By Hirschi H.B. No. 1581
75R3996 SMH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to supplemental environmental projects that may offset the
1-3 amount of certain administrative penalties imposed by the Texas
1-4 Natural Resource Conservation Commission.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 26.136, Water Code, is amended by
1-7 amending Subsections (a), (d), (h), (i), and (n) and by adding
1-8 Subsection (r) to read as follows:
1-9 (a) If a person violates this chapter or a rule or order
1-10 adopted or a permit issued under this chapter and no local
1-11 government has instituted a lawsuit under this chapter and is
1-12 diligently prosecuting that lawsuit against the same person for the
1-13 same violation under Section 26.124 of this code, the commission
1-14 may assess an administrative [a civil] penalty against that person
1-15 as provided by this section.
1-16 (d) If, after examination of a possible violation and the
1-17 facts surrounding that possible violation, the executive director
1-18 concludes that a violation has occurred, the executive director may
1-19 issue a preliminary report stating the facts on which he based that
1-20 conclusion, recommending that an administrative [a civil] penalty
1-21 under this section be imposed on the person charged, and
1-22 recommending the amount of that proposed penalty. The executive
1-23 director shall base the recommended amount of the proposed penalty
1-24 on the factors provided by Subsection (c) of this section, and the
2-1 executive director shall analyze each factor for the benefit of the
2-2 commission.
2-3 (h) If the person charged requests, or the commission
2-4 orders, a hearing, the commission shall call a hearing and give
2-5 notice of the hearing. As a result of the hearing, the commission
2-6 by order either may find that a violation has occurred and may
2-7 assess an administrative [a civil] penalty, may find that a
2-8 violation has occurred but that no penalty should be assessed, or
2-9 may find that no violation has occurred. All proceedings under
2-10 this subsection are subject to Chapter 2001, Government Code. In
2-11 making any penalty decision, the commission shall analyze each of
2-12 the factors provided by Subsection (c) of this section.
2-13 (i) The commission shall give notice of its decision to the
2-14 person charged, and if the commission finds that a violation has
2-15 occurred and has assessed an administrative [a civil] penalty, the
2-16 commission shall give written notice to the person charged of its
2-17 findings, of the amount of the penalty, and of his right to
2-18 judicial review of the commission's order. If the commission is
2-19 required to give notice of an administrative [a civil] penalty
2-20 under this subsection or Subsection (g) of this section, the
2-21 commission shall file notice of its decision in the Texas Register
2-22 not later than the 10th day after the date on which the decision is
2-23 adopted.
2-24 (n) Notwithstanding any other provision to the contrary, the
2-25 commission may compromise, modify, or remit, with or without
2-26 condition, any administrative [civil] penalty imposed under this
2-27 section. [In determining the appropriate amount of a civil penalty
3-1 for settlement of an administrative enforcement matter, the
3-2 commission, in its discretion, may consider the willingness of a
3-3 respondent to contribute to supplemental environmental projects
3-4 that are approved by the commission, giving preference to those
3-5 projects that benefit the community in which the alleged violation
3-6 occurred. In this subsection, "supplemental environmental project"
3-7 means a project that prevents pollution, reduces the amount of
3-8 pollutants reaching the environment, enhances the quality of the
3-9 environment, or contributes to public awareness of environmental
3-10 matters. The term does not include projects that are necessary to
3-11 bring the respondent into compliance with environmental laws or
3-12 that are necessary to remediate the environmental harm caused by
3-13 the alleged violation.]
3-14 (r) The commission shall retain all records relating to an
3-15 order assessing an administrative penalty under this section until
3-16 the fifth anniversary of the date the order is issued.
3-17 SECTION 2. Subchapter D, Chapter 26, Water Code, is amended
3-18 by adding Section 26.137 to read as follows:
3-19 Sec. 26.137. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) In
3-20 determining the appropriate amount of an administrative penalty
3-21 under Section 26.136, the commission may consider the willingness
3-22 of a respondent to contribute to supplemental environmental
3-23 projects that are approved by the commission, giving preference to
3-24 those projects that benefit the community in which the alleged
3-25 violation occurred.
3-26 (b) The commission may not credit against an administrative
3-27 penalty that would otherwise be assessed an amount that:
4-1 (1) exceeds 50 percent of the amount of the penalty
4-2 because of the respondent's willingness to contribute to a
4-3 supplemental environmental project;
4-4 (2) renders the administrative penalty insufficient to
4-5 recover from the respondent the economic benefit the respondent
4-6 allegedly gained through the violation for which the penalty is
4-7 being assessed if the penalty that would otherwise be assessed
4-8 exceeds $5,000; or
4-9 (3) exceeds 50 percent of the amount the respondent is
4-10 to spend on the supplemental environmental project.
4-11 (c) In the order assessing the administrative penalty, the
4-12 commission shall:
4-13 (1) clearly and specifically:
4-14 (A) describe the supplemental environmental
4-15 project; and
4-16 (B) quantify to the extent possible the
4-17 environmental or public health benefits expected to result from the
4-18 project;
4-19 (2) if the supplemental environmental project benefits
4-20 the respondent, clearly and specifically explain whether the
4-21 actions comprising the project are required to be performed under
4-22 state or federal law; and
4-23 (3) quantify to the extent possible any economic
4-24 benefit expected to be gained by the respondent, including any tax
4-25 deduction, by contributing to the supplemental environmental
4-26 project.
4-27 (d) To qualify for commission approval as a supplemental
5-1 environmental project for purposes of this section, a project must:
5-2 (1) prevent pollution, reduce the amount of pollutants
5-3 reaching the environment, enhance the quality of the environment,
5-4 or contribute to public awareness of environmental matters; and
5-5 (2) result in a quantifiable and direct benefit to the
5-6 environment of, or public health in:
5-7 (A) the community in which the respondent's
5-8 facility involved in the administrative penalty is located; or
5-9 (B) an economically distressed area, as defined
5-10 by Section 15.001, 16.341, or 17.921, if the project involves a
5-11 contribution to a fund that is:
5-12 (i) administered by a binational agency;
5-13 and
5-14 (ii) used to aid construction of water or
5-15 wastewater facilities for economically distressed areas.
5-16 (e) A project does not qualify for commission approval as a
5-17 supplemental environmental project for purposes of this section if
5-18 the project is necessary to:
5-19 (1) bring the respondent into compliance with
5-20 environmental laws; or
5-21 (2) remediate the environmental harm caused by the
5-22 alleged violation.
5-23 SECTION 3. Section 361.251, Health and Safety Code, is
5-24 amended to read as follows:
5-25 Sec. 361.251. ADMINISTRATIVE PENALTY BY COMMISSION. (a) The
5-26 commission may assess an administrative [a civil] penalty against a
5-27 person as provided by this section if:
6-1 (1) the person violates:
6-2 (A) a provision of this chapter that is under
6-3 the commission's jurisdiction;
6-4 (B) a rule adopted by the commission; or
6-5 (C) an order, license, or permit issued by the
6-6 commission under this chapter; and
6-7 (2) no county, political subdivision, or municipality
6-8 has instituted a lawsuit and is diligently prosecuting that lawsuit
6-9 under Section 361.225 or 361.226 against the same person for the
6-10 same violation.
6-11 (b) The amount of the penalty may not exceed $10,000 a day
6-12 for a person who violates this chapter or a rule, order, license,
6-13 or permit issued under this chapter. Each day a violation
6-14 continues may be considered a separate violation.
6-15 (c) In determining the amount of the penalty, the commission
6-16 shall consider:
6-17 (1) the seriousness of the violation, including the
6-18 nature, circumstances, extent, and gravity of the prohibited act
6-19 and the hazard or potential hazard created to the health or safety
6-20 of the public;
6-21 (2) the history of previous violations;
6-22 (3) the amount necessary to deter future violations;
6-23 (4) efforts to correct the violation; and
6-24 (5) any other matters that justice may require.
6-25 (d) If, after examination of a possible violation and the
6-26 facts surrounding that possible violation, the commission concludes
6-27 that a violation has occurred, the commission may issue a
7-1 preliminary report:
7-2 (1) stating the facts that support the conclusion;
7-3 (2) recommending that an administrative [a civil]
7-4 penalty under this section be imposed; and
7-5 (3) recommending the amount of the penalty, which
7-6 shall be based on the seriousness of the violation as determined
7-7 from the facts surrounding the violation.
7-8 (e) Not later than the 10th day after the date on which the
7-9 report is issued, the commission shall give written notice of the
7-10 report to the person charged with the violation. The notice must
7-11 include:
7-12 (1) a brief summary of the charges;
7-13 (2) a statement of the amount of the penalty
7-14 recommended; and
7-15 (3) a statement of the right of the person charged to
7-16 a hearing on the occurrence of the violation, the amount of the
7-17 penalty, or both.
7-18 (f) Not later than the 20th day after the date on which
7-19 notice is sent, the person charged may give to the executive
7-20 director written consent to the commission's report, including the
7-21 recommended penalty, or make a written request for a hearing.
7-22 (g) If the person charged with the violation consents to the
7-23 penalty recommended by the executive director or does not timely
7-24 respond to the notice, the executive director or the executive
7-25 director's designee by order shall assess the penalty or order a
7-26 hearing to be held on the findings and recommendations in the
7-27 commission's report. If the executive director or the executive
8-1 director's designee assesses the penalty, the commission shall give
8-2 written notice to the person charged of the decision and the person
8-3 shall pay the penalty.
8-4 (h) If the person charged requests or the executive director
8-5 orders a hearing, the executive director shall order and shall give
8-6 notice of the hearing.
8-7 (i) The hearing shall be held by a hearing examiner
8-8 designated by the executive director.
8-9 (j) The hearing examiner shall make findings of fact and
8-10 promptly issue to the executive director a written decision as to
8-11 the occurrence of the violation and a recommendation of the amount
8-12 of the proposed penalty if a penalty is warranted.
8-13 (k) Based on the findings of fact and the recommendations of
8-14 the hearing examiner, the executive director by order may find that
8-15 a violation has occurred and assess an administrative [a civil]
8-16 penalty or may find that no violation occurred.
8-17 (l) All proceedings under Subsections (h)-(k) are subject to
8-18 Chapter 2001, Government Code.
8-19 (m) The executive director shall give notice of the
8-20 executive director's decision to the person charged, and if the
8-21 executive director finds that a violation has occurred and assesses
8-22 an administrative [a civil] penalty, the executive director shall
8-23 give written notice to the person charged of:
8-24 (1) the executive director's findings;
8-25 (2) the amount of the penalty; and
8-26 (3) the person's right to judicial review of the
8-27 executive director's order.
9-1 (n) Not later than the 30th day after the date on which the
9-2 executive director's order is final, the person charged with the
9-3 penalty shall pay the penalty in full or file a petition for
9-4 judicial review.
9-5 (o) If the person seeks judicial review of the fact of the
9-6 violation, the amount of the penalty, or both, the person, within
9-7 the time provided by Subsection (n), shall:
9-8 (1) send the amount of the penalty to the executive
9-9 director for placement in an escrow account; or
9-10 (2) post with the executive director a supersedeas
9-11 bond in a form approved by the executive director for the amount of
9-12 the penalty, the bond to be effective until judicial review of the
9-13 order or decision is final.
9-14 [(p) Judicial review of the order or decision of the
9-15 commissioner assessing the penalty shall be under Subchapter G,
9-16 Chapter 2001, Government Code.]
9-17 (p) Judicial review of the order or decision of the
9-18 executive director assessing the penalty shall be under Chapter
9-19 2001, Government Code.
9-20 (q) If the penalty is reduced or not assessed, the executive
9-21 director shall:
9-22 (1) remit to the person charged the appropriate amount
9-23 of any penalty payment plus accrued interest; or
9-24 (2) execute a release of the bond if a supersedeas
9-25 bond has been posted.
9-26 (r) The accrued interest on amounts remitted by the
9-27 executive director shall be paid:
10-1 (1) at a rate equal to the rate charged on loans to
10-2 depository institutions by the New York Federal Reserve Bank; and
10-3 (2) for the period beginning on the date the penalty
10-4 is paid to the executive director under Subsection (o) and ending
10-5 on the date the penalty is remitted.
10-6 (s) A penalty collected under this section shall be
10-7 deposited to the credit of the general revenue fund.
10-8 (t) The commission may compromise, modify, or remit, with or
10-9 without conditions, an administrative [a civil] penalty imposed
10-10 under this section. [In determining the appropriate amount of a
10-11 civil penalty for settlement of an administrative enforcement
10-12 matter, the commission, in its discretion, may consider the
10-13 willingness of a respondent to contribute to supplemental
10-14 environmental projects that are approved by the commission, giving
10-15 preference to those projects that benefit the community in which
10-16 the alleged violation occurred. In this subsection, "supplemental
10-17 environmental project" means a project that prevents pollution,
10-18 reduces the amount of pollutants reaching the environment, enhances
10-19 the quality of the environment, or contributes to public awareness
10-20 of environmental matters. The term does not include projects that
10-21 are necessary to bring the respondent into compliance with
10-22 environmental laws or that are necessary to remediate the
10-23 environmental harm caused by the alleged violation.]
10-24 (u) [(v)] Notwithstanding any other provision to the
10-25 contrary, the commission is not required to make findings of fact
10-26 or conclusions of law, other than an uncontested finding that the
10-27 commission has jurisdiction, in an agreed order compromising or
11-1 settling an alleged violation of this chapter. An agreed order may
11-2 include a reservation that:
11-3 (1) the order is not an admission of a violation of
11-4 this chapter or a rule adopted under this chapter;
11-5 (2) the occurrence of a violation is in dispute; or
11-6 (3) the order is not intended to become a part of a
11-7 party's or a facility's compliance history.
11-8 (v) [(w)] An agreed administrative order issued by the
11-9 commission shall not be admissible against a party to that order in
11-10 a civil proceeding, unless the proceeding is brought by the
11-11 attorney general's office to:
11-12 (1) enforce the terms of that order; or
11-13 (2) pursue violations of the Water Code or this code.
11-14 (w) The commission shall retain all records relating to an
11-15 order assessing an administrative penalty under this section until
11-16 the fifth anniversary of the date the order is issued.
11-17 SECTION 4. Subchapter H, Chapter 361, Health and Safety
11-18 Code, is amended by adding Section 361.2515 to read as follows:
11-19 Sec. 361.2515. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) In
11-20 determining the appropriate amount of an administrative penalty
11-21 under Section 361.251, the commission may consider the willingness
11-22 of a respondent to contribute to supplemental environmental
11-23 projects that are approved by the commission, giving preference to
11-24 those projects that benefit the community in which the alleged
11-25 violation occurred.
11-26 (b) The commission may not credit against an administrative
11-27 penalty that would otherwise be assessed an amount that:
12-1 (1) exceeds 50 percent of the amount of the penalty
12-2 because of the respondent's willingness to contribute to a
12-3 supplemental environmental project;
12-4 (2) renders the administrative penalty insufficient to
12-5 recover from the respondent the economic benefit the respondent
12-6 allegedly gained through the violation for which the penalty is
12-7 being assessed if the penalty that would otherwise be assessed
12-8 exceeds $5,000; or
12-9 (3) exceeds 50 percent of the amount the respondent is
12-10 to spend on the supplemental environmental project.
12-11 (c) In the order assessing the administrative penalty, the
12-12 commission shall:
12-13 (1) clearly and specifically:
12-14 (A) describe the supplemental environmental
12-15 project; and
12-16 (B) quantify to the extent possible the
12-17 environmental or public health benefits expected to result from the
12-18 project;
12-19 (2) if the supplemental environmental project benefits
12-20 the respondent, clearly and specifically explain whether the
12-21 actions comprising the project are required to be performed under
12-22 state or federal law; and
12-23 (3) quantify to the extent possible any economic
12-24 benefit expected to be gained by the respondent, including any tax
12-25 deduction, by contributing to the supplemental environmental
12-26 project.
12-27 (d) To qualify for commission approval as a supplemental
13-1 environmental project for purposes of this section, a project must:
13-2 (1) prevent pollution, reduce the amount of pollutants
13-3 reaching the environment, enhance the quality of the environment,
13-4 or contribute to public awareness of environmental matters; and
13-5 (2) result in a quantifiable and direct benefit to the
13-6 environment of, or public health in:
13-7 (A) the community in which the respondent's
13-8 facility involved in the administrative penalty is located; or
13-9 (B) an economically distressed area, as defined
13-10 by Section 15.001, 16.341, or 17.921, Water Code, if the project
13-11 involves a contribution to a fund that is:
13-12 (i) administered by a binational agency;
13-13 and
13-14 (ii) used to aid construction of water or
13-15 wastewater facilities for economically distressed areas.
13-16 (e) A project does not qualify for commission approval as a
13-17 supplemental environmental project for purposes of this section if
13-18 the project is necessary to:
13-19 (1) bring the respondent into compliance with
13-20 environmental laws; or
13-21 (2) remediate the environmental harm caused by the
13-22 alleged violation.
13-23 SECTION 5. Section 361.252, Health and Safety Code, is
13-24 amended by amending Subsections (a), (d), (h)-(j), and (o) and by
13-25 adding Subsection (t) to read as follows:
13-26 (a) The commission may assess an administrative [a civil]
13-27 penalty against a person as provided by this section if:
14-1 (1) the person violates:
14-2 (A) a provision of this chapter concerning solid
14-3 waste that is under the commission's jurisdiction;
14-4 (B) a rule or order adopted by the commission
14-5 concerning solid waste that is under the commission's jurisdiction;
14-6 or
14-7 (C) a solid waste permit or registration issued
14-8 by the commission under this chapter; and
14-9 (2) no county, political subdivision, or municipality
14-10 has instituted a lawsuit and is diligently prosecuting that lawsuit
14-11 under Section 361.225 or 361.226 against the same person for the
14-12 same violation.
14-13 (d) If, after examination of a possible violation and the
14-14 facts surrounding that possible violation, the executive director
14-15 concludes that a violation has occurred, the executive director may
14-16 issue a preliminary report:
14-17 (1) stating the facts that support the conclusion;
14-18 (2) recommending that an administrative [a civil]
14-19 penalty under this section be imposed; and
14-20 (3) recommending the amount of the penalty, which
14-21 shall be based on the factors prescribed by Subsection (c),
14-22 including an analysis of each factor for the commission.
14-23 (h) If the person charged requests or the commission orders
14-24 a hearing, the commission shall order and shall give notice of the
14-25 hearing. The commission by order may find that a violation has
14-26 occurred and may assess an administrative [a civil] penalty, may
14-27 find that a violation has occurred but that no penalty should be
15-1 assessed, or may find that no violation has occurred. In making a
15-2 penalty decision, the commission shall analyze each factor
15-3 prescribed by Subsection (c). All proceedings under this
15-4 subsection are subject to Chapter 2001, Government Code.
15-5 (i) The commission shall give notice of its decision to the
15-6 person charged, and if the commission finds that a violation has
15-7 occurred and assesses an administrative [a civil] penalty, the
15-8 commission shall give written notice to the person charged of:
15-9 (1) the commission's findings;
15-10 (2) the amount of the penalty; and
15-11 (3) the person's right to judicial review of the
15-12 commission's order.
15-13 (j) If the commission is required to give notice of an
15-14 administrative [a civil] penalty under Subsection (g) or (i), the
15-15 commission shall file notice of its decision in the Texas Register
15-16 not later than the 10th day after the date on which the decision is
15-17 adopted.
15-18 (o) The commission may compromise, modify, or remit, with or
15-19 without conditions, an administrative [a civil] penalty imposed
15-20 under this section. [In determining the appropriate amount of a
15-21 civil penalty for settlement of an administrative enforcement
15-22 matter, the commission, in its discretion, may consider the
15-23 willingness of a respondent to contribute to supplemental
15-24 environmental projects that are approved by the commission, giving
15-25 preference to those projects that benefit the community in which
15-26 the alleged violation occurred. In this subsection, "supplemental
15-27 environmental project" means a project that prevents pollution,
16-1 reduces the amount of pollutants reaching the environment, enhances
16-2 the quality of the environment, or contributes to public awareness
16-3 of environmental matters. The term does not include projects that
16-4 are necessary to bring the respondent into compliance with
16-5 environmental laws or that are necessary to remediate the
16-6 environmental harm caused by the alleged violation.]
16-7 (t) The commission shall retain all records relating to an
16-8 order assessing an administrative penalty under this section until
16-9 the fifth anniversary of the date the order is issued.
16-10 SECTION 6. Subchapter H, Chapter 361, Health and Safety
16-11 Code, is amended by adding Section 361.2525 to read as follows:
16-12 Sec. 361.2525. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) In
16-13 determining the appropriate amount of an administrative penalty
16-14 under Section 361.252, the commission may consider the willingness
16-15 of a respondent to contribute to supplemental environmental
16-16 projects that are approved by the commission, giving preference to
16-17 those projects that benefit the community in which the alleged
16-18 violation occurred.
16-19 (b) The commission may not credit against an administrative
16-20 penalty that would otherwise be assessed an amount that:
16-21 (1) exceeds 50 percent of the amount of the penalty
16-22 because of the respondent's willingness to contribute to a
16-23 supplemental environmental project;
16-24 (2) renders the administrative penalty insufficient to
16-25 recover from the respondent the economic benefit the respondent
16-26 allegedly gained through the violation for which the penalty is
16-27 being assessed if the penalty that would otherwise be assessed
17-1 exceeds $5,000; or
17-2 (3) exceeds 50 percent of the amount the respondent is
17-3 to spend on the supplemental environmental project.
17-4 (c) In the order assessing the administrative penalty, the
17-5 commission shall:
17-6 (1) clearly and specifically:
17-7 (A) describe the supplemental environmental
17-8 project; and
17-9 (B) quantify to the extent possible the
17-10 environmental or public health benefits expected to result from the
17-11 project;
17-12 (2) if the supplemental environmental project benefits
17-13 the respondent, clearly and specifically explain whether the
17-14 actions comprising the project are required to be performed under
17-15 state or federal law; and
17-16 (3) quantify to the extent possible any economic
17-17 benefit expected to be gained by the respondent, including any tax
17-18 deduction, by contributing to the supplemental environmental
17-19 project.
17-20 (d) To qualify for commission approval as a supplemental
17-21 environmental project for purposes of this section, a project must:
17-22 (1) prevent pollution, reduce the amount of pollutants
17-23 reaching the environment, enhance the quality of the environment,
17-24 or contribute to public awareness of environmental matters; and
17-25 (2) result in a quantifiable and direct benefit to the
17-26 environment of, or public health in:
17-27 (A) the community in which the respondent's
18-1 facility involved in the administrative penalty is located; or
18-2 (B) an economically distressed area, as defined
18-3 by Section 15.001, 16.341, or 17.921, Water Code, if the project
18-4 involves a contribution to a fund that is:
18-5 (i) administered by a binational agency;
18-6 and
18-7 (ii) used to aid construction of water or
18-8 wastewater facilities for economically distressed areas.
18-9 (e) A project does not qualify for commission approval as a
18-10 supplemental environmental project for purposes of this section if
18-11 the project is necessary to:
18-12 (1) bring the respondent into compliance with
18-13 environmental laws; or
18-14 (2) remediate the environmental harm caused by the
18-15 alleged violation.
18-16 SECTION 7. Section 382.088, Health and Safety Code, is
18-17 amended by amending Subsections (a), (d), (h), and (j) and by
18-18 adding Subsection (m) to read as follows:
18-19 (a) A person may be assessed an administrative [a civil]
18-20 penalty as provided by this section if the person violates this
18-21 chapter or a rule or order adopted or permit issued under this
18-22 chapter and no local government has instituted a lawsuit and is
18-23 diligently prosecuting that lawsuit against the same person for the
18-24 same violation under Section 382.114.
18-25 (d) If the executive director, after an investigation,
18-26 concludes that a violation has occurred, the executive director may
18-27 issue a preliminary report:
19-1 (1) stating the facts that support the conclusion;
19-2 (2) recommending that an administrative [a civil]
19-3 penalty under this section be imposed; and
19-4 (3) recommending the amount of the penalty.
19-5 (h) If the person charged requests or the commission orders
19-6 a hearing, the executive director shall order a hearing. The
19-7 hearing shall be held by a hearing examiner designated by the
19-8 commission. The hearing examiner shall make findings of fact and
19-9 promptly issue to the commission a written decision as to the
19-10 occurrence of the violation and a recommendation on the amount of
19-11 the proposed penalty if a penalty is warranted. Based on the
19-12 findings of fact and the recommendations of the hearing examiner,
19-13 the commission by order may find a violation has occurred and may
19-14 assess an administrative [a civil] penalty or may find that no
19-15 violation has occurred. All proceedings under this subsection are
19-16 subject to Chapter 2001, Government Code.
19-17 (j) The commission may compromise, modify, or remit, with or
19-18 without conditions, an administrative [a civil] penalty imposed
19-19 under this section. [In determining the appropriate amount of a
19-20 civil penalty for settlement of an administrative enforcement
19-21 matter, the commission, in its discretion, may consider the
19-22 willingness of a respondent to contribute to supplemental
19-23 environmental projects that are approved by the commission, giving
19-24 preference to those projects that benefit the community in which
19-25 the alleged violation occurred. In this subsection, "supplemental
19-26 environmental project" means a project that prevents pollution,
19-27 reduces the amount of pollutants reaching the environment, enhances
20-1 the quality of the environment, or contributes to public awareness
20-2 of environmental matters. The term does not include projects that
20-3 are necessary to bring the respondent into compliance with
20-4 environmental laws or that are necessary to remediate the
20-5 environmental harm caused by the alleged violation.]
20-6 (m) The commission shall retain all records relating to an
20-7 order assessing an administrative penalty under this section until
20-8 the fifth anniversary of the date the order is issued.
20-9 SECTION 8. Subchapter D, Chapter 382, Health and Safety
20-10 Code, is amended by adding Section 382.0885 to read as follows:
20-11 Sec. 382.0885. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) In
20-12 determining the appropriate amount of an administrative penalty
20-13 under Section 382.088, the commission may consider the willingness
20-14 of a respondent to contribute to supplemental environmental
20-15 projects that are approved by the commission, giving preference to
20-16 those projects that benefit the community in which the alleged
20-17 violation occurred.
20-18 (b) The commission may not credit against an administrative
20-19 penalty that would otherwise be assessed an amount that:
20-20 (1) exceeds 50 percent of the amount of the penalty
20-21 because of the respondent's willingness to contribute to a
20-22 supplemental environmental project;
20-23 (2) renders the administrative penalty insufficient to
20-24 recover from the respondent the economic benefit the respondent
20-25 allegedly gained through the violation for which the penalty is
20-26 being assessed if the penalty that would otherwise be assessed
20-27 exceeds $5,000; or
21-1 (3) exceeds 50 percent of the amount the respondent is
21-2 to spend on the supplemental environmental project.
21-3 (c) In the order assessing the administrative penalty, the
21-4 commission shall:
21-5 (1) clearly and specifically:
21-6 (A) describe the supplemental environmental
21-7 project; and
21-8 (B) quantify to the extent possible the
21-9 environmental or public health benefits expected to result from the
21-10 project;
21-11 (2) if the supplemental environmental project benefits
21-12 the respondent, clearly and specifically explain whether the
21-13 actions comprising the project are required to be performed under
21-14 state or federal law; and
21-15 (3) quantify to the extent possible any economic
21-16 benefit expected to be gained by the respondent, including any tax
21-17 deduction, by contributing to the supplemental environmental
21-18 project.
21-19 (d) To qualify for commission approval as a supplemental
21-20 environmental project for purposes of this section, a project must:
21-21 (1) prevent pollution, reduce the amount of pollutants
21-22 reaching the environment, enhance the quality of the environment,
21-23 or contribute to public awareness of environmental matters; and
21-24 (2) result in a quantifiable and direct benefit to the
21-25 environment of, or public health in:
21-26 (A) the community in which the respondent's
21-27 facility involved in the administrative penalty is located; or
22-1 (B) an economically distressed area, as defined
22-2 by Section 15.001, 16.341, or 17.921, Water Code, if the project
22-3 involves a contribution to a fund that is:
22-4 (i) administered by a binational agency;
22-5 and
22-6 (ii) used to aid construction of water or
22-7 wastewater facilities for economically distressed areas.
22-8 (e) A project does not qualify for commission approval as a
22-9 supplemental environmental project for purposes of this section if
22-10 the project is necessary to:
22-11 (1) bring the respondent into compliance with
22-12 environmental laws; or
22-13 (2) remediate the environmental harm caused by the
22-14 alleged violation.
22-15 SECTION 9. The importance of this legislation and the
22-16 crowded condition of the calendars in both houses create an
22-17 emergency and an imperative public necessity that the
22-18 constitutional rule requiring bills to be read on three several
22-19 days in each house be suspended, and this rule is hereby suspended,
22-20 and that this Act take effect and be in force from and after its
22-21 passage, and it is so enacted.