code, apply to this
994-12 chapter.
994-13 Sec. 118.002 <27.032>. Information Required of Applicant.
994-14 The railroad commission shall require an applicant to furnish any
994-15 information the railroad commission considers necessary to
994-16 discharge its duties under this chapter.
994-17 Sec. 118.003 <27.0321>. Application Fee. With each
994-18 application for an oil and gas waste disposal well permit, the
994-19 applicant shall submit to the railroad commission a nonrefundable
994-20 fee of $100.
994-21 Sec. 118.004 <27.033>. Letter From Executive Director. A
994-22 person making application to the railroad commission for a permit
994-23 under this chapter shall submit with the application a letter from
994-24 the executive director of the Texas Natural Resource Conservation
994-25 Commission stating that drilling and using the disposal well and
994-26 injecting oil and gas waste into the subsurface stratum will not
994-27 endanger the freshwater strata in that area and that the formation
995-1 or stratum to be used for the disposal is not freshwater sand.
995-2 Sec. 118.005 <27.034>. Railroad Commission Rules, Etc.
995-3 (a) The railroad commission shall adopt rules and procedures
995-4 reasonably required for the performance of its powers, duties, and
995-5 functions under this chapter, including rules for notice and
995-6 procedure of public hearings. The rules for notice shall include
995-7 provisions for giving notice to local governments and affected
995-8 persons. The railroad commission shall define "affected person" by
995-9 rule.
995-10 (b) Copies of any rules under this chapter proposed by the
995-11 railroad commission shall, before their adoption, be sent to the
995-12 Texas Natural Resource Conservation Commission <commission, the
995-13 Texas Department of Health, the Water Well Drillers Board,> and any
995-14 other persons the railroad commission may designate. Any agency or
995-15 person to whom the copies of proposed rules and regulations are
995-16 sent may submit comments and recommendations to the railroad
995-17 commission and shall have reasonable time to do so as the railroad
995-18 commission may prescribe.
995-19 Sec. 118.006 <27.035>. Jurisdiction Over in Situ Recovery of
995-20 Tar Sands. (a) The railroad commission has jurisdiction over the
995-21 in situ recovery of tar sands and may issue permits for injection
995-22 wells used for the in situ recovery of tar sands.
995-23 (b) A person may not begin to drill an injection well to be
995-24 used in the in situ recovery of tar sands unless that person has a
995-25 valid permit for the well issued by the railroad commission under
995-26 this chapter.
995-27 (c) The railroad commission shall adopt rules that are
996-1 necessary to administer and regulate the in situ recovery of tar
996-2 sands.
996-3 (d) For purposes of regulation by the railroad commission,
996-4 an injection well for the in situ recovery of tar sands is
996-5 designated as a Class V well under the underground injection
996-6 control program administered by the railroad commission.
996-7 Sec. 118.007 <27.036>. Jurisdiction Over Brine Mining.
996-8 (a) The railroad commission has jurisdiction over brine mining and
996-9 may issue permits for injection wells used for brine mining.
996-10 (b) A person may not begin to drill an injection well to be
996-11 used for brine mining unless that person has a valid permit for the
996-12 well issued by the railroad commission under this chapter.
996-13 (c) The railroad commission shall adopt rules that are
996-14 necessary to administer and regulate brine mining.
996-15 (d) For purposes of regulation by the railroad commission,
996-16 an injection well for brine mining is designated as a Class III
996-17 well under the underground injection control program administered
996-18 by the railroad commission.
996-19 (e) <(f)> This section does not invalidate any permit for an
996-20 injection well used for brine mining that was issued by the Texas
996-21 Water Commission before the effective date of this section. Within
996-22 90 days after the effective date of this section, the Railroad
996-23 Commission of Texas shall issue a substitute permit under the name
996-24 and authority of the railroad commission to each person who on the
996-25 effective date of this section holds a valid permit issued by the
996-26 Texas Water Commission for an injection well used for brine mining.
996-27 (f) <(g)> Application for injection well permits covering
997-1 brine mining submitted to the Texas Water Commission before the
997-2 effective date of this section for which permits have not been
997-3 issued by the commission shall be transmitted to the railroad
997-4 commission.
997-5 SECTION 6. CONFORMING AMENDMENT. Chapter 29, Water Code, is
997-6 tranferred to Title 3, Natural Resources Code, renumbered as
997-7 Chapter 119, and amended to read as follows:
997-8 CHAPTER 119 <29>. SALT WATER HAULERS
997-9 SUBCHAPTER A. GENERAL PROVISIONS
997-10 Sec. 119.001 <29.001>. Short Title. This chapter may be
997-11 cited as the Oil and Gas Waste Haulers Act.
997-12 Sec. 119.002 <29.002>. Definitions. In this chapter:
997-13 (1) "Person" means an individual, association of
997-14 individuals, partnership, corporation, receiver, trustee, guardian,
997-15 executor, or a fiduciary or representative of any kind.
997-16 (2) "Railroad commission" means the Railroad
997-17 Commission of Texas.
997-18 (3) "Oil and gas waste" means oil and gas waste as
997-19 defined by Section 91.1011 of this code<, Natural Resources Code,>
997-20 and includes water containing salt or other mineralized substances
997-21 produced by drilling an oil or gas well or produced in connection
997-22 with the operation of an oil or gas well.
997-23 (4) "Hauler" means a person who transports oil and gas
997-24 waste for hire by any method other than by pipeline.
997-25 (Sections 119.003-119.010 reserved for expansion)
997-26 SUBCHAPTER B. PERMITS
997-27 Sec. 119.011 <29.011>. Application for Permit. Any person
998-1 may apply to the railroad commission for a permit to haul and
998-2 dispose of oil and gas waste.
998-3 Sec. 119.012 <29.012>. Application Form. The railroad
998-4 commission shall prescribe a form on which an application for a
998-5 permit may be made and shall provide the form to any person who
998-6 wishes to submit an application.
998-7 Sec. 119.013 <29.013>. Contents of Application. The
998-8 application for a permit shall:
998-9 (1) state the number of vehicles the applicant plans
998-10 to use for hauling oil and gas waste;
998-11 (2) affirmatively show that the vehicles are designed
998-12 so that they will not leak during transportation of oil and gas
998-13 waste;
998-14 (3) include an affidavit from a person who operates an
998-15 approved system of oil and gas waste disposal stating that the
998-16 applicant has permission to use the approved system;
998-17 (4) state the applicant's name, business address, and
998-18 permanent mailing address; and
998-19 (5) include other relevant information required by
998-20 railroad commission rules.
998-21 Sec. 119.014 <29.014>. Rejecting an Application. If an
998-22 application for a permit does not comply with Section 119.013
998-23 <29.013> of this code or with reasonable rules of the railroad
998-24 commission, the railroad commission may reject the application.
998-25 Sec. 119.015 <29.015>. Application Fee. With each
998-26 application for issuance, renewal, or material amendment of a
998-27 permit, the applicant shall submit to the railroad commission a
999-1 nonrefundable fee of $100. Fees collected under this section shall
999-2 be deposited in the oil-field cleanup fund.
999-3 Sec. 119.016 <29.018>. Suspension; Refusal to Renew. The
999-4 railroad commission may suspend or refuse to renew a permit for a
999-5 period not to exceed one year if the permittee:
999-6 (1) violates the provisions of this chapter;
999-7 (2) violates reasonable rules promulgated under
999-8 Section 119.020 <29.031> of this code; or
999-9 (3) does not maintain his operation at the standards
999-10 that entitled him to a permit under Section 119.013 <29.013> of
999-11 this code.
999-12 Sec. 119.017 <29.019>. Appeal. Any person whose permit
999-13 application is refused, whose permit is suspended, or whose
999-14 application for permit renewal is refused by the railroad
999-15 commission may file a petition in an action to set aside the
999-16 railroad commission's act within the 30-day period immediately
999-17 following the day he receives notice of the railroad commission's
999-18 action.
999-19 Sec. 119.018 <29.020>. Suit to Compel Railroad Commission to
999-20 Act. If the railroad commission does not act within a reasonable
999-21 time after a person applies for a permit or for renewal of a
999-22 permit, the applicant may notify the railroad commission of his
999-23 intention to file suit. After 10 days have elapsed since the day
999-24 the notice was given, the applicant may file a petition in an
999-25 action to compel the railroad commission to show cause why it
999-26 should not be directed by the court to take immediate action.
999-27 Sec. 119.019 <29.021>. Venue. The venue in actions under
1000-1 Sections 119.017 <29.019> and 119.018 <29.020> of this code is
1000-2 fixed exclusively in the district courts of Travis County.
1000-3 Sec. 119.020 <29.031>. Rulemaking Power. The railroad
1000-4 commission shall adopt rules to effectuate the provisions of this
1000-5 chapter.
1000-6 Sec. 119.021 <29.032>. Copies of Rules. The railroad
1000-7 commission shall print the rules and provide copies to persons who
1000-8 apply for them.
1000-9 Sec. 119.022 <29.033>. Effective Date of Rules. No rule or
1000-10 amendment to a rule is effective until after the 30-day period
1000-11 immediately following the day on which a copy of the rule is filed
1000-12 with the secretary of state.
1000-13 (Sections 119.023-119.033 reserved for expansion)
1000-14 SUBCHAPTER C. COMMISSION AUTHORITY
1000-15 Sec. 119.034 <29.034>. Access to Property. Members and
1000-16 employees of the railroad commission, on proper identification, may
1000-17 enter public or private property to inspect and investigate
1000-18 conditions relating to the hauling of oil and gas waste, to monitor
1000-19 compliance with a rule, permit, or other order of the railroad
1000-20 commission, or to examine and copy, during reasonable working
1000-21 hours, those records or memoranda of the business being
1000-22 investigated. Members or employees acting under the authority of
1000-23 this section who enter an establishment on public or private
1000-24 property shall observe the establishment's posted safety, internal
1000-25 security, and fire protection rules.
1000-26 (Sections 119.035-119.040 reserved for expansion)
1000-27 SUBCHAPTER D. OFFENSES; PENALTIES
1001-1 Sec. 119.041 <29.041>. Hauling Without Permit. No hauler
1001-2 may haul or dispose of oil and gas waste off the lease, unit, or
1001-3 other oil or gas property where it is generated unless the hauler
1001-4 has a permit issued under this chapter.
1001-5 Sec. 119.042 <29.042>. Exceptions. (a) A person may haul
1001-6 oil and gas waste for use in connection with drilling or servicing
1001-7 an oil or gas well without obtaining a hauler's permit under this
1001-8 chapter.
1001-9 (b) The commission by rule may except from the permitting
1001-10 requirements of this chapter specific categories of oil and gas
1001-11 waste other than salt water.
1001-12 Sec. 119.043 <29.043>. Using Haulers Without Permit. No
1001-13 person may knowingly utilize the services of a hauler to haul or
1001-14 dispose of oil and gas waste off the lease, unit, or other oil or
1001-15 gas property where it is generated if the hauler does not have a
1001-16 permit as required under this chapter.
1001-17 Sec. 119.044 <29.044>. Disposing of Oil and Gas Waste.
1001-18 (a) No hauler may dispose of oil and gas waste on public roads or
1001-19 on the surface of public land or private property in this state in
1001-20 other than a railroad commission-approved disposal facility without
1001-21 written authority from the railroad commission.
1001-22 (b) No hauler may dispose of oil and gas waste on property
1001-23 of another in other than a railroad commission-approved disposal
1001-24 facility without the written authority of the landowner.
1001-25 Sec. 119.045 <29.045>. Use of Unmarked Vehicles. No person
1001-26 who is required to have a permit under this chapter may haul oil
1001-27 and gas waste in a vehicle that does not bear the owner's name and
1002-1 the hauler's permit number. This information shall appear on both
1002-2 sides and the rear of the vehicle in characters not less than three
1002-3 inches high.
1002-4 Sec. 119.046 <29.046>. Penalty. A person who violates any
1002-5 provision of this chapter is guilty of a misdemeanor and upon
1002-6 conviction is punishable by a fine of not less than $100 nor more
1002-7 than $1,000 or by confinement in the county jail for not more than
1002-8 10 days or by both.
1002-9 Sec. 119.047 <29.047>. Administrative Penalty. (a) If a
1002-10 person violates the provisions of this chapter or a rule, order,
1002-11 license, permit, or certificate issued under this chapter, the
1002-12 person may be assessed a civil penalty by the railroad commission.
1002-13 (b) The penalty may not exceed $10,000 a day for each
1002-14 violation. Each day a violation continues may be considered a
1002-15 separate violation for purposes of penalty assessments.
1002-16 (c) In determining the amount of the penalty, the railroad
1002-17 commission shall consider the permittee's history of previous
1002-18 violations of this chapter, the seriousness of the violation, any
1002-19 hazard to the health or safety of the public, and the demonstrated
1002-20 good faith of the permittee or person charged.
1002-21 Sec. 119.048 <29.048>. Penalty Assessment Procedure. (a) A
1002-22 civil penalty may be assessed only after the permittee or person
1002-23 charged with a violation described under Section 119.047 <29.047>
1002-24 of this code has been given an opportunity for a public hearing.
1002-25 (b) If a public hearing has been held, the railroad
1002-26 commission shall make findings of fact, and it shall issue a
1002-27 written decision as to the occurrence of the violation and the
1003-1 amount of the penalty that is warranted, incorporating, when
1003-2 appropriate, an order requiring that the penalty be paid.
1003-3 (c) If appropriate, the railroad commission shall
1003-4 consolidate the hearings with other proceedings under this chapter.
1003-5 (d) If the permittee or person charged with the violation
1003-6 fails to avail himself of the opportunity for a public hearing, a
1003-7 civil penalty may be assessed by the railroad commission after it
1003-8 has determined that a violation did occur and the amount of the
1003-9 penalty that is warranted.
1003-10 (e) The railroad commission shall then issue an order
1003-11 requiring that the penalty be paid.
1003-12 Sec. 119.049 <29.049>. Payment of Penalty; Refund. (a) On
1003-13 the issuance of an order finding that a violation has occurred, the
1003-14 railroad commission shall inform the permittee and any other person
1003-15 charged within 30 days of the amount of the penalty.
1003-16 (b) Within the 30-day period immediately following the day
1003-17 on which the decision or order is final as provided in Section
1003-18 16(c), Administrative Procedure and Texas Register Act (Article
1003-19 6252-13a, Vernon's Texas Civil Statutes), the person charged with
1003-20 the penalty shall:
1003-21 (1) pay the penalty in full; or
1003-22 (2) if the person seeks judicial review of either the
1003-23 amount of the penalty or the fact of the violation, or both:
1003-24 (A) forward the amount to the railroad
1003-25 commission for placement in an escrow account; or
1003-26 (B) in lieu of payment into escrow, post a
1003-27 supersedeas bond with the railroad commission under the following
1004-1 conditions. If the decision or order being appealed is the first
1004-2 final railroad commission decision or order assessing any
1004-3 administrative penalty against the person, the railroad commission
1004-4 shall accept a supersedeas bond. In the case of appeal of any
1004-5 subsequent decision or order assessing any administrative penalty
1004-6 against the person, regardless of the finality of judicial review
1004-7 of any previous decision or order, the railroad commission may
1004-8 accept a supersedeas bond. Each supersedeas bond shall be for the
1004-9 amount of the penalty and in a form approved by the railroad
1004-10 commission and shall stay the collection of the penalty until all
1004-11 judicial review of the decision or order is final.
1004-12 (c) If through judicial review of the decision or order it
1004-13 is determined that no violation occurred or that the amount of the
1004-14 penalty should be reduced or not assessed, the railroad commission
1004-15 shall, within the 30-day period immediately following that
1004-16 determination, if the penalty has been paid to the railroad
1004-17 commission, remit the appropriate amount to the person, with
1004-18 accrued interest, or where a supersedeas bond has been posted, the
1004-19 railroad commission shall execute a release of such bond.
1004-20 (d) Failure to forward the money to the railroad commission
1004-21 within the time provided by Subsection (b) of this section results
1004-22 in a waiver of all legal rights to contest the violation or the
1004-23 amount of the penalty.
1004-24 (e) Judicial review of the order or decision of the railroad
1004-25 commission assessing the penalty shall be under the substantial
1004-26 evidence rule and shall be instituted by filing a petition with the
1004-27 district court of Travis County, Texas, and not elsewhere, as
1005-1 provided for in Section 19, Administrative Procedure and Texas
1005-2 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
1005-3 Sec. 119.050 <29.050>. Recovery of Penalty. Civil penalties
1005-4 owed under Sections 119.047-119.049 <29.047-29.049> of this code
1005-5 may be recovered in a civil action brought by the attorney general
1005-6 at the request of the railroad commission.
1005-7 SUBCHAPTER E. CIVIL ENFORCEMENT
1005-8 Sec. 119.051 <29.051>. Civil Penalty. (a) A person who
1005-9 violates this chapter, a rule or order of the railroad commission
1005-10 adopted under this chapter, or a term, condition, or provision of a
1005-11 permit issued under this chapter, is subject to a civil penalty of
1005-12 not to exceed $10,000 for each offense. Each day a violation is
1005-13 committed is a separate offense.
1005-14 (b) An action to recover the penalty under Subsection (a) of
1005-15 this section may be brought by the railroad commission in any court
1005-16 of competent jurisdiction in the county in which the offending
1005-17 activity occurred, in which the defendant resides, or in Travis
1005-18 County.
1005-19 Sec. 119.052 <29.052>. Injunction. The railroad commission
1005-20 may enforce this chapter, a valid rule or order made under this
1005-21 chapter, or a term or condition of a permit issued by the railroad
1005-22 commission under this chapter by injunction or other appropriate
1005-23 remedy. The action may be brought in a court of competent
1005-24 jurisdiction in the county in which the offending activity has
1005-25 occurred, in which the defendant resides, or in Travis County.
1005-26 Sec. 119.053 <29.053>. Procedure. (a) At the request of
1005-27 the railroad commission, the attorney general shall institute and
1006-1 conduct a suit in the name of the state for injunctive relief or
1006-2 other appropriate remedy or to recover a civil penalty as provided
1006-3 by Section 119.051 <29.051> or 119.052 <29.052> of this code or for
1006-4 both injunctive relief or other appropriate remedy and recovery of
1006-5 a civil penalty.
1006-6 (b) A party to a suit may appeal from a final judgment as in
1006-7 other civil cases.
1006-8 SECTION 7. REPEALER. (a) The following provisions of the
1006-9 Water Code are repealed:
1006-10 (1) Chapter 5, except Section 5.015;
1006-11 (2) Chapter 11;
1006-12 (3) Chapter 12, except Sections 12.081, 12.082,
1006-13 12.083, 12.113, and 12.141;
1006-14 (4) Chapter 13, except Sections 13.015 and 13.016;
1006-15 (5) Chapter 26, except Subchapter J;
1006-16 (6) Chapter 27, except Subchapter C; and
1006-17 (7) Chapter 28.
1006-18 (b) The following provisions of the Health and Safety Code
1006-19 are repealed:
1006-20 (1) Section 341.039;
1006-21 (2) Chapter 361;
1006-22 (3) Chapter 362;
1006-23 (4) Chapter 363;
1006-24 (5) Chapter 364;
1006-25 (6) Chapter 365, except Section 365.005;
1006-26 (7) Chapter 366;
1006-27 (8) Chapter 367;
1007-1 (9) Chapter 368;
1007-2 (10) Chapter 369;
1007-3 (11) Chapter 370;
1007-4 (12) Chapter 371;
1007-5 (13) Chapter 372;
1007-6 (14) Chapter 382; and
1007-7 (15) Chapter 383.
1007-8 (c) Chapter 916, Acts of the 62nd Legislature, Regular
1007-9 Session, 1971 (Article 4477-1a, Vernon's Texas Civil Statutes), is
1007-10 repealed.
1007-11 (d) Chapter 376, Acts of the 68th Legislature, Regular
1007-12 Session, 1983 (Article 4477-7b, Vernon's Texas Civil Statutes), is
1007-13 repealed.
1007-14 (e) Chapter 670, Acts of the 72nd Legislature, Regular
1007-15 Session, 1991 (Article 4477-7j, Vernon's Texas Civil Statutes), is
1007-16 repealed.
1007-17 (f) Chapter 734, Acts of the 72nd Legislature, Regular
1007-18 Session, 1991 (Article 4477-7k, Vernon's Texas Civil Statutes), is
1007-19 repealed.
1007-20 SECTION 8. LEGISLATIVE INTENT: FUNDS MANAGEMENT. This Act
1007-21 does not affect the application of Section 403.094 or 403.095,
1007-22 Government Code, to funds reenacted by or dedicated in this Act.
1007-23 SECTION 9. EFFECTIVE DATE. This Act takes effect September
1007-24 1, 1993.
1007-25 SECTION 10. EMERGENCY. The importance of this legislation
1007-26 and the crowded condition of the calendars in both houses create an
1007-27 emergency and an imperative public necessity that the
1008-1 constitutional rule requiring bills to be read on three several
1008-2 days in each house be suspended, and this rule is hereby suspended.