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.