1-1 By: Parker S.B. No. 1040
1-2 (In the Senate - Filed March 12, 1993; March 15, 1993, read
1-3 first time and referred to Committee on Natural Resources;
1-4 May 4, 1993, reported favorably by the following vote: Yeas 6,
1-5 Nays 0; May 4, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Sims x
1-9 Truan x
1-10 Armbrister x
1-11 Barrientos x
1-12 Bivins x
1-13 Brown x
1-14 Carriker x
1-15 Lucio x
1-16 Montford x
1-17 Ratliff x
1-18 Shelley x
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the Texas Commission on Environmental Quality and the
1-22 maintenance of air quality in the state; providing penalties.
1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-24 SECTION 1. Subdivisions (2) and (3), Section 5.001, Water
1-25 Code, are amended to read as follows:
1-26 (2) "Commission" means the Texas <Natural Resource
1-27 Conservation> Commission on Environmental Quality.
1-28 (3) "Executive director" means the executive director
1-29 of the Texas <Natural Resource Conservation> Commission on
1-30 Environmental Quality.
1-31 SECTION 2. Section 5.014, Water Code, is amended to read as
1-32 follows:
1-33 Sec. 5.014. SUNSET PROVISION. The Texas <Natural Resource
1-34 Conservation> Commission on Environmental Quality is subject to
1-35 Chapter 325, Government Code (Texas Sunset Act). Unless continued
1-36 in existence as provided by that chapter, the commission is
1-37 abolished and this chapter expires September 1, 2001.
1-38 SECTION 3. Section 5.051, Water Code, is amended to read as
1-39 follows:
1-40 Sec. 5.051. COMMISSION. The Texas <Natural Resource
1-41 Conservation> Commission on Environmental Quality is created as an
1-42 agency of the state.
1-43 SECTION 4. (a) Section 5.222, Water Code, as added by
1-44 Section 1.001, Chapter 795, Acts of the 69th Legislature, Regular
1-45 Session, 1985, and as amended by Section 1.0171, Chapter 3, Acts of
1-46 the 72nd Legislature, 1st Called Session, 1991, to be effective
1-47 September 1, 1993, is repealed.
1-48 (b) Subchapter F, Chapter 5, Water Code, is amended by
1-49 adding Section 5.222 to read as follows:
1-50 Sec. 5.222. DEPUTY DIRECTORS AND PERSONNEL. The executive
1-51 director may employ any deputy directors and personnel that the
1-52 executive director determines appropriate. The deputy directors
1-53 and personnel of the commission are under the direction and
1-54 supervision of the executive director, and their powers and duties
1-55 are those required by the executive director.
1-56 SECTION 5. (a) Subchapters G and H, Chapter 5, Water Code,
1-57 are repealed.
1-58 (b) Chapter 5, Water Code, is amended by adding Subchapters
1-59 G, H, and I to read as follows:
1-60 SUBCHAPTER G. OFFICE OF PUBLIC COUNSEL
1-61 Sec. 5.271. CREATION AND GENERAL RESPONSIBILITIES. (a) The
1-62 office of public counsel is established as an independent division
1-63 of the commission to represent the interests of the public in
1-64 protecting, maintaining, and enhancing a safe, healthful,
1-65 biologically diverse, and productive environment and preserving the
1-66 natural heritage of this state.
1-67 (b) The office of public counsel shall assess the
1-68 environmental impact of rules, orders, permits, and other actions
2-1 adopted, issued, or taken by the commission and shall be an
2-2 advocate in its own name of positions most beneficial to the
2-3 environment as determined by the public counsel.
2-4 Sec. 5.272. CHIEF EXECUTIVE. (a) The governor shall
2-5 appoint the public counsel with the advice and consent of the
2-6 senate for a two-year term expiring January 1 of every odd-numbered
2-7 year. The public counsel is the chief executive of the office of
2-8 public counsel and may be removed in accordance with Article XV,
2-9 Section 9, of the Texas Constitution.
2-10 (b) The public counsel must be a resident of this state who
2-11 is licensed to practice law in this state, has demonstrated a
2-12 strong commitment to safeguard the environment, and possesses the
2-13 knowledge and experience to practice effectively in proceedings
2-14 before the commission, board, and office of hearings.
2-15 Sec. 5.273. ADMINISTRATION. (a) The public counsel shall
2-16 administer and supervise the operation of the office of public
2-17 counsel independently of the commission. The public counsel shall
2-18 prepare and approve all budget recommendations on behalf of the
2-19 office of public counsel that are transmitted to the governor and
2-20 the legislature.
2-21 (b) The public counsel is the custodian of public records of
2-22 the office of public counsel.
2-23 Sec. 5.274. EMPLOYEES AND EXPERTS. (a) The public counsel
2-24 may employ or contract with any attorneys, scientists, economists,
2-25 engineers, consultants, or other employees or experts the public
2-26 counsel considers necessary to carry out this subchapter.
2-27 (b) A person may not, while serving as an employee of the
2-28 office of public counsel and for a period of two years after
2-29 terminating employment, have a direct or indirect financial
2-30 interest in any holder of or applicant for a permit issued by the
2-31 commission or provide legal services directly or indirectly to or
2-32 be employed in any capacity by such an entity, its parent company,
2-33 or its subsidiaries.
2-34 Sec. 5.275. AUTHORITY. (a) The office of public counsel
2-35 may:
2-36 (1) appear or intervene as a matter of right as a
2-37 party or otherwise on behalf of the public as a class in all
2-38 proceedings before the commission, board, and office of hearings;
2-39 (2) intervene as a matter of right or otherwise appear
2-40 in any judicial proceedings involving or arising out of any
2-41 proceeding in which the office of public counsel is authorized to
2-42 appear;
2-43 (3) have the same access as any party other than the
2-44 commission to all records of the commission;
2-45 (4) obtain discovery of any nonprivileged matter that
2-46 is relevant to any proceeding before the commission;
2-47 (5) represent the public with respect to complaints
2-48 concerning matters before the commission; and
2-49 (6) recommend legislation to the legislature that in
2-50 the public counsel's judgment would positively affect the interests
2-51 of the public in the environmental quality of the state.
2-52 (b) Commission personnel shall assist the public counsel in
2-53 investigations and lawsuits and by conducting laboratory tests as
2-54 requested by the public counsel.
2-55 Sec. 5.276. OTHER REPRESENTATION. (a) This subchapter does
2-56 not limit the authority of the commission to represent the public
2-57 interest.
2-58 (b) The appearance of the public counsel in any proceeding
2-59 does not preclude the appearance of other parties on behalf of
2-60 citizens of the state.
2-61 (c) The public counsel may not be compelled to be aligned
2-62 with any other party to a proceeding under the Administrative
2-63 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
2-64 Civil Statutes).
2-65 (Sections 5.277-5.310 reserved for expansion
2-66 SUBCHAPTER H. OFFICE OF HEARINGS
2-67 Sec. 5.311. CREATION AND RESPONSIBILITIES. (a) In this
2-68 chapter, "office of hearings" means the State Office of
2-69 Administrative Hearings. The office of hearings will conduct
2-70 hearings according to the procedures set out in this subchapter.
3-1 (b) The office of hearings may call and hold hearings,
3-2 receive evidence at hearings, administer oaths, issue subpoenas to
3-3 compel the attendance of witnesses and the production of papers and
3-4 documents and other things, and make findings of fact and decisions
3-5 with respect to its jurisdiction under law and under rules, orders,
3-6 permits, licenses, certificates, and other actions adopted, issued,
3-7 or taken by the commission. The office of hearings may receive
3-8 submissions of issues identified for appeal in contested case
3-9 hearings but is not limited to those issues.
3-10 Sec. 5.312. CHIEF EXECUTIVE. (a) The governor shall
3-11 appoint the chief administrative law judge with the advice and
3-12 consent of the senate for a two-year term expiring January 1 of
3-13 every odd-numbered year. The chief administrative law judge is the
3-14 chief executive of the office of hearings and may be removed in
3-15 accordance with Article XV, Section 9, of the Texas Constitution.
3-16 (b) The chief administrative law judge must be a resident of
3-17 this state who has been licensed to practice law in this state for
3-18 at least eight years at the time of the appointment and who has
3-19 demonstrated experience, either as an attorney or as a member of
3-20 the judiciary, or both, in the practice of administrative law or in
3-21 the trial of contested matters.
3-22 Sec. 5.313. PERSONNEL. The chief administrative law judge
3-23 may employ assistant administrative law judges and other personnel
3-24 as the legislature authorizes. Assistant administrative law judges
3-25 employed in the office of hearings must be attorneys licensed to
3-26 practice law in this state. An employee of the office of hearings
3-27 may not be employed by or perform the duties of an employee of
3-28 another division of the commission.
3-29 Sec. 5.314. CHIEF CLERK. The chief administrative law judge
3-30 shall appoint a chief clerk, who shall issue notice of hearings
3-31 before the office of hearings and serve as custodian of records of
3-32 the office of hearings.
3-33 Sec. 5.315. ADMINISTRATION. The chief administrative law
3-34 judge shall administer and supervise the operation of the office of
3-35 hearings independently of the commission. The chief administrative
3-36 law judge shall prepare and approve all budget recommendations on
3-37 behalf of the office of hearings that are transmitted to the
3-38 governor and the legislature.
3-39 Sec. 5.316. DELEGATION OF RESPONSIBILITY. The executive
3-40 director shall delegate to the office of hearings the
3-41 responsibility to hear all contested cases before the commission
3-42 and to hold hearings and receive any public comment that is
3-43 required by law and may delegate the responsibility to hear any
3-44 other matter before the commission.
3-45 Sec. 5.317. ADMINISTRATIVE PROCEDURE. (a) The office of
3-46 hearings shall conduct all administrative hearings in contested
3-47 cases under the Administrative Procedure and Texas Register Act
3-48 (Article 6252-13a, Vernon's Texas Civil Statutes), except as
3-49 provided by this section or as otherwise specifically required by
3-50 law, including Sections 382.0561 through 382.0563, Health and
3-51 Safety Code.
3-52 (b) In conducting a hearing under this subchapter, an
3-53 administrative law judge in the office of hearings shall consider
3-54 all applicable commission rules or policies. The commission shall
3-55 publish and make available all commission rules and policies.
3-56 (c) Unless required for the disposition of ex parte matters
3-57 authorized by law:
3-58 (1) an administrative law judge of the office of
3-59 hearings may not communicate directly or indirectly with any
3-60 commission employee, member of the board, party, or any other
3-61 person in connection with any issue of fact or law pertaining to a
3-62 contested case in which the commission, party, or person is
3-63 involved or has an interest; and
3-64 (2) a commission employee, member of the board, party,
3-65 or any other person may not attempt directly or indirectly to
3-66 influence the findings of fact or the application of law or rules
3-67 in a contested case by an administrative law judge of the office of
3-68 hearings except by proper evidence, pleadings, and legal argument
3-69 with notice and opportunity for all parties to participate.
3-70 (d) The prohibitions of Subsection (c) of this section do
4-1 not apply to communications between employees of the office of
4-2 hearings in the proper performance of their duties.
4-3 (e) If the executive director, a commission employee, or an
4-4 administrative law judge receives a communication prohibited by
4-5 Subsection (c) of this section, the executive director, a
4-6 commission employee, or the administrative law judge shall
4-7 terminate the improper communication and shall report the
4-8 communication in the record of the contested case.
4-9 (f) After hearing evidence and receiving legal arguments, an
4-10 administrative law judge of the office of hearings shall make
4-11 findings of fact, conclusions of law, and any ultimate findings
4-12 required by statute, all of which shall be separately stated. The
4-13 administrative law judge shall make a proposal for decision and
4-14 shall serve the proposal for decision on all parties, including the
4-15 executive director.
4-16 (g) If a contested case involves an ultimate finding of
4-17 compliance with or satisfaction of a statutory standard the
4-18 determination of which is committed to the discretion or judgment
4-19 of the executive director by law, then on joint motion of all
4-20 parties or on the administrative law judge's own motion, an
4-21 administrative law judge of the office of hearings may certify
4-22 those policy issues to the executive director. A certification
4-23 request shall contain a statement of the policy issue to be
4-24 determined and a statement of all relevant facts sufficient to show
4-25 fully the nature of the controversy. The executive director may
4-26 receive written or oral statements from parties to the hearing or
4-27 the administrative law judge on the policy issue certified. The
4-28 executive director shall answer a policy issue not later than the
4-29 60th day after the date on which it is certified unless the
4-30 executive director in his discretion declines to answer. If the
4-31 executive director fails to answer a policy issue within 60 days of
4-32 certification, the executive director shall be considered to have
4-33 declined to answer. The administrative law judge shall proceed
4-34 with the contested case and make a proposal for decision as
4-35 required by Subsection (f) of this section.
4-36 (h) The executive director may except to:
4-37 (1) an underlying finding of fact that serves as the
4-38 basis for a decision in a contested case; or
4-39 (2) a conclusion of law in a contested case.
4-40 (i) If a decision in a contested case involves an ultimate
4-41 finding of compliance with or satisfaction of a statutory standard
4-42 the determination of which is committed to the discretion or
4-43 judgment of the executive director by law, the executive director
4-44 may in the exercise of that discretion or judgment reject a
4-45 proposal for decision as to the ultimate finding for reasons of
4-46 policy only.
4-47 (j) The executive director shall issue written rulings,
4-48 orders, or decisions in all contested cases and shall fully explain
4-49 in the rulings, orders, or decisions the reasoning and grounds for
4-50 rejecting a proposal for decision on an ultimate finding
4-51 statutorily committed to its discretion or judgment.
4-52 SUBCHAPTER I. LOCAL GOVERNMENT PARTICIPATION
4-53 Sec. 5.401. LOCAL GOVERNMENT PARTICIPATION. (a) A local
4-54 government may make recommendations to the commission concerning a
4-55 rule, determination, variance, or order or may request the
4-56 commission to assess administrative penalties or initiate
4-57 enforcement action against any person in violation of any statute
4-58 or rule administered by the commission that affects an area within
4-59 the local government's territorial jurisdiction. The commission
4-60 shall give maximum consideration to a local government's
4-61 recommendations or requests. The commission shall provide the
4-62 local government the opportunity to present its case through its
4-63 local counsel.
4-64 (b) In addition or as an alternative to any enforcement
4-65 action otherwise authorized by law, any local government of the
4-66 state affected by any activity, facility, source, or condition
4-67 regulated by or under the jurisdiction of the commission may bring
4-68 a civil action for injunctive relief, civil penalties, or both
4-69 against any person responsible for the activity or condition or
4-70 against an owner or operator of the facility or source who is in
5-1 violation of a rule, regulation, permit, permit condition, or order
5-2 of or law administered by the commission.
5-3 (c) An action brought under Subsection (b) of this section
5-4 may not be commenced if the commission has commenced and is
5-5 diligently prosecuting a civil or criminal action to require
5-6 compliance with a standard, limitation, or order, but in any such
5-7 action any local government may intervene as a matter of right.
5-8 (d) It is not a defense to an action brought under
5-9 Subsection (b) of this section that the local government has not
5-10 initiated or exhausted administrative remedies under Subsection (a)
5-11 of this section.
5-12 (e) Any action brought under Subsection (b) of this section
5-13 may be brought in the county in which the alleged violation
5-14 occurred or in Travis County.
5-15 (f) In any action brought by a local government under
5-16 Subsection (b) of this section, the commission is a necessary and
5-17 indispensable party. Civil penalties recovered in an action
5-18 brought by a local government under this section shall be equally
5-19 divided between the state and the local government that first
5-20 brought the action.
5-21 (g) The court shall grant, without bond or other undertaking
5-22 by the local government, any prohibitory or mandatory injunction or
5-23 restraining order the facts may warrant.
5-24 (h) Any final order issued under this section may award
5-25 costs of litigation, reasonable attorney fees, and other costs,
5-26 including expert witness fees, to any local government that
5-27 prevails or substantially prevails if the order includes a
5-28 determination that the award is appropriate.
5-29 (i) This section is cumulative of any other remedies
5-30 provided by law to a local government.
5-31 SECTION 6. Subsection (g), Section 382.0518, Health and
5-32 Safety Code, is amended to read as follows:
5-33 (g) Subsections (a)-(d) do not apply to a person who has
5-34 executed a contract or has begun construction for an addition,
5-35 alteration, or modification to a new or an existing facility on or
5-36 before August 30, 1971, and who registered with the board as
5-37 required by <has complied with the requirements of> Section
5-38 382.060, as it existed on November 30, 1991, unless the facility is
5-39 in a nonattainment area as defined in Title I of the federal Clean
5-40 Air Act (42 U.S.C. Section 7401 et seq.). To qualify for any
5-41 exemption under this subsection, a contract may not have a
5-42 beginning construction date later than February 29, 1972.
5-43 SECTION 7. Subsection (a), Section 382.091, Health and
5-44 Safety Code, is amended to read as follows:
5-45 (a) A person commits an offense if the person:
5-46 (1) intentionally or knowingly, with respect to the
5-47 person's conduct, violates:
5-48 (A) Section 382.0518(a);
5-49 (B) Section 382.054;
5-50 (C) Section 382.056(a);
5-51 (D) Section 382.058(a); or
5-52 (E) an order, permit, rule, or exemption issued
5-53 under this chapter;
5-54 (2) intentionally or knowingly fails to pay a fee
5-55 required by this chapter or by a rule adopted or order issued under
5-56 this chapter;
5-57 (3) intentionally or knowingly makes or causes to be
5-58 made any false material statement, representation, or certification
5-59 in, or omits material information from, or knowingly alters,
5-60 conceals, or does not file or maintain any notice, application,
5-61 record, report, plan, or other document required to be filed or
5-62 maintained by this chapter or by a rule adopted or permit or order
5-63 issued under this chapter;
5-64 (4) intentionally or knowingly fails to notify or
5-65 report to the board as required by this chapter or by a rule
5-66 adopted or permit or order issued under this chapter;
5-67 (5) intentionally or knowingly tampers with, modifies,
5-68 disables, or fails to use a required monitoring device; tampers
5-69 with, modifies, or disables a monitoring device; or falsifies,
5-70 fabricates, or omits data from a monitoring device, unless done in
6-1 strict compliance with this chapter or a permit, rule, variance, or
6-2 other order issued by the board;
6-3 (6) recklessly, with respect to the person's conduct,
6-4 emits an air contaminant that places any other person in <imminent>
6-5 danger of death or serious bodily injury unless the emission is
6-6 made in strict compliance with this chapter or a permit, rule,
6-7 variance, or other order issued by the board; <or>
6-8 (7) intentionally or knowingly, with respect to the
6-9 person's conduct, emits an air contaminant that places any other
6-10 person in danger of death or serious bodily injury unless the
6-11 emission is made in strict compliance with this chapter or a
6-12 permit, rule, variance, or other order issued by the board;
6-13 (8) intentionally or knowingly, with respect to the
6-14 person's conduct, emits an air contaminant with the knowledge that
6-15 the person is placing any other person in <imminent> danger of
6-16 death or serious bodily injury unless the emission is made in
6-17 strict compliance with this chapter or a permit, rule, variance, or
6-18 other order issued by the board; or
6-19 (9) intentionally, knowingly, or recklessly causes or
6-20 permits the emission of an air contaminant in a concentration and
6-21 for a duration that causes air pollution unless the emission is
6-22 made in strict compliance with a variance or other order issued by
6-23 the board.
6-24 SECTION 8. (a) This Act takes effect September 1, 1993.
6-25 (b) On September 1, 1993:
6-26 (1) the name of the Texas Natural Resource
6-27 Conservation Commission is changed to the Texas Commission on
6-28 Environmental Quality and all powers, duties, rights, and
6-29 obligations of the Texas Natural Resource Conservation Commission
6-30 are the powers, duties, rights, and obligations of the Texas
6-31 Commission on Environmental Quality;
6-32 (2) a member of the Texas Natural Resource
6-33 Conservation Commission is a member of the Texas Commission on
6-34 Environmental Quality;
6-35 (3) all personnel, equipment, data, documents,
6-36 facilities, and other items of the Texas Natural Resource
6-37 Conservation Commission are transferred to the agency under its new
6-38 name; and
6-39 (4) any appropriation to the Texas Natural Resource
6-40 Conservation Commission is automatically an appropriation to the
6-41 Texas Commission on Environmental Quality.
6-42 SECTION 9. The importance of this legislation and the
6-43 crowded condition of the calendars in both houses create an
6-44 emergency and an imperative public necessity that the
6-45 constitutional rule requiring bills to be read on three several
6-46 days in each house be suspended, and this rule is hereby suspended.
6-47 * * * * *
6-48 Austin,
6-49 Texas
6-50 May 4, 1993
6-51 Hon. Bob Bullock
6-52 President of the Senate
6-53 Sir:
6-54 We, your Committee on Natural Resources to which was referred S.B.
6-55 No. 1040, have had the same under consideration, and I am
6-56 instructed to report it back to the Senate with the recommendation
6-57 that it do pass and be printed.
6-58 Sims,
6-59 Chairman
6-60 * * * * *
6-61 WITNESSES
6-62 No witnesses appeared on S.B. No. 1040.