By: Cuellar, Henry H.B. No. 2079
73R6090 MI-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the enforcement of certain public health and safety
1-3 laws.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 341.012(d), Health and Safety Code, is
1-6 amended to read as follows:
1-7 (d) If the public health nuisance is not abated within the
1-8 time specified by the notice, the local health authority shall
1-9 notify the prosecuting attorney who received the copy of the
1-10 original notice. The prosecuting attorney shall immediately
1-11 institute proceedings to abate the public health nuisance, or the
1-12 prosecuting attorney or the local health authority may request the
1-13 attorney general to institute the proceedings.
1-14 SECTION 2. Section 341.092(d), Health and Safety Code, is
1-15 amended to read as follows:
1-16 (d) If it appears that a person has violated, is violating,
1-17 or is threatening to violate this chapter or a rule adopted under
1-18 this chapter, the department, a county, <or> a municipality, or the
1-19 attorney general on request of a county or municipality may
1-20 institute a civil suit in a district court for:
1-21 (1) injunctive relief to restrain the person from
1-22 continuing the violation or threat of violation;
1-23 (2) the assessment and recovery of a civil penalty; or
1-24 (3) both injunctive relief and a civil penalty.
2-1 SECTION 3. Section 361.224(a), Health and Safety Code, is
2-2 amended to read as follows:
2-3 (a) If it appears that a person has violated, is violating,
2-4 or is threatening to violate any provision of this chapter or of
2-5 any rule, permit, or other order of the department or commission,
2-6 the attorney general may bring suit, or the department or the
2-7 commission may request a civil suit to be brought in a district
2-8 court for:
2-9 (1) injunctive relief to restrain the person from
2-10 continuing the violation or threat of violation;
2-11 (2) the assessment and recovery of a civil penalty as
2-12 provided by this subchapter, as the court may consider proper; or
2-13 (3) both the injunctive relief and civil penalty.
2-14 SECTION 4. Section 361.225, Health and Safety Code, is
2-15 amended to read as follows:
2-16 Sec. 361.225. SUIT BY COUNTY, <OR> POLITICAL SUBDIVISION, OR
2-17 ATTORNEY GENERAL. If it appears that a violation or threat of
2-18 violation of any provision of this chapter or any rule, permit,
2-19 license, or other order of the department, the commission, a
2-20 county, or a political subdivision exercising the authority granted
2-21 by Section 361.165 has occurred or is occurring in the jurisdiction
2-22 of that county or political subdivision, the county or political
2-23 subdivision, in the same manner as the commission and the
2-24 department, may institute a civil suit in a district court by its
2-25 own attorney, or the attorney general may institute a suit, for the
2-26 injunctive relief or civil penalty, or both, as authorized by
2-27 Section 361.224, against the person who committed, is committing,
3-1 or is threatening to commit the violation.
3-2 SECTION 5. Section 361.226, Health and Safety Code, is
3-3 amended to read as follows:
3-4 Sec. 361.226. SUIT BY MUNICIPALITY OR ATTORNEY GENERAL. If
3-5 it appears that a violation or threat of violation of any provision
3-6 of this chapter or any rule, permit, license, or other order of the
3-7 department, the commission, a county, or a political subdivision
3-8 exercising the authority granted by Section 361.165 has occurred or
3-9 is occurring in a municipality or its extraterritorial
3-10 jurisdiction, or is causing or will cause injury to or an adverse
3-11 effect on the health, welfare, or physical property of the
3-12 municipality or its inhabitants, the municipality, in the same
3-13 manner as the department and the commission, may institute a civil
3-14 suit in a district court by its own attorney, or the attorney
3-15 general may institute a suit, for the injunctive relief or civil
3-16 penalty, or both, as authorized by Section 361.224, against the
3-17 person who committed, is committing, or is threatening to commit
3-18 the violation.
3-19 SECTION 6. Section 366.093, Health and Safety Code, is
3-20 amended to read as follows:
3-21 Sec. 366.093. LEGAL PROCEEDINGS. (a) A prosecuting
3-22 attorney who receives a report from the department or an authorized
3-23 agent of a violation of this chapter or a rule adopted under this
3-24 chapter shall:
3-25 (1) begin appropriate proceedings in the proper court
3-26 without unnecessary delay; and
3-27 (2) prosecute the cause as required by law.
4-1 (b) The attorney general, on request of the prosecuting
4-2 attorney, may assist in the prosecution.
4-3 SECTION 7. Section 382.082(b), Health and Safety Code, is
4-4 amended to read as follows:
4-5 (b) The attorney general may institute a suit, or the board
4-6 or the executive director may cause a suit to be instituted, in a
4-7 district court for:
4-8 (1) injunctive relief to restrain the person from
4-9 continuing the violation or threat of violation; or
4-10 (2) the assessment and recovery of a civil penalty as
4-11 provided by Section 382.085(c); or
4-12 (3) both injunctive relief and civil penalty.
4-13 SECTION 8. Section 382.114, Health and Safety Code, is
4-14 amended to read as follows:
4-15 Sec. 382.114. ENFORCEMENT BY LOCAL GOVERNMENTS OR ATTORNEY
4-16 GENERAL. (a) If it appears that a violation or threat of
4-17 violation of Section 382.085 or of a board rule, variance, or order
4-18 has occurred or is occurring in a local government's jurisdiction,
4-19 excluding its extraterritorial jurisdiction, the local government,
4-20 in the same manner as the board under Sections 382.082-382.084, may
4-21 bring suit through the local government's attorney, or the attorney
4-22 general may bring suit, for injunctive relief, civil penalties, or
4-23 both, against the person who committed, is committing, or is
4-24 threatening to commit the violation.
4-25 (b) The court shall grant, without a bond or other
4-26 undertaking by the local government, any prohibitory or mandatory
4-27 injunctions the facts may warrant, including temporary restraining
5-1 orders after notice and hearing, temporary injunctions, and
5-2 permanent injunctions.
5-3 (c) A local government may not exercise the enforcement
5-4 power provided under this section unless its governing body adopts
5-5 a resolution authorizing the exercise of the power.
5-6 (d) In a suit brought by a local government under this
5-7 section, the board is a necessary and indispensable party.
5-8 SECTION 9. Section 26.123, Water Code (effective until
5-9 delegation of NPDES permit authority), is amended to read as
5-10 follows:
5-11 Sec. 26.123. ENFORCEMENT BY COMMISSION OR ATTORNEY GENERAL.
5-12 (a) The commission shall diligently and uniformly enforce each of
5-13 its rules, permits, and orders.
5-14 (b) Whenever it appears that a person has violated or is
5-15 violating or is threatening to violate any provision of this
5-16 chapter or any rule, permit, or order of the commission, then the
5-17 attorney general may institute a civil suit or the executive
5-18 director may have a civil suit instituted in a district court for
5-19 injunctive relief to restrain the person from continuing the
5-20 violation or threat of violation, or for the assessment and
5-21 recovery of a civil penalty of not less than $50 nor more than
5-22 $10,000 for each act of violation and for each day of violation, or
5-23 for both injunctive relief and civil penalty.
5-24 (c) On application for injunctive relief and a finding that
5-25 a person is violating or threatening to violate any provision of
5-26 this chapter or any rule, permit, or order of the commission, the
5-27 district court shall grant the injunctive relief the facts may
6-1 warrant.
6-2 (d) At the request of the executive director, the attorney
6-3 general shall institute and conduct a suit in the name of the State
6-4 of Texas for injunctive relief or to recover the civil penalty or
6-5 for both injunctive relief and penalty as authorized in Subsection
6-6 (b) of this section.
6-7 (e) The commission, through the executive director, shall
6-8 refer matters to the attorney general's office for enforcement
6-9 through civil suit if a person:
6-10 (1) is alleged to be making or to have made an
6-11 unauthorized discharge of waste into or adjacent to the water in
6-12 the state at a new point of discharge without a permit in violation
6-13 of state law; or
6-14 (2) has been the subject of two or more finally issued
6-15 administrative penalty orders under this chapter for violations
6-16 occurring at the same wastewater management system or other point
6-17 of discharge within two years before the first alleged violation
6-18 currently under investigation at that plant site.
6-19 (f) Violations that were reported by the violator or
6-20 violations consisting of errors in recordkeeping or in
6-21 self-reporting submissions may not be considered in determining
6-22 whether Subsection (e) applies.
6-23 (g) Even though the criteria of Subsection (e) are met, the
6-24 attorney general's office and the executive director may agree to
6-25 resolve any of the alleged violations, before or after referral, by
6-26 administrative order issued by the appropriate regulatory agency
6-27 after approval by the attorney general.
7-1 (h) The commission shall consult with the attorney general's
7-2 office for assistance in determining whether referral to the
7-3 attorney general for enforcement is mandatory under this section or
7-4 whether referral is appropriate for the disposition of enforcement
7-5 matters under this chapter. If referral is determined to be
7-6 mandatory or appropriate, the commission shall consult with the
7-7 attorney general's office for assistance in determining whether
7-8 criminal or civil enforcement action should be taken. The
7-9 commission shall use all available enforcement options.
7-10 SECTION 10. Section 26.123, Water Code (effective upon
7-11 delegation of NPDES permit authority), is amended to read as
7-12 follows:
7-13 Sec. 26.123. ENFORCEMENT BY COMMISSION OR ATTORNEY GENERAL.
7-14 (a) The commission shall diligently and uniformly enforce each of
7-15 its rules, permits, or orders.
7-16 (b) Whenever it appears that a person has violated or is
7-17 violating or is threatening to violate any provision of this
7-18 chapter, other than Subsection (d) or Subsection (e) of Section
7-19 26.121, or has violated or is violating, or is threatening to
7-20 violate, any rule, permit, or order of the commission, then the
7-21 attorney general may institute a civil suit or the executive
7-22 director may have a civil suit instituted in a district court for
7-23 injunctive relief to restrain the person from continuing the
7-24 violation or threat of violation, or for the assessment and
7-25 recovery of a civil penalty of not less than $50 nor more than
7-26 $10,000 for each act of violation and for each day of violation, or
7-27 for both injunctive relief and civil penalty.
8-1 (c) Whenever it appears that a person has violated or is
8-2 violating, or is threatening to violate, Subsection (d) or
8-3 Subsection (e) of Section 26.121 of this chapter, then the
8-4 attorney general may institute a civil suit or the executive
8-5 director may have a civil suit instituted in a district court for
8-6 injunctive relief to restrain the person from continuing the
8-7 violation or threat of violation, or for the assessment and
8-8 recovery of a civil penalty of not more than $10,000 for each act
8-9 of violation and for each day of violation, or for both injunctive
8-10 relief and civil penalty; provided, however, that in suits
8-11 instituted pursuant to this subsection, the civil penalty, if any,
8-12 assessed against the person who committed or who is committing the
8-13 violation shall be no more than $10,000 for each act of violation
8-14 and for each day of violation where the violation is of a
8-15 limitation or condition included in a permit issued by the
8-16 commission prior to delegation by the Administrator of the United
8-17 States Environmental Protection Agency of NPDES permit authority
8-18 under Section 402(b) of the Federal Water Pollution Control Act, or
8-19 of any limitation or condition included in an identified state
8-20 supplement to an NPDES permit issued after NPDES permit delegation
8-21 by the Administrator of the United States Environmental Protection
8-22 Agency.
8-23 (d) On application for injunctive relief and a finding that
8-24 a person is violating or threatening to violate any provision of
8-25 this chapter or any rule, permit, or order of the commission, the
8-26 district court shall grant the injunctive relief the facts may
8-27 warrant.
9-1 (e) At the request of the executive director, the attorney
9-2 general shall institute and conduct a suit in the name of the State
9-3 of Texas for injunctive relief or to recover the civil penalty or
9-4 for both injunctive relief and penalty as authorized in Subsection
9-5 (b) or (c) of this section.
9-6 (f) The commission, through the executive director, shall
9-7 refer matters to the attorney general's office for enforcement
9-8 through civil suit if a person:
9-9 (1) is alleged to be making or to have made an
9-10 unauthorized discharge of waste into or adjacent to the waters in
9-11 the state at a new point of discharge without a permit in violation
9-12 of state law; or
9-13 (2) has been the subject of two or more finally issued
9-14 administrative penalty orders under this chapter for violations
9-15 occurring at the same wastewater management system or other point
9-16 of discharge within two years before the first alleged violation
9-17 currently under investigation at that plant site.
9-18 (g) Violations that were reported by the violator or
9-19 violations consisting of errors in recordkeeping or in
9-20 self-reporting submissions may not be considered in determining
9-21 whether Subsection (f) applies.
9-22 (h) Even though the criteria of Subsection (f) are met, the
9-23 attorney general's office and the executive director may agree to
9-24 resolve any of the alleged violations, before or after referral, by
9-25 administrative order issued by the appropriate regulatory agency
9-26 after approval by the attorney general.
9-27 (i) The commission shall consult with the attorney general's
10-1 office for assistance in determining whether referral to the
10-2 attorney general for enforcement is mandatory under this section or
10-3 whether referral is appropriate for the disposition of enforcement
10-4 matters under this chapter. If referral is determined to be
10-5 mandatory or appropriate, the commission shall consult with the
10-6 attorney general's office for assistance in determining whether
10-7 criminal or civil enforcement action should be taken. The
10-8 commission shall use all available enforcement options.
10-9 SECTION 11. This Act does not affect the transfer of powers,
10-10 duties, rights, and obligations made by Chapter 3, Acts of the 72nd
10-11 Legislature, 1st Called Session, 1991.
10-12 SECTION 12. This Act takes effect September 1, 1993.
10-13 SECTION 13. The importance of this legislation and the
10-14 crowded condition of the calendars in both houses create an
10-15 emergency and an imperative public necessity that the
10-16 constitutional rule requiring bills to be read on three several
10-17 days in each house be suspended, and this rule is hereby suspended.