By: Parker S.B. No. 1040
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the Texas Commission on Environmental Quality and the
1-2 maintenance of air quality in the state; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subdivisions (2) and (3), Section 5.001, Water
1-5 Code, are amended to read as follows:
1-6 (2) "Commission" means the Texas <Natural Resource
1-7 Conservation> Commission on Environmental Quality.
1-8 (3) "Executive director" means the executive director
1-9 of the Texas <Natural Resource Conservation> Commission on
1-10 Environmental Quality.
1-11 SECTION 2. Section 5.014, Water Code, is amended to read as
1-12 follows:
1-13 Sec. 5.014. SUNSET PROVISION. The Texas <Natural Resource
1-14 Conservation> Commission on Environmental Quality is subject to
1-15 Chapter 325, Government Code (Texas Sunset Act). Unless continued
1-16 in existence as provided by that chapter, the commission is
1-17 abolished and this chapter expires September 1, 2001.
1-18 SECTION 3. Section 5.051, Water Code, is amended to read as
1-19 follows:
1-20 Sec. 5.051. COMMISSION. The Texas <Natural Resource
1-21 Conservation> Commission on Environmental Quality is created as an
1-22 agency of the state.
1-23 SECTION 4. (a) Section 5.222, Water Code, as added by
2-1 Section 1.001, Chapter 795, Acts of the 69th Legislature, Regular
2-2 Session, 1985, and as amended by Section 1.0171, Chapter 3, Acts of
2-3 the 72nd Legislature, 1st Called Session, 1991, to be effective
2-4 September 1, 1993, is repealed.
2-5 (b) Subchapter F, Chapter 5, Water Code, is amended by
2-6 adding Section 5.222 to read as follows:
2-7 Sec. 5.222. DEPUTY DIRECTORS AND PERSONNEL. The executive
2-8 director may employ any deputy directors and personnel that the
2-9 executive director determines appropriate. The deputy directors
2-10 and personnel of the commission are under the direction and
2-11 supervision of the executive director, and their powers and duties
2-12 are those required by the executive director.
2-13 SECTION 5. (a) Subchapters G and H, Chapter 5, Water Code,
2-14 are repealed.
2-15 (b) Chapter 5, Water Code, is amended by adding Subchapters
2-16 G, H, and I to read as follows:
2-17 SUBCHAPTER G. OFFICE OF PUBLIC COUNSEL
2-18 Sec. 5.271. CREATION AND GENERAL RESPONSIBILITIES. (a) The
2-19 office of public counsel is established as an independent division
2-20 of the commission to represent the interests of the public in
2-21 protecting, maintaining, and enhancing a safe, healthful,
2-22 biologically diverse, and productive environment and preserving the
2-23 natural heritage of this state.
2-24 (b) The office of public counsel shall assess the
2-25 environmental impact of rules, orders, permits, and other actions
3-1 adopted, issued, or taken by the commission and shall be an
3-2 advocate in its own name of positions most beneficial to the
3-3 environment as determined by the public counsel.
3-4 Sec. 5.272. CHIEF EXECUTIVE. (a) The governor shall
3-5 appoint the public counsel with the advice and consent of the
3-6 senate for a two-year term expiring January 1 of every odd-numbered
3-7 year. The public counsel is the chief executive of the office of
3-8 public counsel and may be removed in accordance with Article XV,
3-9 Section 9, of the Texas Constitution.
3-10 (b) The public counsel must be a resident of this state who
3-11 is licensed to practice law in this state, has demonstrated a
3-12 strong commitment to safeguard the environment, and possesses the
3-13 knowledge and experience to practice effectively in proceedings
3-14 before the commission, board, and office of hearings.
3-15 Sec. 5.273. ADMINISTRATION. (a) The public counsel shall
3-16 administer and supervise the operation of the office of public
3-17 counsel independently of the commission. The public counsel shall
3-18 prepare and approve all budget recommendations on behalf of the
3-19 office of public counsel that are transmitted to the governor and
3-20 the legislature.
3-21 (b) The public counsel is the custodian of public records of
3-22 the office of public counsel.
3-23 Sec. 5.274. EMPLOYEES AND EXPERTS. (a) The public counsel
3-24 may employ or contract with any attorneys, scientists, economists,
3-25 engineers, consultants, or other employees or experts the public
4-1 counsel considers necessary to carry out this subchapter.
4-2 (b) A person may not, while serving as an employee of the
4-3 office of public counsel and for a period of two years after
4-4 terminating employment, have a direct or indirect financial
4-5 interest in any holder of or applicant for a permit issued by the
4-6 commission or provide legal services directly or indirectly to or
4-7 be employed in any capacity by such an entity, its parent company,
4-8 or its subsidiaries.
4-9 Sec. 5.275. AUTHORITY. (a) The office of public counsel
4-10 may:
4-11 (1) appear or intervene as a matter of right as a
4-12 party or otherwise on behalf of the public as a class in all
4-13 proceedings before the commission, board, and office of hearings;
4-14 (2) intervene as a matter of right or otherwise appear
4-15 in any judicial proceedings involving or arising out of any
4-16 proceeding in which the office of public counsel is authorized to
4-17 appear;
4-18 (3) have the same access as any party other than the
4-19 commission to all records of the commission;
4-20 (4) obtain discovery of any nonprivileged matter that
4-21 is relevant to any proceeding before the commission;
4-22 (5) represent the public with respect to complaints
4-23 concerning matters before the commission; and
4-24 (6) recommend legislation to the legislature that in
4-25 the public counsel's judgment would positively affect the interests
5-1 of the public in the environmental quality of the state.
5-2 (b) Commission personnel shall assist the public counsel in
5-3 investigations and lawsuits and by conducting laboratory tests as
5-4 requested by the public counsel.
5-5 Sec. 5.276. OTHER REPRESENTATION. (a) This subchapter does
5-6 not limit the authority of the commission to represent the public
5-7 interest.
5-8 (b) The appearance of the public counsel in any proceeding
5-9 does not preclude the appearance of other parties on behalf of
5-10 citizens of the state.
5-11 (c) The public counsel may not be compelled to be aligned
5-12 with any other party to a proceeding under the Administrative
5-13 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
5-14 Civil Statutes).
5-15 (Sections 5.277-5.310 reserved for expansion
5-16 SUBCHAPTER H. OFFICE OF HEARINGS
5-17 Sec. 5.311. CREATION AND RESPONSIBILITIES. (a) In this
5-18 chapter, "office of hearings" means the State Office of
5-19 Administrative Hearings. The office of hearings will conduct
5-20 hearings according to the procedures set out in this subchapter.
5-21 (b) The office of hearings may call and hold hearings,
5-22 receive evidence at hearings, administer oaths, issue subpoenas to
5-23 compel the attendance of witnesses and the production of papers and
5-24 documents and other things, and make findings of fact and decisions
5-25 with respect to its jurisdiction under law and under rules, orders,
6-1 permits, licenses, certificates, and other actions adopted, issued,
6-2 or taken by the commission. The office of hearings may receive
6-3 submissions of issues identified for appeal in contested case
6-4 hearings but is not limited to those issues.
6-5 Sec. 5.312. CHIEF EXECUTIVE. (a) The governor shall
6-6 appoint the chief administrative law judge with the advice and
6-7 consent of the senate for a two-year term expiring January 1 of
6-8 every odd-numbered year. The chief administrative law judge is the
6-9 chief executive of the office of hearings and may be removed in
6-10 accordance with Article XV, Section 9, of the Texas Constitution.
6-11 (b) The chief administrative law judge must be a resident of
6-12 this state who has been licensed to practice law in this state for
6-13 at least eight years at the time of the appointment and who has
6-14 demonstrated experience, either as an attorney or as a member of
6-15 the judiciary, or both, in the practice of administrative law or in
6-16 the trial of contested matters.
6-17 Sec. 5.313. PERSONNEL. The chief administrative law judge
6-18 may employ assistant administrative law judges and other personnel
6-19 as the legislature authorizes. Assistant administrative law judges
6-20 employed in the office of hearings must be attorneys licensed to
6-21 practice law in this state. An employee of the office of hearings
6-22 may not be employed by or perform the duties of an employee of
6-23 another division of the commission.
6-24 Sec. 5.314. CHIEF CLERK. The chief administrative law judge
6-25 shall appoint a chief clerk, who shall issue notice of hearings
7-1 before the office of hearings and serve as custodian of records of
7-2 the office of hearings.
7-3 Sec. 5.315. ADMINISTRATION. The chief administrative law
7-4 judge shall administer and supervise the operation of the office of
7-5 hearings independently of the commission. The chief administrative
7-6 law judge shall prepare and approve all budget recommendations on
7-7 behalf of the office of hearings that are transmitted to the
7-8 governor and the legislature.
7-9 Sec. 5.316. DELEGATION OF RESPONSIBILITY. The executive
7-10 director shall delegate to the office of hearings the
7-11 responsibility to hear all contested cases before the commission
7-12 and to hold hearings and receive any public comment that is
7-13 required by law and may delegate the responsibility to hear any
7-14 other matter before the commission.
7-15 Sec. 5.317. ADMINISTRATIVE PROCEDURE. (a) The office of
7-16 hearings shall conduct all administrative hearings in contested
7-17 cases under the Administrative Procedure and Texas Register Act
7-18 (Article 6252-13a, Vernon's Texas Civil Statutes), except as
7-19 provided by this section or as otherwise specifically required by
7-20 law, including Sections 382.0561-382.0563, Health and Safety Code.
7-21 (b) In conducting a hearing under this subchapter, an
7-22 administrative law judge in the office of hearings shall consider
7-23 all applicable commission rules or policies. The commission shall
7-24 publish and make available all commission rules and policies.
7-25 (c) Unless required for the disposition of ex parte matters
8-1 authorized by law:
8-2 (1) an administrative law judge of the office of
8-3 hearings may not communicate directly or indirectly with any
8-4 commission employee, member of the board, party, or any other
8-5 person in connection with any issue of fact or law pertaining to a
8-6 contested case in which the commission, party, or person is
8-7 involved or has an interest; and
8-8 (2) a commission employee, member of the board, party,
8-9 or any other person may not attempt directly or indirectly to
8-10 influence the findings of fact or the application of law or rules
8-11 in a contested case by an administrative law judge of the office of
8-12 hearings except by proper evidence, pleadings, and legal argument
8-13 with notice and opportunity for all parties to participate.
8-14 (d) The prohibitions of Subsection (c) of this section do
8-15 not apply to communications between employees of the office of
8-16 hearings in the proper performance of their duties.
8-17 (e) If the executive director, a commission employee, or an
8-18 administrative law judge receives a communication prohibited by
8-19 Subsection (c) of this section, the executive director, a
8-20 commission employee, or administrative law judge shall terminate
8-21 the improper communication and shall report the communication in
8-22 the record of the contested case.
8-23 (f) After hearing evidence and receiving legal arguments, an
8-24 administrative law judge of the office of hearings shall make
8-25 findings of fact, conclusions of law, and any ultimate findings
9-1 required by statute, all of which shall be separately stated. The
9-2 administrative law judge shall make a proposal for decision and
9-3 shall serve the proposal for decision on all parties, including the
9-4 executive director.
9-5 (g) If a contested case involves an ultimate finding of
9-6 compliance with or satisfaction of a statutory standard the
9-7 determination of which is committed to the discretion or judgment
9-8 of the executive director by law, then on joint motion of all
9-9 parties or on the administrative law judge's own motion, an
9-10 administrative law judge of the office of hearings may certify
9-11 those policy issues to the executive director. A certification
9-12 request shall contain a statement of the policy issue to be
9-13 determined and a statement of all relevant facts sufficient to show
9-14 fully the nature of the controversy. The executive director may
9-15 receive written or oral statements from parties to the hearing or
9-16 the administrative law judge on the policy issue certified. The
9-17 executive director shall answer a policy issue not later than the
9-18 60th day after the date on which it is certified unless the
9-19 executive director in his discretion declines to answer. If the
9-20 executive director fails to answer a policy issue within 60 days of
9-21 certification, the executive director shall be considered to have
9-22 declined to answer. The administrative law judge shall proceed
9-23 with the contested case and make a proposal for decision as
9-24 required by Subsection (f) of this section.
9-25 (h) The executive director may except to:
10-1 (1) an underlying finding of fact that serves as the
10-2 basis for a decision in a contested case; or
10-3 (2) a conclusion of law in a contested case.
10-4 (i) If a decision in a contested case involves an ultimate
10-5 finding of compliance with or satisfaction of a statutory standard
10-6 the determination of which is committed to the discretion or
10-7 judgment of the executive director by law, the executive director
10-8 may in the exercise of that discretion or judgment reject a
10-9 proposal for decision as to the ultimate finding for reasons of
10-10 policy only.
10-11 (j) The executive director shall issue written rulings,
10-12 orders, or decisions in all contested cases and shall fully explain
10-13 in the rulings, orders, or decisions the reasoning and grounds for
10-14 rejecting a proposal for decision on an ultimate finding
10-15 statutorily committed to its discretion or judgment.
10-16 SUBCHAPTER I. LOCAL GOVERNMENT PARTICIPATION
10-17 Sec. 5.401. LOCAL GOVERNMENT PARTICIPATION. (a) A local
10-18 government may make recommendations to the commission concerning a
10-19 rule, determination, variance, or order or may request the
10-20 commission to assess administrative penalties or initiate
10-21 enforcement action against any person in violation of any statute
10-22 or rule administered by the commission that affects an area within
10-23 the local government's territorial jurisdiction. The commission
10-24 shall give maximum consideration to a local government's
10-25 recommendations or requests. The commission shall provide the
11-1 local government the opportunity to present its case through its
11-2 local counsel.
11-3 (b) In addition or as an alternative to any enforcement
11-4 action otherwise authorized by law, any local government of the
11-5 state affected by any activity, facility, source, or condition
11-6 regulated by or under the jurisdiction of the commission may bring
11-7 a civil action for injunctive relief, civil penalties, or both
11-8 against any person responsible for the activity or condition or
11-9 against an owner or operator of the facility or source who is in
11-10 violation of a rule, regulation, permit, permit condition, or order
11-11 of or law administered by the commission.
11-12 (c) An action brought under Subsection (b) of this section
11-13 may not be commenced if the commission has commenced and is
11-14 diligently prosecuting a civil or criminal action to require
11-15 compliance with a standard, limitation, or order, but in any such
11-16 action any local government may intervene as a matter of right.
11-17 (d) It is not a defense to an action brought under
11-18 Subsection (b) of this section that the local government has not
11-19 initiated or exhausted administrative remedies under Subsection (a)
11-20 of this section.
11-21 (e) Any action brought under Subsection (b) of this section
11-22 may be brought in the county in which the alleged violation
11-23 occurred or in Travis County.
11-24 (f) In any action brought by a local government under
11-25 Subsection (b) of this section, the commission is a necessary and
12-1 indispensable party. Civil penalties recovered in an action
12-2 brought by a local government under this section shall be equally
12-3 divided between the state and the local government that first
12-4 brought the action.
12-5 (g) The court shall grant, without bond or other undertaking
12-6 by the local government, any prohibitory or mandatory injunction or
12-7 restraining order the facts may warrant.
12-8 (h) Any final order issued under this section may award
12-9 costs of litigation, reasonable attorney's fees, and other costs,
12-10 including expert witness fees, to any local government that
12-11 prevails or substantially prevails if the order includes a
12-12 determination that the award is appropriate.
12-13 (i) This section is cumulative of any other remedies
12-14 provided by law to a local government.
12-15 SECTION 6. Subsection (g), Section 382.0518, Health and
12-16 Safety Code, is amended to read as follows:
12-17 (g) Subsections (a)-(d) do not apply to a person who has
12-18 executed a contract or has begun construction for an addition,
12-19 alteration, or modification to a new or an existing facility on or
12-20 before August 30, 1971, and who registered with the board as
12-21 required by <has complied with the requirements of> Section
12-22 382.060, as it existed on November 30, 1991, unless the facility is
12-23 in a nonattainment area as defined in Title I of the federal Clean
12-24 Air Act (42 U.S.C. Section 7401 et seq.). To qualify for any
12-25 exemption under this subsection, a contract may not have a
13-1 beginning construction date later than February 29, 1972.
13-2 SECTION 7. Subsection (a), Section 382.091, Health and
13-3 Safety Code, is amended to read as follows:
13-4 (a) A person commits an offense if the person:
13-5 (1) intentionally or knowingly, with respect to the
13-6 person's conduct, violates:
13-7 (A) Section 382.0518(a);
13-8 (B) Section 382.054;
13-9 (C) Section 382.056(a);
13-10 (D) Section 382.058(a); or
13-11 (E) an order, permit, rule, or exemption issued
13-12 under this chapter;
13-13 (2) intentionally or knowingly fails to pay a fee
13-14 required by this chapter or by a rule adopted or order issued under
13-15 this chapter;
13-16 (3) intentionally or knowingly makes or causes to be
13-17 made any false material statement, representation, or certification
13-18 in, or omits material information from, or knowingly alters,
13-19 conceals, or does not file or maintain any notice, application,
13-20 record, report, plan, or other document required to be filed or
13-21 maintained by this chapter or by a rule adopted or permit or order
13-22 issued under this chapter;
13-23 (4) intentionally or knowingly fails to notify or
13-24 report to the board as required by this chapter or by a rule
13-25 adopted or permit or order issued under this chapter;
14-1 (5) intentionally or knowingly tampers with, modifies,
14-2 disables, or fails to use a required monitoring device; tampers
14-3 with, modifies, or disables a monitoring device; or falsifies,
14-4 fabricates, or omits data from a monitoring device, unless done in
14-5 strict compliance with this chapter or a permit, rule, variance, or
14-6 other order issued by the board;
14-7 (6) recklessly, with respect to the person's conduct,
14-8 emits an air contaminant that places any other person in <imminent>
14-9 danger of death or serious bodily injury unless the emission is
14-10 made in strict compliance with this chapter or a permit, rule,
14-11 variance, or other order issued by the board; <or>
14-12 (7) intentionally or knowingly, with respect to the
14-13 person's conduct, emits an air contaminant that places any other
14-14 person in danger of death or serious bodily injury unless the
14-15 emission is made in strict compliance with this chapter or a
14-16 permit, rule, variance, or other order issued by the board;
14-17 (8) intentionally or knowingly, with respect to the
14-18 person's conduct, emits an air contaminant with the knowledge that
14-19 the person is placing any other person in <imminent> danger of
14-20 death or serious bodily injury unless the emission is made in
14-21 strict compliance with this chapter or a permit, rule, variance, or
14-22 other order issued by the board; or
14-23 (9) intentionally, knowingly, or recklessly causes or
14-24 permits the emission of an air contaminant in a concentration and
14-25 for a duration that causes air pollution unless the emission is
15-1 made in strict compliance with a variance or other order issued by
15-2 the board.
15-3 SECTION 8. (a) This Act takes effect September 1, 1993.
15-4 (b) On September 1, 1993:
15-5 (1) the name of the Texas Natural Resource
15-6 Conservation Commission is changed to the Texas Commission on
15-7 Environmental Quality and all powers, duties, rights, and
15-8 obligations of the Texas Natural Resource Conservation Commission
15-9 are the powers, duties, rights, and obligations of the Texas
15-10 Commission on Environmental Quality;
15-11 (2) a member of the Texas Natural Resource
15-12 Conservation Commission is a member of the Texas Commission on
15-13 Environmental Quality;
15-14 (3) all personnel, equipment, data, documents,
15-15 facilities, and other items of the Texas Natural Resource
15-16 Conservation Commission are transferred to the agency under its new
15-17 name; and
15-18 (4) any appropriation to the Texas Natural Resource
15-19 Conservation Commission is automatically an appropriation to the
15-20 Texas Commission on Environmental Quality.
15-21 SECTION 9. The importance of this legislation and the
15-22 crowded condition of the calendars in both houses create an
15-23 emergency and an imperative public necessity that the
15-24 constitutional rule requiring bills to be read on three several
15-25 days in each house be suspended, and this rule is hereby suspended.