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.