By Hirschi H.B. No. 2357
75R4072 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 [a period of] four consecutive months, or for a shorter period
2-15 [of time] if the executive director considers an emergency to
2-16 exist, the executive director shall report this fact to the
2-17 commission together with the information relating to the
2-18 noncompliance. In the report, the executive director shall
2-19 recommend:
2-20 (1) institution of a criminal action;
2-21 (2) referral to the attorney general for institution
2-22 of a suit for a civil penalty; or
2-23 (3) institution of a proceeding to assess an
2-24 administrative penalty.
2-25 (e) A report under Subsection (d):
2-26 (1) may be submitted to the commission in a closed
2-27 session if the report recommends institution of a criminal action;
3-1 or
3-2 (2) shall be made available to the public at the time
3-3 the report is submitted if the report does not recommend
3-4 institution of a criminal action.
3-5 (f) Noncompliance is substantial for purposes of Subsection
3-6 (d) if the noncompliance:
3-7 (1) occurs not later than the fourth month after the
3-8 date the executive director gave the alleged violator notice of a
3-9 similar violation or threatened violation;
3-10 (2) continues for at least two months after the date
3-11 the executive director gave the alleged violator notice of the
3-12 noncompliance;
3-13 (3) has saved the alleged violator, or given the
3-14 alleged violator a competitive advantage with a value of, more than
3-15 $10,000;
3-16 (4) may result in an assessment of an administrative
3-17 penalty of at least $25,000; or
3-18 (5) causes or contributes to a substantial
3-19 endangerment to workers, the public, or the environment.
3-20 [(b) On receiving a report from the executive director under
3-21 Subsection (a) of this section, the commission shall call and hold
3-22 a hearing to determine whether the permittee or licensee who is the
3-23 subject of the executive director's report has been in substantial
3-24 noncompliance with his permit or license.]
3-25 [(c) At the conclusion of the hearing, the commission shall
3-26 issue one of the following orders stating that:]
3-27 [(1) no violation of the permit or license has
4-1 occurred;]
4-2 [(2) a violation of the permit or license has occurred
4-3 but has been corrected and no further action is necessary to
4-4 protect the public interest;]
4-5 [(3) the executive director is authorized to enter
4-6 into a compliance agreement with the permittee or licensee;]
4-7 [(4) a violation of the permit or license has occurred
4-8 and an administrative penalty is assessed as provided by this code;
4-9 or]
4-10 [(5) a violation of the permit or license has
4-11 occurred, and the executive director is directed to have
4-12 enforcement proceedings instituted against the permittee or
4-13 licensee.]
4-14 [(d) A compliance agreement under Subsection (c)(3) of this
4-15 section is not effective unless it is approved by the commission.
4-16 If the commission determines at a hearing that a permittee or
4-17 licensee has not complied with the terms of the compliance
4-18 agreement, the commission may direct the executive director to
4-19 institute enforcement proceedings.]
4-20 [(e) The executive director, on receiving an order from the
4-21 commission directing institution of enforcement proceedings, shall
4-22 take all necessary steps to have enforcement proceedings
4-23 instituted.]
4-24 [(f) The commission may compel the attendance of the
4-25 governing body or any other officer of any permittee or licensee at
4-26 any hearing held under this section.]
4-27 SECTION 2. Subchapter D, Chapter 5, Water Code, is amended
5-1 by adding Sections 5.1171-5.1173 to read as follows:
5-2 Sec. 5.1171. CONSIDERATION OF COMPLIANCE HISTORY. (a) The
5-3 commission by rule shall require an applicant for a permit,
5-4 license, major amendment to a permit or license, or renewal to
5-5 include in the application a description of each violation of this
5-6 code, the Health and Safety Code, or a commission permit, license,
5-7 rule, or order relating to the facility covered by the application
5-8 or a similar facility operated by the applicant that the applicant
5-9 committed during the previous five years.
5-10 (b) An applicant violates this section if the applicant
5-11 submits an application that:
5-12 (1) contains a false or incomplete description of any
5-13 violation the applicant committed during the previous five years;
5-14 or
5-15 (2) omits a description of a violation the applicant
5-16 committed during the previous five years.
5-17 (c) The commission shall consider the applicant's compliance
5-18 history when evaluating the application.
5-19 Sec. 5.1172. AMOUNT OF ADMINISTRATIVE PENALTY. Except as
5-20 otherwise provided by this code or the Health and Safety Code, the
5-21 commission shall, to the extent practicable, assess an
5-22 administrative penalty for violation of this code, the Health and
5-23 Safety Code, or a commission permit, license, rule, or order in an
5-24 amount that is at least equal to the value of a competitive
5-25 advantage the violator gained from the violation.
5-26 Sec. 5.1173. REPORTING ON ENFORCEMENT ACTIVITIES. (a) The
5-27 commission shall report to the speaker and the lieutenant governor
6-1 not later than February 1 of each year on its enforcement
6-2 activities for each area of enforcement.
6-3 (b) The report must:
6-4 (1) use consistent criteria from year to year so as to
6-5 permit the evaluation of the commission's enforcement activities;
6-6 and
6-7 (2) include enforcement activities in this state of:
6-8 (A) the attorney general; and
6-9 (B) local governments, the federal government,
6-10 and others, to the extent known.
6-11 SECTION 3. The Texas Natural Resource Conservation
6-12 Commission shall adopt rules under and implement Section 5.1171(a),
6-13 Water Code, as added by this Act, not later than December 31, 1997.
6-14 SECTION 4. This Act takes effect September 1, 1997.
6-15 SECTION 5. The importance of this legislation and the
6-16 crowded condition of the calendars in both houses create an
6-17 emergency and an imperative public necessity that the
6-18 constitutional rule requiring bills to be read on three several
6-19 days in each house be suspended, and this rule is hereby suspended.