By: Bivins S.B. No. 1876
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the consolidation of the enforcement and emergency
1-2 powers of the Texas Natural Resource Conservation Commission;
1-3 providing criminal, civil, and administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 5, Water Code, is amended by adding
1-6 Subchapter L to read as follows:
1-7 SUBCHAPTER L. EMERGENCY AND TEMPORARY ORDERS
1-8 Sec. 5.501. EMERGENCY AND TEMPORARY ORDER OR PERMIT;
1-9 TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITION. (a) For
1-10 the purposes and in the manner provided by this subchapter, the
1-11 commission:
1-12 (1) may issue a temporary or emergency mandatory,
1-13 permissive, or prohibitory order; and
1-14 (2) by temporary or emergency order may:
1-15 (A) issue a temporary permit; or
1-16 (B) temporarily suspend or amend a permit
1-17 condition.
1-18 (b) The commission may issue an emergency order under this
1-19 subchapter after providing the notice and opportunity for hearing
1-20 that the commission considers practicable under the circumstances
1-21 or without notice or hearing. Except as provided by Section 5.508,
1-22 notice must be given not later than the 10th day before the date
1-23 set for a hearing if the commission requires notice and hearing
1-24 before issuing the order. The commission shall give notice not
2-1 later than the 20th day before the date set for a hearing on a
2-2 temporary order.
2-3 (c) The commission by order or rule may delegate to the
2-4 executive director the authority to:
2-5 (1) receive applications and issue emergency orders
2-6 under this subchapter; and
2-7 (2) authorize, in writing, a representative or
2-8 representatives to act on the executive director's behalf under
2-9 this subchapter.
2-10 (d) Chapter 2001, Government Code, does not apply to the
2-11 issuance of an emergency order under this subchapter without a
2-12 hearing.
2-13 (e) A law under which the commission acts that requires
2-14 notice of hearing or that sets procedures for the issuance of
2-15 permits does not apply to a hearing on an emergency order issued
2-16 under this subchapter unless the law specifically requires notice
2-17 for an emergency order. The commission shall give the general
2-18 notice of the hearing that the commission considers practicable
2-19 under the circumstances.
2-20 (f) An emergency or temporary order issued under this
2-21 subchapter does not vest in the permit holder or recipient any
2-22 rights and expires in accordance with its terms.
2-23 (g) The commission may prescribe rules and adopt fees
2-24 necessary to carry out and administer this subchapter.
2-25 Sec. 5.502. APPLICATION FOR EMERGENCY OR TEMPORARY ORDER. A
2-26 person other than the executive director or the executive
2-27 director's representative who desires an emergency or temporary
3-1 order under this subchapter must submit a sworn written application
3-2 to the commission. The application must:
3-3 (1) describe the condition of emergency or other
3-4 condition justifying the issuance of the order;
3-5 (2) allege facts to support the findings required
3-6 under this subchapter;
3-7 (3) estimate the dates on which the proposed order
3-8 should begin and end;
3-9 (4) describe the action sought and the activity
3-10 proposed to be allowed, mandated, or prohibited; and
3-11 (5) include any other statement or information
3-12 required by this subchapter or by the commission.
3-13 Sec. 5.503. NOTICE OF ISSUANCE. Notice of the issuance of
3-14 an emergency order shall be provided in accordance with commission
3-15 rules.
3-16 Sec. 5.504. HEARING TO AFFIRM, MODIFY, OR SET ASIDE ORDER.
3-17 (a) If the commission, the executive director, or the executive
3-18 director's representative issues an emergency order under this
3-19 subchapter without a hearing, the order shall set a time and place
3-20 for a hearing to affirm, modify, or set aside the emergency order
3-21 to be held before the commission or its designee as soon as
3-22 practicable after the order is issued.
3-23 (b) At or following the hearing required under Subsection
3-24 (a), the commission shall affirm, modify, or set aside the
3-25 emergency order.
3-26 (c) A hearing to affirm, modify, or set aside an emergency
3-27 order shall be conducted in accordance with Chapter 2001,
4-1 Government Code, and commission rules. Commission rules concerning
4-2 a hearing to affirm, modify, or set aside an emergency order must
4-3 provide for presentation of evidence by the applicant under oath,
4-4 presentation of rebuttal evidence, and cross-examination of
4-5 witnesses.
4-6 Sec. 5.505. TERM OF ORDER. An emergency or temporary order
4-7 issued under this subchapter must be limited to a reasonable time
4-8 specified by the order. Except as otherwise provided by this
4-9 subchapter, the term of an emergency order may not exceed 180 days.
4-10 An emergency order may be renewed once for a period not to exceed
4-11 180 days.
4-12 Sec. 5.506. EMERGENCY SUSPENSION OF PERMIT CONDITION
4-13 RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND
4-14 INSTREAM USES. (a) The commission by emergency or temporary order
4-15 may suspend a permit condition relating to beneficial inflows to
4-16 affected bays and estuaries and instream uses if the commission
4-17 finds that an emergency exists that cannot practicably be resolved
4-18 in another way.
4-19 (b) The commission must give written notice of the proposed
4-20 suspension to the Parks and Wildlife Department before the
4-21 commission suspends a permit condition under this section. The
4-22 commission shall give the Parks and Wildlife Department an
4-23 opportunity to submit comments on the proposed suspension for a
4-24 period of 72 hours from receipt of the notice and must consider
4-25 those comments before issuing an order imposing the suspension.
4-26 (c) The commission may suspend a permit condition under this
4-27 section without notice except as required by Subsection (b).
5-1 (d) The commission shall notify all affected persons
5-2 immediately by publication.
5-3 Sec. 5.507. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
5-4 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
5-5 The commission may issue an emergency order appointing a willing
5-6 person to temporarily manage and operate a utility. Notice of the
5-7 action is adequate if the notice is mailed or hand delivered to the
5-8 last known address of the utility's headquarters.
5-9 Sec. 5.508. EMERGENCY ORDER FOR RATE INCREASE IN CERTAIN
5-10 SITUATIONS. (a) Notwithstanding the requirements of Section
5-11 13.187, the commission may authorize an emergency rate increase for
5-12 a utility for which a person has been appointed under Section 5.507
5-13 if the increase is necessary to ensure the provision of continuous
5-14 and adequate services to the utility's customers.
5-15 (b) A utility that receives an emergency rate increase under
5-16 this section shall provide to each ratepayer notice of the increase
5-17 as soon as possible, but not later than the first utility bill
5-18 issued at the new rate.
5-19 (c) Notwithstanding Section 5.505, an order may be issued
5-20 under this section for a term not to exceed 15 months. The
5-21 commission shall schedule a hearing to establish a final rate
5-22 within 15 months after the date on which an emergency rate increase
5-23 takes effect. The additional revenues collected under an emergency
5-24 rate increase are subject to refund if the commission finds that
5-25 the rate increase was larger than necessary to ensure continuous
5-26 and adequate service.
5-27 Sec. 5.509. TEMPORARY OR EMERGENCY ORDER RELATING TO
6-1 DISCHARGE OF WASTE OR POLLUTANTS. (a) The commission may issue an
6-2 emergency or temporary order relating to the discharge of waste or
6-3 pollutants into or adjacent to water in the state if:
6-4 (1) the order is necessary to enable action to be
6-5 taken more expeditiously than is otherwise provided by Chapter 26
6-6 to effectuate the policy and purposes of that chapter; and
6-7 (2) the commission finds that:
6-8 (A) the discharge is unavoidable to:
6-9 (i) prevent loss of life, serious injury,
6-10 or severe property damage;
6-11 (ii) prevent severe economic loss or
6-12 ameliorate serious drought conditions, to the extent consistent
6-13 with the requirements for United States Environmental Protection
6-14 Agency authorization of a state permit program; or
6-15 (iii) make necessary and unforeseen
6-16 repairs to a facility;
6-17 (B) there is no feasible alternative to the
6-18 proposed discharge;
6-19 (C) the discharge will not cause significant
6-20 hazard to human life and health, unreasonable damage to the
6-21 property of persons other than the applicant, or unreasonable
6-22 economic loss to persons other than the applicant; and
6-23 (D) the discharge will not present a significant
6-24 hazard to the uses that will be made of the receiving water after
6-25 the discharge.
6-26 (b) A person desiring a temporary or emergency order under
6-27 this section must submit an application under Section 5.502 that,
7-1 in addition to complying with that section:
7-2 (1) states the volume and quality of the proposed
7-3 discharge;
7-4 (2) explains the measures proposed to minimize the
7-5 volume and duration of the discharge; and
7-6 (3) explains the measures proposed to maximize the
7-7 waste treatment efficiency of units not taken out of service or
7-8 facilities provided for interim use.
7-9 Sec. 5.510. EMERGENCY ORDER CONCERNING UNDERGROUND OR
7-10 ABOVEGROUND STORAGE TANKS. (a) The commission may issue an
7-11 emergency order to the owner or operator of an underground or
7-12 aboveground storage tank regulated under Chapter 26 prohibiting the
7-13 owner or operator from allowing or continuing a release or
7-14 threatened release and requiring the owner or operator to take the
7-15 actions necessary to eliminate the release or threatened release,
7-16 if the commission finds that:
7-17 (1) there is an actual or threatened release of a
7-18 regulated substance; and
7-19 (2) more expeditious action than is otherwise provided
7-20 under Chapter 26 is necessary to protect the public health or
7-21 safety or the environment from harm.
7-22 (b) An emergency order issued under this section must be:
7-23 (1) mailed by certified mail, return receipt
7-24 requested, to each person identified in the order;
7-25 (2) hand delivered to each person identified in the
7-26 order; or
7-27 (3) on failure of service by certified mail or hand
8-1 delivery, served by publication one time in the Texas Register and
8-2 one time in a newspaper with general circulation in each county in
8-3 which any of the persons identified in the order has a last known
8-4 address.
8-5 Sec. 5.511. EMERGENCY ADMINISTRATIVE ORDER CONCERNING
8-6 IMMINENT AND SUBSTANTIAL ENDANGERMENT. The commission or the
8-7 executive director may issue an emergency administrative order
8-8 under Section 361.272, Health and Safety Code, in the manner
8-9 provided by this subchapter.
8-10 Sec. 5.512. EMERGENCY ORDER CONCERNING ACTIVITY OF SOLID
8-11 WASTE MANAGEMENT. The commission may issue an emergency order
8-12 concerning an activity of solid waste management under the
8-13 commission's jurisdiction, even if that activity is not covered by
8-14 a permit, if the commission finds that an emergency requiring
8-15 immediate action to protect the public health and safety exists.
8-16 Sec. 5.513. EMERGENCY ORDER CONCERNING ON-SITE SEWAGE
8-17 DISPOSAL SYSTEM. (a) The commission may issue an emergency order
8-18 suspending the registration of the installer of an on-site sewage
8-19 disposal system, regulating an on-site sewage disposal system, or
8-20 both, if the commission finds that an emergency exists and that the
8-21 public health and safety is endangered because of the operation of
8-22 an on-site sewage disposal system that does not comply with Chapter
8-23 366, Health and Safety Code, or a rule adopted under that chapter.
8-24 (b) If an order issued under this section is adopted without
8-25 notice or hearing, the order must set a time, not more than 30 days
8-26 after the order is issued, for a hearing to affirm, modify, or set
8-27 aside the order.
9-1 Sec. 5.514. ORDER ISSUED UNDER AIR EMERGENCY. (a) If the
9-2 commission finds that a generalized condition of air pollution
9-3 exists that creates an emergency requiring immediate action to
9-4 protect human health or safety, the commission, with the
9-5 concurrence of the governor, may issue an emergency order requiring
9-6 a person causing or contributing to the air pollution to
9-7 immediately reduce or discontinue the emission of air contaminants.
9-8 (b) If the commission finds that emissions from one or more
9-9 sources are causing imminent danger to human health or safety but
9-10 that there is not a generalized condition of air pollution under
9-11 Subsection (a), the commission may issue an emergency order
9-12 requiring the persons responsible for the emissions to immediately
9-13 reduce or discontinue the emissions.
9-14 (c) Notwithstanding Section 5.504, the commission shall
9-15 affirm, modify, or set aside an order issued under this section not
9-16 later than 24 hours after the hearing under that section begins and
9-17 without adjournment of the hearing.
9-18 (d) This section does not limit any power that the governor
9-19 or another officer may have to declare an emergency and to act on
9-20 that declaration if the power is conferred by law or inheres in the
9-21 office.
9-22 Sec. 5.515. EMERGENCY ORDER BECAUSE OF CATASTROPHE.
9-23 (a) The commission may issue an emergency order authorizing
9-24 immediate action for the addition, replacement, or repair of
9-25 facilities or control equipment necessitated by a catastrophe
9-26 occurring in this state and the emission of air contaminants during
9-27 the addition, replacement, or repair of those facilities if the
10-1 actions and emissions are otherwise precluded under Chapter 382,
10-2 Health and Safety Code.
10-3 (b) An order issued under this section:
10-4 (1) may authorize action only on:
10-5 (A) property on which a catastrophe has
10-6 occurred; or
10-7 (B) other property that is owned by the owner or
10-8 operator of the damaged facility and that produces the same
10-9 intermediates, products, or by-products; and
10-10 (2) must contain a schedule for submitting a complete
10-11 application for a permit under Section 382.0518, Health and Safety
10-12 Code.
10-13 (c) The person applying for an emergency order must
10-14 demonstrate that there will be no more than a de minimis increase
10-15 in the predicted concentration of air contaminants at or beyond the
10-16 property line of the other property on which action is authorized
10-17 under Subsection (b)(1)(B). The commission shall review and act on
10-18 an application submitted as provided by Subsection (b)(2) without
10-19 regard to construction activity under an order under this section.
10-20 (d) An applicant desiring an emergency order under this
10-21 section must submit an application under Section 5.502 that, in
10-22 addition to complying with that section:
10-23 (1) describes the catastrophe;
10-24 (2) states that:
10-25 (A) the construction and emissions are essential
10-26 to prevent loss of life, serious injury, severe property damage, or
10-27 severe economic loss not attributable to the applicant's actions
11-1 and are necessary for the addition, replacement, or repair of a
11-2 facility or control equipment necessitated by the catastrophe;
11-3 (B) there is no practicable alternative to the
11-4 proposed construction and emissions; and
11-5 (C) the emissions will not cause or contribute
11-6 to air pollution;
11-7 (3) estimates the dates on which the proposed
11-8 construction or emissions, or both, will begin and end;
11-9 (4) estimates the date on which the facility will
11-10 begin operation; and
11-11 (5) describes the quantity and type of air
11-12 contaminants proposed to be emitted.
11-13 (e) In this section, "catastrophe" means an unforeseen
11-14 event, including an act of God, an act of war, severe weather,
11-15 explosions, fire, or similar occurrences beyond the reasonable
11-16 control of the operator, that makes a facility or its related
11-17 appurtenances inoperable.
11-18 Sec. 5.516. EMERGENCY ORDER UNDER SECTION 401.056, HEALTH
11-19 AND SAFETY CODE. The commission may issue an emergency order under
11-20 Section 401.056, Health and Safety Code, in the manner provided by
11-21 this subchapter.
11-22 Sec. 5.517. EMERGENCY ORDERS FOR CORRECTIVE ACTION AND
11-23 MEASURES. (a) The commission may issue an emergency order under
11-24 Section 401.270, Health and Safety Code, to a person responsible
11-25 for an activity, including a past activity, concerning the recovery
11-26 or processing of source material or the disposal of by-product
11-27 material that requires any action, including a corrective measure
12-1 that is necessary to correct or remove the threat, if it appears
12-2 that there is an actual or threatened release of source material or
12-3 by-product material that presents an imminent and substantial
12-4 danger to the public health and safety or the environment,
12-5 regardless of whether the activity was lawful at the time.
12-6 (b) An emergency order may be issued under this section to:
12-7 (1) restrain the person from allowing or continuing
12-8 the release; and
12-9 (2) require the person to take any action necessary to
12-10 provide and implement an environmentally sound remedial action plan
12-11 designed to eliminate the release or threatened release.
12-12 (c) An emergency order issued under this section must be:
12-13 (1) mailed by certified mail, return receipt
12-14 requested, to each person identified in the order;
12-15 (2) hand delivered to each person identified in the
12-16 order; or
12-17 (3) on failure of service by certified mail or hand
12-18 delivery, served by publication one time in the Texas Register and
12-19 one time in a newspaper with general circulation in each county in
12-20 which any of the persons identified in the order has a last known
12-21 address.
12-22 (d) If an order issued under this section is adopted without
12-23 notice or hearing, the order must set a time, at least 10 but not
12-24 more than 30 days after the date the order is issued, for a hearing
12-25 to affirm, modify, or set aside the order. All provisions of the
12-26 order remain in effect during the pendency of the hearing unless
12-27 otherwise altered by the commission.
13-1 SECTION 2. Subtitle A, Title 2, Water Code, is amended by
13-2 adding Chapter 7 to read as follows:
13-3 CHAPTER 7. ENFORCEMENT
13-4 SUBCHAPTER A. GENERAL PROVISIONS
13-5 Sec. 7.001. DEFINITIONS. In this chapter:
13-6 (1) "Commission" means the Texas Natural Resource
13-7 Conservation Commission.
13-8 (2) "Permit" includes a license, certificate,
13-9 registration, approval, or other form of authorization. This
13-10 definition does not apply to Subchapter G.
13-11 Sec. 7.002. ENFORCEMENT AUTHORITY. The commission may
13-12 initiate an action under this chapter to enforce provisions of this
13-13 code and the Health and Safety Code within the commission's
13-14 jurisdiction as provided by Section 5.013 of this code and rules
13-15 adopted under those provisions. The commission or the executive
13-16 director may institute legal proceedings to compel compliance with
13-17 the relevant provisions of this code and the Health and Safety Code
13-18 and rules, orders, permits, or other decisions of the commission.
13-19 Sec. 7.003. ENFORCEMENT REPORT. (a) The commission shall
13-20 report at least once each month on enforcement actions taken by the
13-21 commission or others and the resolution of those actions.
13-22 (b) The report shall be an item for commission discussion at
13-23 a meeting of the commission for which public notice is given.
13-24 (c) If an enforcement action involves a suit filed for
13-25 injunctive relief or civil penalties, or both, the report shall
13-26 state the actual or projected time for resolution of the suit. A
13-27 copy of the report and of the minutes of the meeting reflecting
14-1 commission action relating to the report shall be filed with the
14-2 governor and the attorney general.
14-3 Sec. 7.004. REMEDIES CUMULATIVE. The remedies under this
14-4 chapter are cumulative of all other remedies. Nothing in this
14-5 chapter affects the right of a private corporation or individual to
14-6 pursue any available common law remedy to abate a condition of
14-7 pollution or other nuisance, to recover damages to enforce a right,
14-8 or to prevent or seek redress or compensation for the violation of
14-9 a right or otherwise redress an injury.
14-10 Sec. 7.005. EFFECT ON OTHER LAW. This chapter does not
14-11 exempt a person from complying with or being subject to other law.
14-12 (Sections 7.006-7.030 reserved for expansion
14-13 SUBCHAPTER B. CORRECTIVE ACTION AND INJUNCTIVE RELIEF
14-14 Sec. 7.031. CORRECTIVE ACTION RELATING TO HAZARDOUS WASTE.
14-15 (a) The commission shall require corrective action for a release
14-16 of hazardous waste or hazardous waste constituents from a solid
14-17 waste management unit at a solid waste processing, storage, or
14-18 disposal facility that is required to obtain a permit for the
14-19 management of hazardous waste and whose permit is issued after
14-20 November 8, 1984, regardless of when the waste is placed in the
14-21 unit.
14-22 (b) The commission shall establish schedules for compliance
14-23 for the corrective action if the corrective action cannot be
14-24 completed before permit issuance and shall require assurances of
14-25 financial responsibility for completing the corrective action.
14-26 (c) If, before the issuance of a permit, the commission
14-27 determines that there is or has been a release of hazardous waste
15-1 into the environment from a facility required to obtain a permit in
15-2 accordance with an approved state program under Section 3006 of the
15-3 federal Solid Waste Disposal Act, as amended by the Resource
15-4 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
15-5 Section 6901 et seq.), the commission may:
15-6 (1) issue an order requiring corrective action or
15-7 other response measures considered necessary to protect human
15-8 health or the environment; or
15-9 (2) institute a civil action under Subchapter D.
15-10 (d) An order issued under this section:
15-11 (1) may include a suspension or revocation of
15-12 authorization to operate;
15-13 (2) must state with reasonable specificity the nature
15-14 of the required corrective action or other response measure; and
15-15 (3) must specify a time for compliance.
15-16 (e) If a person named in the order does not comply with the
15-17 order, the commission may assess an administrative penalty or seek
15-18 a civil penalty in accordance with this chapter.
15-19 Sec. 7.032. INJUNCTIVE RELIEF. (a) The executive director
15-20 may enforce a commission rule or a provision of a permit issued by
15-21 the commission by injunction or other appropriate remedy.
15-22 (b) If it appears that a violation or threat of violation of
15-23 a statute within the commission's jurisdiction or a rule adopted or
15-24 an order or a permit issued under such a statute has occurred or is
15-25 about to occur, the executive director may have a suit instituted
15-26 in district court for injunctive relief to restrain the violation
15-27 or threat of violation.
16-1 (c) The suit may be brought in the county in which the
16-2 defendant resides or in the county in which the violation or threat
16-3 of violation occurs.
16-4 (d) In a suit brought under this section to enjoin a
16-5 violation or threat of violation described by Subsection (b), the
16-6 court may grant the commission, without bond or other undertaking,
16-7 any prohibitory or mandatory injunction the facts may warrant,
16-8 including a temporary restraining order and, after notice and
16-9 hearing, a temporary injunction or permanent injunction.
16-10 (e) On request of the executive director, the attorney
16-11 general or the prosecuting attorney in a county in which the
16-12 violation occurs shall initiate a suit in the name of the state for
16-13 injunctive relief. The suit may be brought independently of or in
16-14 conjunction with a suit under Subchapter D.
16-15 Sec. 7.033. RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH AND
16-16 SAFETY CODE, VIOLATION. The commission shall seek reimbursement,
16-17 either by a commission order or by a suit filed under Subchapter D
16-18 by the attorney general at the commission's request, of security
16-19 from the fund used by the commission to pay for actions, including
16-20 corrective measures, to remedy spills or contamination by
16-21 radioactive material resulting from a violation of Chapter 401,
16-22 Health and Safety Code, or a rule adopted or a license,
16-23 registration, or order issued under that chapter.
16-24 (Sections 7.034-7.050 reserved for expansion
16-25 SUBCHAPTER C. ADMINISTRATIVE PENALTIES
16-26 Sec. 7.051. ADMINISTRATIVE PENALTY. (a) The commission may
16-27 assess an administrative penalty against a person as provided by
17-1 this subchapter if:
17-2 (1) the person violates:
17-3 (A) a provision of this code or of the Health
17-4 and Safety Code that is within the commission's jurisdiction;
17-5 (B) a rule adopted or order issued by the
17-6 commission under a statute within the commission's jurisdiction; or
17-7 (C) a permit issued by the commission under a
17-8 statute within the commission's jurisdiction; and
17-9 (2) a county, political subdivision, or municipality
17-10 has not instituted a lawsuit and is not diligently prosecuting that
17-11 lawsuit under Subchapter I against the same person for the same
17-12 violation.
17-13 (b) This subchapter does not apply to violations of Chapter
17-14 11, 12, 13, 16, or 36 of this code, or Chapter 341, Health and
17-15 Safety Code.
17-16 Sec. 7.052. MAXIMUM PENALTY. (a) The amount of the penalty
17-17 for a violation of Chapter 18, 32, 33, or 34 of this code or
17-18 Chapter 366, 371, or 372, Health and Safety Code, may not exceed
17-19 $2,500 a day for each violation.
17-20 (b) The amount of the penalty for all other violations
17-21 within the jurisdiction of the commission to enforce may not exceed
17-22 $10,000 a day for each violation.
17-23 (c) Each day that a continuing violation occurs may be
17-24 considered a separate violation. The commission may authorize an
17-25 installment payment schedule for an administrative penalty assessed
17-26 under this subchapter, except for an administrative penalty
17-27 assessed under Section 7.057 or assessed after a hearing under
18-1 Section 7.058.
18-2 Sec. 7.053. FACTORS TO BE CONSIDERED IN DETERMINATION OF
18-3 PENALTY AMOUNT. In determining the amount of an administrative
18-4 penalty, the commission shall consider:
18-5 (1) the nature, circumstances, extent, duration, and
18-6 gravity of the prohibited act, with special emphasis on the
18-7 impairment of existing water rights or the hazard or potential
18-8 hazard created to the health or safety of the public;
18-9 (2) the impact of the violation on:
18-10 (A) air quality in the region;
18-11 (B) a receiving stream or underground water
18-12 reservoir;
18-13 (C) instream uses, water quality, aquatic and
18-14 wildlife habitat, or beneficial freshwater inflows to bays and
18-15 estuaries; or
18-16 (D) affected persons;
18-17 (3) with respect to the alleged violator:
18-18 (A) the history and extent of previous
18-19 violations;
18-20 (B) the degree of culpability, including whether
18-21 the violation was attributable to mechanical or electrical failures
18-22 and whether the violation could have been reasonably anticipated
18-23 and avoided;
18-24 (C) the demonstrated good faith, including
18-25 actions taken by the alleged violator to rectify the cause of the
18-26 violation and to compensate affected persons;
18-27 (D) economic benefit gained through the
19-1 violation; and
19-2 (E) the amount necessary to deter future
19-3 violations; and
19-4 (4) any other matters that justice may require.
19-5 Sec. 7.054. REPORT OF VIOLATION. If, after examination of a
19-6 possible violation and the facts surrounding that possible
19-7 violation, the executive director concludes that a violation has
19-8 occurred, the executive director may issue a preliminary report in
19-9 accordance with commission rules that includes recommendations
19-10 regarding any penalty or corrective action.
19-11 Sec. 7.055. NOTICE OF REPORT. Not later than the 10th day
19-12 after the date on which the report of a violation is issued, the
19-13 executive director shall give written notice of the report, in
19-14 accordance with commission rules, to the person charged with the
19-15 violation.
19-16 Sec. 7.056. CONSENT. Not later than the 20th day after the
19-17 date on which notice is received, the person charged may give to
19-18 the commission written consent to the executive director's report,
19-19 including the recommended penalty, or make a written request for a
19-20 hearing.
19-21 Sec. 7.057. DEFAULT. If the person charged with the
19-22 violation consents to the penalty recommended by the executive
19-23 director or does not timely respond to the notice, the commission
19-24 by order shall assess the penalty or order a hearing to be held on
19-25 the recommendations in the executive director's report. If the
19-26 commission assesses the penalty, the commission shall give written
19-27 notice of its decision to the person charged.
20-1 Sec. 7.058. HEARING. If the person charged requests or the
20-2 commission orders a hearing, the commission shall order and shall
20-3 give notice of the hearing. The commission by order may find that
20-4 a violation has occurred and may assess a penalty, may find that a
20-5 violation has occurred but that a penalty should not be assessed,
20-6 or may find that a violation has not occurred. In making a penalty
20-7 decision, the commission shall analyze each factor prescribed by
20-8 Section 7.053. All proceedings under this section are subject to
20-9 Chapter 2001, Government Code.
20-10 Sec. 7.059. NOTICE OF DECISION. The commission shall give
20-11 notice of its decision to the person charged. If the commission
20-12 finds that a violation has occurred and assesses a penalty, the
20-13 commission shall give written notice to the person charged of:
20-14 (1) the commission's findings;
20-15 (2) the amount of the penalty;
20-16 (3) the right to judicial review of the commission's
20-17 order; and
20-18 (4) other information required by law.
20-19 Sec. 7.060. NOTICE OF PENALTY. If the commission is
20-20 required to give notice of a penalty under Section 7.057 or 7.059,
20-21 the commission shall publish notice of its decision in the Texas
20-22 Register not later than the 10th day after the date on which the
20-23 decision is adopted.
20-24 Sec. 7.061. PAYMENT OF PENALTY; PETITION FOR REVIEW. Within
20-25 the 30-day period immediately following the date on which the
20-26 commission's order is final, as provided by Section 2001.144,
20-27 Government Code, the person charged with the penalty shall:
21-1 (1) pay the penalty in full;
21-2 (2) pay the first installment penalty payment in full;
21-3 (3) pay the penalty and file a petition for judicial
21-4 review, contesting either the amount of the penalty or the fact of
21-5 the violation or contesting both the fact of the violation and the
21-6 amount of the penalty; or
21-7 (4) without paying the penalty, file a petition for
21-8 judicial review contesting the occurrence of the violation and the
21-9 amount of the penalty.
21-10 Sec. 7.062. STAYS. Within the 30-day period described by
21-11 Section 7.061, a person who acts under Section 7.061(3) may:
21-12 (1) stay enforcement of the penalty by:
21-13 (A) paying the amount of the penalty to the
21-14 court for placement in an escrow account; or
21-15 (B) giving to the court a supersedeas bond that
21-16 is approved by the court for the amount of the penalty and that is
21-17 effective until all judicial review of the commission's order is
21-18 final; or
21-19 (2) request the court to stay enforcement of the
21-20 penalty by:
21-21 (A) filing with the court a sworn affidavit of
21-22 the person stating that the person is financially unable to give
21-23 the supersedeas bond; and
21-24 (B) sending a copy of the affidavit to the
21-25 executive director by certified mail.
21-26 Sec. 7.063. CONSENT TO AFFIDAVIT. If the executive director
21-27 receives a copy of an affidavit under Section 7.062(2), the
22-1 executive director may file with the court, within five days after
22-2 the date the copy is received, a contest to the affidavit. The
22-3 court shall hold a hearing on the facts alleged in the affidavit as
22-4 soon as practicable and shall stay the enforcement of the penalty
22-5 on finding that the alleged facts are true. The person who files
22-6 an affidavit has the burden of proving that the person is
22-7 financially unable to pay the penalty or give the supersedeas bond.
22-8 Sec. 7.064. JUDICIAL REVIEW. Judicial review of the order
22-9 or decision of the commission assessing the penalty is under
22-10 Subchapter G, Chapter 2001, Government Code.
22-11 Sec. 7.065. PENALTY REDUCED OR NOT ASSESSED. (a) If the
22-12 person paid the penalty and if the penalty is reduced or not
22-13 assessed by the court, the executive director shall remit to the
22-14 person charged the appropriate amount plus accrued interest if the
22-15 penalty has been paid or shall execute a release of the bond if a
22-16 supersedeas bond has been posted.
22-17 (b) The accrued interest on amounts remitted by the
22-18 executive director under this section shall be paid at a rate equal
22-19 to the rate charged on loans to depository institutions by the New
22-20 York Federal Reserve Bank and shall be paid for the period
22-21 beginning on the date the penalty is paid to the executive director
22-22 under Section 7.061 and ending on the day the penalty is remitted.
22-23 Sec. 7.066. REFERRAL TO ATTORNEY GENERAL. A person who does
22-24 not comply with Section 7.061 waives the right to judicial review,
22-25 and the commission or the executive director may refer the matter
22-26 to the attorney general for enforcement.
22-27 Sec. 7.067. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) The
23-1 commission may compromise, modify, or remit, with or without
23-2 conditions, an administrative penalty imposed under this
23-3 subchapter. In determining the appropriate amount of a penalty for
23-4 settlement of an administrative enforcement matter, the commission
23-5 may consider a respondent's willingness to contribute to
23-6 supplemental environmental projects that are approved by the
23-7 commission, giving preference to projects that benefit the
23-8 community in which the alleged violation occurred.
23-9 (b) In this section, "supplemental environmental project"
23-10 means a project that prevents pollution, reduces the amount of
23-11 pollutants reaching the environment, enhances the quality of the
23-12 environment, or contributes to public awareness of environmental
23-13 matters. The term does not include projects that are necessary to
23-14 bring the respondent into compliance with environmental laws or
23-15 that are necessary to remediate the environmental harm caused by
23-16 the alleged violation.
23-17 Sec. 7.068. FULL AND COMPLETE SATISFACTION. Payment of an
23-18 administrative penalty under this subchapter is full and complete
23-19 satisfaction of the violation for which the penalty is assessed and
23-20 precludes any other civil or criminal penalty for the same
23-21 violation.
23-22 Sec. 7.069. DISPOSITION OF PENALTY. A penalty collected
23-23 under this subchapter shall be deposited to the credit of the
23-24 general revenue fund.
23-25 Sec. 7.070. FINDINGS OF FACT NOT REQUIRED; RESERVATIONS.
23-26 Notwithstanding any other provision to the contrary, the commission
23-27 is not required to make findings of fact or conclusions of law
24-1 other than an uncontested finding that the commission has
24-2 jurisdiction in an agreed order compromising or settling an alleged
24-3 violation of a statute within the commission's jurisdiction or of a
24-4 rule adopted or an order or a permit issued under such a statute.
24-5 An agreed administrative order may include a reservation that:
24-6 (1) the order is not an admission of a violation of a
24-7 statute within the commission's jurisdiction or of a rule adopted
24-8 or an order or a permit issued under such a statute;
24-9 (2) the occurrence of a violation is in dispute; or
24-10 (3) the order is not intended to become a part of a
24-11 party's or a facility's compliance history.
24-12 Sec. 7.071. INADMISSIBILITY. An agreed administrative
24-13 order issued by the commission under this subchapter is not
24-14 admissible against a party to that order in a civil proceeding
24-15 unless the proceeding is brought by the attorney general's office
24-16 to:
24-17 (1) enforce the terms of that order; or
24-18 (2) pursue a violation of a statute within the
24-19 commission's jurisdiction or of a rule adopted or an order or a
24-20 permit issued under such a statute.
24-21 Sec. 7.072. RECOVERY OF PENALTY. An administrative penalty
24-22 owed under this subchapter may be recovered in a civil action
24-23 brought by the attorney general at the request of the commission.
24-24 Sec. 7.073. CORRECTIVE ACTION. If a person violates any
24-25 statute or rule within the commission's jurisdiction, the
24-26 commission may:
24-27 (1) assess against the person an administrative
25-1 penalty under this subchapter; and
25-2 (2) order the person to take corrective action.
25-3 Sec. 7.074. HEARING POWERS. The commission may exercise
25-4 under this subchapter the hearing powers authorized by Section
25-5 26.020.
25-6 Sec. 7.075. PUBLIC COMMENT. (a) Before the commission
25-7 approves an administrative order or proposed agreement to settle an
25-8 administrative enforcement action initiated under this subchapter
25-9 to which the commission is a party, the commission shall allow the
25-10 public to comment in writing on the proposed order or agreement.
25-11 Notice of the opportunity to comment shall be published in the
25-12 Texas Register not later than the 30th day before the date on which
25-13 the public comment period closes.
25-14 (b) The commission shall promptly consider any written
25-15 comments and may withdraw or withhold consent to the proposed order
25-16 or agreement if the comments disclose facts or considerations that
25-17 indicate that the consent is inappropriate, improper, inadequate,
25-18 or inconsistent with the requirements of this subchapter, another
25-19 statute within the commission's jurisdiction, or a rule adopted or
25-20 an order or a permit issued under such a statute. Further notice
25-21 of changes to the proposed order or agreement is not required to be
25-22 published if those changes arise from comments submitted in
25-23 response to a previous notice.
25-24 (c) This section does not apply to:
25-25 (1) a criminal enforcement proceeding; or
25-26 (2) an emergency order or other emergency relief that
25-27 is not a final order of the commission.
26-1 (d) Chapter 2001, Government Code, does not apply to public
26-2 comment under this section.
26-3 (Sections 7.076-7.100 reserved for expansion
26-4 SUBCHAPTER D. CIVIL PENALTIES
26-5 Sec. 7.101. VIOLATION. A person may not cause, suffer,
26-6 allow, or permit a violation of a statute within the commission's
26-7 jurisdiction or a rule adopted or an order or permit issued under
26-8 such a statute.
26-9 Sec. 7.102. MAXIMUM PENALTY. A person who causes, suffers,
26-10 allows, or permits a violation of a statute, rule, order, or permit
26-11 relating to Chapter 13, 18, 32, 33, or 34 of this code or Chapter
26-12 341, 366, 371, or 372, Health and Safety Code, shall be assessed
26-13 for each violation a civil penalty not less than $50 nor greater
26-14 than $5,000 for each day of each violation as the court or jury
26-15 considers proper. A person who causes, suffers, allows, or permits
26-16 a violation of a statute, rule, order, or permit relating to any
26-17 other matter within the commission's jurisdiction to enforce, other
26-18 than violations of Chapter 11, 12, 13, 16, or 36 of this code, or
26-19 Chapter 341, Health and Safety Code, shall be assessed for each
26-20 violation a civil penalty not less than $50 nor greater than
26-21 $25,000 for each day of each violation as the court or jury
26-22 considers proper. Each day of a continuing violation is a separate
26-23 violation.
26-24 Sec. 7.103. CONTINUING VIOLATIONS. If it is shown on a
26-25 trial of a defendant that the defendant has previously been
26-26 assessed a civil penalty for a violation of a statute within the
26-27 commission's jurisdiction or a rule adopted or an order or a permit
27-1 issued under such a statute within the year before the date on
27-2 which the violation being tried occurred, the defendant shall be
27-3 assessed a civil penalty not less than $100 nor greater than
27-4 $25,000 for each subsequent day and for each subsequent violation.
27-5 Each day of a continuing violation is a separate violation.
27-6 Sec. 7.104. NO PENALTY FOR FAILURE TO PAY CERTAIN FEES. A
27-7 civil penalty may not be assessed for failure to:
27-8 (1) pay a fee under Section 371.062, Health and Safety
27-9 Code; or
27-10 (2) file a report under Section 371.024, Health and
27-11 Safety Code.
27-12 Sec. 7.105. CIVIL SUIT. (a) On the request of the
27-13 executive director or the commission, the attorney general shall
27-14 institute a suit in the name of the state for injunctive relief
27-15 under Section 7.032, to recover a civil penalty, or for both
27-16 injunctive relief and a civil penalty.
27-17 (b) The commission, through the executive director, shall
27-18 refer a matter to the attorney general's office for enforcement
27-19 through civil suit if a person:
27-20 (1) is alleged to be making or to have made an
27-21 unauthorized discharge of waste into or adjacent to the waters in
27-22 the state at a new point of discharge without a permit in violation
27-23 of state law;
27-24 (2) has been the subject of two or more finally issued
27-25 administrative penalty orders for violations of Chapter 26
27-26 occurring at the same wastewater management system or other point
27-27 of discharge within the two years immediately preceding the date of
28-1 the first alleged violation currently under investigation at that
28-2 site;
28-3 (3) is alleged to be operating a new solid waste
28-4 facility, as defined in Section 361.003, Health and Safety Code,
28-5 without a permit in violation of state law;
28-6 (4) has been the subject of two or more finally issued
28-7 administrative penalty orders for violations of Chapter 361, Health
28-8 and Safety Code, occurring at the same facility within the two
28-9 years immediately preceding the date of the first alleged violation
28-10 currently under investigation at that site;
28-11 (5) is alleged to be constructing or operating a
28-12 facility at a new plant site without a permit required by Chapter
28-13 382, Health and Safety Code, in violation of state law; or
28-14 (6) has been the subject of two or more finally issued
28-15 administrative penalty orders for violations of Chapter 382, Health
28-16 and Safety Code, for violations occurring at the same plant site
28-17 within the two years immediately preceding the date of the first
28-18 alleged violation currently under investigation at that site.
28-19 (c) The suit may be brought in Travis County, in the county
28-20 in which the defendant resides, or in the county in which the
28-21 violation or threat of violation occurs.
28-22 Sec. 7.106. RESOLUTION THROUGH ADMINISTRATIVE ORDER. The
28-23 attorney general's office and the executive director may agree to
28-24 resolve any violation, before or after referral, by an
28-25 administrative order issued under Subchapter C by the commission
28-26 with the approval of the attorney general.
28-27 Sec. 7.107. DIVISION OF CIVIL PENALTY. Except in a suit
29-1 brought for a violation of Chapter 28 of this code or of Chapter
29-2 401, Health and Safety Code, a civil penalty recovered in a suit
29-3 brought under this subchapter by a local government shall be
29-4 equally divided between:
29-5 (1) the state; and
29-6 (2) the local government that brought the suit.
29-7 Sec. 7.108. ATTORNEY'S FEES. If the state prevails in a
29-8 suit under this subchapter it may recover reasonable attorney's
29-9 fees, court costs, and reasonable investigative costs incurred in
29-10 relation to the proceeding.
29-11 Sec. 7.109. PARKS AND WILDLIFE DEPARTMENT JURISDICTION.
29-12 (a) If it appears that a violation or a threat of violation of
29-13 Section 26.121 or a rule, permit, or order of the commission has
29-14 occurred or is occurring that affects aquatic life or wildlife, the
29-15 Parks and Wildlife Department, in the same manner as the commission
29-16 under this subchapter, may have a suit instituted in a district
29-17 court for injunctive relief or civil penalties, or both, as
29-18 authorized by this subchapter, against the person who committed or
29-19 is committing or threatening to commit the violation.
29-20 (b) In a suit brought under this section for a violation
29-21 that is the proximate cause of injury to aquatic life or wildlife
29-22 normally taken for commercial or sport purposes or to species on
29-23 which this life is directly dependent for food, the Parks and
29-24 Wildlife Department is entitled to recover damages for the injury.
29-25 In determining damages, the court may consider the valuation of the
29-26 injured resources established in rules adopted by the Parks and
29-27 Wildlife Department under Subchapter D, Chapter 12, Parks and
30-1 Wildlife Code, or the replacement cost of the injured resources.
30-2 Any recovery of damages for injury to aquatic life or wildlife
30-3 shall be deposited to the credit of the game, fish, and water
30-4 safety account under Section 11.032, Parks and Wildlife Code, and
30-5 the Parks and Wildlife Department shall use money recovered in a
30-6 suit brought under this section to replenish or enhance the injured
30-7 resources.
30-8 (c) The actual cost of investigation, reasonable attorney's
30-9 fees, and reasonable expert witness fees may also be recovered, and
30-10 those recovered amounts shall be credited to the same operating
30-11 accounts from which expenditures occurred.
30-12 (d) This section does not limit recovery for damages
30-13 available under other laws.
30-14 Sec. 7.110. COMMENTS. (a) Before the commission approves
30-15 an agreed final judgment, consent order, voluntary settlement
30-16 agreement, or other voluntary settlement agreement, or other
30-17 voluntary agreement that would finally settle a civil enforcement
30-18 action initiated under this chapter to which the State of Texas is
30-19 a party or before the court signs a judgment or other agreement
30-20 settling a judicial enforcement action other than an enforcement
30-21 action under Section 113 or 120 or Title II of the federal Clean
30-22 Air Act (42 U.S.C. Section 7401 et seq.), the attorney general
30-23 shall permit the public to comment in writing on the proposed
30-24 order, judgment, or other agreement.
30-25 (b) Notice of the opportunity to comment shall be published
30-26 in the Texas Register not later than the 30th day before the date
30-27 on which the public comment period closes.
31-1 (c) The attorney general shall promptly consider any written
31-2 comments and may withdraw or withhold consent to the proposed
31-3 order, judgment, or other agreement if the comments disclose facts
31-4 or considerations that indicate that the consent is inappropriate,
31-5 improper, inadequate, or inconsistent with the requirements of this
31-6 chapter, the statutes within the commission's jurisdiction, or a
31-7 rule adopted or an order or a permit issued under such a statute.
31-8 Further notice of changes to the proposed order, judgment, or other
31-9 agreement is not required to be published if those changes arise
31-10 from comments submitted in response to a previous notice.
31-11 (d) The attorney general may not oppose intervention by a
31-12 person who has standing to intervene as provided by Rule 60, Texas
31-13 Rules of Civil Procedure.
31-14 (e) This section does not apply to:
31-15 (1) criminal enforcement proceedings; or
31-16 (2) proposed temporary restraining orders, temporary
31-17 injunctions, emergency orders, or other emergency relief that is
31-18 not a final judgment or final order of the court or commission.
31-19 (f) Chapter 2001, Government Code, does not apply to public
31-20 comment under this section.
31-21 Sec. 7.111. RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH AND
31-22 SAFETY CODE, VIOLATION. On request by the commission, the attorney
31-23 general shall file suit to recover security under Section 7.033.
31-24 (Sections 7.112-7.140 reserved for expansion
31-25 SUBCHAPTER E. CRIMINAL OFFENSES AND PENALTIES
31-26 Sec. 7.141. DEFINITIONS. In this subchapter:
31-27 (1) "Appropriate regulatory agency" means the
32-1 commission, the Texas Department of Health, or any other agency
32-2 authorized to regulate the handling and disposal of medical waste.
32-3 (2) "Corporation" and "association" have the meanings
32-4 assigned by Section 1.07, Penal Code, except that the terms do not
32-5 include a government.
32-6 (3) "Large quantity generator" means a person who
32-7 generates more than 50 pounds of medical waste each month.
32-8 (4) "Medical waste" includes animal waste, bulk blood
32-9 and blood products, microbiological waste, pathological waste,
32-10 sharps, and special waste from health care-related facilities as
32-11 those terms are defined in 25 T.A.C. Section 1.132 (Texas
32-12 Department of Health, Definition, Treatment, and Disposition of
32-13 Special Waste from Health Care-Related Facilities). The term does
32-14 not include medical waste produced on farmland and ranchland as
32-15 defined by Section 252.001(6), Agriculture Code.
32-16 (5) "Serious bodily injury" has the meaning assigned
32-17 by Section 1.07, Penal Code.
32-18 (6) "Small quantity generator" means a person who
32-19 generates 50 pounds or less of medical waste each month.
32-20 Sec. 7.142. VIOLATIONS RELATING TO UNLAWFUL USE OF STATE
32-21 WATER. (a) A person commits an offense if the person violates:
32-22 (1) Section 11.081;
32-23 (2) Section 11.083;
32-24 (3) Section 11.084;
32-25 (4) Section 11.087;
32-26 (5) Section 11.088;
32-27 (6) Section 11.089;
33-1 (7) Section 11.090;
33-2 (8) Section 11.091;
33-3 (9) Section 11.092;
33-4 (10) Section 11.093;
33-5 (11) Section 11.094;
33-6 (12) Section 11.096;
33-7 (13) Section 11.203; or
33-8 (14) Section 11.205.
33-9 (b) An offense under Subsection (a)(9), (a)(10), or (a)(14)
33-10 is punishable under Section 7.187(1)(A) or Section 7.187(2)(B) or
33-11 both.
33-12 (c) An offense under Subsection (a)(1), (a)(2), (a)(4),
33-13 (a)(6), (a)(7), or (a)(8) is punishable under Section 7.187(1)(A)
33-14 or Section 7.187(2)(C) or both.
33-15 (d) An offense under Subsection (a)(3) or (a)(11) is
33-16 punishable under Section 7.187(1)(A) or Section 7.187(2)(D) or
33-17 both.
33-18 (e) An offense under Subsection (a)(5) is punishable under
33-19 Section 7.187(1)(A) or Section 7.187(2)(E) or both.
33-20 (f) Possession of state water when the right to its use has
33-21 not been acquired according to Chapter 11 is prima facie evidence
33-22 of a violation of Section 11.081.
33-23 (g) Possession or use of water on a person's land by a
33-24 person not entitled to the water under this code is prima facie
33-25 evidence of a violation of Section 11.083.
33-26 Sec. 7.143. VIOLATION OF MINIMUM STATE STANDARDS OR MODEL
33-27 POLITICAL SUBDIVISION RULES. (a) A person commits an offense if
34-1 the person knowingly or intentionally violates a rule adopted under
34-2 Subchapter J, Chapter 16.
34-3 (b) An offense under this section is a Class A misdemeanor.
34-4 Sec. 7.144. VIOLATION RELATING TO WEATHER MODIFICATION.
34-5 (a) A person commits an offense if the person violates Chapter 18
34-6 or any rule adopted or order or permit issued under Chapter 18.
34-7 (b) An offense under this section is a misdemeanor and is
34-8 punishable under Section 7.187(1)(A) or Section 7.187(2)(A) or
34-9 both.
34-10 Sec. 7.145. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE.
34-11 (a) A person commits an offense if the person, acting
34-12 intentionally or knowingly with respect to the person's conduct,
34-13 discharges or allows the discharge of a waste or pollutant into or
34-14 adjacent to water in the state that causes or threatens to cause
34-15 water pollution unless the waste or pollutant is discharged in
34-16 strict compliance with all required permits or with an order issued
34-17 or a rule adopted by the appropriate regulatory agency.
34-18 (b) An offense under this section is punishable for an
34-19 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
34-20 both.
34-21 (c) An offense under this section is punishable for a person
34-22 other than an individual under Section 7.187(1)(D).
34-23 Sec. 7.146. DISCHARGE FROM POINT SOURCE. (a) A person
34-24 commits an offense if the person, acting intentionally or knowingly
34-25 with respect to the person's conduct, discharges or allows the
34-26 discharge of a waste or pollutant from a point source in violation
34-27 of Chapter 26 or of a rule, permit, or order of the appropriate
35-1 regulatory agency.
35-2 (b) An offense under this section is punishable for an
35-3 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
35-4 both.
35-5 (c) An offense under this section is punishable for a person
35-6 other than an individual under Section 7.187(1)(D).
35-7 Sec. 7.147. UNAUTHORIZED DISCHARGE. (a) A person commits
35-8 an offense if the person discharges or allows the discharge of any
35-9 waste or pollutant into any water in the state that causes or
35-10 threatens to cause water pollution unless the waste or pollutant is
35-11 discharged in strict compliance with all required permits or with a
35-12 valid and currently effective order issued or rule adopted by the
35-13 appropriate regulatory agency.
35-14 (b) An offense under this section may be prosecuted without
35-15 alleging or proving any culpable mental state.
35-16 (c) An offense under this section is punishable for an
35-17 individual under Section 7.187(1)(B) or Section 7.187(2)(D) or
35-18 both.
35-19 (d) An offense under this section is punishable for a person
35-20 other than an individual under Section 7.187(1)(C).
35-21 Sec. 7.148. FAILURE TO PROPERLY USE POLLUTION CONTROL
35-22 MEASURES. (a) A person commits an offense if the person
35-23 intentionally or knowingly tampers with, modifies, disables, or
35-24 fails to use pollution control or monitoring devices, systems,
35-25 methods, or practices required by Chapter 26 or a rule adopted or a
35-26 permit or an order issued under Chapter 26 by the commission or one
35-27 of its predecessor agencies unless done in strict compliance with
36-1 the rule, permit, or order.
36-2 (b) An offense under this section is punishable for an
36-3 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
36-4 both.
36-5 (c) An offense under this section is punishable for a person
36-6 other than an individual under Section 7.187(1)(D).
36-7 Sec. 7.149. FALSE STATEMENT. (a) A person commits an
36-8 offense if the person intentionally or knowingly makes or causes to
36-9 be made a false material statement, representation, or
36-10 certification in, or omits or causes to be omitted material
36-11 information from, an application, notice, record, report, plan, or
36-12 other document, including monitoring device data, filed or required
36-13 to be maintained by Chapter 26 or by a rule adopted or a permit or
36-14 an order issued by the appropriate regulatory agency under Chapter
36-15 26.
36-16 (b) An offense under this section is punishable for an
36-17 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
36-18 both.
36-19 (c) An offense under this section is punishable for a person
36-20 other than an individual under Section 7.187(1)(D).
36-21 Sec. 7.150. FAILURE TO NOTIFY OR REPORT. (a) A person
36-22 commits an offense if the person intentionally or knowingly fails
36-23 to notify or report to the commission as required under Chapter 26
36-24 or by a rule adopted or a permit or an order issued by the
36-25 appropriate regulatory agency under Chapter 26.
36-26 (b) An offense under this section is punishable for an
36-27 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
37-1 both.
37-2 (c) An offense under this section is punishable for a person
37-3 other than an individual under Section 7.187(1)(D).
37-4 Sec. 7.151. FAILURE TO PAY FEE. (a) A person commits an
37-5 offense if the person intentionally or knowingly fails to pay a fee
37-6 required by Chapter 26 or by a rule adopted or a permit or an order
37-7 issued by the appropriate regulatory agency under Chapter 26.
37-8 (b) An offense under this section is punishable for an
37-9 individual under Section 7.187(1)(H) or Section 7.187(2)(B) or
37-10 both.
37-11 (c) An offense under this section is punishable for a person
37-12 other than an individual under Section 7.187(1)(H).
37-13 Sec. 7.152. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE
37-14 AND KNOWING ENDANGERMENT. (a) A person commits an offense if the
37-15 person, acting intentionally or knowingly, discharges or allows the
37-16 discharge of a waste or pollutant into or adjacent to water in the
37-17 state and by that action knowingly places another person in
37-18 imminent danger of death or serious bodily injury, unless the
37-19 discharge is made in strict compliance with all required permits or
37-20 with an order issued or rule adopted by the appropriate regulatory
37-21 agency.
37-22 (b) For purposes of Subsection (a), in determining whether a
37-23 defendant who is an individual knew that the violation placed
37-24 another person in imminent danger of death or serious bodily
37-25 injury, the defendant is responsible only for the defendant's
37-26 actual awareness or actual belief possessed. Knowledge possessed
37-27 by a person other than the defendant may not be attributed to the
38-1 defendant. To prove a defendant's actual knowledge, circumstantial
38-2 evidence may be used, including evidence that the defendant took
38-3 affirmative steps to be shielded from relevant information.
38-4 (c) An offense under this section is punishable for an
38-5 individual under Section 7.187(1)(D) or Section 7.187(2)(G) or
38-6 both. If an offense committed by an individual under this section
38-7 results in death or serious bodily injury to another person, the
38-8 individual may be punished under Section 7.187(1)(E) or Section
38-9 7.187(2)(I) or both.
38-10 (d) An offense under this section is punishable for a person
38-11 other than an individual under Section 7.187(1)(E). If an offense
38-12 committed by a person other than an individual under this section
38-13 results in death or serious bodily injury to another person, the
38-14 person may be punished under Section 7.187(1)(F).
38-15 Sec. 7.153. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE
38-16 AND ENDANGERMENT. (a) A person commits an offense if the person,
38-17 acting intentionally or knowingly with respect to the person's
38-18 conduct, discharges or allows the discharge of a waste or pollutant
38-19 into or adjacent to water in the state and by that action places
38-20 another person in imminent danger of death or serious bodily
38-21 injury, unless the discharge is made in strict compliance with all
38-22 required permits or with a valid and currently effective order
38-23 issued or rule adopted by the appropriate regulatory agency.
38-24 (b) An offense under this section is punishable for an
38-25 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
38-26 both. If an offense committed by an individual under this section
38-27 results in death or serious bodily injury to another person, the
39-1 individual may be punished under Section 7.187(1)(E) or Section
39-2 7.187(2)(G) or both.
39-3 (c) An offense under this section is punishable for a person
39-4 other than an individual under Section 7.187(1)(E). If an offense
39-5 committed by a person other than an individual under this section
39-6 results in death or serious bodily injury to another person, the
39-7 person may be punished under Section 7.187(1)(F).
39-8 Sec. 7.154. RECKLESS UNAUTHORIZED DISCHARGE AND
39-9 ENDANGERMENT. (a) A person commits an offense if the person,
39-10 acting recklessly with respect to the person's conduct, discharges
39-11 or allows the discharge of a waste or pollutant into or adjacent to
39-12 water in the state and by that action places another person in
39-13 imminent danger of death or serious bodily injury, unless the
39-14 discharge is made in strict compliance with all required permits or
39-15 with a valid and currently effective order issued or rule adopted
39-16 by the appropriate regulatory agency.
39-17 (b) An offense under this section is punishable for an
39-18 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
39-19 both. If an offense committed by an individual under this section
39-20 results in death or serious bodily injury to another person, the
39-21 individual may be punished under Section 7.187(1)(D) or Section
39-22 7.187(2)(F) or both.
39-23 (c) An offense under this section is punishable for a person
39-24 other than an individual under Section 7.187(1)(D). If an offense
39-25 committed by a person other than an individual under this section
39-26 results in death or serious bodily injury to another person, the
39-27 person may be punished under Section 7.187(1)(E).
40-1 Sec. 7.155. VIOLATION RELATING TO DISCHARGE OR SPILL.
40-2 (a) A person commits an offense if the person:
40-3 (1) operates, is in charge of, or is responsible for a
40-4 facility or vessel that causes a discharge or spill as defined by
40-5 Section 26.263 and does not report the spill or discharge on
40-6 discovery; or
40-7 (2) knowingly falsifies a record or report concerning
40-8 the prevention or cleanup of a discharge or spill.
40-9 (b) An offense under Subsection (a)(1) is a Class A
40-10 misdemeanor.
40-11 (c) An offense under Subsection (a)(2) is a felony of the
40-12 third degree.
40-13 Sec. 7.156. VIOLATION RELATING TO UNDERGROUND STORAGE TANK.
40-14 (a) A person or business entity commits an offense if:
40-15 (1) the person or business entity engages in the
40-16 installation, repair, or removal of an underground storage tank and
40-17 the person or business entity:
40-18 (A) does not hold a certificate of registration
40-19 issued under Section 26.452; and
40-20 (B) is not under the substantial control of a
40-21 person or business entity who holds a certificate of registration
40-22 issued under Section 26.452;
40-23 (2) the person or business entity:
40-24 (A) authorizes or allows the installation,
40-25 repair, or removal of an underground storage tank to be conducted
40-26 by a person or business entity who does not hold a certificate of
40-27 registration issued under Section 26.452; or
41-1 (B) authorizes or allows the installation,
41-2 repair, or removal of an underground storage tank to be performed
41-3 or supervised by a person or business entity who does not hold a
41-4 license issued under Section 26.456; or
41-5 (3) the conduct of the person or business entity makes
41-6 the person or business entity responsible for a violation of
41-7 Subchapter K, Chapter 26, or of a rule adopted or order issued
41-8 under that subchapter.
41-9 (b) A person commits an offense if the person performs or
41-10 supervises the installation, repair, or removal of an underground
41-11 storage tank unless:
41-12 (1) the person holds a license issued under Section
41-13 26.456; or
41-14 (2) another person who holds a license issued under
41-15 Section 26.456 is substantially responsible for the performance or
41-16 supervision of the installation, repair, or removal.
41-17 (c) An offense under this section is a Class A misdemeanor.
41-18 Sec. 7.157. VIOLATION RELATING TO INJECTION WELLS. (a) A
41-19 person commits an offense if the person knowingly or intentionally
41-20 violates Chapter 27 or a rule adopted or an order or a permit
41-21 issued under Chapter 27.
41-22 (b) An offense under this section is punishable under
41-23 Section 7.187(1)(B).
41-24 Sec. 7.158. VIOLATION RELATING TO PLUGGING WELLS. (a) A
41-25 person commits an offense if the person is the owner of a well that
41-26 is required to be cased or plugged by Chapter 28 and the person:
41-27 (1) fails or refuses to case or plug the well within
42-1 the 30-day period following the date of the commission's order to
42-2 do so; or
42-3 (2) fails to comply with any other order issued by the
42-4 commission under Chapter 28 within the 30-day period following the
42-5 date of the order.
42-6 (b) An offense under this section is a misdemeanor and is
42-7 punishable under Section 7.187(1)(A).
42-8 Sec. 7.159. VIOLATION RELATING TO WATER WELLS OR DRILLED OR
42-9 MINED SHAFTS. (a) A person commits an offense if the person
42-10 knowingly or intentionally violates Chapter 28 or a commission rule
42-11 adopted or an order or a permit issued under that chapter.
42-12 (b) An offense under this section is punishable under
42-13 Section 7.187(1)(B).
42-14 Sec. 7.160. VIOLATION RELATING TO CERTAIN SUBSURFACE
42-15 EXCAVATIONS. (a) A person commits an offense if the person
42-16 knowingly or intentionally violates Chapter 31 or a commission rule
42-17 adopted or an order or a permit issued under that chapter.
42-18 (b) An offense under this section is punishable under
42-19 Section 7.187(1)(B).
42-20 Sec. 7.161. VIOLATION RELATING TO SOLID WASTE IN ENCLOSED
42-21 CONTAINERS OR VEHICLES. (a) An operator of a solid waste facility
42-22 or a solid waste hauler commits an offense if the operator or
42-23 hauler disposes of solid waste in a completely enclosed container
42-24 or vehicle at a solid waste site or operation permitted as a Type
42-25 IV landfill:
42-26 (1) without having in possession the special permit
42-27 required by Section 361.091, Health and Safety Code;
43-1 (2) on a date or time not authorized by the
43-2 commission; or
43-3 (3) without a commission inspector present to verify
43-4 that the solid waste is free of putrescible, hazardous, and
43-5 infectious waste.
43-6 (b) An offense under this section is a Class B misdemeanor.
43-7 (c) This section does not apply to:
43-8 (1) a stationary compactor that is at a specific
43-9 location and that has an annual permit under Section 361.091,
43-10 Health and Safety Code, issued by the commission, on certification
43-11 to the commission by the generator that the contents of the
43-12 compactor are free of putrescible, hazardous, or infectious waste;
43-13 or
43-14 (2) an enclosed vehicle of a municipality if the
43-15 vehicle has a permit issued by the commission to transport brush or
43-16 construction-demolition waste and rubbish on designated dates, on
43-17 certification by the municipality to the commission that the
43-18 contents of the vehicle are free of putrescible, hazardous, or
43-19 infectious waste.
43-20 (d) In this section, "putrescible waste" means organic
43-21 waste, such as garbage, wastewater treatment plant sludge, and
43-22 grease trap waste, that may:
43-23 (1) be decomposed by microorganisms with sufficient
43-24 rapidity as to cause odors or gases; or
43-25 (2) provide food for or attract birds, animals, or
43-26 disease vectors.
43-27 Sec. 7.162. VIOLATIONS RELATING TO HAZARDOUS WASTE. (a) A
44-1 person commits an offense if the person, acting intentionally or
44-2 knowingly with respect to the person's conduct:
44-3 (1) transports, or causes or allows to be transported,
44-4 for storage, processing, or disposal, any hazardous waste to any
44-5 location that does not have all required permits;
44-6 (2) stores, processes, exports, or disposes of, or
44-7 causes to be stored, processed, exported, or disposed of, any
44-8 hazardous waste without all permits required by the appropriate
44-9 regulatory agency or in knowing violation of any material condition
44-10 or requirement of a permit or of an applicable interim status rule
44-11 or standard;
44-12 (3) omits or causes to be omitted material information
44-13 or makes or causes to be made any false material statement or
44-14 representation in any application, label, manifest, record, report,
44-15 permit, plan, or other document filed, maintained, or used to
44-16 comply with any requirement of Chapter 361, Health and Safety Code,
44-17 applicable to hazardous waste;
44-18 (4) generates, transports, stores, processes, or
44-19 disposes of, or otherwise handles, or causes to be generated,
44-20 transported, stored, processed, disposed of, or otherwise handled,
44-21 hazardous waste, whether the activity took place before or after
44-22 September 1, 1981, and who knowingly destroys, alters, conceals, or
44-23 does not file, or causes to be destroyed, altered, concealed, or
44-24 not filed, any record, application, manifest, report, or other
44-25 document required to be maintained or filed to comply with the
44-26 rules of the appropriate regulatory agency adopted under Chapter
44-27 361, Health and Safety Code;
45-1 (5) transports without a manifest, or causes or allows
45-2 to be transported without a manifest, any hazardous waste required
45-3 by rules adopted under Chapter 361, Health and Safety Code, to be
45-4 accompanied by a manifest;
45-5 (6) tampers with, modifies, disables, or fails to use
45-6 required pollution control or monitoring devices, systems, methods,
45-7 or practices, unless done in strict compliance with Chapter 361,
45-8 Health and Safety Code, or with an order, rule, or permit of the
45-9 appropriate regulatory agency;
45-10 (7) releases, causes, or allows the release of a
45-11 hazardous waste that causes or threatens to cause pollution, unless
45-12 the release is made in strict compliance with all required permits
45-13 or an order, rule, or permit of the appropriate regulatory agency;
45-14 or
45-15 (8) does not notify or report to the appropriate
45-16 regulatory agency as required by Chapter 361, Health and Safety
45-17 Code, or by a rule adopted or an order or a permit issued by the
45-18 appropriate regulatory agency under that chapter.
45-19 (b) An offense under Subsection (a)(1) or (a)(2) is
45-20 punishable for an individual under Section 7.187(1)(B) or Section
45-21 7.187(2)(G) or both. An offense under Subsection (a)(3), (a)(4),
45-22 or (a)(5) is punishable for an individual under Section 7.187(1)(B)
45-23 or Section 7.187(2)(E) or both. An offense under Subsection
45-24 (a)(6), (a)(7), or (a)(8) is punishable for an individual under
45-25 Section 7.187(1)(C) or Section 7.187(2)(D) or both.
45-26 (c) If it is shown on the trial of an individual that the
45-27 individual has been previously convicted of an offense under this
46-1 section, an offense under Subsection (a)(1) or (a)(2) is punishable
46-2 for an individual under Section 7.187(1)(C) or Section 7.187(2)(G)
46-3 or both, and an offense under Subsection (a)(3), (a)(4), or (a)(5)
46-4 is punishable for an individual under Section 7.187(1)(C) or
46-5 Section 7.187(2)(F) or both.
46-6 (d) An offense under Subsection (a)(1), (a)(2), (a)(3),
46-7 (a)(4), or (a)(5) is punishable for a person other than an
46-8 individual under Section 7.187(1)(D). If it is shown on the trial
46-9 of a person other than an individual that the person previously has
46-10 been convicted of an offense under Subsection (a)(1), (a)(2),
46-11 (a)(3), (a)(4), or (a)(5), the offense is punishable under Section
46-12 7.187(1)(E). An offense under Subsection (a)(6), (a)(7), or (a)(8)
46-13 is punishable for a person other than an individual under Section
46-14 7.187(1)(D).
46-15 Sec. 7.163. VIOLATIONS RELATING TO HAZARDOUS WASTE AND
46-16 ENDANGERMENT. (a) A person commits an offense if:
46-17 (1) acting intentionally or knowingly, the person
46-18 transports, processes, stores, exports, or disposes of, or causes
46-19 to be transported, processed, stored, exported, or disposed of,
46-20 hazardous waste in violation of Chapter 361, Health and Safety
46-21 Code, and by that action knowingly places another person in
46-22 imminent danger of death or serious bodily injury;
46-23 (2) acting intentionally or knowingly with respect to
46-24 the person's conduct, transports, processes, stores, exports, or
46-25 disposes of, or causes to be transported, processed, stored,
46-26 exported, or disposed of, hazardous waste in violation of Chapter
46-27 361, Health and Safety Code, and by that action places another
47-1 person in imminent danger of death or serious bodily injury, unless
47-2 the conduct charged is done in strict compliance with all required
47-3 permits or with an order issued or a rule adopted by the
47-4 appropriate regulatory agency;
47-5 (3) acting intentionally or knowingly with respect to
47-6 the person's conduct, releases or causes or allows the release of a
47-7 hazardous waste into the environment and by that action places
47-8 another person in imminent danger of death or serious bodily
47-9 injury, unless the release is made in strict compliance with all
47-10 required permits or an order issued or a rule adopted by the
47-11 appropriate regulatory agency; or
47-12 (4) acting recklessly with respect to the person's
47-13 conduct, releases or causes or allows the release of a hazardous
47-14 waste into the environment and by that action places another person
47-15 in imminent danger of death or serious bodily injury, unless the
47-16 release is made in strict compliance with all required permits or
47-17 an order issued or a rule adopted by the appropriate regulatory
47-18 agency.
47-19 (b) An offense under Subsection (a)(1) is punishable for an
47-20 individual under Section 7.187(1)(E) or Section 7.187(2)(H) or
47-21 both. An offense under Subsection (a)(1) is punishable for a
47-22 person other than an individual under Section 7.187(1)(F). If an
47-23 offense committed by an individual under Subsection (a)(1) results
47-24 in death or serious bodily injury to another person, the individual
47-25 may be punished under Section 7.187(1)(F) or Section 7.187(2)(J) or
47-26 both. If an offense committed by a person other than an individual
47-27 under Subsection (a)(1) results in death or serious bodily injury
48-1 to another person, the person may be punished under Section
48-2 7.187(1)(G). For purposes of Subsection (a)(1), in determining
48-3 whether a defendant who is an individual knew that the violation
48-4 placed another person in imminent danger of death or serious bodily
48-5 injury, the defendant is responsible only for the defendant's
48-6 actual awareness or actual belief possessed. Knowledge possessed
48-7 by a person other than the defendant may not be attributed to the
48-8 defendant. To prove a defendant's actual knowledge, circumstantial
48-9 evidence may be used, including evidence that the defendant took
48-10 affirmative steps to be shielded from relevant information.
48-11 (c) An offense under Subsection (a)(2) is punishable for an
48-12 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
48-13 both. An offense under Subsection (a)(2) is punishable for a
48-14 person other than an individual under Section 7.187(1)(E). If an
48-15 offense committed under Subsection (a)(2) results in death or
48-16 serious bodily injury to another person, an individual may be
48-17 punished under Section 7.187(1)(E) or Section 7.187(2)(G) or both.
48-18 If an offense committed by a person other than an individual under
48-19 Subsection (a)(2) results in death or serious bodily injury to
48-20 another person, the person may be punished under Section
48-21 7.187(1)(F).
48-22 (d) An offense under Subsection (a)(3) is punishable for an
48-23 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
48-24 both. An offense under Subsection (a)(3) is punishable for a
48-25 person other than an individual under Section 7.187(1)(E). If an
48-26 offense committed by an individual under Subsection (a)(3) results
48-27 in death or serious bodily injury to another person, the individual
49-1 may be punished under Section 7.187(1)(E) or Section 7.187(2)(G) or
49-2 both. If an offense committed by a person other than an individual
49-3 under Subsection (a)(3) results in death or serious bodily injury
49-4 to another person, the person may be punished under Section
49-5 7.187(1)(F).
49-6 (e) An offense under Subsection (a)(4) is punishable for an
49-7 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
49-8 both. An offense under Subsection (a)(4) is punishable for a
49-9 person other than an individual under Section 7.187(1)(E). If an
49-10 offense committed by an individual under Subsection (a)(4) results
49-11 in death or serious bodily injury to another person, the individual
49-12 may be punished under Section 7.187(1)(E) or Section 7.187(2)(E) or
49-13 both. If an offense committed by a person other than an individual
49-14 under Subsection (a)(4) results in death or serious bodily injury
49-15 to another person, the person may be punished under Section
49-16 7.187(1)(F).
49-17 Sec. 7.164. VIOLATIONS RELATING TO MEDICAL WASTE: LARGE
49-18 GENERATOR. (a) A person commits an offense if the person is a
49-19 large quantity generator and the person, acting intentionally or
49-20 knowingly with respect to the person's conduct:
49-21 (1) generates, collects, stores, processes, exports,
49-22 or disposes of, or causes or allows to be generated, collected,
49-23 stored, processed, exported, or disposed of, any medical waste
49-24 without all permits required by the appropriate regulatory agency
49-25 or in knowing violation of a material condition or requirement of a
49-26 permit or of an applicable interim status rule or standard; or
49-27 (2) generates, collects, stores, treats, transports,
50-1 or disposes of, or causes or allows to be generated, collected,
50-2 stored, treated, transported, or disposed of, or otherwise handles
50-3 any medical waste, and knowingly destroys, alters, conceals, or
50-4 does not file a record, report, manifest, or other document
50-5 required to be maintained or filed under rules adopted by the
50-6 appropriate regulatory agency.
50-7 (b) An offense under this section is punishable for an
50-8 individual under Section 7.187(1)(B) or Section 7.187(2)(G) or
50-9 both. If it is shown on the trial of an individual that the
50-10 individual has been previously convicted of an offense under this
50-11 section, the offense is punishable for an individual under Section
50-12 7.187(1)(C) or Section 7.187(2)(I) or both.
50-13 (c) An offense under this section is punishable for a person
50-14 other than an individual under Section 7.187(1)(B). If it is shown
50-15 on the trial of a person other than an individual that the person
50-16 has been previously convicted of an offense under this section, the
50-17 offense is punishable by Section 7.187(1)(C).
50-18 Sec. 7.165. VIOLATIONS RELATING TO MEDICAL WASTE: SMALL
50-19 GENERATOR. (a) A person commits an offense if the person is a
50-20 small quantity generator and the person, acting intentionally or
50-21 knowingly with respect to the person's conduct:
50-22 (1) generates, collects, stores, processes, exports,
50-23 or disposes of, or causes or allows to be generated, collected,
50-24 stored, processed, exported, or disposed of, any medical waste
50-25 without all permits required by the appropriate regulatory agency
50-26 or in knowing violation of any material condition or requirement of
50-27 a permit or of an applicable interim status rule or standard; or
51-1 (2) generates, collects, stores, treats, transports,
51-2 or disposes of, or causes or allows to be generated, collected,
51-3 stored, treated, transported, or disposed of, or otherwise handles
51-4 any medical waste, and knowingly destroys, alters, conceals, or
51-5 does not file a record, report, manifest, or other document
51-6 required to be maintained or filed under rules adopted by the
51-7 appropriate regulatory agency.
51-8 (b) An offense under this section is punishable for an
51-9 individual under Section 7.187(1)(A). If it is shown on the trial
51-10 of an individual that the individual has been previously convicted
51-11 of an offense under this section, the offense is punishable for an
51-12 individual under Section 7.187(1)(B) or Section 7.187(2)(C) or
51-13 both.
51-14 (c) An offense under this section is punishable for a person
51-15 other than an individual under Section 7.187(1)(B). If it is shown
51-16 on the trial of a person other than an individual that the person
51-17 has been previously convicted of an offense under this section, the
51-18 offense is punishable under Section 7.187(1)(C).
51-19 Sec. 7.166. VIOLATIONS RELATING TO TRANSPORTATION OF MEDICAL
51-20 WASTE. (a) A person commits an offense if the person, acting
51-21 intentionally or knowingly with respect to the person's conduct:
51-22 (1) transports, or causes or allows to be transported,
51-23 for storage, processing, or disposal, any medical waste to a
51-24 location that does not have all required permits;
51-25 (2) transports without a manifest, or causes or allows
51-26 to be transported without a manifest, any medical waste required to
51-27 be accompanied by a manifest under rules adopted by the appropriate
52-1 regulatory agency; or
52-2 (3) operates a vehicle that is transporting medical
52-3 waste, or that is authorized to transport medical waste, in
52-4 violation of a rule adopted by the appropriate regulatory agency,
52-5 including cleaning and safety regulations, that specifically
52-6 relates to the transportation of medical waste.
52-7 (b) An offense under this section is punishable for an
52-8 individual under Section 7.187(1)(B) or Section 7.187(2)(D) or
52-9 both. If it is shown on the trial of an individual that the
52-10 individual has been previously convicted of an offense under this
52-11 section, the offense is punishable for an individual under Section
52-12 7.187(1)(C) or Section 7.187(2)(E) or both.
52-13 (c) An offense under this section is punishable for a person
52-14 other than an individual under Section 7.187(1)(E). If it is shown
52-15 on the trial of a person other than an individual that the person
52-16 has been previously convicted of an offense under this section, the
52-17 offense is punishable under Section 7.187(1)(F).
52-18 Sec. 7.167. FALSE STATEMENTS RELATING TO MEDICAL WASTE.
52-19 (a) A person commits an offense if the person knowingly:
52-20 (1) makes a false material statement, or knowingly
52-21 causes or knowingly allows to be made a false material statement,
52-22 to a person who prepares a regulated medical waste label, manifest,
52-23 application, permit, plan, registration, record, report, or other
52-24 document required by an order or a rule of the appropriate
52-25 regulatory agency; or
52-26 (2) omits material information, or causes or allows
52-27 material information to be omitted, from a regulated medical waste
53-1 label, manifest, application, permit, plan, registration, record,
53-2 report, or other document required by an order or a rule of the
53-3 appropriate regulatory agency.
53-4 (b) An offense under this section is punishable for an
53-5 individual under Section 7.187(1)(B) or Section 7.187(2)(D) or
53-6 both. If it is shown on the trial of an individual that the
53-7 individual has been previously convicted of an offense under this
53-8 section, the offense is punishable for an individual under Section
53-9 7.187(1)(C) or Section 7.187(2)(E) or both.
53-10 (c) An offense under this section is punishable for a person
53-11 other than an individual under Section 7.187(1)(B). If it is shown
53-12 on the trial of a person other than an individual that the person
53-13 has been previously convicted of an offense under this section, the
53-14 offense is punishable under Section 7.187(1)(C).
53-15 Sec. 7.168. INTENTIONAL OR KNOWING VIOLATION RELATING TO
53-16 MEDICAL WASTE AND KNOWING ENDANGERMENT. (a) A person commits an
53-17 offense if the person, acting intentionally or knowingly,
53-18 transports, processes, stores, exports, or disposes of, or causes
53-19 to be transported, processed, stored, exported, or disposed of,
53-20 medical waste in violation of Chapter 361, Health and Safety Code,
53-21 and by that action knowingly places another person in imminent
53-22 danger of death or serious bodily injury.
53-23 (b) An offense under this section is punishable for an
53-24 individual under Section 7.187(1)(E) or Section 7.187(2)(H) or
53-25 both. If an offense committed by an individual under this section
53-26 results in death or serious bodily injury to another person, the
53-27 offense is punishable for an individual under Section 7.187(1)(F)
54-1 or Section 7.187(2)(J) or both.
54-2 (c) An offense under this section is punishable for a person
54-3 other than an individual under Section 7.187(1)(F). If an offense
54-4 committed by a person other than an individual under this section
54-5 results in death or serious bodily injury to another person, the
54-6 offense is punishable under Section 7.187(1)(G).
54-7 Sec. 7.169. INTENTIONAL OR KNOWING VIOLATION RELATING TO
54-8 MEDICAL WASTE AND ENDANGERMENT. (a) A person commits an offense
54-9 if the person, acting intentionally or knowingly with respect to
54-10 the person's conduct, transports, processes, stores, exports, or
54-11 disposes of medical waste in violation of Chapter 361, Health and
54-12 Safety Code, and by that action places another person in imminent
54-13 danger of death or serious bodily injury, unless the conduct
54-14 charged is done in strict compliance with all required permits or
54-15 with an order issued or rule adopted by the appropriate regulatory
54-16 agency.
54-17 (b) An offense under this section is punishable for an
54-18 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
54-19 both. If an offense committed by an individual under this section
54-20 results in death or serious bodily injury to another person, the
54-21 offense is punishable for an individual under Section 7.187(1)(E)
54-22 or Section 7.187(2)(G) or both.
54-23 (c) An offense under this section is punishable for a person
54-24 other than an individual under Section 7.187(1)(E). If an offense
54-25 committed by a person other than an individual under this section
54-26 results in death or serious bodily injury to another person, the
54-27 offense is punishable under Section 7.187(1)(F).
55-1 Sec. 7.170. INTENTIONAL OR KNOWING RELEASE OF MEDICAL WASTE
55-2 INTO ENVIRONMENT AND ENDANGERMENT. (a) A person commits an
55-3 offense if the person, acting intentionally or knowingly with
55-4 respect to the person's conduct, releases or causes or allows the
55-5 release of a medical waste into the environment and by that action
55-6 places another person in imminent danger of death or serious bodily
55-7 injury, unless the release is done in strict compliance with all
55-8 required permits or an order issued or rule adopted by the
55-9 appropriate regulatory agency.
55-10 (b) An offense under this section is punishable for an
55-11 individual under Section 7.187(1)(D) or Section 7.187(2)(G) or
55-12 both. If an offense committed by an individual under this section
55-13 results in death or serious bodily injury to another person, the
55-14 offense is punishable for an individual under Section 7.187(1)(E)
55-15 or Section 7.187(2)(G) or both.
55-16 (c) An offense under this section is punishable for a person
55-17 other than an individual under Section 7.187(1)(E). If an offense
55-18 committed by a person other than an individual under this section
55-19 results in death or serious bodily injury to another person, the
55-20 offense is punishable under Section 7.187(1)(F).
55-21 Sec. 7.171. RECKLESS RELEASE OF MEDICAL WASTE INTO
55-22 ENVIRONMENT AND ENDANGERMENT. (a) A person commits an offense if
55-23 the person, acting recklessly with respect to a person's conduct,
55-24 releases or causes or allows the release of a medical waste into
55-25 the environment and by that action places another person in
55-26 imminent danger of death or serious bodily injury, unless the
55-27 release is made in strict compliance with all required permits or
56-1 an order issued or rule adopted by the appropriate regulatory
56-2 agency.
56-3 (b) An offense under this section is punishable for an
56-4 individual under Section 7.187(1)(D) or Section 7.187(2)(D) or
56-5 both. If an offense committed by an individual under this section
56-6 results in death or serious bodily injury to another person, the
56-7 offense is punishable for an individual under Section 7.187(1)(E)
56-8 or Section 7.187(2)(E) or both.
56-9 (c) An offense under this section is punishable for a person
56-10 other than an individual under Section 7.187(1)(E). If an offense
56-11 committed by a person other than an individual under this section
56-12 results in death or serious bodily injury to another person, the
56-13 offense is punishable under Section 7.187(1)(F).
56-14 Sec. 7.172. FAILURE OF SEWAGE SYSTEM INSTALLER TO REGISTER.
56-15 (a) A person commits an offense if the person violates Section
56-16 366.071, Health and Safety Code.
56-17 (b) Except as provided by this subsection, an offense under
56-18 this section is a Class C misdemeanor. If it is shown on the trial
56-19 of the defendant that the defendant has been previously convicted
56-20 of an offense under this section, the offense is punishable under
56-21 Section 7.187(1)(A) or Section 7.187(2)(A) or both.
56-22 Sec. 7.173. VIOLATION RELATING TO SEWAGE DISPOSAL NEAR
56-23 INTERNATIONAL BORDER. (a) A person commits an offense if the
56-24 person violates a rule adopted by the commission under Chapter 366,
56-25 Health and Safety Code, or an order or resolution adopted by an
56-26 authorized agent under Subchapter C, Chapter 366, Health and Safety
56-27 Code, in a county that is contiguous to an international border.
57-1 (b) Except as provided by this subsection, an offense under
57-2 this section is a Class C misdemeanor. If it is shown on the trial
57-3 of the defendant that the defendant has been previously convicted
57-4 of an offense under this section, the offense is punishable under
57-5 Section 7.187(1)(A) or Section 7.187(2)(A) or both.
57-6 Sec. 7.174. VIOLATION OF SEWAGE DISPOSAL SYSTEM PERMIT
57-7 PROVISION. (a) A person commits an offense if the person begins
57-8 to construct, alter, repair, or extend an on-site sewage disposal
57-9 system owned by another person before the owner of the system
57-10 obtains a permit to construct, alter, repair, or extend the on-site
57-11 sewage disposal system as required by Subchapter D, Chapter 366,
57-12 Health and Safety Code.
57-13 (b) Except as provided by this subsection, an offense under
57-14 this section is a Class C misdemeanor. If it is shown on the trial
57-15 of the defendant that the defendant has previously been convicted
57-16 of an offense under this section, the offense is punishable under
57-17 Section 7.187(1)(A) or Section 7.187(2)(A) or both.
57-18 Sec. 7.175. EMERGENCY REPAIR NOT AN OFFENSE. An emergency
57-19 repair to an on-site sewage disposal system without a permit in
57-20 accordance with the rules adopted under Section 366.012(a)(1)(C),
57-21 Health and Safety Code, is not an offense under Section 7.172,
57-22 7.173, or 7.174 if a written statement describing the need for the
57-23 repair is provided to the commission or its authorized agent not
57-24 later than 72 hours after the repair is begun.
57-25 Sec. 7.176. VIOLATIONS RELATING TO HANDLING OF USED OIL.
57-26 (a) A person commits an offense if the person:
57-27 (1) intentionally discharges used oil into a sewer,
58-1 drainage system, septic tank, surface water or groundwater,
58-2 watercourse, or marine water;
58-3 (2) knowingly mixes or commingles used oil with solid
58-4 waste that is to be disposed of in landfills or directly disposes
58-5 of used oil on land or in landfills, unless the mixing or
58-6 commingling of used oil with solid waste that is to be disposed of
58-7 in landfills is incident to and the unavoidable result of the
58-8 mechanical shredding of motor vehicles, appliances, or other items
58-9 of scrap, used, or obsolete metals;
58-10 (3) knowingly transports, treats, stores, disposes of,
58-11 recycles, causes to be transported, or otherwise handles any used
58-12 oil within the state:
58-13 (A) in violation of standards or rules for the
58-14 management of used oil; or
58-15 (B) without first complying with the
58-16 registration requirements of Chapter 371, Health and Safety Code,
58-17 and rules adopted under that chapter;
58-18 (4) intentionally applies used oil to roads or land
58-19 for dust suppression, weed abatement, or other similar uses that
58-20 introduce used oil into the environment;
58-21 (5) violates an order of the commission to cease and
58-22 desist an activity prohibited by this section or a rule applicable
58-23 to a prohibited activity; or
58-24 (6) intentionally makes a false statement or
58-25 representation in an application, label, manifest, record, report,
58-26 permit, or other document filed, maintained, or used for purposes
58-27 of program compliance.
59-1 (b) It is an exception to the application of this section
59-2 that a person unknowingly disposes into the environment any used
59-3 oil that has not been properly segregated or separated by the
59-4 generator from other solid wastes.
59-5 (c) It is an exception to the application of Subsection
59-6 (a)(2) that the mixing or commingling of used oil with solid waste
59-7 that is to be disposed of in landfills is incident to and the
59-8 unavoidable result of the mechanical shredding of motor vehicles,
59-9 appliances, or other items of scrap, used, or obsolete metals.
59-10 (d) Except as provided by this subsection, an offense under
59-11 this section is punishable under Section 7.187(1)(B) or Section
59-12 7.187(2)(F), or both. If it is shown on the trial of the defendant
59-13 that the defendant has been previously convicted of an offense
59-14 under this section, the offense is punishable under Section
59-15 7.187(1)(C) or Section 7.187(2)(H) or both.
59-16 Sec. 7.177. VIOLATIONS OF CLEAN AIR ACT. (a) A person
59-17 commits an offense if the person intentionally or knowingly, with
59-18 respect to the person's conduct, violates:
59-19 (1) Section 382.0518(a), Health and Safety Code;
59-20 (2) Section 382.054, Health and Safety Code;
59-21 (3) Section 382.056(a), Health and Safety Code;
59-22 (4) Section 382.058(a), Health and Safety Code; or
59-23 (5) an order, permit, or exemption issued or a rule
59-24 adopted under Chapter 382, Health and Safety Code.
59-25 (b) An offense under this section is punishable for an
59-26 individual under Section 7.187(1)(B) or Section 7.187(2)(C) or
59-27 both.
60-1 (c) An offense under this section is punishable for a person
60-2 other than an individual under Section 7.187(1)(C).
60-3 Sec. 7.178. FAILURE TO PAY FEES UNDER CLEAN AIR ACT. (a) A
60-4 person commits an offense if the person intentionally or knowingly
60-5 does not pay a fee required by Chapter 382, Health and Safety Code,
60-6 or by a rule adopted or an order issued under that chapter.
60-7 (b) An offense under this section is punishable for an
60-8 individual under Section 7.187(1)(H) or Section 7.187(2)(B) or
60-9 both.
60-10 (c) An offense under this section is punishable for a person
60-11 other than an individual under Section 7.187(1)(H).
60-12 Sec. 7.179. FALSE REPRESENTATIONS UNDER CLEAN AIR ACT.
60-13 (a) A person commits an offense if the person intentionally or
60-14 knowingly makes or causes to be made a false material statement,
60-15 representation, or certification in, or omits material information
60-16 from, or knowingly alters, conceals, or does not file or maintain a
60-17 notice, application, record, report, plan, or other document
60-18 required to be filed or maintained by Chapter 382, Health and
60-19 Safety Code, or by a rule adopted or a permit or order issued under
60-20 that chapter.
60-21 (b) An offense under this section is punishable for an
60-22 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
60-23 both.
60-24 (c) An offense under this section is punishable for a person
60-25 other than an individual under Section 7.187(1)(D).
60-26 Sec. 7.180. FAILURE TO NOTIFY UNDER CLEAN AIR ACT. (a) A
60-27 person commits an offense if the person intentionally or knowingly
61-1 does not notify or report to the commission as required by Chapter
61-2 382, Health and Safety Code, or by a rule adopted or a permit or
61-3 order issued under that chapter.
61-4 (b) An offense under this section is punishable for an
61-5 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
61-6 both.
61-7 (c) An offense under this section is punishable for a person
61-8 other than an individual under Section 7.187(1)(D).
61-9 Sec. 7.181. IMPROPER USE OF MONITORING DEVICE. (a) A
61-10 person commits an offense if the person intentionally or knowingly
61-11 tampers with, modifies, disables, or fails to use a required
61-12 monitoring device; tampers with, modifies, or disables a monitoring
61-13 device; or falsifies, fabricates, or omits data from a monitoring
61-14 device, unless the act is done in strict compliance with Chapter
61-15 382, Health and Safety Code, or a permit, variance, or order issued
61-16 or a rule adopted by the commission.
61-17 (b) An offense under this section is punishable for an
61-18 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
61-19 both.
61-20 (c) An offense under this section is punishable for a person
61-21 other than an individual under Section 7.187(1)(D).
61-22 Sec. 7.182. RECKLESS EMISSION OF AIR CONTAMINANT AND
61-23 ENDANGERMENT. (a) A person commits an offense if the person
61-24 recklessly, with respect to the person's conduct, emits an air
61-25 contaminant that places another person in imminent danger of death
61-26 or serious bodily injury, unless the emission is made in strict
61-27 compliance with Chapter 382, Health and Safety Code, or a permit,
62-1 variance, or order issued or a rule adopted by the commission.
62-2 (b) An offense under this section is punishable for an
62-3 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
62-4 both.
62-5 (c) An offense under this section is punishable for a person
62-6 other than an individual under Section 7.187(1)(E).
62-7 Sec. 7.183. INTENTIONAL OR KNOWING EMISSION OF AIR
62-8 CONTAMINANT AND KNOWING ENDANGERMENT. (a) A person commits an
62-9 offense if the person intentionally or knowingly, with respect to
62-10 the person's conduct, emits an air contaminant with the knowledge
62-11 that the person is placing another person in imminent danger of
62-12 death or serious bodily injury unless the emission is made in
62-13 strict compliance with Chapter 382, Health and Safety Code, or a
62-14 permit, variance, or order issued or a rule adopted by the
62-15 commission.
62-16 (b) An offense under this section is punishable for an
62-17 individual under Section 7.187(1)(E) or Section 7.187(2)(F) or
62-18 both.
62-19 (c) An offense under this section is punishable for a person
62-20 other than an individual under Section 7.187(1)(F).
62-21 Sec. 7.184. VIOLATIONS RELATING TO RADIOACTIVE WASTE.
62-22 (a) A person commits an offense if the person:
62-23 (1) intentionally or knowingly violates a provision of
62-24 Chapter 401, Health and Safety Code, other than the offense
62-25 described by Subdivision (2); or
62-26 (2) intentionally or knowingly receives, processes,
62-27 concentrates, stores, transports, or disposes of radioactive waste
63-1 without a license issued under Chapter 401, Health and Safety Code.
63-2 (b) Except as provided by this subsection, an offense under
63-3 Subsection (a)(1) is a Class B misdemeanor. If it is shown on the
63-4 trial of the person that the person has previously been convicted
63-5 of an offense under Subsection (a)(1), the offense is a Class A
63-6 misdemeanor.
63-7 (c) Except as provided by this subsection, an offense under
63-8 Subsection (a)(2) is a Class A misdemeanor. If it is shown on the
63-9 trial of the person that the person has previously been convicted
63-10 of an offense under Subsection (a)(2), the offense is punishable
63-11 under Section 7.187(1)(D) or Section 7.187(2)(D) or both.
63-12 Sec. 7.185. KNOWING OR INTENTIONAL UNAUTHORIZED DISPOSAL OF
63-13 LEAD-ACID BATTERIES. (a) A person commits an offense if the
63-14 person knowingly or intentionally disposes of a lead-acid battery
63-15 other than as provided by Section 361.451, Health and Safety Code.
63-16 (b) An offense under this section is a Class A misdemeanor.
63-17 Sec. 7.186. SEPARATE OFFENSES. Each day a person engages in
63-18 conduct proscribed by this subchapter constitutes a separate
63-19 offense.
63-20 Sec. 7.187. PENALTIES. A person convicted of an offense
63-21 under this subchapter is punishable by:
63-22 (1) a fine, as imposed under the section creating the
63-23 offense, of:
63-24 (A) not more than $1,000;
63-25 (B) not less than $1,000 or more than $50,000;
63-26 (C) not less than $1,000 or more than $100,000;
63-27 (D) not less than $1,000 or more than $250,000;
64-1 (E) not less than $2,000 or more than $500,000;
64-2 (F) not less than $5,000 or more than
64-3 $1,000,000;
64-4 (G) not less than $10,000 or more than
64-5 $1,500,000; or
64-6 (H) not more than twice the amount of the
64-7 required fee;
64-8 (2) confinement for a period, as imposed by the
64-9 section creating the offense, not to exceed:
64-10 (A) 30 days;
64-11 (B) 90 days;
64-12 (C) 180 days;
64-13 (D) one year;
64-14 (E) two years;
64-15 (F) five years;
64-16 (G) 10 years;
64-17 (H) 15 years;
64-18 (I) 20 years; or
64-19 (J) 30 years; or
64-20 (3) both fine and confinement, as imposed by the
64-21 section creating the offense.
64-22 Sec. 7.188. REPEAT OFFENSES. If it is shown at the trial of
64-23 the defendant that the defendant has previously been convicted of
64-24 the same offense under this subchapter, the maximum punishment is
64-25 doubled with respect to both the fine and confinement, unless the
64-26 section creating the offense specifies otherwise.
64-27 Sec. 7.189. VENUE. Venue for prosecution of an alleged
65-1 violation under this subchapter is in:
65-2 (1) the county in which the violation is alleged to
65-3 have occurred;
65-4 (2) the county where the defendant resides;
65-5 (3) if the alleged violation involves the
65-6 transportation of a discharge, waste, or pollutant, any county to
65-7 which or through which the discharge, waste, or pollutant was
65-8 transported; or
65-9 (4) Travis County.
65-10 Sec. 7.190. DISPOSITION OF FINES. A fine recovered through
65-11 a prosecution brought under this subchapter shall be divided
65-12 equally between the state and any local government significantly
65-13 involved in prosecuting the case, except that if the court
65-14 determines that the state or the local government bore
65-15 significantly more of the burden of prosecuting the case, the court
65-16 may apportion up to 75 percent of the fine to the government that
65-17 predominantly prosecuted the case.
65-18 Sec. 7.191. NOTICE OF CONVICTION. In addition to a sentence
65-19 that may be imposed under this subchapter, a person other than an
65-20 individual that has been adjudged guilty of an offense may be
65-21 ordered by the court to give notice of the conviction to any person
65-22 the court considers appropriate.
65-23 Sec. 7.192. JUDGMENT OF CONVICTION. On conviction under
65-24 this subchapter, the clerk of the court in which the conviction is
65-25 returned shall send a copy of the judgment to the commission.
65-26 Sec. 7.193. PEACE OFFICERS. For purposes of this
65-27 subchapter, the authorized agents and employees of the Parks and
66-1 Wildlife Department are peace officers. Those agents and employees
66-2 are empowered to enforce this subchapter the same as any other
66-3 peace officer and for that purpose have the powers and duties of
66-4 peace officers assigned by Chapter 2, Code of Criminal Procedure.
66-5 Sec. 7.194. ALLEGATIONS. In alleging the name of a
66-6 defendant private corporation, it is sufficient to state in the
66-7 complaint, indictment, or information the corporate name or to
66-8 state any name or designation by which the corporation is known or
66-9 may be identified. It is not necessary to allege that the
66-10 defendant was lawfully incorporated.
66-11 Sec. 7.195. SUMMONS AND ARREST. (a) After a complaint is
66-12 filed or an indictment or information presented against a private
66-13 corporation under this subchapter, the court or clerk shall issue a
66-14 summons to the corporation. The summons shall be in the same form
66-15 as a capias except that:
66-16 (1) it shall summon the corporation to appear before
66-17 the court named at the place stated in the summons;
66-18 (2) it shall be accompanied by a certified copy of the
66-19 complaint, indictment, or information; and
66-20 (3) it shall provide that the corporation appear
66-21 before the court named at or before 10 a.m. of the Monday next
66-22 after the expiration of 20 days after it is served with summons,
66-23 except when service is made on the secretary of state, in which
66-24 instance the summons shall provide that the corporation appear
66-25 before the court named at or before 10 a.m. of the Monday next
66-26 after the expiration of 30 days after the secretary of state is
66-27 served with summons.
67-1 (b) No individual may be arrested upon a complaint,
67-2 indictment, or information against a private corporation.
67-3 Sec. 7.196. SERVICE OF SUMMONS. (a) A peace officer shall
67-4 serve a summons on a private corporation by personally delivering a
67-5 copy of it to the corporation's registered agent for service. If a
67-6 registered agent has not been designated or cannot with reasonable
67-7 diligence be found at the registered office, the peace officer
67-8 shall serve the summons by personally delivering a copy of it to
67-9 the president or a vice president of the corporation.
67-10 (b) If the peace officer certifies on the return that the
67-11 peace officer diligently but unsuccessfully attempted to effect
67-12 service under Subsection (a) or if the corporation is a foreign
67-13 corporation that has no certificate of authority, the peace officer
67-14 shall serve the summons on the secretary of state. On receipt of
67-15 the summons copy, the secretary of state shall immediately forward
67-16 it by certified or registered mail, return receipt requested,
67-17 addressed to the defendant corporation at its registered office or,
67-18 if it is a foreign corporation, at its principal office in the
67-19 state or country under whose law it was incorporated.
67-20 (c) The secretary of state shall keep a permanent record of
67-21 the date and time of receipt and the disposition of each summons
67-22 served under Subsection (b) together with the return receipt.
67-23 Sec. 7.197. ARRAIGNMENT AND PLEADINGS. In any criminal
67-24 action instituted against a private corporation under this
67-25 subchapter:
67-26 (1) appearance is for the purpose of arraignment; and
67-27 (2) the corporation has 10 full days after the day the
68-1 arraignment takes place and before the day the trial begins to file
68-2 written pleadings.
68-3 Sec. 7.198. APPEARANCE. (a) A defendant private
68-4 corporation appears through counsel or its representative.
68-5 (b) If a private corporation does not appear in response to
68-6 summons or appears but does not plead, the corporation is
68-7 considered to be present in person for all purposes, and the court
68-8 shall enter a plea of not guilty on the corporation's behalf and
68-9 may proceed with trial, judgment, and sentencing.
68-10 (c) After appearing and entering a plea in response to
68-11 summons, if a private corporation is absent without good cause at
68-12 any time during later proceedings, the corporation is considered to
68-13 be present in person for all purposes, and the court may proceed
68-14 with trial, judgment, or sentencing.
68-15 Sec. 7.199. FINE TREATED AS JUDGMENT IN CIVIL ACTION. If a
68-16 person other than an individual is found guilty of a violation of
68-17 this subchapter and a fine is imposed, the fine shall be entered
68-18 and docketed by the clerk of the court as a judgment against the
68-19 person, and the fine shall be of the same force and effect and be
68-20 enforced against the person in the same manner as if the judgment
68-21 were recovered in a civil action.
68-22 Sec. 7.200. EFFECT ON CERTAIN OTHER LAWS. Conduct
68-23 punishable as an offense under this subchapter that is also
68-24 punishable under another law may be prosecuted under either law.
68-25 Sec. 7.201. DEFENSE EXCLUDED. It is not a defense to
68-26 prosecution under this subchapter that the person did not know of
68-27 or was not aware of a rule, order, or statute.
69-1 Sec. 7.202. PROOF OF KNOWLEDGE. In determining whether a
69-2 defendant who is an individual knew that the violation placed
69-3 another person in imminent danger of death or serious bodily injury
69-4 under Section 7.168, 7.169, 7.170, or 7.171, the defendant is
69-5 responsible only for the defendant's actual awareness or actual
69-6 belief possessed. Knowledge possessed by a person other than the
69-7 defendant may not be attributed to the defendant. To prove a
69-8 defendant's actual knowledge, however, circumstantial evidence may
69-9 be used, including evidence that the defendant took affirmative
69-10 steps to be shielded from relevant information.
69-11 (Sections 7.203-7.250 reserved for expansion
69-12 SUBCHAPTER F. DEFENSES
69-13 Sec. 7.251. ACT OF GOD. If a person can establish that an
69-14 event that would otherwise be a violation of a statute within the
69-15 commission's jurisdiction or a rule adopted or an order or a permit
69-16 issued under such a statute was caused solely by an act of God,
69-17 war, strike, riot, or other catastrophe, the event is not a
69-18 violation of that statute, rule, order, or permit.
69-19 Sec. 7.252. DEFENSES TO ENDANGERMENT OFFENSES. It is an
69-20 affirmative defense to prosecution under Section 7.152, 7.153,
69-21 7.154, 7.163, 7.168, 7.169, 7.170, 7.171, 7.182, or 7.183 that:
69-22 (1) the conduct charged was freely consented to by the
69-23 person endangered and that the danger and conduct charged were
69-24 reasonably foreseeable hazards of the person's occupation,
69-25 business, or profession or a medical treatment or medical or
69-26 scientific experimentation conducted by professionally approved
69-27 methods and the person endangered had been made aware of the risks
70-1 involved before giving consent; or
70-2 (2) the person charged was an employee who was
70-3 carrying out the person's normal activities and was acting under
70-4 orders from the person's employer, unless the person charged
70-5 engaged in knowing and wilful violations.
70-6 Sec. 7.253. DEFENSES AVAILABLE TO PERSON RESPONSIBLE FOR
70-7 SOLID WASTE VIOLATIONS. (a) For purposes of an enforcement action
70-8 initiated under this chapter, a person responsible for solid waste
70-9 under Section 361.271, Health and Safety Code, is liable for a
70-10 violation of a statutory or regulatory prohibition against
70-11 releasing or creating an imminent threat of releasing solid waste
70-12 unless the person can establish by a preponderance of the evidence
70-13 that the release or threatened release was caused solely by an act
70-14 or omission of a third person and that the defendant:
70-15 (1) exercised due care concerning the solid waste,
70-16 considering the characteristics of the solid waste, in light of all
70-17 relevant facts and circumstances; and
70-18 (2) took precautions against foreseeable acts or
70-19 omissions of the third person and the consequences that could
70-20 foreseeably result from those acts or omissions.
70-21 (b) The defense under Subsection (a) does not apply if the
70-22 third person:
70-23 (1) is an employee or agent of the defendant; or
70-24 (2) has a direct or indirect contractual relationship
70-25 with the defendant and the act or omission of the third person
70-26 occurred in connection with the contractual relationship. The term
70-27 "contractual relationship" includes land contracts, deeds, or other
71-1 instruments transferring title or possession of real property.
71-2 (c) A defendant who enters into a contractual relationship
71-3 as provided by Subsection (b)(2) is not liable under a statute or
71-4 rule within the commission's jurisdiction if:
71-5 (1) the sole contractual relationship is acceptance
71-6 for rail carriage by a common carrier under a published tariff; or
71-7 (2) the defendant acquired the real property on which
71-8 the facility requiring the remedial action is located after the
71-9 disposal or placement of the hazardous substance on, in, or at the
71-10 facility, and the defendant establishes by a preponderance of the
71-11 evidence that:
71-12 (A) the defendant exercised due care concerning
71-13 the solid waste, considering the characteristics of the solid
71-14 waste, in light of all relevant facts and circumstances; and
71-15 (B) the defendant took precautions against
71-16 foreseeable acts or omissions of the third person and the
71-17 consequences that could foreseeably result from those acts or
71-18 omissions; or
71-19 (C) at the time the defendant acquired the
71-20 facility the defendant did not know and had no reason to know that
71-21 a hazardous substance that is the subject of the release or
71-22 threatened release was disposed of on, in, or at the facility;
71-23 (D) the defendant is a governmental entity that
71-24 acquired the facility by escheat, by other involuntary transfer or
71-25 acquisition, or by the exercise of the power of eminent domain; or
71-26 (E) the defendant acquired the facility by
71-27 inheritance or bequest.
72-1 (d) To demonstrate the condition under Subsection (c)(2)(C),
72-2 the defendant must have made, at the time of acquisition,
72-3 appropriate inquiry into the previous ownership and uses of the
72-4 property consistent with good commercial or customary practice in
72-5 an effort to minimize liability. In deciding whether the defendant
72-6 meets this condition, the court shall consider:
72-7 (1) any specialized knowledge or experience of the
72-8 defendant;
72-9 (2) the relationship of the purchase price to the
72-10 value of the property if the property were uncontaminated;
72-11 (3) commonly known or reasonably ascertainable
72-12 information about the property;
72-13 (4) the obvious presence or likely presence of
72-14 contamination of the property; and
72-15 (5) the defendant's ability to detect the
72-16 contamination by appropriate inspection.
72-17 (e) This section does not decrease the liability of a
72-18 previous owner or operator of a facility who is liable under a
72-19 statute or rule within the commission's jurisdiction. If the
72-20 defendant obtained actual knowledge of the release or threatened
72-21 release of a hazardous substance at a facility at the time the
72-22 defendant owned the real property on which the facility is located
72-23 and subsequently transferred ownership of the property to another
72-24 person without disclosing that knowledge, the defendant is liable
72-25 and a defense under this section is not available to the defendant.
72-26 (f) Subsections (c), (d), and (e) do not affect the
72-27 liability, under a statute or rule within the commission's
73-1 jurisdiction, of a defendant who, by an act or omission, caused or
73-2 contributed to the release or threatened release of a hazardous
73-3 substance that is the subject of the action concerning the
73-4 facility.
73-5 Sec. 7.254. DEFENSE TO USED OIL OFFENSES. It is an
73-6 affirmative defense to prosecution under Section 7.176 that the
73-7 person unknowingly disposed of used oil into the environment
73-8 because the used oil had not been properly segregated or separated
73-9 by the generator from other solid wastes.
73-10 Sec. 7.255. DEFENSE TO HAZARDOUS WASTE ENDANGERMENT. It is
73-11 an affirmative defense to prosecution under Section 7.163 that the
73-12 conduct charged was freely consented to by the person endangered
73-13 and that the danger and conduct charged were reasonably foreseeable
73-14 hazards of the person's occupation, business, or profession or a
73-15 medical treatment or medical or scientific experimentation
73-16 conducted by professionally approved methods and the person
73-17 endangered had been made aware of the risks involved before giving
73-18 consent.
73-19 Sec. 7.256. DEFENSE EXCLUDED. Unless otherwise provided by
73-20 this chapter, the fact that a person holds a permit issued by the
73-21 commission does not relieve that person from liability for the
73-22 violation of a statute within the commission's jurisdiction or a
73-23 rule adopted or an order or a permit issued under such a statute.
73-24 (Sections 7.257-7.300 reserved for expansion
73-25 SUBCHAPTER G. REVOCATION AND SUSPENSION OF PERMITS,
73-26 LICENSES, CERTIFICATES, AND REGISTRATIONS
73-27 Sec. 7.301. DEFINITION. In this subchapter:
74-1 (1) "License," "certificate," "registration," and
74-2 "exemption" have the meanings assigned by commission rule.
74-3 (2) "Permit holder" or "holder of a permit" includes
74-4 each member of a partnership or association and, with respect to a
74-5 corporation, each officer and the owner or owners of a majority of
74-6 the corporate stock, provided such partner or owner controls at
74-7 least 20 percent of the permit holder.
74-8 Sec. 7.302. GROUNDS FOR REVOCATION OR SUSPENSION OF PERMIT.
74-9 (a) This section applies to a permit or exemption issued by the
74-10 commission under:
74-11 (1) Chapter 18, 26, 27, 28, or 31 of this code;
74-12 (2) Subchapter C or R, Chapter 361, Health and Safety
74-13 Code;
74-14 (3) Subchapter D, Chapter 366, Health and Safety Code;
74-15 (4) Chapter 382, Health and Safety Code; or
74-16 (5) a rule adopted under any of those provisions.
74-17 (b) After notice and hearing, the commission may revoke,
74-18 suspend, or revoke and reissue a permit or exemption on any of the
74-19 following grounds:
74-20 (1) violating any term or condition of the permit, and
74-21 revocation, suspension, or revocation and reissuance is necessary
74-22 in order to maintain the quality of water or the quality of air in
74-23 the state, or to otherwise protect human health and the environment
74-24 consistent with the objectives of the statutes or rules within the
74-25 commission's jurisdiction;
74-26 (2) having a record of environmental violations in the
74-27 preceding five years at the permitted or exempted site;
75-1 (3) a discharge, release, or emission contravening a
75-2 pollution control standard set by the commission or contravening
75-3 the intent of a statute or rule described in Subsection (a);
75-4 (4) including a material mistake in a federal
75-5 operating permit issued under Chapter 382, Health and Safety Code,
75-6 or making an inaccurate statement in establishing an emissions
75-7 standard or other term or condition of a federal operating permit;
75-8 (5) misrepresenting or failing to disclose fully all
75-9 relevant facts in obtaining the permit or misrepresenting to the
75-10 commission any relevant fact at any time;
75-11 (6) a permit holder being indebted to the state for
75-12 fees, payment of penalties, or taxes imposed by the statutes or
75-13 rules within the commission's jurisdiction;
75-14 (7) a permit holder failing to ensure that the
75-15 management of the permitted facility conforms or will conform to
75-16 the statutes and rules within the commission's jurisdiction;
75-17 (8) the permit is subject to cancellation or
75-18 suspension under Section 26.084;
75-19 (9) abandoning the permit or operations under the
75-20 permit;
75-21 (10) the commission finds that a change in conditions
75-22 requires elimination of the discharge authorized by the permit; or
75-23 (11) with respect to a permit issued under Chapter 18,
75-24 failing to continue to possess qualifications necessary for the
75-25 issuance of an original permit.
75-26 Sec. 7.303. GROUNDS FOR REVOCATION OR SUSPENSION OF LICENSE,
75-27 CERTIFICATE, OR REGISTRATION. (a) This section applies to a
76-1 license, certificate, or registration issued:
76-2 (1) by the commission under:
76-3 (A) Section 26.0301 or 26.459 of this code;
76-4 (B) Chapter 18, 32, 33, or 34 of this code;
76-5 (C) Section 361.0861, 361.092, or 361.112,
76-6 Health and Safety Code; or
76-7 (D) Chapter 366, 371, or 401, Health and Safety
76-8 Code;
76-9 (2) by a county under Subchapter E, Chapter 361,
76-10 Health and Safety Code; or
76-11 (3) under a rule adopted under any of those
76-12 provisions.
76-13 (b) After notice and hearing, the commission may suspend or
76-14 revoke a license, certificate, or registration the commission or a
76-15 county has issued, place on probation a person whose license,
76-16 certificate, or registration has been suspended, reprimand the
76-17 holder of a license, certificate, or registration, or refuse to
76-18 renew or reissue a license, certificate, or registration on any of
76-19 the following grounds:
76-20 (1) having a record of environmental violations in the
76-21 preceding five years at the licensed, certified, or registered
76-22 site;
76-23 (2) committing fraud or deceit in obtaining the
76-24 license, certificate, or registration;
76-25 (3) demonstrating gross negligence, incompetency, or
76-26 misconduct while acting as holder of a license, certificate, or
76-27 registration;
77-1 (4) making an intentional misstatement or
77-2 misrepresentation of fact in information required to be maintained
77-3 or submitted to the commission by the holder of the license,
77-4 certificate, or registration;
77-5 (5) failing to keep and transmit records as required
77-6 by a statute within the commission's jurisdiction or a rule adopted
77-7 under such a statute;
77-8 (6) being indebted to the state for a fee, payment of
77-9 a penalty, or a tax imposed by a statute within the commission's
77-10 jurisdiction or a rule adopted under such a statute;
77-11 (7) with respect to a certificate of public
77-12 convenience and necessity, failing to provide continuous and
77-13 adequate service in the area, or part of the area, covered by the
77-14 certificate;
77-15 (8) with respect to a license issued under Chapter 18,
77-16 failing to continue to possess qualifications necessary for the
77-17 issuance of an original license;
77-18 (9) with respect to a certificate of competency issued
77-19 under Section 26.0301, violating a discharge permit of a sewage
77-20 treatment plant, unless:
77-21 (A) the holder of the certificate is unable to
77-22 properly operate the sewage treatment facility due to the refusal
77-23 of the permit holder to authorize necessary expenditures to operate
77-24 the sewage treatment facility properly; or
77-25 (B) failure of the sewage treatment facility to
77-26 comply with its discharge permit results from faulty design of the
77-27 sewage treatment facility;
78-1 (10) with respect to a license issued under Chapter
78-2 32, failing to advise a person for whom a well is being drilled
78-3 that injurious water has been encountered, is a pollution hazard,
78-4 and must be immediately plugged in an acceptable manner;
78-5 (11) with respect to a registration issued under
78-6 Chapter 366, Health and Safety Code, violating that chapter or a
78-7 rule adopted under that chapter; or
78-8 (12) with respect to a license issued under Subchapter
78-9 E, Chapter 361, Health and Safety Code, violating that chapter or
78-10 another applicable law or a commission rule governing the
78-11 processing, storage, or disposal of solid waste.
78-12 Sec. 7.304. SUSPENSION OF REGISTRATION OR REIMBURSEMENT
78-13 PAYMENT ISSUED UNDER WASTE TIRE RECYCLING PROGRAM. Notwithstanding
78-14 Sections 7.303, 7.305, and 7.306, the commission may suspend a
78-15 registration of or reimbursement payment to a waste tire processor,
78-16 waste tire transporter, waste tire generator, waste tire recycling
78-17 facility, or waste tire energy recovery facility, without notice or
78-18 hearing, on the initiation of an enforcement proceeding under this
78-19 chapter and while the proceeding is pending for a violation of
78-20 Subchapter P, Chapter 361, Health and Safety Code, or a rule
78-21 adopted or order issued under that subchapter.
78-22 Sec. 7.305. PROCEDURES. The commission by rule shall
78-23 establish procedures for public notice and any public hearing under
78-24 this subchapter. The procedures shall provide for notice to a
78-25 county that issued a license, certificate, or registration that is
78-26 the subject of the hearing.
78-27 Sec. 7.306. HEARINGS. A hearing under this subchapter shall
79-1 be conducted in accordance with the hearing rules adopted by the
79-2 commission and the applicable provisions of Chapter 2001,
79-3 Government Code.
79-4 Sec. 7.307. CONSENT. If the holder of a permit, license,
79-5 certificate, or registration requests or consents to the revocation
79-6 or suspension of the permit, license, certificate, or
79-7 registration, the executive director may revoke or suspend the
79-8 permit, license, exemption, certificate, or registration without a
79-9 hearing.
79-10 Sec. 7.308. OTHER RELIEF. A proceeding brought by the
79-11 commission under this subchapter does not affect the commission's
79-12 authority to bring suit for injunctive relief or penalty or both
79-13 under this chapter.
79-14 Sec. 7.309. PROBATION REQUIREMENTS. If a license,
79-15 certificate, or registration suspension is probated, the commission
79-16 may require the holder of the license, certificate, or
79-17 registration:
79-18 (1) to report regularly to the commission on matters
79-19 that are the basis of the probation;
79-20 (2) to limit activities to the areas prescribed by the
79-21 commission; or
79-22 (3) to continue or renew professional education until
79-23 the registrant attains a degree of skill satisfactory to the
79-24 commission in those areas that are the basis of the probation.
79-25 Sec. 7.310. REVOCATION OR SUSPENSION BY COUNTY. With
79-26 respect to a license, certificate, or registration issued by a
79-27 county under a statute or rule within the commission's
80-1 jurisdiction, the issuing county may suspend or revoke the license,
80-2 certificate, or registration on the grounds provided under Section
80-3 7.303.
80-4 (Sections 7.311-7.350 reserved for expansion
80-5 SUBCHAPTER H. SUIT BY OTHERS
80-6 Sec. 7.351. CIVIL SUITS. If it appears that a violation or
80-7 threat of violation of Chapter 16, 26, 28, or 34 of this code or
80-8 Chapter 341, 361, 371, 372, or 382, Health and Safety Code, or a
80-9 provision of Chapter 401, Health and Safety Code, under the
80-10 commission's jurisdiction or a rule adopted or an order or a permit
80-11 issued under those chapters or provisions has occurred or is
80-12 occurring in the jurisdiction of a local government, the local
80-13 government or, in the case of a violation of Chapter 401, Health
80-14 and Safety Code, a person affected as defined in that chapter, may
80-15 institute a civil suit under Subchapter D in the same manner as the
80-16 commission in a district court by its own attorney for the
80-17 injunctive relief or civil penalty, or both, as authorized by this
80-18 chapter against the person who committed, is committing, or is
80-19 threatening to commit the violation.
80-20 Sec. 7.352. RESOLUTION REQUIRED. In the case of a violation
80-21 of Chapter 26 of this code or Chapter 382, Health and Safety Code,
80-22 a local government may not exercise the enforcement power
80-23 authorized by this subchapter unless its governing body adopts a
80-24 resolution authorizing the exercise of the power.
80-25 Sec. 7.353. COMMISSION NECESSARY PARTY. In a suit brought
80-26 by a local government under this subchapter, the commission is a
80-27 necessary and indispensable party.
81-1 Sec. 7.354. COSTS AND FEES. A penalty collected in a suit
81-2 under this subchapter for a violation of Chapter 28 of this code or
81-3 Chapter 401, Health and Safety Code, shall be paid to the state.
81-4 If the suit is brought by a local government or, in the case of a
81-5 violation of Chapter 401, Health and Safety Code, a person affected
81-6 as defined in that chapter, the court shall include in any final
81-7 judgment in favor of the local government or affected person an
81-8 award to cover reasonable costs and attorney's fees.
81-9 Sec. 7.355. COMPLAINTS. In the case of a violation of
81-10 Chapter 401, Health and Safety Code, a local government or person
81-11 affected may file with the commission a written complaint and may
81-12 request an investigation of an alleged violation by a person who
81-13 holds a permit subject to the commission's jurisdiction.
81-14 Sec. 7.356. COMMISSION REPLY. The commission shall reply to
81-15 the local government or person affected who filed a complaint under
81-16 Section 7.355 in writing not later than the 60th day after the
81-17 complaint is received and shall provide a copy of any investigation
81-18 report relevant to the complaint together with a determination of
81-19 whether the alleged violation was committed.
81-20 Sec. 7.357. PROSECUTION. A local government or, in the case
81-21 of a violation of Chapter 401, Health and Safety Code, a person
81-22 affected as defined in that chapter may bring suit in the county in
81-23 which the alleged violation occurred or is about to occur, if the
81-24 commission does not have a suit filed before the 121st day after
81-25 the date on which the written complaint is filed under Section
81-26 7.355.
81-27 Sec. 7.358. OTHER REQUIREMENTS. In the case of a violation
82-1 of Chapter 34, the regulatory authority of any local government may
82-2 require compliance with any reasonable inspection requirements or
82-3 ordinances or regulations designed to protect the public water
82-4 supply and pay any reasonable fees imposed by the local government
82-5 relating to work performed within its jurisdiction.
82-6 SECTION 3. Section 11.081, Water Code, is amended to read as
82-7 follows:
82-8 Sec. 11.081. UNLAWFUL USE OF STATE WATER. [(a)] No person
82-9 may wilfully take, divert, or appropriate any state water for any
82-10 purpose without first complying with all applicable requirements of
82-11 this chapter.
82-12 [(b) A person who violates any provision of this section is
82-13 guilty of a misdemeanor and upon conviction is punishable by a fine
82-14 of not more than $100 or by confinement in the county jail for not
82-15 more than six months or by both.]
82-16 [(c) A person commits a separate offense each day he
82-17 continues to take, divert, or appropriate water in violation of
82-18 this section.]
82-19 [(d) Possession of state water when the right to its use has
82-20 not been acquired according to the provisions of this chapter is
82-21 prima facie evidence of a violation of this section.]
82-22 SECTION 4. Section 11.083, Water Code, is amended to read as
82-23 follows:
82-24 Sec. 11.083. OTHER UNLAWFUL TAKING. (a) No person may
82-25 wilfully open, close, change, or interfere with any headgate or
82-26 water box without lawful authority.
82-27 (b) No person may wilfully use water or conduct water
83-1 through his ditch or upon his land unless he is entitled to do so.
83-2 [(c) A person who violates any provision of this section is
83-3 guilty of a misdemeanor and upon conviction is punishable by a fine
83-4 of not less than $10 nor more than $1,000 or by confinement in the
83-5 county jail for not more than six months.]
83-6 [(d) The possession or use of water on his land by a person
83-7 not entitled to the water by the provisions of this code is prima
83-8 facie evidence of a violation of this section.]
83-9 SECTION 5. Section 11.084, Water Code, is amended to read as
83-10 follows:
83-11 Sec. 11.084. SALE OF PERMANENT WATER RIGHT WITHOUT A PERMIT.
83-12 [(a)] No person may sell or offer to sell a permanent water right
83-13 unless he has perfected a right to appropriate state water by a
83-14 certified filing, or unless he has obtained a permit from the
83-15 commission, authorizing the use of the water for the purposes for
83-16 which the permanent water right is conveyed.
83-17 [(b) A person who violates Subsection (a) of this section is
83-18 guilty of a misdemeanor and upon conviction is punishable by a fine
83-19 of not less than $100 nor more than $1,000 or by confinement in the
83-20 county jail for not more than one year or by both.]
83-21 SECTION 6. Subsection (c), Section 11.087, Water Code, is
83-22 amended to read as follows:
83-23 (c) Orders made by the commission to effectuate its rules
83-24 under this section shall be mailed [need not be published, but the
83-25 commission shall transmit a copy of every such order] by certified
83-26 mail to each diverter of water and to each reservoir owner on the
83-27 stream between the point of release and the point of destination of
84-1 the released water as shown by the records of the commission.
84-2 SECTION 7. Section 11.088, Water Code, is amended to read as
84-3 follows:
84-4 Sec. 11.088. DESTRUCTION OF WATERWORKS. [(a)] No person
84-5 may wilfully cut, dig, break down, destroy, or injure or open a
84-6 gate, bank, embankment, or side of any ditch, canal, reservoir,
84-7 flume, tunnel or feeder, pump or machinery, building, structure, or
84-8 other work which is the property of another, or in which another
84-9 owns an interest, or which is lawfully possessed or being used by
84-10 another, and which is used for irrigation, milling, mining,
84-11 manufacturing, the development of power, domestic purposes, or
84-12 stock raising, with intent to:
84-13 (1) maliciously injure a person, association,
84-14 corporation, water improvement or irrigation district;
84-15 (2) gain advantage for himself; or
84-16 (3) take or steal water or cause water to run out or
84-17 waste out of the ditch, canal, or reservoir, feeder, or flume for
84-18 his own advantage or to the injury of a person lawfully entitled to
84-19 the use of the water or the use or management of the ditch, canal,
84-20 tunnel, reservoir, feeder, flume, machine, structure, or other
84-21 irrigation work.
84-22 [(b) A person who violates any provision of this section is
84-23 guilty of a misdemeanor and upon conviction is punishable by a fine
84-24 of not less than $10 nor more than $1,000 or by confinement in the
84-25 county jail for not more than two years or by both.]
84-26 SECTION 8. Section 11.089, Water Code, is amended to read as
84-27 follows:
85-1 Sec. 11.089. JOHNSON GRASS OR RUSSIAN THISTLE. (a) No
85-2 person who owns, leases, or operates a ditch, canal, or reservoir
85-3 or who cultivates land abutting a reservoir, ditch, flume, canal,
85-4 wasteway, or lateral may permit Johnson grass or Russian thistle to
85-5 go to seed on the waterway within 10 feet of the high-water line if
85-6 the waterway crosses or lies on the land owned or controlled by
85-7 him.
85-8 (b) [A person who violates any provision of this section is
85-9 guilty of a misdemeanor and upon conviction is punishable by a fine
85-10 of not less than $25 nor more than $500 or by confinement in the
85-11 county jail for not less than 30 days nor more than six months or
85-12 by both.]
85-13 [(c)] The provisions of this section are not applicable in
85-14 Tom Green, Sterling, Irion, Schleicher, McCullough, Brewster,
85-15 Menard, Maverick, Kinney, Val Verde, and San Saba counties.
85-16 SECTION 9. Section 11.090, Water Code, is amended to read as
85-17 follows:
85-18 Sec. 11.090. POLLUTING AND LITTERING. [(a)] No person may
85-19 deposit in any canal, lateral, reservoir, or lake, used for a
85-20 purpose named in this chapter, the carcass of any dead animal, tin
85-21 cans, discarded buckets or pails, garbage, ashes, bailing or barbed
85-22 wire, earth, offal, or refuse of any character or any other article
85-23 which might pollute the water or obstruct the flow of a canal or
85-24 similar structure.
85-25 [(b) A person who violates any provision of this section is
85-26 guilty of a misdemeanor and upon conviction is punishable by a fine
85-27 of not less than $10 nor more than $100 or by confinement in the
86-1 county jail for not more than six months or by both.]
86-2 SECTION 10. Section 11.091, Water Code, is amended to read
86-3 as follows:
86-4 Sec. 11.091. INTERFERENCE WITH DELIVERY OF WATER UNDER
86-5 CONTRACT. [(a)] No person may wilfully take, divert, appropriate,
86-6 or interfere with the delivery of conserved or stored water under
86-7 Section 11.042 of this code.
86-8 [(b) A person who violates any provision of this section is
86-9 guilty of a misdemeanor and upon conviction is punishable by a fine
86-10 of not more than $100 or by confinement in the county jail for not
86-11 more than six months or by both.]
86-12 [(c) A person commits a separate offense each day he
86-13 continues to violate this section.]
86-14 [(d) On the petition of any interested party, the district
86-15 court of any county through which the water may pass shall enjoin
86-16 any actual or threatened act prohibited by this section.]
86-17 SECTION 11. Section 11.094, Water Code, is amended to read
86-18 as follows:
86-19 Sec. 11.094. PENALTY FOR USE OF WORKS DECLARED PUBLIC
86-20 NUISANCE. [(a)] No person may operate or attempt to operate any
86-21 waterworks or irrigation system or use any water under contract
86-22 with any waterworks or irrigation system that has been previously
86-23 declared to be a public nuisance.
86-24 [(b) A person who violates any provision of this section is
86-25 guilty of a misdemeanor and on conviction is punishable by a fine
86-26 of not more than $1,000 or by confinement in the county jail for
86-27 not more than one year or by both.]
87-1 SECTION 12. Section 11.096, Water Code, is amended to read
87-2 as follows:
87-3 Sec. 11.096. OBSTRUCTION OF NAVIGABLE STREAMS. [(a)] No
87-4 person may obstruct the navigation of any stream which can be
87-5 navigated by steamboats, keelboats, or flatboats by cutting and
87-6 felling trees or by building on or across the stream any dike,
87-7 milldam, bridge, or other obstruction.
87-8 [(b) A person who violates any provision of this section is
87-9 guilty of a misdemeanor and upon conviction is punishable by a fine
87-10 of not less than $50 nor more than $500.]
87-11 SECTION 13. Section 11.203, Water Code, is amended to read
87-12 as follows:
87-13 Sec. 11.203. ARTESIAN WELL: DRILLING RECORD. [(a)] A
87-14 person who drills an artesian well or has one drilled shall keep a
87-15 complete and accurate record of the depth, thickness, and character
87-16 of the different strata penetrated and when the well is completed
87-17 shall transmit a copy of the record to the commission by registered
87-18 mail.
87-19 [(b) A person who violates any provision of this section is
87-20 guilty of a misdemeanor and on conviction is punishable by a fine
87-21 of not less than $10 nor more than $100.]
87-22 SECTION 14. Section 11.205, Water Code, is amended to read
87-23 as follows:
87-24 Sec. 11.205. WASTING WATER FROM ARTESIAN WELL.
87-25 [(a)] Unless the water from an artesian well is used for a purpose
87-26 and in a manner in which it may be lawfully used on the owner's
87-27 land, it is waste and unlawful to wilfully cause or knowingly
88-1 permit the water to run off the owner's land or to percolate
88-2 through the stratum above which the water is found.
88-3 [(b) A person who commits waste as defined in this section
88-4 is guilty of a misdemeanor and on conviction is punishable by a
88-5 fine of not more than $500 or by confinement in the county jail for
88-6 not more than 90 days or by both.]
88-7 SECTION 15. Section 26.019, Water Code, is amended to read
88-8 as follows:
88-9 Sec. 26.019. ORDERS. [(a)] The commission is authorized to
88-10 issue orders and make determinations necessary to effectuate the
88-11 purposes of this chapter.
88-12 [(b) The commission shall set forth the findings on which it
88-13 bases any order granting or denying special relief requested of the
88-14 commission or involving a determination following a hearing on an
88-15 alleged violation of Section 26.121 of this code or directing a
88-16 person to perform or refrain from performing a certain act or
88-17 activity.]
88-18 SECTION 16. Section 26.0191, Water Code, is amended to read
88-19 as follows:
88-20 Sec. 26.0191. TEMPORARY OR [AND] EMERGENCY ORDER RELATING
88-21 [ORDERS AND AUTHORIZATIONS] TO DISCHARGE OF WASTE OR POLLUTANTS
88-22 [UNTREATED OR PARTIALLY TREATED WASTEWATER]. [(a)] The commission
88-23 may issue a temporary or emergency order [orders] relating to the
88-24 discharge of waste or pollutants under Section 5.509 [when this is
88-25 necessary to enable action to be taken more expeditiously than is
88-26 otherwise provided by this chapter to effectuate the policy and
88-27 purposes of this chapter].
89-1 [(b) A person desiring to obtain a temporary or emergency
89-2 order to discharge waste or pollutants, including untreated or
89-3 partially treated wastewater, into or adjacent to water in this
89-4 state shall submit a sworn application to the commission containing
89-5 the following information and any other information the commission
89-6 requires:]
89-7 [(1) a statement that the discharge is unavoidable to
89-8 prevent loss of life, serious injury, severe property damage, or
89-9 severe economic loss, or to make necessary and unforeseen repairs
89-10 to a facility, that there are no feasible alternatives to the
89-11 proposed discharge, and that the discharge will not cause
89-12 significant hazard to human life and health, unreasonable damage to
89-13 property of persons other than the applicant, or unreasonable
89-14 economic loss to persons other than the applicant;]
89-15 [(2) a statement that the proposed discharge will not
89-16 present a significant hazard to the uses that may be made of the
89-17 receiving water after the discharge;]
89-18 [(3) an estimate of the dates on which the proposed
89-19 discharge will begin and end;]
89-20 [(4) a statement of the volume and quality of the
89-21 proposed discharge;]
89-22 [(5) an explanation of measures proposed to minimize
89-23 the volume and duration of the discharge; and]
89-24 [(6) an explanation of measures proposed to maximize
89-25 the waste treatment efficiency of units not taken out of service or
89-26 facilities provided for interim use.]
89-27 [(c) The commission may issue emergency orders relating to
90-1 the discharge of waste or pollutants without notice and hearing, or
90-2 with such notice and hearing as the commission considers
90-3 practicable under the circumstances, only if the commission finds
90-4 the applicant's statement made under Subsection (b)(1) of this
90-5 section to be correct.]
90-6 [(d) If the commission issues an emergency order under this
90-7 authority without a hearing, the order shall fix a time and place
90-8 for a hearing to be held before the commission, which shall be held
90-9 as soon after the emergency order is issued as is practicable.]
90-10 [(e) At the hearing, the commission shall affirm, modify, or
90-11 set aside the emergency order. Any hearing on an emergency order
90-12 shall be conducted in accordance with Chapter 2001, Government
90-13 Code, or the rules of the commission. Any set of commission rules
90-14 concerning a hearing on an emergency order must include provisions
90-15 for presentation of evidence by the applicant under oath,
90-16 presentation of rebuttal evidence, and cross-examination of
90-17 witnesses.]
90-18 [(f) If emergency conditions exist which make it necessary
90-19 to take action more expeditiously than is otherwise provided by
90-20 this section, the executive director may authorize the discharge of
90-21 untreated or partially treated wastewater from a permitted facility
90-22 into or adjacent to water in the state if he determines that the
90-23 discharge is unavoidable to prevent loss of life, serious injury,
90-24 severe property damage, or severe economic loss, or to make
90-25 necessary and unforeseen repairs to the facility, that there are no
90-26 feasible alternatives to the discharge, and that the discharge will
90-27 not cause significant hazard to human life and health, unreasonable
91-1 damage to property of persons other than the applicant, or
91-2 unreasonable economic loss to persons other than the applicant. If
91-3 the executive director issues an authorization to discharge under
91-4 this authority, the commission shall hold a hearing as provided for
91-5 in Subsection (d) of this section as soon as practicable but in no
91-6 event later than 10 days after issuance of the authorization to
91-7 affirm, modify or set aside the authorization. The requirements of
91-8 Subsection (b) of this section shall be satisfied by the applicant
91-9 on or before such hearing date.]
91-10 [(g) The requirements of Section 26.022 of this code
91-11 relating to the time for notice, newspaper notice, and method of
91-12 giving a person notice do not apply to a hearing held on an
91-13 emergency permit under this section, but such general notice of the
91-14 hearing shall be given as the commission, under Subsections (c) and
91-15 (e) of this section, considers practicable under the circumstances.]
91-16 [(h) Temporary orders other than emergency orders require a
91-17 hearing before issuance of the order. The commission shall give
91-18 notice not less than 20 days before the date set for the hearing.]
91-19 SECTION 17. Subsection (a), Section 26.021, Water Code, is
91-20 amended to read as follows:
91-21 (a) The [Except for those hearings required to be held
91-22 before the commission under Section 26.0191(b) of this code, the]
91-23 commission may authorize the chief administrative law judge of the
91-24 State Office of Administrative Hearings to call and hold hearings
91-25 on any subject on which the commission may hold a hearing.
91-26 SECTION 18. Subsection (a), Section 26.022, Water Code, is
91-27 amended to read as follows:
92-1 (a) Except as otherwise provided in Sections 5.501, 5.504,
92-2 5.509, [26.0191] and 26.176 [of this code], the provisions of this
92-3 section apply to all hearings conducted in compliance with this
92-4 chapter.
92-5 SECTION 19. Section 26.029, Water Code (effective until
92-6 delegation of NPDES permit authority), is amended to read as
92-7 follows:
92-8 Sec. 26.029. CONDITIONS OF PERMIT; AMENDMENT[; REVOCATION
92-9 AND SUSPENSION]. (a) In each permit, the commission shall
92-10 prescribe the conditions on which it is issued, including:
92-11 (1) the duration of the permit;
92-12 (2) the location of the point of discharge of the
92-13 waste;
92-14 (3) the maximum quantity of waste that may be
92-15 discharged under the permit at any time and from time to time;
92-16 (4) the character and quality of waste that may be
92-17 discharged under the permit; and
92-18 (5) any monitoring and reporting requirements
92-19 prescribed by the commission for the permittee.
92-20 (b) After a public hearing, notice of which shall be given
92-21 to the permittee, the commission may require the permittee, from
92-22 time to time, for good cause, to conform to new or additional
92-23 conditions. The commission shall allow the permittee a reasonable
92-24 time to conform to the new or additional conditions, and on
92-25 application of the permittee, the commission may grant additional
92-26 time.
92-27 (c) A permit does not become a vested right in the
93-1 permittee. [After a public hearing, notice of which shall be given
93-2 to the permittee, the commission may revoke or suspend a permit for
93-3 good cause on any of the following grounds:]
93-4 [(1) the permittee has failed or is failing to comply
93-5 with the conditions of the permit;]
93-6 [(2) the permit is subject to cancellation or
93-7 suspension under Section 26.084 of this code;]
93-8 [(3) the permit or operations under the permit have
93-9 been abandoned; or]
93-10 [(4) the permit is no longer needed by the permittee.]
93-11 (d) The notice required by Subsection [Subsections] (b) [and
93-12 (c)] of this section shall be sent to the permittee at his last
93-13 known address as shown by the records of the commission.
93-14 [(e) If the permittee requests or consents to the revocation
93-15 or suspension of the permit, the executive director may revoke or
93-16 suspend the permit.]
93-17 SECTION 20. Section 26.029, Water Code (effective upon
93-18 delegation of NPDES permit authority), is amended to read as
93-19 follows:
93-20 Sec. 26.029. CONDITIONS OF PERMIT; AMENDMENT[; REVOCATION
93-21 AND SUSPENSION]. (a) In each permit, the commission shall
93-22 prescribe the conditions on which it is issued, including:
93-23 (1) the duration of the permit;
93-24 (2) the location of the point of discharge of the
93-25 waste;
93-26 (3) the maximum quantity of waste that may be
93-27 discharged under the permit at any time and from time to time;
94-1 (4) the character and quality of waste that may be
94-2 discharged under the permit; and
94-3 (5) any monitoring and reporting requirements
94-4 prescribed by the commission for the permittee.
94-5 (b) After a public hearing, notice of which shall be given
94-6 to the permittee, the commission may require the permittee, from
94-7 time to time, for good cause, in conformance with applicable laws,
94-8 to conform to new or additional conditions.
94-9 (c) A permit does not become a vested right in the
94-10 permittee. [After a public hearing in conformance with applicable
94-11 laws, notice of which shall be given to the permittee, the
94-12 commission may revoke or suspend a permit for good cause on any of
94-13 the following grounds:]
94-14 [(1) the permittee has failed or is failing to comply
94-15 with the conditions of the permit;]
94-16 [(2) the permit is subject to cancellation or
94-17 suspension under Section 26.084 of this code;]
94-18 [(3) the permit or operations under the permit have
94-19 been abandoned;]
94-20 [(4) the permit is no longer needed by the permittee;]
94-21 [(5) the commission finds that a change in conditions
94-22 requires elimination of the discharge;]
94-23 [(6) revocation or suspension is necessary in order to
94-24 maintain the quality of water in the state consistent with the
94-25 objectives of this chapter; or]
94-26 [(7) the permit was obtained by misrepresentation or
94-27 failure to disclose fully all relevant facts.]
95-1 (d) The notice required by Subsection [Subsections] (b) [and
95-2 (c)] of this section shall be sent to the permittee at his last
95-3 known address as shown by the records of the commission.
95-4 [(e) If the permittee requests or consents to the revocation
95-5 or suspension of the permit, the executive director may revoke or
95-6 suspend the permit.]
95-7 SECTION 21. Subsections (c), (d), and (e), Section 26.0301,
95-8 Water Code, are amended to read as follows:
95-9 (c) [The commission may suspend or revoke the certificate of
95-10 competency for sewage treatment facility operation of an individual
95-11 treatment facility operator or a sewage treatment facility
95-12 operations company, after notice and hearing before the commission,
95-13 if the holder of a certificate of competency is responsible for
95-14 violating a discharge permit of a sewage treatment plant.]
95-15 [(d) The holder of a certificate of competency is not
95-16 subject to the revocation or suspension of the certificate of
95-17 competency under Subsection (c) of this section if:]
95-18 [(1) the holder of a certificate is unable to properly
95-19 operate the sewage treatment facility due to the refusal of the
95-20 permittee to authorize necessary expenditures to operate the sewage
95-21 treatment facility properly; or]
95-22 [(2) failure of the sewage treatment facility to
95-23 comply with its discharge permit results from faulty design of the
95-24 sewage treatment facility.]
95-25 [(e)] The commission by rule shall set a fee to be paid by
95-26 each applicant or licensee on the issuance or renewal of a
95-27 certificate of competency under this section. The amount of the
96-1 fee is determined according to the costs of the commission in
96-2 administering this section, but may not exceed $25 annually for an
96-3 individual wastewater treatment plant operator and $500 annually
96-4 for a person, company, corporation, firm, or partnership that is in
96-5 the business as a wastewater treatment facility operations company.
96-6 The commission shall deposit any fees collected under this
96-7 subsection in the state treasury to the credit of the water quality
96-8 fund.
96-9 SECTION 22. Section 26.354, Water Code, is amended to read
96-10 as follows:
96-11 Sec. 26.354. Emergency Orders. The commission [(a)
96-12 Notwithstanding any other provision of this chapter, the executive
96-13 director] may issue an emergency order [orders] to an owner or
96-14 operator of [the persons identified in Subsection (e) of this
96-15 section if it appears that:]
96-16 [(1) there is an actual or threatened release of a
96-17 regulated substance from] an underground or aboveground storage
96-18 tank under Section 5.510[; and]
96-19 [(2) the executive director determines that more
96-20 expeditious corrective action than is otherwise provided for under
96-21 this chapter is necessary to protect the public health and safety
96-22 or the environment from harm].
96-23 [(b) An order issued under Subsection (a) of this section
96-24 may prohibit a person from allowing or continuing the release or
96-25 threatened release and require the person to take the actions
96-26 necessary to eliminate the release or threatened release.]
96-27 [(c) An emergency order issued under this section shall be:]
97-1 [(1) mailed by certified mail, return receipt
97-2 requested, to each person identified in the order;]
97-3 [(2) hand delivered to each person identified in the
97-4 order; or]
97-5 [(3) on failure of service by certified mail or hand
97-6 delivery, served by publication one time in the Texas Register and
97-7 one time in a newspaper with general circulation in each county in
97-8 which any of the persons had a last known address.]
97-9 [(d) An emergency order issued under this section does not
97-10 require notice or an adjudicative hearing before its issuance. If
97-11 the executive director issues an order under this section, the
97-12 commission shall fix a time and place for a hearing to affirm,
97-13 modify, or set aside the emergency order issued by the executive
97-14 director. The hearing before the commission shall be held as soon
97-15 as practicable after the issuance of the emergency order.]
97-16 [(e) The executive director may issue orders under this
97-17 section to the following persons:]
97-18 [(1) the owner of an underground or aboveground
97-19 storage tank; or]
97-20 [(2) the operator of an underground or aboveground
97-21 storage tank.]
97-22 SECTION 23. Section 26.459, Water Code, is amended to read
97-23 as follows:
97-24 Sec. 26.459. REINSTATEMENT [DENIAL, SUSPENSION, OR
97-25 REVOCATION] OF LICENSE OR CERTIFICATE OF REGISTRATION[;
97-26 REINSTATEMENT]. (a) The commission may [deny, suspend, revoke,
97-27 or] reinstate a license or certificate of registration.
98-1 (b) [The commission shall adopt rules establishing the
98-2 grounds for denial, suspension, revocation, or reinstatement of a
98-3 license or certificate of registration, and establishing procedures
98-4 for disciplinary actions.]
98-5 [(c) Proceedings relating to the suspension or revocation of
98-6 a license or certificate of registration issued under this
98-7 subchapter are subject to Chapter 2001, Government Code.]
98-8 [(d)] A person or business entity whose license or
98-9 certificate of registration has been revoked may apply for a new
98-10 license or certificate of registration after the expiration of one
98-11 year from the date of the revocation.
98-12 SECTION 24. Section 27.101, Water Code, is amended to read
98-13 as follows:
98-14 Sec. 27.101. CIVIL PENALTY. (a) A person who violates any
98-15 provision of this chapter under the jurisdiction of the railroad
98-16 commission, any rule of [the commission or] the railroad commission
98-17 made under this chapter, or any term, condition, or provision of a
98-18 permit issued by the railroad commission under this chapter shall
98-19 be subject to a civil penalty in any sum not exceeding $5,000 for
98-20 each day of noncompliance and for each act of noncompliance. A
98-21 violation under the jurisdiction of the commission is enforceable
98-22 as provided by Chapter 7.
98-23 (b) The action may be brought by the [executive director or
98-24 the] railroad commission in any court of competent jurisdiction in
98-25 the county where the offending activity is occurring or where the
98-26 defendant resides.
98-27 SECTION 25. Section 27.102, Water Code, is amended to read
99-1 as follows:
99-2 Sec. 27.102. INJUNCTION, ETC. (a) The [executive director
99-3 or the] railroad commission may enforce a provision of this chapter
99-4 under the jurisdiction of the railroad commission, any valid rule
99-5 made by the railroad commission under this chapter, or any term,
99-6 condition, or provision of a permit issued by the [commission or]
99-7 railroad commission under this chapter by injunction or other
99-8 appropriate remedy. The suit shall be brought in a court of
99-9 competent jurisdiction in the county where the offending activity
99-10 is occurring.
99-11 (b) The executive director may enforce a provision of this
99-12 chapter under the jurisdiction of the commission, a commission rule
99-13 adopted under this chapter, or a term, condition, or provision of a
99-14 permit issued by the commission under this chapter as provided by
99-15 Subchapter B, Chapter 7.
99-16 SECTION 26. Subsection (a), Section 27.103, Water Code, is
99-17 amended to read as follows:
99-18 (a) At the request of the [executive director or the]
99-19 railroad commission, the attorney general shall institute and
99-20 conduct a suit in the name of the State of Texas for injunctive
99-21 relief or to recover the civil penalty, or for both the injunctive
99-22 relief and civil penalty, authorized in Sections 27.101 and 27.102
99-23 of this chapter.
99-24 SECTION 27. Subsection (a), Section 27.105, Water Code, is
99-25 amended to read as follows:
99-26 (a) A person who knowingly or intentionally violates a
99-27 provision of this chapter under the jurisdiction of the railroad
100-1 commission, a rule of the [commission or] railroad commission, or a
100-2 term, condition, or provision of a permit issued by the railroad
100-3 commission under this chapter is subject to a fine of not more than
100-4 $5,000 for each violation and for each day of violation. A
100-5 violation under the jurisdiction of the commission is enforceable
100-6 under Section 7.157.
100-7 SECTION 28. Subsection (d), Section 361.011, Health and
100-8 Safety Code, is amended to read as follows:
100-9 (d) In matters relating to municipal solid waste management,
100-10 excluding management of hazardous municipal waste, the commission
100-11 shall[:]
100-12 [(1)] consider water pollution control and water
100-13 quality aspects and air pollution control and ambient air quality
100-14 aspects[; and]
100-15 [(2) consult with the attorney general's office for
100-16 assistance in determining whether referral to the attorney general
100-17 for enforcement is mandatory under Section 361.224 or whether
100-18 referral is appropriate, in the commission's discretion, for the
100-19 disposition of enforcement matters under this chapter].
100-20 SECTION 29. Section 361.035, Health and Safety Code, is
100-21 amended by adding Subsection (c) to read as follows:
100-22 (c) A penalty collected under Subchapter C or D, Chapter 7,
100-23 Water Code, for the late filing of a report required by this
100-24 section shall be deposited to the credit of the hazardous and solid
100-25 waste remediation fee fund.
100-26 SECTION 30. Section 361.089, Health and Safety Code, is
100-27 amended to read as follows:
101-1 Sec. 361.089. PERMIT DENIAL OR[,] AMENDMENT[, SUSPENSION OR
101-2 REVOCATION]; NOTICE AND HEARING. (a) The commission may, for good
101-3 cause, deny or[,] amend[, or revoke] a permit it issues or has
101-4 authority to issue for reasons pertaining to public health, air or
101-5 water pollution, or land use, or for a violation of this chapter or
101-6 other applicable laws or rules controlling the management of solid
101-7 waste.
101-8 (b) Except as provided by Section 361.110, the commission
101-9 shall notify each governmental entity listed under Section 361.067
101-10 and provide an opportunity for a hearing to the permit holder or
101-11 applicant and persons affected. The commission may also hold a
101-12 hearing on its own motion.
101-13 (c) The commission by rule shall establish procedures for
101-14 public notice and any public hearing under this section.
101-15 (d) Hearings under this section shall be conducted in
101-16 accordance with the hearing rules adopted by the commission and the
101-17 applicable provisions of Chapter 2001, Government Code.
101-18 (e) The commission may deny[, suspend for not more than 90
101-19 days, or revoke] an original or renewal permit if it is found,
101-20 after notice and hearing, that:
101-21 (1) the permit holder has a record of environmental
101-22 violations in the preceding five years at the permitted site;
101-23 (2) the applicant has a record of environmental
101-24 violations in the preceding five years at any site owned, operated,
101-25 or controlled by the applicant;
101-26 (3) the permit holder or applicant made a false or
101-27 misleading statement in connection with an original or renewal
102-1 application, either in the formal application or in any other
102-2 written instrument relating to the application submitted to the
102-3 commission, its officers, or its employees;
102-4 (4) the permit holder or applicant is indebted to the
102-5 state for fees, payment of penalties, or taxes imposed by this
102-6 title or by a rule of the commission; or
102-7 (5) the permit holder or applicant is unable to ensure
102-8 that the management of the hazardous waste management facility
102-9 conforms or will conform to this title and the rules of the
102-10 commission.
102-11 (f) Before denying[, suspending, or revoking] a permit under
102-12 this section, the commission must find:
102-13 (1) that a violation or violations are significant and
102-14 that the permit holder or applicant has not made a substantial
102-15 attempt to correct the violations; or
102-16 (2) that the permit holder or applicant is indebted to
102-17 the state for fees, payment of penalties, or taxes imposed by this
102-18 title or by a rule of the commission.
102-19 (g) For purposes of this section, the terms "permit holder"
102-20 and "applicant" include each member of a partnership or association
102-21 and, with respect to a corporation, each officer and the owner or
102-22 owners of a majority of the corporate stock, provided such partner
102-23 or owner controls at least 20 percent of the permit holder or
102-24 applicant and at least 20 percent of another business which
102-25 operates a solid waste management facility.
102-26 SECTION 31. Section 361.091, Health and Safety Code, is
102-27 amended by amending the heading and Subsections (i) through (m) to
103-1 read as follows:
103-2 Sec. 361.091. ENCLOSED CONTAINERS OR VEHICLES; PERMITS;
103-3 INSPECTIONS[; CRIMINAL PENALTY].
103-4 (i) [An operator of a solid waste facility or a solid waste
103-5 hauler commits an offense if the operator or hauler disposes of
103-6 solid waste in a completely enclosed container or vehicle at a
103-7 solid waste site or operation permitted as a Type IV landfill:]
103-8 [(1) without having in possession the special permit
103-9 required by this section;]
103-10 [(2) on a date or time not authorized by the
103-11 commission; or]
103-12 [(3) without a commission inspector present to verify
103-13 that the solid waste is free of putrescible, hazardous, and
103-14 infectious waste.]
103-15 [(j) An offense under this section is a Class B misdemeanor.]
103-16 [(k) Penalties under this section are in addition to any
103-17 other penalty applicable under this chapter.]
103-18 [(l)] This section does not apply to:
103-19 (1) a stationary compactor that is at a specific
103-20 location and that has an annual permit under this section issued by
103-21 the commission, on certification to the commission by the generator
103-22 that the contents of the compactor are free of putrescible,
103-23 hazardous, or infectious waste; or
103-24 (2) an enclosed vehicle of a municipality if the
103-25 vehicle has a permit issued by the commission to transport brush or
103-26 construction-demolition waste and rubbish on designated dates, on
103-27 certification by the municipality to the commission that the
104-1 contents of the vehicle are free of putrescible, hazardous, or
104-2 infectious waste.
104-3 (j) [(m)] In this section, "putrescible waste" means organic
104-4 waste, such as garbage, wastewater treatment plant sludge, and
104-5 grease trap waste, that may:
104-6 (1) be decomposed by microorganisms with sufficient
104-7 rapidity as to cause odors or gases; or
104-8 (2) provide food for or attract birds, animals, or
104-9 disease vectors.
104-10 SECTION 32. Section 361.140, Health and Safety Code, is
104-11 amended to read as follows:
104-12 Sec. 361.140. Interest and Penalties. (a) The commission
104-13 by rule shall establish requirements for the assessment of
104-14 penalties and interest for late payment of fees owed the state
104-15 under Sections 361.134 through 361.137. Penalties and interest
104-16 established under this section shall not exceed rates established
104-17 for delinquent taxes under Sections 111.060 and 111.061, Tax Code.
104-18 (b) [A person is subject to a civil penalty of up to $100
104-19 for each day the violation continues for failure to timely submit a
104-20 properly completed report as required by commission rule under
104-21 Section 361.035.]
104-22 [(c)] Interest collected under this section for late payment
104-23 of a fee shall be deposited in the state treasury to the credit of
104-24 the respective fund to which the late fee is credited.
104-25 [(d) Any penalty collected under this section for late
104-26 filing of reports shall be deposited in the state treasury to the
104-27 credit of the hazardous and solid waste remediation fee fund.]
105-1 SECTION 33. Section 361.160, Health and Safety Code, is
105-2 amended to read as follows:
105-3 Sec. 361.160. LICENSE AMENDMENT [AND REVOCATION]. (a) A
105-4 county may, for good cause, after hearing with notice to the
105-5 license holder and to the commission, [revoke or] amend a license
105-6 it issues for reasons concerning:
105-7 (1) public health;
105-8 (2) air or water pollution;
105-9 (3) land use; or
105-10 (4) a violation of this chapter or of other applicable
105-11 laws or rules controlling the processing, storage, or disposal of
105-12 solid waste.
105-13 (b) For similar reasons, the commission may for good cause
105-14 amend [or revoke] a license issued by a county, after hearing with
105-15 notice to:
105-16 (1) the license holder; and
105-17 (2) the county that issued the license.
105-18 SECTION 34. Subsection (a), Section 361.271, Health and
105-19 Safety Code, is amended to read as follows:
105-20 (a) Unless otherwise defined in applicable statutes and
105-21 rules [For the purpose of this subchapter], a person is responsible
105-22 for solid waste if the person:
105-23 (1) is any owner or operator of a solid waste
105-24 facility;
105-25 (2) owned or operated a solid waste facility at the
105-26 time of processing, storage, or disposal of any solid waste;
105-27 (3) by contract, agreement, or otherwise, arranged to
106-1 process, store, or dispose of, or arranged with a transporter for
106-2 transport to process, store, or dispose of, solid waste owned or
106-3 possessed by the person, by any other person or entity at:
106-4 (A) the solid waste facility owned or operated
106-5 by another person or entity that contains the solid waste; or
106-6 (B) the site to which the solid waste was
106-7 transported that contains the solid waste; or
106-8 (4) accepts or accepted any solid waste for transport
106-9 to a solid waste facility or site selected by the person.
106-10 SECTION 35. Section 361.274, Health and Safety Code, is
106-11 amended to read as follows:
106-12 Sec. 361.274. No Prior Notice Concerning Administrative
106-13 Order. An administrative order under Section 361.272 does not
106-14 require prior notice or an adjudicative hearing before the
106-15 commission. An emergency administrative order may be issued under
106-16 Subchapter L, Chapter 5, Water Code.
106-17 SECTION 36. Section 361.301, Health and Safety Code, is
106-18 amended to read as follows:
106-19 Sec. 361.301. Emergency Order. [(a)] The commission may
106-20 issue an emergency mandatory, permissive, or prohibitory order
106-21 concerning an activity of solid waste management under its
106-22 jurisdiction under Section 5.512, Water Code, even if the activity
106-23 is not covered by a permit[, if the commission determines that an
106-24 emergency requiring immediate action to protect the public health
106-25 and safety or the environment exists].
106-26 [(b) The order may be issued without notice and hearing or
106-27 with notice and hearing the commission considers practicable under
107-1 the circumstances.]
107-2 [(c) If an emergency order is issued under this section
107-3 without a hearing, the commission shall set a time and place for a
107-4 hearing to be held in accordance with the rules of the commission
107-5 to affirm, modify, or set aside the emergency order.]
107-6 [(d) The requirements of Section 361.088 concerning public
107-7 notice do not apply to the hearing, but general notice of the
107-8 hearing shall be given in accordance with the rules of the
107-9 commission.]
107-10 SECTION 37. Section 361.453, Health and Safety Code, is
107-11 amended to read as follows:
107-12 Sec. 361.453. INSPECTION OF BATTERY RETAILERS. The
107-13 commission shall produce, print, and distribute the notices
107-14 required by Section 361.452 to all places where lead-acid batteries
107-15 are offered for sale at retail. In performing its duties under
107-16 this section the commission may inspect any place, building, or
107-17 premises governed by Section 361.452. [Authorized employees of the
107-18 commission may issue warnings and citations to persons who fail to
107-19 comply with the requirements of Section 361.452.] Failure to post
107-20 the required notice within three days following warning shall
107-21 subject the establishment to an administrative or a civil penalty
107-22 under Chapter 7, Water Code [a fine of $100 per day].
107-23 SECTION 38. Section 366.016, Health and Safety Code, is
107-24 amended to read as follows:
107-25 Sec. 366.016. Emergency Orders. The [(a) If the]
107-26 commission or authorized agent may issue an emergency order
107-27 concerning an on-site sewage disposal system under Section 5.517,
108-1 Water Code [determines that an emergency exists and that the public
108-2 health or safety is endangered because of the operation of an
108-3 on-site sewage disposal system that does not comply with this
108-4 chapter or a rule adopted under this chapter, the commission or
108-5 authorized agent by order may:]
108-6 [(1) suspend the registration of the installer;]
108-7 [(2) regulate the on-site sewage disposal system; or]
108-8 [(3) both suspend the registration and regulate the
108-9 system].
108-10 [(b) The order may be issued without notice and hearing.]
108-11 [(c) If the emergency order is issued without a hearing, the
108-12 commission or authorized agent shall set a time and place for a
108-13 hearing to affirm, modify, or set aside the emergency order to be
108-14 held not later than the 30th day after the date on which the
108-15 emergency order is issued.]
108-16 [(d) General notice of the hearing shall be given in
108-17 accordance with the laws of this state and rules adopted by the
108-18 commission or authorized agent.]
108-19 [(e) The hearing shall be conducted in accordance with the
108-20 commission's rules or laws and rules governing the authorized
108-21 agent.]
108-22 SECTION 39. Subsection (c), Section 366.017, Health and
108-23 Safety Code, is amended to read as follows:
108-24 (c) The property owner may be assessed an administrative or
108-25 a civil penalty under Chapter 7, Water Code, [341] for each day
108-26 that the on-site sewage disposal system remains unrepaired.
108-27 SECTION 40. Section 371.041, Health and Safety Code, is
109-1 amended to read as follows:
109-2 Sec. 371.041. ACTIONS PROHIBITED. [(a)] A person may not
109-3 collect, transport, store, recycle, use, discharge, or dispose of
109-4 used oil in any manner that endangers the public health or welfare
109-5 or endangers or damages the environment.
109-6 [(b) A person commits an offense if the person:]
109-7 [(1) intentionally discharges used oil into a sewer,
109-8 drainage system, septic tank, surface water or groundwater,
109-9 watercourse, or marine water;]
109-10 [(2) knowingly mixes or commingles used oil with waste
109-11 that is to be disposed of in landfills or directly disposes of used
109-12 oil on land;]
109-13 [(3) knowingly transports, treats, stores, disposes
109-14 of, recycles, causes to be transported, or otherwise handles any
109-15 used oil within the state:]
109-16 [(A) in violation of standards or rules for the
109-17 management of used oil; or]
109-18 [(B) without first complying with the
109-19 registration requirements of Section 371.026 and rules adopted
109-20 under that section;]
109-21 [(4) intentionally applies used oil to roads or land
109-22 for dust suppression, weed abatement, or other similar uses that
109-23 introduce used oil into the environment;]
109-24 [(5) violates an order of the commission to cease and
109-25 desist any activity prohibited by this section or any rule
109-26 applicable to a prohibited activity; or]
109-27 [(6) intentionally makes a false statement or
110-1 representation in an application, label, manifest, record, report,
110-2 permit, or other document filed, maintained, or used for purposes
110-3 of program compliance.]
110-4 [(c) It is an exception to the application of Subsection (b)
110-5 if a person unknowingly disposes into the environment any used oil
110-6 that has not been properly segregated or separated by the generator
110-7 from other solid wastes.]
110-8 [(d) It is an exception to the application of Subsection
110-9 (b)(2) if the mixing or commingling of used oil with waste that is
110-10 to be disposed of in landfills is incident to and the unavoidable
110-11 result of the mechanical shredding of motor vehicles, appliances,
110-12 or other items of scrap, used, or obsolete metals.]
110-13 SECTION 41. Section 382.026, Health and Safety Code, is
110-14 amended to read as follows:
110-15 Sec. 382.026. Orders Issued Under Emergencies. The
110-16 commission may issue an order under an air emergency under Section
110-17 5.514, Water Code. [(a) When it appears to the commission or the
110-18 executive director that there exists a generalized condition of air
110-19 pollution that creates an emergency requiring immediate action to
110-20 protect human health or safety, the commission or the executive
110-21 director shall, with the governor's concurrence, order any person
110-22 causing or contributing to the air pollution immediately to reduce
110-23 or discontinue the emission of air contaminants.]
110-24 [(b) If the commission or the executive director finds that
110-25 emissions from one or more sources are causing imminent danger to
110-26 human health or safety, but that there is not a generalized
110-27 condition of air pollution under Subsection (a), the commission or
111-1 the executive director may order the persons responsible for the
111-2 emissions immediately to reduce or discontinue the emissions.]
111-3 [(c) An order issued under this section must set a time and
111-4 place of a hearing to be held before the commission as soon after
111-5 the order is issued as practicable.]
111-6 [(d) Section 382.031, relating to notice of a hearing, does
111-7 not apply to a hearing under this section, but a general notice of
111-8 the hearing shall be given that is, in the judgment of the
111-9 commission or the executive director, practicable under the
111-10 circumstances. The commission shall affirm, modify, or set aside
111-11 the order not later than 24 hours after the hearing begins and
111-12 without adjournment of the hearing.]
111-13 [(e) This section does not limit any power that the governor
111-14 or other officer may have to declare an emergency and to act on the
111-15 basis of that declaration if the power is conferred by law or
111-16 inheres in the office.]
111-17 SECTION 42. Subsection (b), Section 382.030, Health and
111-18 Safety Code, is amended to read as follows:
111-19 (b) Except for hearings required to be held before the
111-20 commission under Section 5.504, Water Code [382.026], the
111-21 commission may authorize the executive director to:
111-22 (1) call and hold a hearing on any subject on which
111-23 the commission may hold a hearing; and
111-24 (2) delegate the authority to hold any hearing called
111-25 by the executive director to one or more commission employees.
111-26 SECTION 43. Subsection (e), Section 382.031, Health and
111-27 Safety Code, is amended to read as follows:
112-1 (e) This section applies to all hearings held under this
112-2 chapter except as otherwise specified by Section 382.017[, 382.026,
112-3 or 382.063].
112-4 SECTION 44. Section 382.063, Health and Safety Code, is
112-5 amended to read as follows:
112-6 Sec. 382.063. Issuance of Emergency Order Because of
112-7 Catastrophe. (a) The commission may issue an emergency order
112-8 because of catastrophe under Section 5.515, Water Code [or the
112-9 executive director, on delegation of authority from the commission,
112-10 by emergency order may authorize immediate action for the addition,
112-11 replacement, or repair of facilities or control equipment
112-12 necessitated by a catastrophe occurring in this state, and the
112-13 emission of air contaminants during the addition, replacement, or
112-14 repair of those facilities, if the actions and emissions are
112-15 otherwise precluded under this chapter].
112-16 (b) [An order issued under this section must:]
112-17 [(1) be limited to a reasonable time specified by the
112-18 order;]
112-19 [(2) authorize action only on:]
112-20 [(A) property on which the catastrophe occurred;
112-21 or]
112-22 [(B) other property that is owned by the owner
112-23 or operator of the damaged facility and that produces the same
112-24 intermediates, products, or by-products; and]
112-25 [(3) contain a schedule for submission of a complete
112-26 application under Section 382.051.]
112-27 [(c) Under Subsection (b)(2)(B), the person applying for an
113-1 emergency order must demonstrate that there will be no more than a
113-2 de minimis increase in the predicted concentration of the air
113-3 contaminants at or beyond the property line of the other property.
113-4 The commission shall review and act on an application submitted as
113-5 provided by Subsection (b)(3) without regard to construction
113-6 activity under an order under this section.]
113-7 [(d) To receive an emergency order under this section, a
113-8 person must submit a sworn application to the commission or
113-9 executive director. The application must contain any information
113-10 the commission requires and:]
113-11 [(1) a description of the catastrophe;]
113-12 [(2) a statement that:]
113-13 [(A) the construction and emissions are
113-14 essential to prevent loss of life, serious injury, severe property
113-15 damage, or severe economic loss not attributable to the applicant's
113-16 actions and are necessary for the addition, replacement, or repair
113-17 of a facility or control equipment necessitated by the catastrophe;]
113-18 [(B) there are no practicable alternatives to
113-19 the proposed construction and emissions; and]
113-20 [(C) the emissions will not cause or contribute
113-21 to air pollution;]
113-22 [(3) an estimate of the dates on which the proposed
113-23 construction or emissions, or both, will begin and end;]
113-24 [(4) an estimate of the date on which the facility
113-25 will begin operation; and]
113-26 [(5) a description of the quantity and type of air
113-27 contaminants proposed to be emitted.]
114-1 [(e) The commission or executive director may issue an
114-2 emergency order under this section after providing the notice and
114-3 opportunity for hearing that the commission or executive director
114-4 considers practicable under the circumstances. If the commission
114-5 requires notice and hearing before issuing the order, it shall give
114-6 notice not later than the 10th day before the date set for the
114-7 hearing.]
114-8 [(f) Notice of the issuance of an emergency order shall be
114-9 provided in accordance with commission rules.]
114-10 [(g) If the commission or executive director issues an
114-11 emergency order under this section without a hearing, the order
114-12 shall set a time and place for a hearing to be held before the
114-13 commission or its designee as soon after the emergency order is
114-14 issued as practicable.]
114-15 [(h) Section 382.031, relating to notice of a hearing, does
114-16 not apply to a hearing on an emergency order, but such general
114-17 notice of the hearing shall be given that in the judgment of the
114-18 commission or the executive director is practicable under the
114-19 circumstances.]
114-20 [(i) At or following the hearing, the commission shall
114-21 affirm, modify, or set aside the emergency order. A hearing on an
114-22 emergency order shall be conducted in accordance with Chapter 2001,
114-23 Government Code and commission rules.]
114-24 [(j)] In this section, "catastrophe" means an unforeseen
114-25 event, including an act of God, an act of war, severe weather,
114-26 explosions, fire, or similar occurrences beyond the reasonable
114-27 control of the operator that makes a facility or its functionally
115-1 related appurtenances inoperable.
115-2 SECTION 45. Section 382.085, Health and Safety Code, is
115-3 amended to read as follows:
115-4 Sec. 382.085. UNAUTHORIZED EMISSIONS PROHIBITED[; CIVIL
115-5 PENALTY]. (a) Except as authorized by a commission rule or order,
115-6 a person may not cause, suffer, allow, or permit the emission of
115-7 any air contaminant or the performance of any activity that causes
115-8 or contributes to, or that will cause or contribute to, air
115-9 pollution.
115-10 (b) A person may not cause, suffer, allow, or permit the
115-11 emission of any air contaminant or the performance of any activity
115-12 in violation of this chapter or of any commission rule or order.
115-13 [(c) A person who violates any provision of this chapter or
115-14 any commission rule or order is subject to a civil penalty of not
115-15 less than $50 or more than $25,000 for each day of violation and
115-16 for each act of violation, as the court or jury considers proper.]
115-17 [(d) The state is entitled to half of a civil penalty
115-18 recovered in a suit brought under this chapter by one or more local
115-19 governments. The remainder shall be equally divided among the
115-20 local governments that first brought the suit.]
115-21 SECTION 46. Subsection (a), Section 401.054, Health and
115-22 Safety Code, is amended to read as follows:
115-23 (a) The department [or commission] shall provide notice and
115-24 an opportunity for a hearing on a matter under its jurisdiction as
115-25 provided by its formal hearing procedures and Chapter 2001,
115-26 Government Code, on written request of a person affected by any of
115-27 the following procedures:
116-1 (1) the denial, suspension, or revocation by the
116-2 department [agency] of a license or registration;
116-3 (2) the determination by the department [agency] of
116-4 compliance with or the grant of exemptions from a department [an
116-5 agency] rule or order; or
116-6 (3) the grant or amendment by the department [agency]
116-7 of a specific license.
116-8 SECTION 47. Section 401.270, Health and Safety Code, is
116-9 amended to read as follows:
116-10 Sec. 401.270. Corrective Action and Measures. (a) If the
116-11 commission finds that by-product material or the operation by which
116-12 that by-product material is derived threatens the public health and
116-13 safety or the environment, the commission by order may require any
116-14 action, including a corrective measure, that is necessary to
116-15 correct or remove the threat.
116-16 (b) [The commission may issue an emergency order to a person
116-17 responsible for an activity, including a past activity, concerning
116-18 the recovery or processing of source material or the disposal of
116-19 by-product material if it appears that there is an actual or
116-20 threatened release of source material or by-product material that
116-21 presents an imminent and substantial danger to the public health
116-22 and safety or the environment, regardless of whether the activity
116-23 was lawful at the time. The emergency order may be issued without
116-24 notice or hearing.]
116-25 [(c) An emergency order may be issued under Subsection (b)
116-26 to:]
116-27 [(1) restrain the person from allowing or continuing
117-1 the release or threatened release; and]
117-2 [(2) require the person to take any action necessary
117-3 to provide and implement an environmentally sound remedial action
117-4 plan designed to eliminate the release or threatened release.]
117-5 [(d) An emergency order issued under Subsection (b) shall:]
117-6 [(1) be delivered to the person identified by the
117-7 order by certified mail, return receipt requested;]
117-8 [(2) be delivered by hand delivery to the person
117-9 identified by the order; or]
117-10 [(3) on failure of delivery of the order by certified
117-11 mail or hand delivery, be served on the person by publication:]
117-12 [(A) once in the Texas Register; and]
117-13 [(B) once in a newspaper of general circulation
117-14 in each county in which was located the last known address of a
117-15 person identified by the order.]
117-16 [(e)] The commission shall use the security provided by the
117-17 license holder to pay the costs of actions that are taken or that
117-18 are to be taken under this section. The commission shall send to
117-19 the comptroller a copy of its order together with necessary written
117-20 requests authorizing the comptroller to:
117-21 (1) enforce security supplied by the licensee;
117-22 (2) convert an amount of security into cash, as
117-23 necessary; and
117-24 (3) disburse from the security in the fund the amount
117-25 necessary to pay the costs.
117-26 (c) The commission may issue an emergency order under this
117-27 section as provided by Section 5.517, Water Code.
118-1 [(f) If the order issued by the commission pursuant to this
118-2 section is adopted without notice or hearing, the order shall set a
118-3 time, at least 10 but not more than 30 days following the date of
118-4 issuance of the emergency order, and a place for a hearing to be
118-5 held in accordance with the rules of the commission. As a result
118-6 of this hearing, the commission shall decide whether to affirm,
118-7 modify, or set aside the emergency order. All provisions of the
118-8 emergency order shall remain in force and effect during the
118-9 pendency of the hearing, unless otherwise altered by the
118-10 commission.]
118-11 SECTION 48. Section 401.341, Health and Safety Code, is
118-12 amended to read as follows:
118-13 Sec. 401.341. JUDICIAL REVIEW. A person who is affected by
118-14 a final decision of the department [or commission] and who has
118-15 exhausted all administrative remedies available in the appropriate
118-16 agency is entitled to judicial review under Chapter 2001,
118-17 Government Code.
118-18 SECTION 49. Section 401.342, Health and Safety Code, is
118-19 amended to read as follows:
118-20 Sec. 401.342. SUIT BY ATTORNEY GENERAL. (a) The attorney
118-21 general, at the request of the department [or commission] regarding
118-22 an activity under its jurisdiction, shall institute an action in a
118-23 district court in Travis County or in any county in which a
118-24 violation occurs or is about to occur if in the department's
118-25 [requesting agency's] judgment a person has engaged in or is about
118-26 to engage in an act or practice that violates or will violate this
118-27 chapter or a rule, license, registration, or order adopted or
119-1 issued by the department [requesting agency] under this chapter.
119-2 The attorney general may determine the court in which suit will be
119-3 instituted.
119-4 (b) The attorney general may petition the court for:
119-5 (1) an order enjoining the act or practice or an order
119-6 directing compliance and reimbursement of the fund, if applicable;
119-7 (2) civil penalties as provided by Section 401.381; or
119-8 (3) a permanent or temporary injunction, restraining
119-9 order, or other appropriate order if the department [requesting
119-10 agency] shows that the person engaged in or is about to engage in
119-11 any of the acts or practices.
119-12 SECTION 50. Section 401.343, Health and Safety Code, is
119-13 amended to read as follows:
119-14 Sec. 401.343. RECOVERY OF SECURITY. (a) The department [or
119-15 commission] shall seek reimbursement, either by an order of the
119-16 department [agency] or a suit filed by the attorney general at the
119-17 department's [agency's] request, of security from the fund used by
119-18 the department [agency] to pay for actions, including corrective
119-19 measures, to remedy spills or contamination by radioactive material
119-20 resulting from a violation of this chapter relating to an activity
119-21 under the department's [agency's] jurisdiction or a rule, license,
119-22 registration, or order adopted or issued by the department [agency]
119-23 under this chapter.
119-24 (b) On request by the department [agency], the attorney
119-25 general shall file suit to recover security under this section.
119-26 SECTION 51. Subsection (a), Section 401.381, Health and
119-27 Safety Code, is amended to read as follows:
120-1 (a) A person who violates this chapter, a department [or
120-2 commission] rule or order, or a license or registration condition
120-3 is subject to a civil penalty of not less than $100 or more than
120-4 $25,000 for each violation and for each day that a continuing
120-5 violation occurs.
120-6 SECTION 52. Subsections (a) and (c), Section 401.384, Health
120-7 and Safety Code, are amended to read as follows:
120-8 (a) The department [or commission] may assess a civil
120-9 penalty as provided by this section and Sections 401.385-401.391
120-10 against a person who violates a provision of this chapter relating
120-11 to an activity under the department's [agency's] jurisdiction, a
120-12 rule or order adopted by the department [agency] under this
120-13 chapter, or a condition of a license or registration issued by the
120-14 department [agency] under this chapter.
120-15 (c) In determining the amount of the penalty, the department
120-16 [agency] shall consider:
120-17 (1) the seriousness of the violation, including the
120-18 nature, circumstances, extent, and gravity of the prohibited acts
120-19 and the hazard or potential hazard created to the public health or
120-20 safety;
120-21 (2) the history of previous violations;
120-22 (3) the amount necessary to deter future violations;
120-23 (4) efforts to correct the violation; and
120-24 (5) any other matters that justice requires.
120-25 SECTION 53. Section 401.385, Health and Safety Code, is
120-26 amended to read as follows:
120-27 Sec. 401.385. PRELIMINARY REPORT OF VIOLATION. If the
121-1 department [or commission], after an investigation, concludes that
121-2 a violation relating to an activity under its jurisdiction has
121-3 occurred, the department [agency] may issue a preliminary report:
121-4 (1) stating the facts that support the conclusion;
121-5 (2) recommending that a civil penalty under Section
121-6 401.384 be imposed; and
121-7 (3) recommending the amount of the penalty, which
121-8 shall be based on the seriousness of the violation as determined
121-9 from the facts surrounding the violation.
121-10 SECTION 54. Subsection (a), Section 401.386, Health and
121-11 Safety Code, is amended to read as follows:
121-12 (a) The department [or commission] shall give written notice
121-13 of its preliminary report to the person charged with the violation
121-14 not later than the 10th day after the date on which the report is
121-15 issued.
121-16 SECTION 55. Section 401.387, Health and Safety Code, is
121-17 amended to read as follows:
121-18 Sec. 401.387. CONSENT TO PENALTY. (a) If the person
121-19 charged with the violation consents to the penalty recommended by
121-20 the department [or commission] or does not respond to the notice on
121-21 time, the commissioner or the commissioner's designee, [or the
121-22 commission, as appropriate,] by order shall assess that penalty or
121-23 order a hearing to be held on the findings and recommendations in
121-24 the report.
121-25 (b) If the commissioner or the commissioner's designee [or
121-26 the commission] assesses the recommended penalty, the department
121-27 [or the commission, as appropriate,] shall give written notice to
122-1 the person charged of the decision and that person must pay the
122-2 penalty.
122-3 SECTION 56. Section 401.388, Health and Safety Code, is
122-4 amended to read as follows:
122-5 Sec. 401.388. HEARING AND DECISION. (a) If the person
122-6 charged requests a hearing, the commissioner [or the commission, as
122-7 appropriate,] shall order a hearing and shall give notice of that
122-8 hearing.
122-9 (b) The hearing shall be held by a hearing examiner
122-10 designated by the commissioner [or the commission, as appropriate].
122-11 (c) The hearing examiner shall make findings of fact and
122-12 promptly issue to the commissioner [or the commission, as
122-13 appropriate,] a written decision as to the occurrence of the
122-14 violation and a recommendation of the amount of the proposed
122-15 penalty if a penalty is warranted.
122-16 (d) Based on the findings of fact and the recommendations of
122-17 the hearing examiner, the commissioner [or the commission, as
122-18 appropriate,] by order may find that a violation has occurred and
122-19 assess a civil penalty or may find that no violation occurred.
122-20 (e) All proceedings under Subsections (a)-(d) are subject to
122-21 Chapter 2001, Government Code.
122-22 (f) The commissioner [or the commission, as appropriate,]
122-23 shall give notice to the person charged of the commissioner's [or
122-24 the commission's] decision, and if the commissioner [or the
122-25 commission, as appropriate,] finds that a violation has occurred
122-26 and a civil penalty has been assessed, the commissioner [or the
122-27 commission, as appropriate,] shall give to the person charged
123-1 written notice of:
123-2 (1) the commissioner's [or the commission's] findings;
123-3 (2) the amount of the penalty; and
123-4 (3) the person's right to judicial review of the
123-5 commissioner's [or the commission's] order.
123-6 SECTION 57. Section 401.389, Health and Safety Code, is
123-7 amended to read as follows:
123-8 Sec. 401.389. DISPOSITION OF PENALTY; JUDICIAL REVIEW.
123-9 (a) Not later than the 30th day after the date on which the
123-10 commissioner's [or the commission's] order is final, the person
123-11 charged with the penalty shall pay the full amount of the penalty
123-12 or file a petition for judicial review.
123-13 (b) If the person seeks judicial review of the violation,
123-14 the amount of the penalty, or both, the person, within the time
123-15 provided by Subsection (a), shall:
123-16 (1) send the amount of the penalty to the commissioner
123-17 [or the commission, as appropriate,] for placement in an escrow
123-18 account; or
123-19 (2) post with the commissioner [or the commission, as
123-20 appropriate,] a supersedeas bond in a form approved by the
123-21 commissioner [or the commission, as appropriate,] for the amount of
123-22 the penalty, the bond to be effective until judicial review of the
123-23 order or decision is final.
123-24 (c) The commissioner [or the commission, as appropriate,]
123-25 may request enforcement by the attorney general if the person
123-26 charged fails to comply with this section.
123-27 (d) Judicial review of the order or decision of the
124-1 commissioner [or the commission] assessing the penalty shall be
124-2 under Subchapter G, Chapter 2001, Government Code.
124-3 SECTION 58. Section 401.390, Health and Safety Code, is
124-4 amended to read as follows:
124-5 Sec. 401.390. REMITTING PENALTY PAYMENTS; RELEASING BONDS.
124-6 (a) If a penalty is reduced or not assessed, the commissioner [or
124-7 the commission, as appropriate,] shall:
124-8 (1) remit to the person charged the appropriate amount
124-9 of any penalty payment plus accrued interest; or
124-10 (2) execute a release of the bond if a supersedeas
124-11 bond has been posted.
124-12 (b) Accrued interest on amounts remitted by the commissioner
124-13 [or the commission] shall be paid:
124-14 (1) at a rate equal to the rate charged on loans to
124-15 depository institutions by the New York Federal Reserve Bank; and
124-16 (2) for the period beginning on the date the penalty
124-17 is paid to the commissioner under Section 401.389(a) and ending on
124-18 the date the penalty is remitted.
124-19 SECTION 59. Subchapter J, Chapter 401, Health and Safety
124-20 Code, is amended by adding Section 401.393 to read as follows:
124-21 Sec. 401.393. COMMISSION ENFORCEMENT. The commission may
124-22 enforce the provisions of this chapter under the commission's
124-23 jurisdiction as provided by Chapter 7, Water Code.
124-24 SECTION 60. (a) The following provisions of the Water Code
124-25 are repealed:
124-26 (1) Sections 11.087(d), 11.095, 12.141, 13.411,
124-27 13.4133, 13.414, 13.4151, 13.416, and 13.417;
125-1 (2) Sections 13.505, 16.352 through 16.354, 16.356,
125-2 18.121 through 18.123, 18.171, 18.172, 26.016, 26.122 through
125-3 26.126, 26.132 through 26.134, 26.136, 26.174, 26.211 through
125-4 26.214, 26.216, 26.218 through 26.227, 26.268, 26.353, and 26.460;
125-5 (3) Section 27.1015;
125-6 (4) Section 28.013;
125-7 (5) Subchapter E, Chapter 28; and
125-8 (6) Sections 31.019, 32.010 through 32.012, 32.015,
125-9 33.008 through 33.010, 33.013, and 34.010 through 34.014.
125-10 (b) The following provisions of the Health and Safety Code
125-11 are repealed:
125-12 (1) Sections 341.050, 361.011(e), 361.164, and
125-13 361.198;
125-14 (2) Subchapters G and H, Chapter 361;
125-15 (3) Sections 361.280, 361.302, 361.303, 361.451(c),
125-16 361.455, 361.456, 361.483 through 361.4832, 361.489, 361.491,
125-17 361.540, 361.560, 361.562 through 361.567, 366.015, and 366.077;
125-18 (4) Subchapter F, Chapter 366; and
125-19 (5) Sections 370.009, 371.042 through 371.045,
125-20 372.004, 372.005, 382.004, 382.005, 382.059, 382.081 through
125-21 382.084, 382.086 through 382.096, 382.114, 401.391, and 401.392.
125-22 SECTION 61. This Act takes effect September 1, 1997.
125-23 SECTION 62. (a) A change in law made by this Act that
125-24 relates to an offense or penalty applies only to an offense
125-25 committed on or after September 1, 1997. For purposes of this
125-26 section, an offense is committed before September 1, 1997, if any
125-27 element of the offense occurs before that date. An offense
126-1 committed before September 1, 1997, is covered by the law in effect
126-2 when the offense was committed, and the former law is continued in
126-3 effect for that purpose.
126-4 (b) A change in law made by this Act that relates to an
126-5 administrative or civil penalty or the revocation of a permit,
126-6 license, certificate, registration, or other form of authorization
126-7 issued by the Texas Natural Resource Conservation Commission
126-8 applies only to a violation that occurred on or after September 1,
126-9 1997. A violation that occurs before September 1, 1997, is covered
126-10 by the law in effect when the violation occurred, and the former
126-11 law is continued in effect for that purpose.
126-12 SECTION 63. The importance of this legislation and the
126-13 crowded condition of the calendars in both houses create an
126-14 emergency and an imperative public necessity that the
126-15 constitutional rule requiring bills to be read on three several
126-16 days in each house be suspended, and this rule is hereby suspended.