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.