By Chisum H.B. No. 2667
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the enforcement of air and water quality provisions.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 26.123, Water Code (effective until
1-5 delegation of NPDES permit authority), is amended by adding
1-6 Subsection (i) to read as follows:
1-7 (i) At the request of the governing body of a local
1-8 government, the attorney general, after evaluation, may institute
1-9 and conduct a suit in the name of the local government for
1-10 injunctive relief or to recover the civil penalty or for both
1-11 injunctive relief and penalty as authorized in Subsection (b) of
1-12 this section. In a suit elected to be brought by the attorney
1-13 general in the name of a local government under this section, the
1-14 commission is a necessary and indispensable party.
1-15 SECTION 2. Section 26.123, Water Code (effective on
1-16 delegation of NPDES permit authority), is amended by adding
1-17 Subsection (j) to read as follows:
1-18 (j) At the request of the governing body of a local
1-19 government, the attorney general, after evaluation, may institute
1-20 and conduct a suit in the name of the local government for
1-21 injunctive relief or to recover the civil penalty or for both
1-22 injunctive relief and penalty as authorized in Subsection (b) or
1-23 (c) of this section. In a suit elected to be brought by the
2-1 attorney general in the name of a local government under this
2-2 section, the commission is a necessary and indispensable party.
2-3 SECTION 3. Section 26.124(a), Water Code, is amended to read
2-4 as follows:
2-5 (a) Whenever it appears that a violation or threat of
2-6 violation of any provision of Section 26.121 of this code or any
2-7 rule, permit, or order of the commission has occurred or is
2-8 occurring within the jurisdiction of a local government, exclusive
2-9 of its extraterritorial jurisdiction, the local government<, in the
2-10 same manner as the commission,> may request the attorney general to
2-11 institute <have> a suit <instituted> in a district court <through
2-12 its own attorney> for the injunctive relief or civil penalties or
2-13 both, as authorized in <Subsection (a) of> Section 26.123 of this
2-14 code, against the person who committed or is committing or
2-15 threatening to commit the violation. This power may not be
2-16 requested <exercised> by a local government unless its governing
2-17 body adopts a resolution requesting <authorizing> the exercise of
2-18 the power. <In a suit brought by a local government under this
2-19 section, the commission is a necessary and indispensable party.>
2-20 SECTION 4. Section 26.126(b), Water Code, is amended to read
2-21 as follows:
2-22 (b) All civil penalties recovered in suits elected to be
2-23 brought by the attorney general at the request of <instituted by> a
2-24 local government or governments under this chapter shall be equally
2-25 divided between the State of Texas and the local government or
3-1 governments first requesting <instituting> the suit, with 50
3-2 percent of the recovery to be paid to the General Revenue Fund of
3-3 the State of Texas and the other 50 percent paid equally to the
3-4 local government or governments first requesting <instituting> the
3-5 suit.
3-6 SECTION 5. Section 26.174, Water Code, is amended to read as
3-7 follows:
3-8 Sec. 26.174. ENFORCEMENT ACTION. A local government may
3-9 request <bring> an enforcement action under this chapter in the
3-10 manner provided in Section 26.124(a) <Subchapter D> of this code
3-11 <chapter for local governments>.
3-12 SECTION 6. Sections 26.175(a) and (b), Water Code, are
3-13 amended to read as follows:
3-14 (a) A local government may execute cooperative agreements
3-15 with the commission or other local governments:
3-16 (1) to provide for the performance of water quality
3-17 management and<,> inspection<, and enforcement> functions and to
3-18 provide technical aid and educational services to any party to the
3-19 agreement; and
3-20 (2) for the transfer of money or property from any
3-21 party to the agreement to another party to the agreement for the
3-22 purpose of water quality management, inspection, <enforcement,>
3-23 technical aid and education, and the construction, ownership,
3-24 purchase, maintenance, and operation of disposal systems.
3-25 (b) When in the opinion of the executive director it would
4-1 facilitate and enhance the performance by a local government of its
4-2 water quality management and<,> inspection<, and enforcement>
4-3 functions pursuant to a cooperative agreement between the local
4-4 government and the commission as authorized in Subsection (a) of
4-5 this section, the executive director may assign and delegate to the
4-6 local government during the period of the agreement such of the
4-7 pertinent powers and functions vested in the commission under this
4-8 chapter as in the judgment of the executive director may be
4-9 necessary or helpful to the local government in performing those
4-10 management and<,> inspection<, and enforcement> functions.
4-11 SECTION 7. Section 26.177(b), Water Code, is amended to read
4-12 as follows:
4-13 (b) The water pollution control and abatement program of a
4-14 city shall encompass the entire city and may include areas within
4-15 its extraterritorial jurisdiction which in the judgment of the city
4-16 should be included to enable the city to achieve the objectives of
4-17 the city for the area within its territorial jurisdiction. The
4-18 city shall include in the program the services and functions which,
4-19 in the judgment of the city or as may be reasonably required by the
4-20 commission, will provide effective water pollution control and
4-21 abatement for the city, including the following services and
4-22 functions:
4-23 (1) the development and maintenance of an inventory of
4-24 all significant waste discharges into or adjacent to the water
4-25 within the city and, where the city so elects, within the
5-1 extraterritorial jurisdiction of the city, without regard to
5-2 whether or not the discharges are authorized by the commission;
5-3 (2) the regular monitoring of all significant waste
5-4 discharges included in the inventory prepared pursuant to
5-5 Subdivision (1) of this subsection;
5-6 (3) the collecting of samples and the conducting of
5-7 periodic inspections and tests of the waste discharges being
5-8 monitored to determine whether the discharges are being conducted
5-9 in compliance with this chapter and any applicable permits, orders,
5-10 or rules of the commission, and whether they should be covered by a
5-11 permit from the commission;
5-12 (4) in cooperation with the commission, a procedure
5-13 for obtaining compliance by the waste dischargers being monitored,
5-14 including where necessary a procedure for requesting <the use of>
5-15 legal enforcement proceedings;
5-16 (5) the development and execution of reasonable and
5-17 realistic plans for controlling and abating pollution or potential
5-18 pollution resulting from generalized discharges of waste which are
5-19 not traceable to a specific source, such as storm sewer discharges
5-20 and urban runoff from rainwater; and
5-21 (6) any additional services, functions, or other
5-22 requirements as may be prescribed by commission rule.
5-23 SECTION 8. Section 382.082, Health and Safety Code, is
5-24 amended by adding Subsection (k) to read as follows:
5-25 (k) At the request of the governing body of a local
6-1 government, the attorney general, after evaluation, may institute
6-2 and conduct a suit in the name of the local government for
6-3 injunctive relief, recovery of the civil penalty, or both. In a
6-4 suit elected to be brought by the attorney general in the name of a
6-5 local government under this section, the board is a necessary and
6-6 indispensable party.
6-7 SECTION 9. Section 382.085(d), Health and Safety Code, is
6-8 amended to read as follows:
6-9 (d) The state is entitled to half of a civil penalty
6-10 recovered in a suit elected to be brought under this chapter by the
6-11 attorney general at the request of one or more local governments.
6-12 The remainder shall be equally divided among the local governments
6-13 that first requested <brought> the suit.
6-14 SECTION 10. Section 382.088(a), Health and Safety Code, is
6-15 amended to read as follows:
6-16 (a) A person may be assessed a civil penalty as provided by
6-17 this section if the person violates this chapter or a rule or order
6-18 adopted or permit issued under this chapter and the attorney
6-19 general <no local government> has not instituted a lawsuit in the
6-20 name of one or more local governments and is not diligently
6-21 prosecuting that lawsuit against the same person for the same
6-22 violation under Section 382.114.
6-23 SECTION 11. Section 382.114, Health and Safety Code, is
6-24 amended to read as follows:
6-25 Sec. 382.114. Enforcement by Local Governments. (a) If it
7-1 appears that a violation or threat of violation of Section 382.085
7-2 or of a board rule, variance, or order has occurred or is occurring
7-3 in a local government's jurisdiction, excluding its
7-4 extraterritorial jurisdiction, the local government, in the same
7-5 manner as the board under Sections 382.082-382.084, may request the
7-6 attorney general to bring suit <through the local government's
7-7 attorney> for injunctive relief, civil penalties, or both, against
7-8 the person who committed, is committing, or is threatening to
7-9 commit the violation.
7-10 (b) In a suit elected to be brought by the attorney general
7-11 under Section 382.082(k), the <The> court shall grant, without a
7-12 bond or other undertaking by the local government, any prohibitory
7-13 or mandatory injunctions the facts may warrant, including temporary
7-14 restraining orders after notice and hearing, temporary injunctions,
7-15 and permanent injunctions.
7-16 (c) A local government may not request <exercise> the
7-17 enforcement power provided under this section unless its governing
7-18 body adopts a resolution requesting <authorizing> the exercise of
7-19 the power.
7-20 <(d) In a suit brought by a local government under this
7-21 section, the board is a necessary and indispensable party.>
7-22 SECTION 12. Section 382.115, Health and Safety Code, is
7-23 amended to read as follows:
7-24 Sec. 382.115. Cooperative Agreements. A local government
7-25 may execute cooperative agreements with the board or other local
8-1 governments:
8-2 (1) to provide for the performance of air quality
8-3 management and<,> inspection<, and enforcement> functions and to
8-4 provide technical aid and educational services to a party to the
8-5 agreement; and
8-6 (2) for the transfer of money or property from a party
8-7 to the agreement to another party to the agreement for the purpose
8-8 of air quality management, inspection, <enforcement,> technical
8-9 aid, and education.
8-10 SECTION 13. The importance of this legislation and the
8-11 crowded condition of the calendars in both houses create an
8-12 emergency and an imperative public necessity that the
8-13 constitutional rule requiring bills to be read on three several
8-14 days in each house be suspended, and this rule is hereby suspended,
8-15 and that this Act take effect and be in force from and after its
8-16 passage, and it is so enacted.