By Hirschi H.B. No. 1988
75R4822 SMH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to monitoring of compliance with and enforcement of
1-3 environmental laws by the Texas Natural Resource Conservation
1-4 Commission and reporting on enforcement actions.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 5.117, Water Code, is amended to read as
1-7 follows:
1-8 Sec. 5.117. COMPLIANCE MONITORING [MANDATORY ENFORCEMENT
1-9 HEARING]. (a) The executive director shall monitor compliance
1-10 with this code, the Health and Safety Code, commission rules, and
1-11 all permits, [and] licenses, and orders issued by the commission
1-12 under this code or the Health and Safety Code.
1-13 (b) In monitoring a facility's compliance, the executive
1-14 director shall conduct periodic inspections and inspections
1-15 relating to complaints without giving notice to the facility to be
1-16 inspected unless notice is necessary to ensure that appropriate
1-17 facility personnel will be available during the inspection or to
1-18 obtain access to the facility. If notice is necessary, the
1-19 executive director shall give notice not more than 72 hours before
1-20 the inspection. This subsection does not apply to an inspection
1-21 conducted:
1-22 (1) to follow up a previous periodic inspection; or
1-23 (2) solely for the purpose of reviewing documents.
1-24 (c) If the executive director has cause to believe that a
2-1 person has violated, is violating, or is threatening to violate
2-2 this code, the Health and Safety Code, or a commission permit,
2-3 license, rule, or order, the executive director shall give written
2-4 notice to the person of the apparent violation or threatened
2-5 violation. Failure of the executive director to give the notice
2-6 does not relieve the person of liability under this code or the
2-7 Health and Safety Code.
2-8 (d) If the information [, and if the evidence] available to
2-9 the executive director through [this] monitoring, inspections, or
2-10 reporting [process] indicates that a permit holder, license holder,
2-11 registrant, [permittee] or other regulated person [licensee] is in
2-12 substantial noncompliance with this code, the Health and Safety
2-13 Code, or a commission [his] permit, [or] license, order, or rule
2-14 for 120 days [a period of four months], or for a shorter period [of
2-15 time] if the executive director considers an emergency to exist,
2-16 the executive director shall report this fact to the commission
2-17 together with the information relating to the noncompliance. In
2-18 the report, the executive director shall recommend:
2-19 (1) institution of a criminal action;
2-20 (2) referral to the attorney general for institution
2-21 of a suit for a civil penalty; or
2-22 (3) institution of a proceeding to assess an
2-23 administrative penalty.
2-24 (e) A report under Subsection (d):
2-25 (1) may be submitted to the commission in a closed
2-26 session if the report recommends institution of a criminal action;
2-27 or
3-1 (2) shall be made available to the public at the time
3-2 the report is submitted if the report does not recommend
3-3 institution of a criminal action.
3-4 (f) Noncompliance is substantial for purposes of Subsection
3-5 (d) if:
3-6 (1) the noncompliance occurs not later than the fourth
3-7 month after the date the executive director gave the alleged
3-8 violator notice of a similar violation or threatened violation;
3-9 (2) the alleged violator has not made a substantial
3-10 effort to correct the noncompliance on or before the seventh day
3-11 after the date the executive director gave the alleged violator
3-12 notice of the noncompliance;
3-13 (3) the noncompliance has saved the alleged violator,
3-14 or given the alleged violator a competitive advantage with a value
3-15 of, more than $5,000;
3-16 (4) the noncompliance may result in an assessment of
3-17 an administrative penalty of at least $5,000; or
3-18 (5) the noncompliance causes or contributes to a
3-19 substantial endangerment to workers, the public, or the
3-20 environment.
3-21 [(b) On receiving a report from the executive director under
3-22 Subsection (a) of this section, the commission shall call and hold
3-23 a hearing to determine whether the permittee or licensee who is the
3-24 subject of the executive director's report has been in substantial
3-25 noncompliance with his permit or license.]
3-26 [(c) At the conclusion of the hearing, the commission shall
3-27 issue one of the following orders stating that:]
4-1 [(1) no violation of the permit or license has
4-2 occurred;]
4-3 [(2) a violation of the permit or license has occurred
4-4 but has been corrected and no further action is necessary to
4-5 protect the public interest;]
4-6 [(3) the executive director is authorized to enter
4-7 into a compliance agreement with the permittee or licensee;]
4-8 [(4) a violation of the permit or license has occurred
4-9 and an administrative penalty is assessed as provided by this code;
4-10 or]
4-11 [(5) a violation of the permit or license has
4-12 occurred, and the executive director is directed to have
4-13 enforcement proceedings instituted against the permittee or
4-14 licensee.]
4-15 [(d) A compliance agreement under Subsection (c)(3) of this
4-16 section is not effective unless it is approved by the commission.
4-17 If the commission determines at a hearing that a permittee or
4-18 licensee has not complied with the terms of the compliance
4-19 agreement, the commission may direct the executive director to
4-20 institute enforcement proceedings.]
4-21 [(e) The executive director, on receiving an order from the
4-22 commission directing institution of enforcement proceedings, shall
4-23 take all necessary steps to have enforcement proceedings
4-24 instituted.]
4-25 [(f) The commission may compel the attendance of the
4-26 governing body or any other officer of any permittee or licensee at
4-27 any hearing held under this section.]
5-1 SECTION 2. Subchapter D, Chapter 5, Water Code, is amended
5-2 by adding Sections 5.1171, 5.1172, and 5.123 to read as follows:
5-3 Sec. 5.1171. CONSIDERATION OF COMPLIANCE HISTORY. (a) The
5-4 commission by rule shall require an applicant for a permit,
5-5 license, amendment, renewal, variance, order, or other
5-6 authorization to include in the application a description of each
5-7 violation of this code, the Health and Safety Code, or a commission
5-8 permit, license, rule, or order relating to the facility covered by
5-9 the application or a similar facility operated by the applicant
5-10 that the applicant committed during the previous five years.
5-11 (b) An applicant violates this section if the applicant
5-12 submits an application that:
5-13 (1) contains a false or incomplete description of any
5-14 violation the applicant committed during the previous five years;
5-15 or
5-16 (2) omits a description of a violation the applicant
5-17 committed during the previous five years.
5-18 (c) The commission shall consider the applicant's compliance
5-19 history when evaluating the application.
5-20 Sec. 5.1172. AMOUNT OF ADMINISTRATIVE PENALTY. Except as
5-21 otherwise provided by this code or the Health and Safety Code, the
5-22 commission shall, to the extent practicable, assess an
5-23 administrative penalty for violation of this code, the Health and
5-24 Safety Code, or a commission permit, license, rule, or order in an
5-25 amount that is at least equal to the value of a competitive
5-26 advantage the violator gained from the violation.
5-27 Sec. 5.123. REPORT ON ENFORCEMENT ACTIONS. (a) Not later
6-1 than November 30 of each year, the commission shall:
6-2 (1) prepare a report on enforcement actions by the
6-3 commission, attorney general, and, to the extent practicable, local
6-4 governments for the preceding fiscal year, including a comparison
6-5 with enforcement actions for each of the preceding five fiscal
6-6 years; and
6-7 (2) provide the report to the governor, lieutenant
6-8 governor, and speaker of the house of representatives.
6-9 (b) The report shall separately describe the enforcement
6-10 actions for each type of regulatory program, including programs
6-11 under Chapters 26 and 27 of this code and Chapters 361, 382, and
6-12 401, Health and Safety Code.
6-13 (c) The description of enforcement actions by the commission
6-14 for each type of regulatory program shall include:
6-15 (1) the number of inspections;
6-16 (2) the number of notices of violations;
6-17 (3) the number of enforcement actions;
6-18 (4) the type of enforcement actions;
6-19 (5) the amount of penalties assessed, deferred, or
6-20 collected; and
6-21 (6) any other information the commission determines
6-22 relevant.
6-23 (d) As soon as possible after the end of each fiscal year,
6-24 the attorney general shall provide the commission information on
6-25 enforcement actions referred by the commission to the attorney
6-26 general that were resolved during the preceding fiscal year or are
6-27 pending at the end of that fiscal year.
7-1 SECTION 3. Section 26.136, Water Code, is amended by
7-2 amending Subsections (a), (d), (h), (i), and (n) and by adding
7-3 Subsection (r) to read as follows:
7-4 (a) If a person violates this chapter or a rule or order
7-5 adopted or a permit issued under this chapter and no local
7-6 government has instituted a lawsuit under this chapter and is
7-7 diligently prosecuting that lawsuit against the same person for the
7-8 same violation under Section 26.124 of this code, the commission
7-9 may assess an administrative [a civil] penalty against that person
7-10 as provided by this section.
7-11 (d) If, after examination of a possible violation and the
7-12 facts surrounding that possible violation, the executive director
7-13 concludes that a violation has occurred, the executive director may
7-14 issue a preliminary report stating the facts on which he based that
7-15 conclusion, recommending that an administrative [a civil] penalty
7-16 under this section be imposed on the person charged, and
7-17 recommending the amount of that proposed penalty. The executive
7-18 director shall base the recommended amount of the proposed penalty
7-19 on the factors provided by Subsection (c) of this section, and the
7-20 executive director shall analyze each factor for the benefit of the
7-21 commission.
7-22 (h) If the person charged requests, or the commission
7-23 orders, a hearing, the commission shall call a hearing and give
7-24 notice of the hearing. As a result of the hearing, the commission
7-25 by order either may find that a violation has occurred and may
7-26 assess an administrative [a civil] penalty, may find that a
7-27 violation has occurred but that no penalty should be assessed, or
8-1 may find that no violation has occurred. All proceedings under
8-2 this subsection are subject to Chapter 2001, Government Code. In
8-3 making any penalty decision, the commission shall analyze each of
8-4 the factors provided by Subsection (c) of this section.
8-5 (i) The commission shall give notice of its decision to the
8-6 person charged, and if the commission finds that a violation has
8-7 occurred and has assessed an administrative [a civil] penalty, the
8-8 commission shall give written notice to the person charged of its
8-9 findings, of the amount of the penalty, and of his right to
8-10 judicial review of the commission's order. If the commission is
8-11 required to give notice of an administrative [a civil] penalty
8-12 under this subsection or Subsection (g) of this section, the
8-13 commission shall file notice of its decision in the Texas Register
8-14 not later than the 10th day after the date on which the decision is
8-15 adopted.
8-16 (n) Notwithstanding any other provision to the contrary, the
8-17 commission may compromise, modify, or remit, with or without
8-18 condition, any administrative [civil] penalty imposed under this
8-19 section. [In determining the appropriate amount of a civil penalty
8-20 for settlement of an administrative enforcement matter, the
8-21 commission, in its discretion, may consider the willingness of a
8-22 respondent to contribute to supplemental environmental projects
8-23 that are approved by the commission, giving preference to those
8-24 projects that benefit the community in which the alleged violation
8-25 occurred. In this subsection, "supplemental environmental project"
8-26 means a project that prevents pollution, reduces the amount of
8-27 pollutants reaching the environment, enhances the quality of the
9-1 environment, or contributes to public awareness of environmental
9-2 matters. The term does not include projects that are necessary to
9-3 bring the respondent into compliance with environmental laws or
9-4 that are necessary to remediate the environmental harm caused by
9-5 the alleged violation.]
9-6 (r) The commission shall retain all records relating to an
9-7 order assessing an administrative penalty under this section until
9-8 the fifth anniversary of the date the order is issued.
9-9 SECTION 4. Subchapter D, Chapter 26, Water Code, is amended
9-10 by adding Section 26.137 to read as follows:
9-11 Sec. 26.137. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) In
9-12 determining the appropriate amount of an administrative penalty
9-13 under Section 26.136, the commission may consider the willingness
9-14 of a respondent to contribute to supplemental environmental
9-15 projects that are approved by the commission, giving preference to
9-16 those projects that benefit the community in which the alleged
9-17 violation occurred.
9-18 (b) The commission may not credit against an administrative
9-19 penalty that would otherwise be assessed an amount that:
9-20 (1) exceeds 50 percent of the amount of the penalty
9-21 because of the respondent's willingness to contribute to a
9-22 supplemental environmental project;
9-23 (2) renders the administrative penalty insufficient to
9-24 recover from the respondent the economic benefit the respondent
9-25 allegedly gained through the violation for which the penalty is
9-26 being assessed if the penalty that would otherwise be assessed
9-27 exceeds $5,000; or
10-1 (3) exceeds 50 percent of the amount the respondent is
10-2 to spend on the supplemental environmental project.
10-3 (c) In the order assessing the administrative penalty, the
10-4 commission shall:
10-5 (1) clearly and specifically:
10-6 (A) describe the supplemental environmental
10-7 project; and
10-8 (B) quantify to the extent possible the
10-9 environmental or public health benefits expected to result from the
10-10 project;
10-11 (2) if the supplemental environmental project benefits
10-12 the respondent, clearly and specifically explain whether the
10-13 actions comprising the project are required to be performed under
10-14 state or federal law; and
10-15 (3) quantify to the extent possible any economic
10-16 benefit expected to be gained by the respondent, including any tax
10-17 deduction, by contributing to the supplemental environmental
10-18 project.
10-19 (d) To qualify for commission approval as a supplemental
10-20 environmental project for purposes of this section, a project must:
10-21 (1) prevent pollution, reduce the amount of pollutants
10-22 reaching the environment, enhance the quality of the environment,
10-23 or contribute to public awareness of environmental matters; and
10-24 (2) result in a quantifiable and direct benefit to the
10-25 environment of, or public health in:
10-26 (A) the community in which the respondent's
10-27 facility involved in the administrative penalty is located; or
11-1 (B) an economically distressed area, as defined
11-2 by Section 15.001, 16.341, or 17.921, if the project involves a
11-3 contribution to a fund that is:
11-4 (i) administered by a binational agency;
11-5 and
11-6 (ii) used to aid construction of water or
11-7 wastewater facilities for economically distressed areas.
11-8 (e) A project does not qualify for commission approval as a
11-9 supplemental environmental project for purposes of this section if
11-10 the project is necessary to:
11-11 (1) bring the respondent into compliance with
11-12 environmental laws; or
11-13 (2) remediate the environmental harm caused by the
11-14 alleged violation.
11-15 SECTION 5. Section 361.251, Health and Safety Code, is
11-16 amended to read as follows:
11-17 Sec. 361.251. ADMINISTRATIVE PENALTY BY COMMISSION. (a) The
11-18 commission may assess an administrative [a civil] penalty against a
11-19 person as provided by this section if:
11-20 (1) the person violates:
11-21 (A) a provision of this chapter that is under
11-22 the commission's jurisdiction;
11-23 (B) a rule adopted by the commission; or
11-24 (C) an order, license, or permit issued by the
11-25 commission under this chapter; and
11-26 (2) no county, political subdivision, or municipality
11-27 has instituted a lawsuit and is diligently prosecuting that lawsuit
12-1 under Section 361.225 or 361.226 against the same person for the
12-2 same violation.
12-3 (b) The amount of the penalty may not exceed $10,000 a day
12-4 for a person who violates this chapter or a rule, order, license,
12-5 or permit issued under this chapter. Each day a violation
12-6 continues may be considered a separate violation.
12-7 (c) In determining the amount of the penalty, the commission
12-8 shall consider:
12-9 (1) the seriousness of the violation, including the
12-10 nature, circumstances, extent, and gravity of the prohibited act
12-11 and the hazard or potential hazard created to the health or safety
12-12 of the public;
12-13 (2) the history of previous violations;
12-14 (3) the amount necessary to deter future violations;
12-15 (4) efforts to correct the violation; and
12-16 (5) any other matters that justice may require.
12-17 (d) If, after examination of a possible violation and the
12-18 facts surrounding that possible violation, the commission concludes
12-19 that a violation has occurred, the commission may issue a
12-20 preliminary report:
12-21 (1) stating the facts that support the conclusion;
12-22 (2) recommending that an administrative [a civil]
12-23 penalty under this section be imposed; and
12-24 (3) recommending the amount of the penalty, which
12-25 shall be based on the seriousness of the violation as determined
12-26 from the facts surrounding the violation.
12-27 (e) Not later than the 10th day after the date on which the
13-1 report is issued, the commission shall give written notice of the
13-2 report to the person charged with the violation. The notice must
13-3 include:
13-4 (1) a brief summary of the charges;
13-5 (2) a statement of the amount of the penalty
13-6 recommended; and
13-7 (3) a statement of the right of the person charged to
13-8 a hearing on the occurrence of the violation, the amount of the
13-9 penalty, or both.
13-10 (f) Not later than the 20th day after the date on which
13-11 notice is sent, the person charged may give to the executive
13-12 director written consent to the commission's report, including the
13-13 recommended penalty, or make a written request for a hearing.
13-14 (g) If the person charged with the violation consents to the
13-15 penalty recommended by the executive director or does not timely
13-16 respond to the notice, the executive director or the executive
13-17 director's designee by order shall assess the penalty or order a
13-18 hearing to be held on the findings and recommendations in the
13-19 commission's report. If the executive director or the executive
13-20 director's designee assesses the penalty, the commission shall give
13-21 written notice to the person charged of the decision and the person
13-22 shall pay the penalty.
13-23 (h) If the person charged requests or the executive director
13-24 orders a hearing, the executive director shall order and shall give
13-25 notice of the hearing.
13-26 (i) The hearing shall be held by a hearing examiner
13-27 designated by the executive director.
14-1 (j) The hearing examiner shall make findings of fact and
14-2 promptly issue to the executive director a written decision as to
14-3 the occurrence of the violation and a recommendation of the amount
14-4 of the proposed penalty if a penalty is warranted.
14-5 (k) Based on the findings of fact and the recommendations of
14-6 the hearing examiner, the executive director by order may find that
14-7 a violation has occurred and assess an administrative [a civil]
14-8 penalty or may find that no violation occurred.
14-9 (l) All proceedings under Subsections (h)-(k) are subject to
14-10 Chapter 2001, Government Code.
14-11 (m) The executive director shall give notice of the
14-12 executive director's decision to the person charged, and if the
14-13 executive director finds that a violation has occurred and assesses
14-14 an administrative [a civil] penalty, the executive director shall
14-15 give written notice to the person charged of:
14-16 (1) the executive director's findings;
14-17 (2) the amount of the penalty; and
14-18 (3) the person's right to judicial review of the
14-19 executive director's order.
14-20 (n) Not later than the 30th day after the date on which the
14-21 executive director's order is final, the person charged with the
14-22 penalty shall pay the penalty in full or file a petition for
14-23 judicial review.
14-24 (o) If the person seeks judicial review of the fact of the
14-25 violation, the amount of the penalty, or both, the person, within
14-26 the time provided by Subsection (n), shall:
14-27 (1) send the amount of the penalty to the executive
15-1 director for placement in an escrow account; or
15-2 (2) post with the executive director a supersedeas
15-3 bond in a form approved by the executive director for the amount of
15-4 the penalty, the bond to be effective until judicial review of the
15-5 order or decision is final.
15-6 [(p) Judicial review of the order or decision of the
15-7 commissioner assessing the penalty shall be under Subchapter G,
15-8 Chapter 2001, Government Code.]
15-9 (p) Judicial review of the order or decision of the
15-10 executive director assessing the penalty shall be under Chapter
15-11 2001, Government Code.
15-12 (q) If the penalty is reduced or not assessed, the executive
15-13 director shall:
15-14 (1) remit to the person charged the appropriate amount
15-15 of any penalty payment plus accrued interest; or
15-16 (2) execute a release of the bond if a supersedeas
15-17 bond has been posted.
15-18 (r) The accrued interest on amounts remitted by the
15-19 executive director shall be paid:
15-20 (1) at a rate equal to the rate charged on loans to
15-21 depository institutions by the New York Federal Reserve Bank; and
15-22 (2) for the period beginning on the date the penalty
15-23 is paid to the executive director under Subsection (o) and ending
15-24 on the date the penalty is remitted.
15-25 (s) A penalty collected under this section shall be
15-26 deposited to the credit of the general revenue fund.
15-27 (t) The commission may compromise, modify, or remit, with or
16-1 without conditions, an administrative [a civil] penalty imposed
16-2 under this section. [In determining the appropriate amount of a
16-3 civil penalty for settlement of an administrative enforcement
16-4 matter, the commission, in its discretion, may consider the
16-5 willingness of a respondent to contribute to supplemental
16-6 environmental projects that are approved by the commission, giving
16-7 preference to those projects that benefit the community in which
16-8 the alleged violation occurred. In this subsection, "supplemental
16-9 environmental project" means a project that prevents pollution,
16-10 reduces the amount of pollutants reaching the environment, enhances
16-11 the quality of the environment, or contributes to public awareness
16-12 of environmental matters. The term does not include projects that
16-13 are necessary to bring the respondent into compliance with
16-14 environmental laws or that are necessary to remediate the
16-15 environmental harm caused by the alleged violation.]
16-16 (u) [(v)] Notwithstanding any other provision to the
16-17 contrary, the commission is not required to make findings of fact
16-18 or conclusions of law, other than an uncontested finding that the
16-19 commission has jurisdiction, in an agreed order compromising or
16-20 settling an alleged violation of this chapter. An agreed order may
16-21 include a reservation that:
16-22 (1) the order is not an admission of a violation of
16-23 this chapter or a rule adopted under this chapter;
16-24 (2) the occurrence of a violation is in dispute; or
16-25 (3) the order is not intended to become a part of a
16-26 party's or a facility's compliance history.
16-27 (v) [(w)] An agreed administrative order issued by the
17-1 commission shall not be admissible against a party to that order in
17-2 a civil proceeding, unless the proceeding is brought by the
17-3 attorney general's office to:
17-4 (1) enforce the terms of that order; or
17-5 (2) pursue violations of the Water Code or this code.
17-6 (w) The commission shall retain all records relating to an
17-7 order assessing an administrative penalty under this section until
17-8 the fifth anniversary of the date the order is issued.
17-9 SECTION 6. Subchapter H, Chapter 361, Health and Safety
17-10 Code, is amended by adding Section 361.2515 to read as follows:
17-11 Sec. 361.2515. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) In
17-12 determining the appropriate amount of an administrative penalty
17-13 under Section 361.251, the commission may consider the willingness
17-14 of a respondent to contribute to supplemental environmental
17-15 projects that are approved by the commission, giving preference to
17-16 those projects that benefit the community in which the alleged
17-17 violation occurred.
17-18 (b) The commission may not credit against an administrative
17-19 penalty that would otherwise be assessed an amount that:
17-20 (1) exceeds 50 percent of the amount of the penalty
17-21 because of the respondent's willingness to contribute to a
17-22 supplemental environmental project;
17-23 (2) renders the administrative penalty insufficient to
17-24 recover from the respondent the economic benefit the respondent
17-25 allegedly gained through the violation for which the penalty is
17-26 being assessed if the penalty that would otherwise be assessed
17-27 exceeds $5,000; or
18-1 (3) exceeds 50 percent of the amount the respondent is
18-2 to spend on the supplemental environmental project.
18-3 (c) In the order assessing the administrative penalty, the
18-4 commission shall:
18-5 (1) clearly and specifically:
18-6 (A) describe the supplemental environmental
18-7 project; and
18-8 (B) quantify to the extent possible the
18-9 environmental or public health benefits expected to result from the
18-10 project;
18-11 (2) if the supplemental environmental project benefits
18-12 the respondent, clearly and specifically explain whether the
18-13 actions comprising the project are required to be performed under
18-14 state or federal law; and
18-15 (3) quantify to the extent possible any economic
18-16 benefit expected to be gained by the respondent, including any tax
18-17 deduction, by contributing to the supplemental environmental
18-18 project.
18-19 (d) To qualify for commission approval as a supplemental
18-20 environmental project for purposes of this section, a project must:
18-21 (1) prevent pollution, reduce the amount of pollutants
18-22 reaching the environment, enhance the quality of the environment,
18-23 or contribute to public awareness of environmental matters; and
18-24 (2) result in a quantifiable and direct benefit to the
18-25 environment of, or public health in:
18-26 (A) the community in which the respondent's
18-27 facility involved in the administrative penalty is located; or
19-1 (B) an economically distressed area, as defined
19-2 by Section 15.001, 16.341, or 17.921, Water Code, if the project
19-3 involves a contribution to a fund that is:
19-4 (i) administered by a binational agency;
19-5 and
19-6 (ii) used to aid construction of water or
19-7 wastewater facilities for economically distressed areas.
19-8 (e) A project does not qualify for commission approval as a
19-9 supplemental environmental project for purposes of this section if
19-10 the project is necessary to:
19-11 (1) bring the respondent into compliance with
19-12 environmental laws; or
19-13 (2) remediate the environmental harm caused by the
19-14 alleged violation.
19-15 SECTION 7. Section 361.252, Health and Safety Code, is
19-16 amended by amending Subsections (a), (d), (h)-(j), and (o) and by
19-17 adding Subsection (t) to read as follows:
19-18 (a) The commission may assess an administrative [a civil]
19-19 penalty against a person as provided by this section if:
19-20 (1) the person violates:
19-21 (A) a provision of this chapter concerning solid
19-22 waste that is under the commission's jurisdiction;
19-23 (B) a rule or order adopted by the commission
19-24 concerning solid waste that is under the commission's jurisdiction;
19-25 or
19-26 (C) a solid waste permit or registration issued
19-27 by the commission under this chapter; and
20-1 (2) no county, political subdivision, or municipality
20-2 has instituted a lawsuit and is diligently prosecuting that lawsuit
20-3 under Section 361.225 or 361.226 against the same person for the
20-4 same violation.
20-5 (d) If, after examination of a possible violation and the
20-6 facts surrounding that possible violation, the executive director
20-7 concludes that a violation has occurred, the executive director may
20-8 issue a preliminary report:
20-9 (1) stating the facts that support the conclusion;
20-10 (2) recommending that an administrative [a civil]
20-11 penalty under this section be imposed; and
20-12 (3) recommending the amount of the penalty, which
20-13 shall be based on the factors prescribed by Subsection (c),
20-14 including an analysis of each factor for the commission.
20-15 (h) If the person charged requests or the commission orders
20-16 a hearing, the commission shall order and shall give notice of the
20-17 hearing. The commission by order may find that a violation has
20-18 occurred and may assess an administrative [a civil] penalty, may
20-19 find that a violation has occurred but that no penalty should be
20-20 assessed, or may find that no violation has occurred. In making a
20-21 penalty decision, the commission shall analyze each factor
20-22 prescribed by Subsection (c). All proceedings under this
20-23 subsection are subject to Chapter 2001, Government Code.
20-24 (i) The commission shall give notice of its decision to the
20-25 person charged, and if the commission finds that a violation has
20-26 occurred and assesses an administrative [a civil] penalty, the
20-27 commission shall give written notice to the person charged of:
21-1 (1) the commission's findings;
21-2 (2) the amount of the penalty; and
21-3 (3) the person's right to judicial review of the
21-4 commission's order.
21-5 (j) If the commission is required to give notice of an
21-6 administrative [a civil] penalty under Subsection (g) or (i), the
21-7 commission shall file notice of its decision in the Texas Register
21-8 not later than the 10th day after the date on which the decision is
21-9 adopted.
21-10 (o) The commission may compromise, modify, or remit, with or
21-11 without conditions, an administrative [a civil] penalty imposed
21-12 under this section. [In determining the appropriate amount of a
21-13 civil penalty for settlement of an administrative enforcement
21-14 matter, the commission, in its discretion, may consider the
21-15 willingness of a respondent to contribute to supplemental
21-16 environmental projects that are approved by the commission, giving
21-17 preference to those projects that benefit the community in which
21-18 the alleged violation occurred. In this subsection, "supplemental
21-19 environmental project" means a project that prevents pollution,
21-20 reduces the amount of pollutants reaching the environment, enhances
21-21 the quality of the environment, or contributes to public awareness
21-22 of environmental matters. The term does not include projects that
21-23 are necessary to bring the respondent into compliance with
21-24 environmental laws or that are necessary to remediate the
21-25 environmental harm caused by the alleged violation.]
21-26 (t) The commission shall retain all records relating to an
21-27 order assessing an administrative penalty under this section until
22-1 the fifth anniversary of the date the order is issued.
22-2 SECTION 8. Subchapter H, Chapter 361, Health and Safety
22-3 Code, is amended by adding Section 361.2525 to read as follows:
22-4 Sec. 361.2525. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) In
22-5 determining the appropriate amount of an administrative penalty
22-6 under Section 361.252, the commission may consider the willingness
22-7 of a respondent to contribute to supplemental environmental
22-8 projects that are approved by the commission, giving preference to
22-9 those projects that benefit the community in which the alleged
22-10 violation occurred.
22-11 (b) The commission may not credit against an administrative
22-12 penalty that would otherwise be assessed an amount that:
22-13 (1) exceeds 50 percent of the amount of the penalty
22-14 because of the respondent's willingness to contribute to a
22-15 supplemental environmental project;
22-16 (2) renders the administrative penalty insufficient to
22-17 recover from the respondent the economic benefit the respondent
22-18 allegedly gained through the violation for which the penalty is
22-19 being assessed if the penalty that would otherwise be assessed
22-20 exceeds $5,000; or
22-21 (3) exceeds 50 percent of the amount the respondent is
22-22 to spend on the supplemental environmental project.
22-23 (c) In the order assessing the administrative penalty, the
22-24 commission shall:
22-25 (1) clearly and specifically:
22-26 (A) describe the supplemental environmental
22-27 project; and
23-1 (B) quantify to the extent possible the
23-2 environmental or public health benefits expected to result from the
23-3 project;
23-4 (2) if the supplemental environmental project benefits
23-5 the respondent, clearly and specifically explain whether the
23-6 actions comprising the project are required to be performed under
23-7 state or federal law; and
23-8 (3) quantify to the extent possible any economic
23-9 benefit expected to be gained by the respondent, including any tax
23-10 deduction, by contributing to the supplemental environmental
23-11 project.
23-12 (d) To qualify for commission approval as a supplemental
23-13 environmental project for purposes of this section, a project must:
23-14 (1) prevent pollution, reduce the amount of pollutants
23-15 reaching the environment, enhance the quality of the environment,
23-16 or contribute to public awareness of environmental matters; and
23-17 (2) result in a quantifiable and direct benefit to the
23-18 environment of, or public health in:
23-19 (A) the community in which the respondent's
23-20 facility involved in the administrative penalty is located; or
23-21 (B) an economically distressed area, as defined
23-22 by Section 15.001, 16.341, or 17.921, Water Code, if the project
23-23 involves a contribution to a fund that is:
23-24 (i) administered by a binational agency;
23-25 and
23-26 (ii) used to aid construction of water or
23-27 wastewater facilities for economically distressed areas.
24-1 (e) A project does not qualify for commission approval as a
24-2 supplemental environmental project for purposes of this section if
24-3 the project is necessary to:
24-4 (1) bring the respondent into compliance with
24-5 environmental laws; or
24-6 (2) remediate the environmental harm caused by the
24-7 alleged violation.
24-8 SECTION 9. Section 382.088, Health and Safety Code, is
24-9 amended by amending Subsections (a), (d), (h), and (j) and by
24-10 adding Subsection (m) to read as follows:
24-11 (a) A person may be assessed an administrative [a civil]
24-12 penalty as provided by this section if the person violates this
24-13 chapter or a rule or order adopted or permit issued under this
24-14 chapter and no local government has instituted a lawsuit and is
24-15 diligently prosecuting that lawsuit against the same person for the
24-16 same violation under Section 382.114.
24-17 (d) If the executive director, after an investigation,
24-18 concludes that a violation has occurred, the executive director may
24-19 issue a preliminary report:
24-20 (1) stating the facts that support the conclusion;
24-21 (2) recommending that an administrative [a civil]
24-22 penalty under this section be imposed; and
24-23 (3) recommending the amount of the penalty.
24-24 (h) If the person charged requests or the commission orders
24-25 a hearing, the executive director shall order a hearing. The
24-26 hearing shall be held by a hearing examiner designated by the
24-27 commission. The hearing examiner shall make findings of fact and
25-1 promptly issue to the commission a written decision as to the
25-2 occurrence of the violation and a recommendation on the amount of
25-3 the proposed penalty if a penalty is warranted. Based on the
25-4 findings of fact and the recommendations of the hearing examiner,
25-5 the commission by order may find a violation has occurred and may
25-6 assess an administrative [a civil] penalty or may find that no
25-7 violation has occurred. All proceedings under this subsection are
25-8 subject to Chapter 2001, Government Code.
25-9 (j) The commission may compromise, modify, or remit, with or
25-10 without conditions, an administrative [a civil] penalty imposed
25-11 under this section. [In determining the appropriate amount of a
25-12 civil penalty for settlement of an administrative enforcement
25-13 matter, the commission, in its discretion, may consider the
25-14 willingness of a respondent to contribute to supplemental
25-15 environmental projects that are approved by the commission, giving
25-16 preference to those projects that benefit the community in which
25-17 the alleged violation occurred. In this subsection, "supplemental
25-18 environmental project" means a project that prevents pollution,
25-19 reduces the amount of pollutants reaching the environment, enhances
25-20 the quality of the environment, or contributes to public awareness
25-21 of environmental matters. The term does not include projects that
25-22 are necessary to bring the respondent into compliance with
25-23 environmental laws or that are necessary to remediate the
25-24 environmental harm caused by the alleged violation.]
25-25 (m) The commission shall retain all records relating to an
25-26 order assessing an administrative penalty under this section until
25-27 the fifth anniversary of the date the order is issued.
26-1 SECTION 10. Subchapter D, Chapter 382, Health and Safety
26-2 Code, is amended by adding Section 382.0885 to read as follows:
26-3 Sec. 382.0885. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) In
26-4 determining the appropriate amount of an administrative penalty
26-5 under Section 382.088, the commission may consider the willingness
26-6 of a respondent to contribute to supplemental environmental
26-7 projects that are approved by the commission, giving preference to
26-8 those projects that benefit the community in which the alleged
26-9 violation occurred.
26-10 (b) The commission may not credit against an administrative
26-11 penalty that would otherwise be assessed an amount that:
26-12 (1) exceeds 50 percent of the amount of the penalty
26-13 because of the respondent's willingness to contribute to a
26-14 supplemental environmental project;
26-15 (2) renders the administrative penalty insufficient to
26-16 recover from the respondent the economic benefit the respondent
26-17 allegedly gained through the violation for which the penalty is
26-18 being assessed if the penalty that would otherwise be assessed
26-19 exceeds $5,000; or
26-20 (3) exceeds 50 percent of the amount the respondent is
26-21 to spend on the supplemental environmental project.
26-22 (c) In the order assessing the administrative penalty, the
26-23 commission shall:
26-24 (1) clearly and specifically:
26-25 (A) describe the supplemental environmental
26-26 project; and
26-27 (B) quantify to the extent possible the
27-1 environmental or public health benefits expected to result from the
27-2 project;
27-3 (2) if the supplemental environmental project benefits
27-4 the respondent, clearly and specifically explain whether the
27-5 actions comprising the project are required to be performed under
27-6 state or federal law; and
27-7 (3) quantify to the extent possible any economic
27-8 benefit expected to be gained by the respondent, including any tax
27-9 deduction, by contributing to the supplemental environmental
27-10 project.
27-11 (d) To qualify for commission approval as a supplemental
27-12 environmental project for purposes of this section, a project must:
27-13 (1) prevent pollution, reduce the amount of pollutants
27-14 reaching the environment, enhance the quality of the environment,
27-15 or contribute to public awareness of environmental matters; and
27-16 (2) result in a quantifiable and direct benefit to the
27-17 environment of, or public health in:
27-18 (A) the community in which the respondent's
27-19 facility involved in the administrative penalty is located; or
27-20 (B) an economically distressed area, as defined
27-21 by Section 15.001, 16.341, or 17.921, Water Code, if the project
27-22 involves a contribution to a fund that is:
27-23 (i) administered by a binational agency;
27-24 and
27-25 (ii) used to aid construction of water or
27-26 wastewater facilities for economically distressed areas.
27-27 (e) A project does not qualify for commission approval as a
28-1 supplemental environmental project for purposes of this section if
28-2 the project is necessary to:
28-3 (1) bring the respondent into compliance with
28-4 environmental laws; or
28-5 (2) remediate the environmental harm caused by the
28-6 alleged violation.
28-7 SECTION 11. (a) Except as provided by this section, this Act
28-8 takes effect immediately.
28-9 (b) Section 1 of this Act and Sections 5.1171 and 5.1172,
28-10 Water Code, as added by this Act, take effect September 1, 1997.
28-11 (c) The Texas Natural Resource Conservation Commission shall
28-12 adopt rules under and implement Section 5.1171(a), Water Code, as
28-13 added by this Act, not later than December 1, 1997.
28-14 SECTION 12. The importance of this legislation and the
28-15 crowded condition of the calendars in both houses create an
28-16 emergency and an imperative public necessity that the
28-17 constitutional rule requiring bills to be read on three several
28-18 days in each house be suspended, and this rule is hereby suspended,
28-19 and that this Act take effect and be in force according to its
28-20 terms, and it is so enacted.