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 5.506,

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

 2-1     before issuing the order.  The commission shall give notice not

 2-2     later than the 20th day before the date set for a hearing on a

 2-3     temporary order.

 2-4           (c)  The commission by order or rule may delegate to the

 2-5     executive director the authority to:

 2-6                 (1)  receive applications and issue emergency orders

 2-7     under this subchapter; and

 2-8                 (2)  authorize, in writing, a representative or

 2-9     representatives to act on the executive director's behalf under

2-10     this subchapter.

2-11           (d)  Chapter 2001, Government Code, does not apply to the

2-12     issuance of an emergency order under this subchapter without a

2-13     hearing.

2-14           (e)  A law under which the commission acts that requires

2-15     notice of hearing or that sets procedures for the issuance of

2-16     permits does not apply to a hearing on an emergency order issued

2-17     under this subchapter unless the law specifically requires notice

2-18     for an emergency order.  The commission shall give the general

2-19     notice of the hearing that the commission considers practicable

2-20     under the circumstances.

2-21           (f)  An emergency or temporary order issued under this

2-22     subchapter does not vest in the permit holder or recipient any

2-23     rights and expires in accordance with its terms.

2-24           (g)  The commission may prescribe rules and adopt fees

2-25     necessary to carry out and administer this subchapter.

 3-1           Sec. 5.502.  APPLICATION FOR EMERGENCY OR TEMPORARY ORDER.  A

 3-2     person other than the executive director or the executive

 3-3     director's representative who desires an emergency or temporary

 3-4     order under this subchapter must submit a sworn written application

 3-5     to the commission.  The application must:

 3-6                 (1)  describe the condition of emergency or other

 3-7     condition justifying the issuance of the order;

 3-8                 (2)  allege facts to support the findings required

 3-9     under this subchapter;

3-10                 (3)  estimate the dates on which the proposed order

3-11     should begin and end;

3-12                 (4)  describe the action sought and the activity

3-13     proposed to be allowed, mandated, or prohibited; and

3-14                 (5)  include any other statement or information

3-15     required by this subchapter or by the commission.

3-16           Sec. 5.503.  NOTICE OF ISSUANCE.  Notice of the issuance of

3-17     an emergency order shall be provided in accordance with commission

3-18     rules.

3-19           Sec. 5.504.  HEARING TO AFFIRM, MODIFY, OR SET ASIDE ORDER.

3-20     (a)  If the commission, the executive director, or the executive

3-21     director's representative issues an emergency order under this

3-22     subchapter without a hearing, the order shall set a time and place

3-23     for a hearing to affirm, modify, or set aside the emergency order

3-24     to be held before the commission or its designee as soon as

3-25     practicable after the order is issued.

 4-1           (b)  At or following the hearing required under Subsection

 4-2     (a), the commission shall affirm, modify, or set aside the

 4-3     emergency order.

 4-4           (c)  A hearing to affirm, modify, or set aside an emergency

 4-5     order shall be conducted in accordance with Chapter 2001,

 4-6     Government Code, and commission rules.  Commission rules concerning

 4-7     a hearing to affirm, modify, or set aside an emergency order must

 4-8     provide for presentation of evidence by the applicant under oath,

 4-9     presentation of rebuttal evidence, and cross-examination of

4-10     witnesses.

4-11           Sec. 5.505.  TERM OF ORDER.  An emergency or  temporary order

4-12     issued under this subchapter must be limited to a reasonable time

4-13     specified by the order.  Except as otherwise provided by this

4-14     subchapter, the term of an emergency order may not exceed 180 days.

4-15     An emergency order may be renewed once for a period not to exceed

4-16     180 days.

4-17           Sec. 5.506.  EMERGENCY SUSPENSION OF PERMIT CONDITION

4-18     RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND

4-19     INSTREAM USES.  (a)  The commission by emergency or temporary order

4-20     may suspend a permit condition relating to beneficial inflows to

4-21     affected bays and estuaries and instream uses if the commission

4-22     finds that an emergency exists that cannot practicably be resolved

4-23     in another way.

4-24           (b)  The commission must give written notice of the proposed

4-25     suspension to the Parks and Wildlife Department before the

 5-1     commission suspends a permit condition under this section.  The

 5-2     commission shall give the Parks and Wildlife Department an

 5-3     opportunity to submit comments on the proposed suspension for a

 5-4     period of 72 hours from receipt of the notice and must consider

 5-5     those comments before issuing an order imposing the suspension.

 5-6           (c)  The commission may suspend a permit condition under this

 5-7     section without notice except as required by Subsection (b).

 5-8           (d)  The commission shall notify all affected persons

 5-9     immediately by publication.

5-10           Sec. 5.507.  EMERGENCY ORDER FOR OPERATION OF UTILITY THAT

5-11     DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.

5-12     The commission may issue an emergency order appointing a willing

5-13     person to temporarily manage and operate a utility under Section

5-14     13.4132.  Notice of the action is adequate if the notice is mailed

5-15     or hand delivered to the last known address of the utility's

5-16     headquarters.

5-17           Sec. 5.508.  EMERGENCY ORDER FOR RATE INCREASE IN CERTAIN

5-18     SITUATIONS.  (a)  Notwithstanding the requirements of Section

5-19     13.187, the commission may authorize an emergency rate increase for

5-20     a utility for which a person has been appointed under Section 5.507

5-21     or 13.412 or for which a receiver has been appointed under Section

5-22     13.4132 if the increase is necessary to ensure the provision of

5-23     continuous and adequate services to the utility's customers.

5-24           (b)  A utility that receives an emergency rate increase under

5-25     this section shall provide to each ratepayer notice of the increase

 6-1     as soon as possible, but not later than the first utility bill

 6-2     issued at the new rate.

 6-3           (c)  Notwithstanding Section 5.505, an order may be issued

 6-4     under this section for a term not to exceed 15 months.  The

 6-5     commission shall schedule a hearing to establish a final rate

 6-6     within 15 months after the date on which an emergency rate increase

 6-7     takes effect.  The additional revenues collected under an emergency

 6-8     rate increase are subject to refund if the commission finds that

 6-9     the rate increase was larger than necessary to ensure continuous

6-10     and adequate service.

6-11           Sec. 5.509.  TEMPORARY OR EMERGENCY ORDER RELATING TO

6-12     DISCHARGE OF WASTE OR POLLUTANTS.  (a)  The commission may issue an

6-13     emergency or temporary order relating to the discharge of waste or

6-14     pollutants into or adjacent to water in the state if:

6-15                 (1)  the order is necessary to enable action to be

6-16     taken more expeditiously than is otherwise provided by Chapter 26

6-17     to effectuate the policy and purposes of that chapter; and

6-18                 (2)  the commission finds that:

6-19                       (A)  the discharge is unavoidable to:

6-20                             (i)  prevent loss of life, serious injury,

6-21     or severe property damage;

6-22                             (ii)  prevent severe economic loss or

6-23     ameliorate serious drought conditions, to the extent consistent

6-24     with the requirements for United States Environmental Protection

6-25     Agency authorization of a state permit program; or

 7-1                             (iii)  make necessary and unforeseen

 7-2     repairs to a facility;

 7-3                       (B)  there is no feasible alternative to the

 7-4     proposed discharge;

 7-5                       (C)  the discharge will not cause significant

 7-6     hazard to human life and health, unreasonable damage to the

 7-7     property of persons other than the applicant, or unreasonable

 7-8     economic loss to persons other than the applicant; and

 7-9                       (D)  the discharge will not present a significant

7-10     hazard to the uses that will be made of the receiving water after

7-11     the discharge.

7-12           (b)  A person desiring a temporary or emergency order under

7-13     this section must submit an application under Section 5.502 that,

7-14     in addition to complying with that section:

7-15                 (1)  states the volume and quality of the proposed

7-16     discharge;

7-17                 (2)  explains the measures proposed to minimize the

7-18     volume and duration of the discharge; and

7-19                 (3)  explains the measures proposed to maximize the

7-20     waste treatment efficiency of units not taken out of service or

7-21     facilities provided for interim use.

7-22           Sec. 5.510.  EMERGENCY ORDER CONCERNING UNDERGROUND OR

7-23     ABOVEGROUND STORAGE TANKS.  (a)  The commission may issue an

7-24     emergency order to the owner or operator of an underground or

7-25     aboveground storage tank regulated under Chapter 26 prohibiting the

 8-1     owner or operator from allowing or continuing a release or

 8-2     threatened release and requiring the owner or operator to take the

 8-3     actions necessary to eliminate the release or threatened release,

 8-4     if the commission finds that:

 8-5                 (1)  there is an actual or threatened release of a

 8-6     regulated substance; and

 8-7                 (2)  more expeditious action than is otherwise provided

 8-8     under Chapter 26 is necessary to protect the public health or

 8-9     safety or the environment from harm.

8-10           (b)  An emergency order issued under this section must be:

8-11                 (1)  mailed by certified mail, return receipt

8-12     requested, to each person identified in the order;

8-13                 (2)  hand delivered to each person identified in the

8-14     order; or

8-15                 (3)  on failure of service by certified mail or hand

8-16     delivery, served by publication one time in the Texas Register and

8-17     one time in a newspaper with general circulation in each county in

8-18     which any of the persons identified in the order has a last known

8-19     address.

8-20           Sec. 5.511.  EMERGENCY ADMINISTRATIVE ORDER CONCERNING

8-21     IMMINENT AND SUBSTANTIAL ENDANGERMENT.  The commission or the

8-22     executive director may issue an emergency administrative order

8-23     under Section 361.272, Health and Safety Code, in the manner

8-24     provided by this subchapter.

8-25           Sec. 5.512.  EMERGENCY ORDER CONCERNING ACTIVITY OF SOLID

 9-1     WASTE MANAGEMENT.  The commission may issue an emergency order

 9-2     concerning an activity of solid waste management under the

 9-3     commission's jurisdiction, even if that activity is not covered by

 9-4     a permit, if the commission finds that an emergency requiring

 9-5     immediate action to protect the public health and safety exists.

 9-6           Sec. 5.513.  EMERGENCY ORDER CONCERNING ON-SITE SEWAGE

 9-7     DISPOSAL SYSTEM.  (a)  The commission may issue an emergency order

 9-8     suspending the registration of the installer of an on-site sewage

 9-9     disposal system, regulating an on-site sewage disposal system, or

9-10     both, if the commission finds that an emergency exists and that the

9-11     public health and safety is endangered because of the operation of

9-12     an on-site sewage disposal system that does not comply with Chapter

9-13     366, Health and Safety Code, or a rule adopted under that chapter.

9-14           (b)  If an order issued under this section is adopted without

9-15     notice or hearing, the order must set a time, not more than 30 days

9-16     after the order is issued, for a hearing to affirm, modify, or set

9-17     aside the order.

9-18           Sec. 5.514.  ORDER ISSUED UNDER AIR EMERGENCY.  (a)  If the

9-19     commission finds that a generalized condition of air pollution

9-20     exists that creates an emergency requiring immediate action to

9-21     protect human health or safety, the commission, with the

9-22     concurrence of the governor, may issue an emergency order requiring

9-23     a person causing or contributing to the air pollution to

9-24     immediately reduce or discontinue the emission of air contaminants.

9-25           (b)  If the commission finds that emissions from one or more

 10-1    sources are causing imminent danger to human health or safety but

 10-2    that there is not a generalized condition of air pollution under

 10-3    Subsection (a), the commission may issue an emergency order

 10-4    requiring the persons responsible for the emissions to immediately

 10-5    reduce or discontinue the emissions.

 10-6          (c)  Notwithstanding Section 5.504, the commission shall

 10-7    affirm, modify, or set aside an order issued under this section not

 10-8    later than 24 hours after the hearing under that section begins and

 10-9    without adjournment of the hearing.

10-10          (d)  This section does not limit any power that the governor

10-11    or another officer may have to declare an emergency and to act on

10-12    that declaration if the power is conferred by law or inheres in the

10-13    office.

10-14          Sec. 5.515.  EMERGENCY ORDER BECAUSE OF CATASTROPHE.

10-15    (a)  The commission may issue an emergency order authorizing

10-16    immediate action for the addition, replacement, or repair of

10-17    facilities or control equipment necessitated by a catastrophe

10-18    occurring in this state and the emission of air contaminants during

10-19    the addition, replacement, or repair of those facilities if the

10-20    actions and emissions are otherwise precluded under Chapter 382,

10-21    Health and Safety Code.

10-22          (b)  An order issued under this section:

10-23                (1)  may authorize action only on:

10-24                      (A)  property on which a catastrophe has

10-25    occurred; or

 11-1                      (B)  other property that is owned by the owner or

 11-2    operator of the damaged facility and that produces the same

 11-3    intermediates, products, or by-products; and

 11-4                (2)  must contain a schedule for submitting a complete

 11-5    application for a permit under Section 382.0518, Health and Safety

 11-6    Code.

 11-7          (c)  The person applying for an emergency order must

 11-8    demonstrate that there will be no more than a de minimis increase

 11-9    in the predicted concentration of air contaminants at or beyond the

11-10    property line of the other property on which action is authorized

11-11    under Subsection (b)(1)(B).  The commission shall review and act on

11-12    an application submitted as provided by Subsection (b)(2) without

11-13    regard to construction activity under an order under this section.

11-14          (d)  An applicant desiring an emergency order under this

11-15    section must submit an application under Section 5.502 that, in

11-16    addition to complying with that section:

11-17                (1)  describes the catastrophe;

11-18                (2)  states that:

11-19                      (A)  the construction and emissions are essential

11-20    to prevent loss of life, serious injury, severe property damage, or

11-21    severe economic loss not attributable to the applicant's actions

11-22    and are necessary for the addition, replacement, or repair of a

11-23    facility or control equipment necessitated by the catastrophe;

11-24                      (B)  there is no practicable alternative to the

11-25    proposed construction and emissions; and

 12-1                      (C)  the emissions will not cause or contribute

 12-2    to air pollution;

 12-3                (3)  estimates the dates on which the proposed

 12-4    construction or emissions, or both, will begin and end;

 12-5                (4)  estimates the date on which the facility will

 12-6    begin operation; and

 12-7                (5)  describes the quantity and type of air

 12-8    contaminants proposed to be emitted.

 12-9          (e)  In this section, "catastrophe" means an unforeseen

12-10    event, including an act of God, an act of war, severe weather,

12-11    explosions, fire, or similar occurrences beyond the reasonable

12-12    control of the operator, that makes a facility or its related

12-13    appurtenances inoperable.

12-14          Sec. 5.516.  EMERGENCY ORDER UNDER SECTION 401.056, HEALTH

12-15    AND SAFETY CODE.  The commission may issue an emergency order under

12-16    Section 401.056, Health and Safety Code, in the manner provided by

12-17    this subchapter.

12-18          Sec. 5.517.  EMERGENCY ORDERS FOR CORRECTIVE ACTION AND

12-19    MEASURES.  (a)  The commission may issue an emergency order under

12-20    Section 401.270, Health and Safety Code, to a person responsible

12-21    for an activity, including a past activity, concerning the recovery

12-22    or processing of source material or the disposal of by-product

12-23    material that requires any action, including a corrective measure

12-24    that is necessary to correct or remove the threat, if it appears

12-25    that there is an actual or threatened release of source material or

 13-1    by-product material that presents an imminent and substantial

 13-2    danger to the public health and safety or the environment,

 13-3    regardless of whether the activity was lawful at the time.

 13-4          (b)  An emergency order may be issued under this section to:

 13-5                (1)  restrain the person from allowing or continuing

 13-6    the release; and

 13-7                (2)  require the person to take any action necessary to

 13-8    provide and implement an environmentally sound remedial action plan

 13-9    designed to eliminate the release or threatened release.

13-10          (c)  An emergency order issued under this section must be:

13-11                (1)  mailed by certified mail, return receipt

13-12    requested, to each person identified in the order;

13-13                (2)  hand delivered to each person identified in the

13-14    order; or

13-15                (3)  on failure of service by certified mail or hand

13-16    delivery, served by publication one time in the Texas Register and

13-17    one time in a newspaper with general circulation in each county in

13-18    which any of the persons identified in the order has a last known

13-19    address.

13-20          (d)  If an order issued under this section is adopted without

13-21    notice or hearing, the order must set a time, at least 10 but not

13-22    more than 30 days after the date the order is issued, for a hearing

13-23    to affirm, modify, or set aside the order.  All provisions of the

13-24    order remain in effect during the pendency of the hearing unless

13-25    otherwise altered by the commission.

 14-1          SECTION 2.  Subtitle A, Title 2, Water Code, is amended by

 14-2    adding Chapter 7 to read as follows:

 14-3                          CHAPTER 7.  ENFORCEMENT

 14-4                     SUBCHAPTER A.  GENERAL PROVISIONS

 14-5          Sec. 7.001.  DEFINITIONS.  In this chapter:

 14-6                (1)  "Commission" means the Texas Natural Resource

 14-7    Conservation Commission.

 14-8                (2)  "Permit" includes a license, certificate,

 14-9    registration, approval, or other form of authorization.  This

14-10    definition does not apply to Subchapter G.

14-11          Sec. 7.002.  ENFORCEMENT AUTHORITY.  The commission may

14-12    initiate an action under this chapter to enforce provisions of this

14-13    code and the Health and Safety Code within the commission's

14-14    jurisdiction as provided by Section 5.013 of this code and rules

14-15    adopted under those provisions.  The commission or the executive

14-16    director may institute legal proceedings to compel compliance with

14-17    the relevant provisions of this code and the Health and Safety Code

14-18    and rules, orders, permits, or other decisions of the commission.

14-19          Sec. 7.003.  ENFORCEMENT REPORT.  (a)  The commission shall

14-20    report at least once each month on enforcement actions taken by the

14-21    commission or others and the resolution of those actions.

14-22          (b)  The report shall be an item for commission discussion at

14-23    a meeting of the commission for which public notice is given.

14-24          (c)  If an enforcement action involves a suit filed for

14-25    injunctive relief or civil penalties, or both, the report shall

 15-1    state the actual or projected time for resolution of the suit.  A

 15-2    copy of the report and of the minutes of the meeting reflecting

 15-3    commission action relating to the report shall be filed with the

 15-4    governor and the attorney general.

 15-5          Sec. 7.004.  REMEDIES CUMULATIVE.  The remedies under this

 15-6    chapter are cumulative of all other remedies.  Nothing in this

 15-7    chapter affects the right of a private corporation or individual to

 15-8    pursue any available common law remedy to abate a condition of

 15-9    pollution or other nuisance, to recover damages to enforce a right,

15-10    or to prevent or seek redress or compensation for the violation of

15-11    a right or otherwise redress an injury.

15-12          Sec. 7.005.  EFFECT ON OTHER LAW.  This chapter does not

15-13    exempt a person from complying with or being subject to other law.

15-14               (Sections 7.006-7.030 reserved for expansion

15-15          SUBCHAPTER B.  CORRECTIVE ACTION AND INJUNCTIVE RELIEF

15-16          Sec. 7.031.  CORRECTIVE ACTION RELATING TO HAZARDOUS WASTE.

15-17    (a)  The commission shall require corrective action for a release

15-18    of hazardous waste or hazardous waste constituents from a solid

15-19    waste management unit at a solid waste processing, storage, or

15-20    disposal facility that is required to obtain a permit for the

15-21    management of hazardous waste and whose permit is issued after

15-22    November 8, 1984, regardless of when the waste is placed in the

15-23    unit.

15-24          (b)  The commission shall establish schedules for compliance

15-25    for the corrective action if the corrective action cannot be

 16-1    completed before permit issuance and shall require assurances of

 16-2    financial responsibility for completing the corrective action.

 16-3          (c)  If, before the issuance of a permit, the commission

 16-4    determines that there is or has been a release of hazardous waste

 16-5    into the environment from a facility required to obtain a permit in

 16-6    accordance with an approved state program under Section 3006 of the

 16-7    federal Solid Waste Disposal Act, as amended by the Resource

 16-8    Conservation and Recovery Act of 1976, as amended (42 U.S.C.

 16-9    Section 6901 et seq.), the commission may:

16-10                (1)  issue an order requiring corrective action or

16-11    other response measures considered necessary to protect human

16-12    health or the environment; or

16-13                (2)  institute a civil action under Subchapter D.

16-14          (d)  An order issued under this section:

16-15                (1)  may include a suspension or revocation of

16-16    authorization to operate;

16-17                (2)  must state with reasonable specificity the nature

16-18    of the required corrective action or other response measure; and

16-19                (3)  must specify a time for compliance.

16-20          (e)  If a person named in the order does not comply with the

16-21    order, the commission may assess an administrative penalty or seek

16-22    a civil penalty in accordance with this chapter.

16-23          Sec. 7.032.  INJUNCTIVE RELIEF.  (a)  The executive director

16-24    may enforce a commission rule or a provision of a permit issued by

16-25    the commission by injunction or other appropriate remedy.

 17-1          (b)  If it appears that a violation or threat of violation of

 17-2    a statute within the commission's jurisdiction or a rule adopted or

 17-3    an order or a permit issued under such a statute has occurred or is

 17-4    about to occur, the executive director may have a suit instituted

 17-5    in district court for injunctive relief to restrain the violation

 17-6    or threat of violation.

 17-7          (c)  The suit may be brought in the county in which the

 17-8    defendant resides or in the county in which the violation or threat

 17-9    of violation occurs.

17-10          (d)  In a suit brought under this section to enjoin a

17-11    violation or threat of violation described by Subsection (b), the

17-12    court may grant the commission, without bond or other undertaking,

17-13    any prohibitory or mandatory injunction the facts may warrant,

17-14    including a temporary restraining order and, after notice and

17-15    hearing, a temporary injunction or permanent injunction.

17-16          (e)  On request of the executive director, the attorney

17-17    general or the prosecuting attorney in a county in which the

17-18    violation occurs shall initiate a suit in the name of the state for

17-19    injunctive relief.  The suit may be brought independently of or in

17-20    conjunction with a suit under Subchapter D.

17-21          Sec. 7.033.  RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH AND

17-22    SAFETY CODE, VIOLATION.  The commission shall seek reimbursement,

17-23    either by a commission order or by a suit filed under Subchapter D

17-24    by the attorney general at the commission's request, of security

17-25    from the radiation and perpetual care fund used by the commission

 18-1    to pay for actions, including corrective measures, to remedy spills

 18-2    or contamination by radioactive material resulting from a violation

 18-3    of Chapter 401, Health and Safety Code, relating to an activity

 18-4    under the commission's jurisdiction or a rule adopted or a license,

 18-5    registration, or order issued by the commission under that chapter.

 18-6               (Sections 7.034-7.050 reserved for expansion

 18-7                  SUBCHAPTER C.  ADMINISTRATIVE PENALTIES

 18-8          Sec. 7.051.  ADMINISTRATIVE PENALTY.  (a)  The commission may

 18-9    assess an administrative penalty against a person as provided by

18-10    this subchapter if:

18-11                (1)  the person violates:

18-12                      (A)  a provision of this code or of the Health

18-13    and Safety Code that is within the commission's jurisdiction;

18-14                      (B)  a rule adopted or order issued by the

18-15    commission under a statute within the commission's jurisdiction; or

18-16                      (C)  a permit issued by the commission under a

18-17    statute within the commission's jurisdiction; and

18-18                (2)  a county, political subdivision, or municipality

18-19    has not instituted a lawsuit and is not diligently prosecuting that

18-20    lawsuit under Subchapter H against the same person for the same

18-21    violation.

18-22          (b)  This subchapter does not apply to violations of Chapter

18-23    11, 12, 13, 16, or 36 of this code, or Chapter 341, Health and

18-24    Safety Code.

18-25          Sec. 7.052.  MAXIMUM PENALTY.  (a)  The amount of the penalty

 19-1    for a violation of Chapter 18, 32, 33, or 34 of this code or

 19-2    Chapter 366, 371, or 372, Health and Safety Code, may not exceed

 19-3    $2,500 a day for each violation.

 19-4          (b)  The amount of the penalty for all other violations

 19-5    within the jurisdiction of the commission to enforce may not exceed

 19-6    $10,000 a day for each violation.

 19-7          (c)  Each day that a continuing violation occurs may be

 19-8    considered a separate violation.  The commission may authorize an

 19-9    installment payment schedule for an administrative penalty assessed

19-10    under this subchapter, except for an administrative penalty

19-11    assessed under Section 7.057 or assessed after a hearing under

19-12    Section 7.058.

19-13          Sec. 7.053.  FACTORS TO BE CONSIDERED IN DETERMINATION OF

19-14    PENALTY AMOUNT.  In determining the amount of an administrative

19-15    penalty, the commission shall consider:

19-16                (1)  the nature, circumstances, extent, duration, and

19-17    gravity of the prohibited act, with special emphasis on the

19-18    impairment of existing water rights or the hazard or potential

19-19    hazard created to the health or safety of the public;

19-20                (2)  the impact of the violation on:

19-21                      (A)  air quality in the region;

19-22                      (B)  a receiving stream or underground water

19-23    reservoir;

19-24                      (C)  instream uses, water quality, aquatic and

19-25    wildlife habitat, or beneficial freshwater inflows to bays and

 20-1    estuaries; or

 20-2                      (D)  affected persons;

 20-3                (3)  with respect to the alleged violator:

 20-4                      (A)  the history and extent of previous

 20-5    violations;

 20-6                      (B)  the degree of culpability, including whether

 20-7    the violation was attributable to mechanical or electrical failures

 20-8    and whether the violation could have been reasonably anticipated

 20-9    and avoided;

20-10                      (C)  the demonstrated good faith, including

20-11    actions taken by the alleged violator to rectify the cause of the

20-12    violation and to compensate affected persons;

20-13                      (D)  economic benefit gained through the

20-14    violation; and

20-15                      (E)  the amount necessary to deter future

20-16    violations; and

20-17                (4)  any other matters that justice may require.

20-18          Sec. 7.054.  REPORT OF VIOLATION.  If, after examination of a

20-19    possible violation and the facts surrounding that possible

20-20    violation, the executive director concludes that a violation has

20-21    occurred, the executive director may issue a preliminary report in

20-22    accordance with commission rules that includes recommendations

20-23    regarding any penalty or corrective action.

20-24          Sec. 7.055.  NOTICE OF REPORT.  Not later than the 10th day

20-25    after the date on which the report of a violation is issued, the

 21-1    executive director shall give written notice of the report, in

 21-2    accordance with commission rules, to the person charged with the

 21-3    violation.

 21-4          Sec. 7.056.  CONSENT.  Not later than the 20th day after the

 21-5    date on which notice is received, the person charged may give to

 21-6    the commission written consent to the executive director's report,

 21-7    including the recommended penalty, or make a written request for a

 21-8    hearing.

 21-9          Sec. 7.057.  DEFAULT.  If the person charged with the

21-10    violation consents to the penalty recommended by the executive

21-11    director or does not timely respond to the notice, the commission

21-12    by order shall assess the penalty or order a hearing to be held on

21-13    the recommendations in the executive director's report.  If the

21-14    commission assesses the penalty, the commission shall give written

21-15    notice of its decision to the person charged.

21-16          Sec. 7.058.  HEARING.  If the person charged requests or the

21-17    commission orders a hearing, the commission shall order and shall

21-18    give notice of the hearing.  The commission by order may find that

21-19    a violation has occurred and may assess a penalty, may find that a

21-20    violation has occurred but that a penalty should not be assessed,

21-21    or may find that a violation has not occurred.  In making a penalty

21-22    decision, the commission shall analyze each factor prescribed by

21-23    Section 7.053.  All proceedings under this section are subject to

21-24    Chapter 2001, Government Code.

21-25          Sec. 7.059.  NOTICE OF DECISION.  The commission shall give

 22-1    notice of its decision to the person charged.  If the commission

 22-2    finds that a violation has occurred and assesses a penalty, the

 22-3    commission shall give written notice to the person charged of:

 22-4                (1)  the commission's findings;

 22-5                (2)  the amount of the penalty;

 22-6                (3)  the right to judicial review of the commission's

 22-7    order; and

 22-8                (4)  other information required by law.

 22-9          Sec. 7.060.  NOTICE OF PENALTY.  If the commission is

22-10    required to give notice of a penalty under Section 7.057 or 7.059,

22-11    the commission shall publish notice of its decision in the Texas

22-12    Register not later than the 10th day after the date on which the

22-13    decision is adopted.

22-14          Sec. 7.061.  PAYMENT OF PENALTY; PETITION FOR REVIEW.  Within

22-15    the 30-day period immediately following the date on which the

22-16    commission's order is final, as provided by Section 2001.144,

22-17    Government Code, the person charged with the penalty shall:

22-18                (1)  pay the penalty in full;

22-19                (2)  pay the first installment penalty payment in full;

22-20                (3)  pay the penalty and file a petition for judicial

22-21    review, contesting either the amount of the penalty or the fact of

22-22    the violation or contesting both the fact of the violation and the

22-23    amount of the penalty; or

22-24                (4)  without paying the penalty, file a petition for

22-25    judicial review contesting the occurrence of the violation and the

 23-1    amount of the penalty.

 23-2          Sec. 7.062.  STAYS.  Within the 30-day period described by

 23-3    Section 7.061, a person who acts under Section 7.061(3) may:

 23-4                (1)  stay enforcement of the penalty by:

 23-5                      (A)  paying the amount of the penalty to the

 23-6    court for placement in an escrow account; or

 23-7                      (B)  giving to the court a supersedeas bond that

 23-8    is approved by the court for the amount of the penalty and that is

 23-9    effective until all judicial review of the commission's order is

23-10    final; or

23-11                (2)  request the court to stay enforcement of the

23-12    penalty by:

23-13                      (A)  filing with the court a sworn affidavit of

23-14    the person stating that the person is financially unable to give

23-15    the supersedeas bond; and

23-16                      (B)  sending a copy of the affidavit to the

23-17    executive director by certified mail.

23-18          Sec. 7.063.  CONSENT TO AFFIDAVIT.  If the executive director

23-19    receives a copy of an affidavit under Section 7.062(2), the

23-20    executive director may file with the court, within five days after

23-21    the date the copy is received, a contest to the affidavit.  The

23-22    court shall hold a hearing on the facts alleged in the affidavit as

23-23    soon as practicable and shall stay the enforcement of the penalty

23-24    on finding that the alleged facts are true.  The person who files

23-25    an affidavit has the burden of proving that the person is

 24-1    financially unable to pay the penalty or give the supersedeas bond.

 24-2          Sec. 7.064.  JUDICIAL REVIEW.  Judicial review of the order

 24-3    or decision of the commission assessing the penalty is under

 24-4    Subchapter G, Chapter 2001, Government Code.

 24-5          Sec. 7.065.  PENALTY REDUCED OR NOT ASSESSED.  (a)  If the

 24-6    person paid the penalty and if the penalty is reduced or not

 24-7    assessed by the court, the executive director shall remit to the

 24-8    person charged the appropriate amount plus accrued interest if the

 24-9    penalty has been paid or shall execute a release of the bond if a

24-10    supersedeas bond has been posted.

24-11          (b)  The accrued interest on amounts remitted by the

24-12    executive director under this section shall be paid at a rate equal

24-13    to the rate charged on loans to depository institutions by the New

24-14    York Federal Reserve Bank and shall be paid for the period

24-15    beginning on the date the penalty is paid to the executive director

24-16    under Section 7.061 and ending on the day the penalty is remitted.

24-17          Sec. 7.066.  REFERRAL TO ATTORNEY GENERAL.  A person who does

24-18    not comply with Section 7.061 waives the right to judicial review,

24-19    and the commission or the executive director may refer the matter

24-20    to the attorney general for enforcement.

24-21          Sec. 7.067.  SUPPLEMENTAL ENVIRONMENTAL PROJECTS.  (a)  The

24-22    commission may compromise, modify, or remit, with or without

24-23    conditions, an administrative penalty imposed under this

24-24    subchapter.  In determining the appropriate amount of a penalty for

24-25    settlement of an administrative enforcement matter, the commission

 25-1    may consider a respondent's willingness to contribute to

 25-2    supplemental environmental projects that are approved by the

 25-3    commission, giving preference to projects that benefit the

 25-4    community in which the alleged violation occurred.

 25-5          (b)  In this section, "supplemental environmental project"

 25-6    means a project that prevents pollution, reduces the amount of

 25-7    pollutants reaching the environment, enhances the quality of the

 25-8    environment, or contributes to public awareness of environmental

 25-9    matters.  The term does not include projects that are necessary to

25-10    bring the respondent into compliance with environmental laws or

25-11    that are necessary to remediate the environmental harm caused by

25-12    the alleged violation.

25-13          Sec. 7.068.  FULL AND COMPLETE SATISFACTION.  Payment of an

25-14    administrative penalty under this subchapter is full and complete

25-15    satisfaction of the violation for which the penalty is assessed and

25-16    precludes any other civil or criminal penalty for the same

25-17    violation.

25-18          Sec. 7.069.  DISPOSITION OF PENALTY.  A penalty collected

25-19    under this subchapter shall be deposited to the credit of the

25-20    general revenue fund.

25-21          Sec. 7.070.  FINDINGS OF FACT NOT REQUIRED; RESERVATIONS.

25-22    Notwithstanding any other provision to the contrary, the commission

25-23    is not required to make findings of fact or conclusions of law

25-24    other than an uncontested finding that the commission has

25-25    jurisdiction in an agreed order compromising or settling an alleged

 26-1    violation of a statute within the commission's jurisdiction or of a

 26-2    rule adopted or an order or a permit issued under such a statute.

 26-3    An agreed administrative order may include a reservation that:

 26-4                (1)  the order is not an admission of a violation of a

 26-5    statute within the commission's jurisdiction or of a rule adopted

 26-6    or an order or a permit issued under such a statute;

 26-7                (2)  the occurrence of a violation is in dispute; or

 26-8                (3)  the order is not intended to become a part of a

 26-9    party's or a facility's compliance history.

26-10          Sec. 7.071.  INADMISSIBILITY.  An  agreed  administrative

26-11    order issued by the commission under this subchapter is not

26-12    admissible against a party to that order in a civil proceeding

26-13    unless the proceeding is brought by the attorney general's office

26-14    to:

26-15                (1)  enforce the terms of that order; or

26-16                (2)  pursue a violation of a statute within the

26-17    commission's jurisdiction or of a rule adopted or an order or a

26-18    permit issued under such a statute.

26-19          Sec. 7.072.  RECOVERY OF PENALTY.  An administrative penalty

26-20    owed under this subchapter may be recovered in a civil action

26-21    brought by the attorney general at the request of the commission.

26-22          Sec. 7.073.  CORRECTIVE ACTION.  If a person violates any

26-23    statute or rule within the commission's jurisdiction, the

26-24    commission may:

26-25                (1)  assess against the person an administrative

 27-1    penalty under this subchapter; and

 27-2                (2)  order the person to take corrective action.

 27-3          Sec. 7.074.  HEARING POWERS.  The commission may exercise

 27-4    under this subchapter the hearing powers authorized by Section

 27-5    26.020.

 27-6          Sec. 7.075.  PUBLIC COMMENT.  (a)  Before the commission

 27-7    approves an administrative order or proposed agreement to settle an

 27-8    administrative enforcement action initiated under this subchapter

 27-9    to which the commission is a party, the commission shall allow the

27-10    public to comment in writing on the proposed order or agreement.

27-11    Notice of the opportunity to comment shall be published in the

27-12    Texas Register not later than the 30th day before the date on which

27-13    the public comment period closes.

27-14          (b)  The commission shall promptly consider any written

27-15    comments and may withdraw or withhold consent to the proposed order

27-16    or agreement if the comments disclose facts or considerations that

27-17    indicate that the consent is inappropriate, improper, inadequate,

27-18    or inconsistent with the requirements of this subchapter, another

27-19    statute within the commission's jurisdiction, or a rule adopted or

27-20    an order or a permit issued under such a statute.  Further notice

27-21    of changes to the proposed order or agreement is not required to be

27-22    published if those changes arise from comments submitted in

27-23    response to a previous notice.

27-24          (c)  This section does not apply to:

27-25                (1)  a criminal enforcement proceeding; or

 28-1                (2)  an emergency order or other emergency relief that

 28-2    is not a final order of the commission.

 28-3          (d)  Chapter 2001, Government Code, does not apply to public

 28-4    comment under this section.

 28-5               (Sections 7.076-7.100 reserved for expansion

 28-6                      SUBCHAPTER D.  CIVIL PENALTIES

 28-7          Sec. 7.101.  VIOLATION.  A person may not cause, suffer,

 28-8    allow, or permit a violation of a statute within the commission's

 28-9    jurisdiction or a rule adopted or an order or permit issued under

28-10    such a statute.

28-11          Sec. 7.102.  MAXIMUM PENALTY.  A person who causes, suffers,

28-12    allows, or permits a violation of a statute, rule, order, or permit

28-13    relating to Chapter 18, 32, 33, or 34 of this code or Chapter 366,

28-14    371, or 372, Health and Safety Code, shall be assessed for each

28-15    violation a civil penalty not less than $50 nor greater than $5,000

28-16    for each day of each violation as the court or jury considers

28-17    proper.  A person who causes, suffers, allows, or permits a

28-18    violation of a statute, rule, order, or permit relating to any

28-19    other matter within the commission's jurisdiction to enforce, other

28-20    than violations of Chapter 11, 12, 13, 16, or 36 of this code, or

28-21    Chapter 341, Health and Safety Code, shall be assessed for each

28-22    violation a civil penalty not less than $50 nor greater than

28-23    $25,000 for each day of each violation as the court or jury

28-24    considers proper.  Each day of a continuing violation is a separate

28-25    violation.

 29-1          Sec. 7.103.  CONTINUING VIOLATIONS.  If it is shown on a

 29-2    trial of a defendant that the defendant has previously been

 29-3    assessed a civil penalty for a violation of a statute within the

 29-4    commission's jurisdiction or a rule adopted or an order or a permit

 29-5    issued under such a statute within the year before the date on

 29-6    which the violation being tried occurred, the defendant shall be

 29-7    assessed a civil penalty not less than $100 nor greater than

 29-8    $25,000 for each subsequent day and for each subsequent violation.

 29-9    Each day of a continuing violation is a separate violation.

29-10          Sec. 7.104.  NO PENALTY FOR FAILURE TO PAY CERTAIN FEES.  A

29-11    civil penalty may not be assessed for failure to:

29-12                (1)  pay a fee under Section 371.062, Health and Safety

29-13    Code; or

29-14                (2)  file a report under Section 371.024, Health and

29-15    Safety Code.

29-16          Sec. 7.105.  CIVIL SUIT.  (a)  On the request of the

29-17    executive director or the commission, the attorney general shall

29-18    institute a suit in the name of the state for injunctive relief

29-19    under Section 7.032, to recover a civil penalty, or for both

29-20    injunctive relief and a civil penalty.

29-21          (b)  The commission, through the executive director, shall

29-22    refer a matter to the attorney general's office for enforcement

29-23    through civil suit if a person:

29-24                (1)  is alleged to be making or to have made an

29-25    unauthorized discharge of waste into or adjacent to the waters in

 30-1    the state at a new point of discharge without a permit in violation

 30-2    of state law;

 30-3                (2)  has been the subject of two or more finally issued

 30-4    administrative penalty orders for violations of Chapter 26

 30-5    occurring at the same wastewater management system or other point

 30-6    of discharge within the two years immediately preceding the date of

 30-7    the first alleged violation currently under investigation at that

 30-8    site;

 30-9                (3)  is alleged to be operating a new solid waste

30-10    facility, as defined in Section 361.003, Health and Safety Code,

30-11    without a permit in violation of state law;

30-12                (4)  has been the subject of two or more finally issued

30-13    administrative penalty orders for violations of Chapter 361, Health

30-14    and Safety Code, occurring at the same facility within the two

30-15    years immediately preceding the date of the first alleged violation

30-16    currently under investigation at that site;

30-17                (5)  is alleged to be constructing or operating a

30-18    facility at a new plant site without a permit required by Chapter

30-19    382, Health and Safety Code, in violation of state law; or

30-20                (6)  has been the subject of two or more finally issued

30-21    administrative penalty orders for violations of Chapter 382, Health

30-22    and Safety Code, for violations occurring at the same plant site

30-23    within the two years immediately preceding the date of the first

30-24    alleged violation currently under investigation at that site.

30-25          (c)  The suit may be brought in Travis County, in the county

 31-1    in which the defendant resides, or in the county in which the

 31-2    violation or threat of violation occurs.

 31-3          Sec. 7.106.  RESOLUTION THROUGH ADMINISTRATIVE ORDER.  The

 31-4    attorney general's office and the executive director may agree to

 31-5    resolve any violation, before or after referral, by an

 31-6    administrative order issued under Subchapter C by the commission

 31-7    with the approval of the attorney general.

 31-8          Sec. 7.107.  DIVISION OF CIVIL PENALTY.  Except in a suit

 31-9    brought for a violation of Chapter 28 of this code or of Chapter

31-10    401, Health and Safety Code, a civil penalty recovered in a suit

31-11    brought under this subchapter by a local government shall be

31-12    equally divided between:

31-13                (1)  the state; and

31-14                (2)  the local government that brought the suit.

31-15          Sec. 7.108.  ATTORNEY'S FEES.  If the state prevails in a

31-16    suit under this subchapter it may recover reasonable attorney's

31-17    fees, court costs, and reasonable investigative costs incurred in

31-18    relation to the proceeding.

31-19          Sec. 7.109.  PARKS AND WILDLIFE DEPARTMENT JURISDICTION.

31-20    (a)  If it appears that a violation or a threat of violation of

31-21    Section 26.121 or a rule, permit, or order of the commission has

31-22    occurred or is occurring that affects aquatic life or wildlife, the

31-23    Parks and Wildlife Department, in the same manner as the commission

31-24    under this chapter, may have a suit instituted in a district court

31-25    for injunctive relief or civil penalties, or both, as authorized by

 32-1    this subchapter, against the person who committed or is committing

 32-2    or threatening to commit the violation.

 32-3          (b)  In a suit brought under this section for a violation

 32-4    that is the proximate cause of injury to aquatic life or wildlife

 32-5    normally taken for commercial or sport purposes or to species on

 32-6    which this life is directly dependent for food, the Parks and

 32-7    Wildlife Department is entitled to recover damages for the injury.

 32-8    In determining damages, the court may consider the valuation of the

 32-9    injured resources established in rules adopted by the Parks and

32-10    Wildlife Department under Subchapter D, Chapter 12, Parks and

32-11    Wildlife Code, or the replacement cost of the injured resources.

32-12    Any recovery of damages for injury to aquatic life or wildlife

32-13    shall be deposited to the credit of the game, fish, and water

32-14    safety account under Section 11.032, Parks and Wildlife Code, and

32-15    the Parks and Wildlife Department shall use money recovered in a

32-16    suit brought under this section to replenish or enhance the injured

32-17    resources.

32-18          (c)  The actual cost of investigation, reasonable attorney's

32-19    fees, and reasonable expert witness fees may also be recovered, and

32-20    those recovered amounts shall be credited to the same operating

32-21    accounts from which expenditures occurred.

32-22          (d)  This section does not limit recovery for damages

32-23    available under other laws.

32-24          Sec. 7.110.  COMMENTS.  (a)  Before the commission approves

32-25    an agreed final judgment, consent order, voluntary settlement

 33-1    agreement, or other voluntary settlement agreement, or other

 33-2    voluntary agreement that would finally settle a civil enforcement

 33-3    action initiated under this chapter to which the State of Texas is

 33-4    a party or before the court signs a judgment or other agreement

 33-5    settling a judicial enforcement action other than an enforcement

 33-6    action under Section 113 or 120 or Title II of the federal Clean

 33-7    Air Act (42 U.S.C. Section 7401 et seq.), the attorney general

 33-8    shall permit the public to comment in writing on the proposed

 33-9    order, judgment, or other agreement.

33-10          (b)  Notice of the opportunity to comment shall be published

33-11    in the Texas Register not later than the 30th day before the date

33-12    on which the public comment period closes.

33-13          (c)  The attorney general shall promptly consider any written

33-14    comments and may withdraw or withhold consent to the proposed

33-15    order, judgment, or other agreement if the comments disclose facts

33-16    or considerations that indicate that the consent is inappropriate,

33-17    improper, inadequate, or inconsistent with the requirements of this

33-18    chapter, the statutes within the commission's jurisdiction, or a

33-19    rule adopted or an order or a permit issued under such a statute.

33-20    Further notice of changes to the proposed order, judgment, or other

33-21    agreement is not required to be published if those changes arise

33-22    from comments submitted in response to a previous notice.

33-23          (d)  The attorney general may not oppose intervention by a

33-24    person who has standing to intervene as provided by Rule 60, Texas

33-25    Rules of Civil Procedure.

 34-1          (e)  This section does not apply to:

 34-2                (1)  criminal enforcement proceedings; or

 34-3                (2)  proposed temporary restraining orders, temporary

 34-4    injunctions, emergency orders, or other emergency relief that is

 34-5    not a final judgment or final order of the court or commission.

 34-6          (f)  Chapter 2001, Government Code, does not apply to public

 34-7    comment under this section.

 34-8          Sec. 7.111.  RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH AND

 34-9    SAFETY CODE, VIOLATION.  On request by the commission, the attorney

34-10    general shall file suit to recover security under Section 7.033.

34-11               (Sections 7.112-7.140 reserved for expansion

34-12              SUBCHAPTER E.  CRIMINAL OFFENSES AND PENALTIES

34-13          Sec. 7.141.  DEFINITIONS.  In this subchapter:

34-14                (1)  "Appropriate regulatory agency" means the

34-15    commission, the Texas Department of Health, or any other agency

34-16    authorized to regulate the handling and disposal of medical waste.

34-17                (2)  "Corporation" and "association" have the meanings

34-18    assigned by Section 1.07, Penal Code, except that the terms do not

34-19    include a government.

34-20                (3)  "Large quantity generator" means a person who

34-21    generates more than 50 pounds of medical waste each month.

34-22                (4)  "Medical waste" includes animal waste, bulk blood

34-23    and blood products, microbiological waste, pathological waste,

34-24    sharps, and special waste from health care-related facilities as

34-25    those terms are defined in 25 T.A.C. Section 1.132 (Texas

 35-1    Department of Health, Definition, Treatment, and Disposition of

 35-2    Special Waste from Health Care-Related Facilities).  The term does

 35-3    not include medical waste produced on farmland and ranchland as

 35-4    defined by Section 252.001(6), Agriculture Code.

 35-5                (5)  "Serious bodily injury" has the meaning assigned

 35-6    by Section 1.07, Penal Code.

 35-7                (6)  "Small quantity generator" means a person who

 35-8    generates 50 pounds or less of medical waste each month.

 35-9          Sec. 7.142.  VIOLATIONS RELATING TO UNLAWFUL USE OF STATE

35-10    WATER.  (a)  A person commits an offense if the person violates:

35-11                (1)  Section 11.081;

35-12                (2)  Section 11.083;

35-13                (3)  Section 11.084;

35-14                (4)  Section 11.087;

35-15                (5)  Section 11.088;

35-16                (6)  Section 11.089;

35-17                (7)  Section 11.090;

35-18                (8)  Section 11.091;

35-19                (9)  Section 11.092;

35-20                (10)  Section 11.093;

35-21                (11)  Section 11.094;

35-22                (12)  Section 11.096;

35-23                (13)  Section 11.203; or

35-24                (14)  Section 11.205.

35-25          (b)  An offense under Subsection (a)(9), (a)(10), or (a)(14)

 36-1    is punishable under Section 7.187(1)(A) or Section 7.187(2)(B) or

 36-2    both.

 36-3          (c)  An offense under Subsection (a)(1), (a)(2), (a)(4),

 36-4    (a)(6), (a)(7), or (a)(8) is punishable under Section 7.187(1)(A)

 36-5    or Section 7.187(2)(C) or both.

 36-6          (d)  An offense under Subsection (a)(3) or (a)(11) is

 36-7    punishable under Section 7.187(1)(A) or Section 7.187(2)(D) or

 36-8    both.

 36-9          (e)  An offense under Subsection (a)(5) is punishable under

36-10    Section 7.187(1)(A) or Section 7.187(2)(E) or both.

36-11          (f)  Possession of state water when the right to its use has

36-12    not been acquired according to Chapter 11 is prima facie evidence

36-13    of a violation of Section 11.081.

36-14          (g)  Possession or use of water on a person's land by a

36-15    person not entitled to the water under this code is prima facie

36-16    evidence of a violation of Section 11.083.

36-17          Sec. 7.143.  VIOLATION OF MINIMUM STATE STANDARDS OR MODEL

36-18    POLITICAL SUBDIVISION RULES.  (a)  A person commits an offense if

36-19    the person knowingly or intentionally violates a rule adopted under

36-20    Subchapter J, Chapter 16.

36-21          (b)  An offense under this section is a Class A misdemeanor.

36-22          Sec. 7.144.  VIOLATION RELATING TO WEATHER MODIFICATION.

36-23    (a)  A person commits an offense if the person violates Chapter 18

36-24    or any rule adopted or order or permit issued under Chapter 18.

36-25          (b)  An offense under this section is a misdemeanor and is

 37-1    punishable under Section 7.187(1)(A) or Section 7.187(2)(A) or

 37-2    both.

 37-3          Sec. 7.145.  INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE.

 37-4    (a)  A person commits an offense if the person, acting

 37-5    intentionally or knowingly with respect to the person's conduct,

 37-6    discharges or allows the discharge of a waste or pollutant into or

 37-7    adjacent to water in the state that causes or threatens to cause

 37-8    water pollution unless the waste or pollutant is discharged in

 37-9    strict compliance with all required permits or with an order issued

37-10    or a rule adopted by the appropriate regulatory agency.

37-11          (b)  An offense under this section is punishable for an

37-12    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

37-13    both.

37-14          (c)  An offense under this section is punishable for a person

37-15    other than an individual under Section 7.187(1)(D).

37-16          Sec. 7.146.  DISCHARGE FROM POINT SOURCE.  (a)  A person

37-17    commits an offense if the person, acting intentionally or knowingly

37-18    with respect to the person's conduct, discharges or allows the

37-19    discharge of a waste or pollutant from a point source in violation

37-20    of Chapter 26 or of a rule, permit, or order of the appropriate

37-21    regulatory agency.

37-22          (b)  An offense under this section is punishable for an

37-23    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

37-24    both.

37-25          (c)  An offense under this section is punishable for a person

 38-1    other than an individual under Section 7.187(1)(D).

 38-2          Sec. 7.147.  UNAUTHORIZED DISCHARGE.  (a)  A person commits

 38-3    an offense if the person discharges or allows the discharge of any

 38-4    waste or pollutant into any water in the state that causes or

 38-5    threatens to cause water pollution unless the waste or pollutant is

 38-6    discharged in strict compliance with all required permits or with a

 38-7    valid and currently effective order issued or rule adopted by the

 38-8    appropriate regulatory agency.

 38-9          (b)  An offense under this section may be prosecuted without

38-10    alleging or proving any culpable mental state.

38-11          (c)  An offense under this section is punishable for an

38-12    individual under Section 7.187(1)(B) or Section 7.187(2)(D) or

38-13    both.

38-14          (d)  An offense under this section is punishable for a person

38-15    other than an individual under Section 7.187(1)(C).

38-16          Sec. 7.148.  FAILURE TO PROPERLY USE POLLUTION CONTROL

38-17    MEASURES.  (a)  A person commits an offense if the person

38-18    intentionally or knowingly tampers with, modifies, disables, or

38-19    fails to use pollution control or monitoring devices, systems,

38-20    methods, or practices required by Chapter 26 or a rule adopted or a

38-21    permit or an order issued under Chapter 26 by the commission or one

38-22    of its predecessor agencies unless done in strict compliance with

38-23    the rule, permit, or order.

38-24          (b)  An offense under this section is punishable for an

38-25    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

 39-1    both.

 39-2          (c)  An offense under this section is punishable for a person

 39-3    other than an individual under Section 7.187(1)(D).

 39-4          Sec. 7.149.  FALSE STATEMENT.  (a)  A person commits an

 39-5    offense if the person intentionally or knowingly makes or causes to

 39-6    be made a false material statement, representation, or

 39-7    certification in, or omits or causes to be omitted material

 39-8    information from, an application, notice, record, report, plan, or

 39-9    other document, including monitoring device data, filed or required

39-10    to be maintained by Chapter 26 or by a rule adopted or a permit or

39-11    an order issued by the appropriate regulatory agency under Chapter

39-12    26.

39-13          (b)  An offense under this section is punishable for an

39-14    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

39-15    both.

39-16          (c)  An offense under this section is punishable for a person

39-17    other than an individual under Section 7.187(1)(D).

39-18          Sec. 7.150.  FAILURE TO NOTIFY OR REPORT.  (a)  A person

39-19    commits an offense if the person intentionally or knowingly fails

39-20    to notify or report to the commission as required under Chapter 26

39-21    or by a rule adopted or a permit or an order issued by the

39-22    appropriate regulatory agency under Chapter 26.

39-23          (b)  An offense under this section is punishable for an

39-24    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

39-25    both.

 40-1          (c)  An offense under this section is punishable for a person

 40-2    other than an individual under Section 7.187(1)(D).

 40-3          Sec. 7.151.  FAILURE TO PAY FEE.  (a)  A person commits an

 40-4    offense if the person intentionally or knowingly fails to pay a fee

 40-5    required by Chapter 26 or by a rule adopted or a permit or an order

 40-6    issued by the appropriate regulatory agency under Chapter 26.

 40-7          (b)  An offense under this section is punishable for an

 40-8    individual under Section 7.187(1)(H) or Section 7.187(2)(B) or

 40-9    both.

40-10          (c)  An offense under this section is punishable for a person

40-11    other than an individual under Section 7.187(1)(H).

40-12          Sec. 7.152.  INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE

40-13    AND KNOWING ENDANGERMENT.  (a)  A person commits an offense if the

40-14    person, acting intentionally or knowingly, discharges or allows the

40-15    discharge of a waste or pollutant into or adjacent to water in the

40-16    state and by that action knowingly places another person in

40-17    imminent danger of death or serious bodily injury, unless the

40-18    discharge is made in strict compliance with all required permits or

40-19    with an order issued or rule adopted by the appropriate regulatory

40-20    agency.

40-21          (b)  For purposes of Subsection (a), in determining whether a

40-22    defendant who is an individual knew that the violation placed

40-23    another person in imminent danger of death or serious bodily

40-24    injury, the defendant is responsible only for the defendant's

40-25    actual awareness or actual belief possessed.  Knowledge possessed

 41-1    by a person other than the defendant may not be attributed to the

 41-2    defendant.  To prove a defendant's actual knowledge, circumstantial

 41-3    evidence may be used, including evidence that the defendant took

 41-4    affirmative steps to be shielded from relevant information.

 41-5          (c)  An offense under this section is punishable for an

 41-6    individual under Section 7.187(1)(D) or Section 7.187(2)(G) or

 41-7    both.  If an offense committed by an individual under this section

 41-8    results in death or serious bodily injury to another person, the

 41-9    individual may be punished under Section 7.187(1)(E) or Section

41-10    7.187(2)(I) or both.

41-11          (d)  An offense under this section is punishable for a person

41-12    other than an individual under Section 7.187(1)(E).  If an offense

41-13    committed by a person other than an individual under this section

41-14    results in death or serious bodily injury to another person, the

41-15    person may be punished under Section 7.187(1)(F).

41-16          Sec. 7.153.  INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE

41-17    AND ENDANGERMENT.  (a)  A person commits an offense if the person,

41-18    acting intentionally or knowingly with respect to the person's

41-19    conduct, discharges or allows the discharge of a waste or pollutant

41-20    into or adjacent to water in the state and by that action places

41-21    another person in imminent danger of death or serious bodily

41-22    injury, unless the discharge is made in strict compliance with all

41-23    required permits or with a valid and currently effective order

41-24    issued or rule adopted by the appropriate regulatory agency.

41-25          (b)  An offense under this section is punishable for an

 42-1    individual under Section 7.187(1)(D) or Section 7.187(2)(F) or

 42-2    both.  If an offense committed by an individual under this section

 42-3    results in death or serious bodily injury to another person, the

 42-4    individual may be punished under Section 7.187(1)(E) or Section

 42-5    7.187(2)(G) or both.

 42-6          (c)  An offense under this section is punishable for a person

 42-7    other than an individual under Section 7.187(1)(E).  If an offense

 42-8    committed by a person other than an individual under this section

 42-9    results in death or serious bodily injury to another person, the

42-10    person may be punished under Section 7.187(1)(F).

42-11          Sec. 7.154.  RECKLESS UNAUTHORIZED DISCHARGE AND

42-12    ENDANGERMENT.  (a)  A person commits an offense if the person,

42-13    acting recklessly with respect to the person's conduct, discharges

42-14    or allows the discharge of a waste or pollutant into or adjacent to

42-15    water in the state and by that action places another person in

42-16    imminent danger of death or serious bodily injury, unless the

42-17    discharge is made in strict compliance with all required permits or

42-18    with a valid and currently effective order issued or rule adopted

42-19    by the appropriate regulatory agency.

42-20          (b)  An offense under this section is punishable for an

42-21    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

42-22    both.  If an offense committed by an individual under this section

42-23    results in death or serious bodily injury to another person, the

42-24    individual may be punished under Section 7.187(1)(D) or Section

42-25    7.187(2)(F) or both.

 43-1          (c)  An offense under this section is punishable for a person

 43-2    other than an individual under Section 7.187(1)(D).  If an offense

 43-3    committed by a person other than an individual under this section

 43-4    results in death or serious bodily injury to another person, the

 43-5    person may be punished under Section 7.187(1)(E).

 43-6          Sec. 7.155.  VIOLATION RELATING TO DISCHARGE OR SPILL.

 43-7    (a)  A person commits an offense if the person:

 43-8                (1)  operates, is in charge of, or is responsible for a

 43-9    facility or vessel that causes a discharge or spill as defined by

43-10    Section 26.263 and does not report the spill or discharge on

43-11    discovery; or

43-12                (2)  knowingly falsifies a record or report concerning

43-13    the prevention or cleanup of a discharge or spill.

43-14          (b)  An offense under Subsection (a)(1) is a Class A

43-15    misdemeanor.

43-16          (c)  An offense under Subsection (a)(2) is a felony of the

43-17    third degree.

43-18          Sec. 7.156.  VIOLATION RELATING TO UNDERGROUND STORAGE TANK.

43-19    (a)  A person or business entity commits an offense if:

43-20                (1)  the person or business entity engages in the

43-21    installation, repair, or removal of an underground storage tank and

43-22    the person or business entity:

43-23                      (A)  does not hold a certificate of registration

43-24    issued under Section 26.452; and

43-25                      (B)  is not under the substantial control of a

 44-1    person or business entity who holds a certificate of registration

 44-2    issued under Section 26.452;

 44-3                (2)  the person or business entity:

 44-4                      (A)  authorizes or allows the installation,

 44-5    repair, or removal of an underground storage tank to be conducted

 44-6    by a person or business entity who does not hold a certificate of

 44-7    registration issued under Section 26.452; or

 44-8                      (B)  authorizes or allows the installation,

 44-9    repair, or removal of an underground storage tank to be performed

44-10    or supervised by a person or business entity who does not hold a

44-11    license issued under Section 26.456; or

44-12                (3)  the conduct of the person or business entity makes

44-13    the person or business entity responsible for a violation of

44-14    Subchapter K, Chapter 26, or of a rule adopted or order issued

44-15    under that subchapter.

44-16          (b)  A person commits an offense if the person performs or

44-17    supervises the installation, repair, or removal of an underground

44-18    storage tank unless:

44-19                (1)  the person holds a license issued under Section

44-20    26.456; or

44-21                (2)  another person who holds a license issued under

44-22    Section 26.456 is substantially responsible for the performance or

44-23    supervision of the installation, repair, or removal.

44-24          (c)  An offense under this section is a Class A misdemeanor.

44-25          Sec. 7.157.  VIOLATION RELATING TO INJECTION WELLS.  (a)  A

 45-1    person commits an offense if the person knowingly or intentionally

 45-2    violates Chapter 27 or a rule adopted or an order or a permit

 45-3    issued under Chapter 27.

 45-4          (b)  An offense under this section is punishable under

 45-5    Section 7.187(1)(B).

 45-6          Sec. 7.158.  VIOLATION RELATING TO PLUGGING WELLS.  (a)  A

 45-7    person commits an offense if the person is the owner of a well that

 45-8    is required to be cased or plugged by Chapter 28 and the person:

 45-9                (1)  fails or refuses to case or plug the well within

45-10    the 30-day period following the date of the commission's order to

45-11    do so; or

45-12                (2)  fails to comply with any other order issued by the

45-13    commission under Chapter 28 within the 30-day period following the

45-14    date of the order.

45-15          (b)  An offense under this section is a misdemeanor and is

45-16    punishable under Section 7.187(1)(A).

45-17          Sec. 7.159.  VIOLATION RELATING TO WATER WELLS OR DRILLED OR

45-18    MINED SHAFTS.  (a)  A person commits an offense if the person

45-19    knowingly or intentionally violates Chapter 28 or a commission rule

45-20    adopted or an order or a permit issued under that chapter.

45-21          (b)  An offense under this section is punishable under

45-22    Section 7.187(1)(B).

45-23          Sec. 7.160.  VIOLATION RELATING TO CERTAIN SUBSURFACE

45-24    EXCAVATIONS.  (a)  A person commits an offense if the person

45-25    knowingly or intentionally violates Chapter 31 or a commission rule

 46-1    adopted or an order or a permit issued under that chapter.

 46-2          (b)  An offense under this section is punishable under

 46-3    Section 7.187(1)(B).

 46-4          Sec. 7.161.  VIOLATION RELATING TO SOLID WASTE IN ENCLOSED

 46-5    CONTAINERS OR VEHICLES.  (a)  An operator of a solid waste facility

 46-6    or a solid waste hauler commits an offense if the operator or

 46-7    hauler disposes of solid waste in a completely enclosed container

 46-8    or vehicle at a solid waste site or operation permitted as a Type

 46-9    IV landfill:

46-10                (1)  without having in possession the special permit

46-11    required by Section 361.091, Health and Safety Code;

46-12                (2)  on a date or time not authorized by the

46-13    commission; or

46-14                (3)  without a commission inspector present to verify

46-15    that the solid waste is free of putrescible, hazardous, and

46-16    infectious waste.

46-17          (b)  An offense under this section is a Class B misdemeanor.

46-18          (c)  This section does not apply to:

46-19                (1)  a stationary compactor that is at a specific

46-20    location and that has an annual permit under Section 361.091,

46-21    Health and Safety Code, issued by the commission, on certification

46-22    to the commission by the generator that the contents of the

46-23    compactor are free of putrescible, hazardous, or infectious waste;

46-24    or

46-25                (2)  an enclosed vehicle of a municipality if the

 47-1    vehicle has a permit issued by the commission to transport brush or

 47-2    construction-demolition waste and rubbish on designated dates, on

 47-3    certification by the municipality to the commission that the

 47-4    contents of the vehicle are free of putrescible, hazardous, or

 47-5    infectious waste.

 47-6          (d)  In this section, "putrescible waste" means organic

 47-7    waste, such as garbage, wastewater treatment plant sludge, and

 47-8    grease trap waste, that may:

 47-9                (1)  be decomposed by microorganisms with sufficient

47-10    rapidity as to cause odors or gases; or

47-11                (2)  provide food for or attract birds, animals, or

47-12    disease vectors.

47-13          Sec. 7.162.  VIOLATIONS RELATING TO HAZARDOUS WASTE.  (a)  A

47-14    person commits an offense if the person, acting intentionally or

47-15    knowingly with respect to the person's conduct:

47-16                (1)  transports, or causes or allows to be transported,

47-17    for storage, processing, or disposal, any hazardous waste to any

47-18    location that does not have all required permits;

47-19                (2)  stores, processes, exports, or disposes of, or

47-20    causes to be stored, processed, exported, or disposed of, any

47-21    hazardous waste without all permits required by the appropriate

47-22    regulatory agency or in knowing violation of any material condition

47-23    or requirement of a permit or of an applicable interim status rule

47-24    or standard;

47-25                (3)  omits or causes to be omitted material information

 48-1    or makes or causes to be made any false material statement or

 48-2    representation in any application, label, manifest, record, report,

 48-3    permit, plan, or other document filed, maintained, or used to

 48-4    comply with any requirement of Chapter 361, Health and Safety Code,

 48-5    applicable to hazardous waste;

 48-6                (4)  generates, transports, stores, processes, or

 48-7    disposes of, or otherwise handles, or causes to be generated,

 48-8    transported, stored, processed, disposed of, or otherwise handled,

 48-9    hazardous waste, whether the activity took place before or after

48-10    September 1, 1981, and who knowingly destroys, alters, conceals, or

48-11    does not file, or causes to be destroyed, altered, concealed, or

48-12    not filed, any record, application, manifest, report, or other

48-13    document required to be maintained or filed to comply with the

48-14    rules of the appropriate regulatory agency adopted under Chapter

48-15    361, Health and Safety Code;

48-16                (5)  transports without a manifest, or causes or allows

48-17    to be transported without a manifest, any hazardous waste required

48-18    by rules adopted under Chapter 361, Health and Safety Code, to be

48-19    accompanied by a manifest;

48-20                (6)  tampers with, modifies, disables, or fails to use

48-21    required pollution control or monitoring devices, systems, methods,

48-22    or practices, unless done in strict compliance with Chapter 361,

48-23    Health and Safety Code, or with an order, rule, or permit of the

48-24    appropriate regulatory agency;

48-25                (7)  releases, causes, or allows the release of a

 49-1    hazardous waste that causes or threatens to cause pollution, unless

 49-2    the release is made in strict compliance with all required permits

 49-3    or an order, rule, or permit of the appropriate regulatory agency;

 49-4    or

 49-5                (8)  does not notify or report to the appropriate

 49-6    regulatory agency as required by Chapter 361, Health and Safety

 49-7    Code, or by a rule adopted or an order or a permit issued by the

 49-8    appropriate regulatory agency under that chapter.

 49-9          (b)  An offense under Subsection (a)(1) or (a)(2) is

49-10    punishable for an individual under Section 7.187(1)(B) or Section

49-11    7.187(2)(G) or both.  An offense under Subsection (a)(3), (a)(4),

49-12    or (a)(5) is punishable for an individual under Section 7.187(1)(B)

49-13    or Section 7.187(2)(E) or both.  An offense under Subsection

49-14    (a)(6), (a)(7), or (a)(8) is punishable for an individual under

49-15    Section 7.187(1)(C) or Section 7.187(2)(D) or both.

49-16          (c)  If it is shown on the trial of an individual that the

49-17    individual has been previously convicted of an offense under this

49-18    section, an offense under Subsection (a)(1) or (a)(2) is punishable

49-19    for an individual under Section 7.187(1)(C) or Section 7.187(2)(G)

49-20    or both, and an offense under Subsection (a)(3), (a)(4), or (a)(5)

49-21    is punishable for an individual under Section 7.187(1)(C) or

49-22    Section 7.187(2)(F) or both.

49-23          (d)  An offense under Subsection (a)(1), (a)(2), (a)(3),

49-24    (a)(4), or (a)(5) is punishable for a person other than an

49-25    individual under Section 7.187(1)(D).  If it is shown on the trial

 50-1    of a person other than an individual that the person previously has

 50-2    been convicted of an offense under Subsection (a)(1), (a)(2),

 50-3    (a)(3), (a)(4), or (a)(5), the offense is punishable under Section

 50-4    7.187(1)(E).  An offense under Subsection (a)(6), (a)(7), or (a)(8)

 50-5    is punishable for a person other than an individual under Section

 50-6    7.187(1)(D).

 50-7          Sec. 7.163.  VIOLATIONS RELATING TO HAZARDOUS WASTE AND

 50-8    ENDANGERMENT.  (a)  A person commits an offense if:

 50-9                (1)  acting intentionally or knowingly, the person

50-10    transports, processes, stores, exports, or disposes of, or causes

50-11    to be transported, processed, stored, exported, or disposed of,

50-12    hazardous waste in violation of Chapter 361, Health and Safety

50-13    Code, and by that action knowingly places another person in

50-14    imminent danger of death or serious bodily injury;

50-15                (2)  acting intentionally or knowingly with respect to

50-16    the person's conduct, transports, processes, stores, exports, or

50-17    disposes of, or causes to be transported, processed, stored,

50-18    exported, or disposed of, hazardous waste in violation of Chapter

50-19    361, Health and Safety Code, and by that action places another

50-20    person in imminent danger of death or serious bodily injury, unless

50-21    the conduct charged is done in strict compliance with all required

50-22    permits or with an order issued or a rule adopted by the

50-23    appropriate regulatory agency;

50-24                (3)  acting intentionally or knowingly with respect to

50-25    the person's conduct, releases or causes or allows the release of a

 51-1    hazardous waste into the environment and by that action places

 51-2    another person in imminent danger of death or serious bodily

 51-3    injury, unless the release is made in strict compliance with all

 51-4    required permits or an order issued or a rule adopted by the

 51-5    appropriate regulatory agency; or

 51-6                (4)  acting recklessly with respect to the person's

 51-7    conduct, releases or causes or allows the release of a hazardous

 51-8    waste into the environment and by that action places another person

 51-9    in imminent danger of death or serious bodily injury, unless the

51-10    release is made in strict compliance with all required permits or

51-11    an order issued or a rule adopted by the appropriate regulatory

51-12    agency.

51-13          (b)  An offense under Subsection (a)(1) is punishable for an

51-14    individual under Section 7.187(1)(E) or Section 7.187(2)(H) or

51-15    both.  An offense under Subsection (a)(1) is punishable for a

51-16    person other than an individual under Section 7.187(1)(F).  If an

51-17    offense committed by an individual under Subsection (a)(1) results

51-18    in death or serious bodily injury to another person, the individual

51-19    may be punished under Section 7.187(1)(F) or Section 7.187(2)(J) or

51-20    both.  If an offense committed by a person other than an individual

51-21    under Subsection (a)(1) results in death or serious bodily injury

51-22    to another person, the person may be punished under Section

51-23    7.187(1)(G).  For purposes of Subsection (a)(1), in determining

51-24    whether a defendant who is an individual knew that the violation

51-25    placed another person in imminent danger of death or serious bodily

 52-1    injury, the defendant is responsible only for the defendant's

 52-2    actual awareness or actual belief possessed.  Knowledge possessed

 52-3    by a person other than the defendant may not be attributed to the

 52-4    defendant.  To prove a defendant's actual knowledge, circumstantial

 52-5    evidence may be used, including evidence that the defendant took

 52-6    affirmative steps to be shielded from relevant information.

 52-7          (c)  An offense under Subsection (a)(2) is punishable for an

 52-8    individual under Section 7.187(1)(D) or Section 7.187(2)(F) or

 52-9    both.  An offense under Subsection (a)(2) is punishable for a

52-10    person other than an individual under Section 7.187(1)(E).  If an

52-11    offense committed under Subsection (a)(2) results in death or

52-12    serious bodily injury to another person, an individual may be

52-13    punished under Section 7.187(1)(E) or Section 7.187(2)(G) or both.

52-14    If an offense committed by a person other than an individual under

52-15    Subsection (a)(2) results in death or serious bodily injury to

52-16    another person, the person may be punished under Section

52-17    7.187(1)(F).

52-18          (d)  An offense under Subsection (a)(3) is punishable for an

52-19    individual under Section 7.187(1)(D) or Section 7.187(2)(F) or

52-20    both.  An offense under Subsection (a)(3) is punishable for a

52-21    person other than an individual under Section 7.187(1)(E).  If an

52-22    offense committed by an individual under Subsection (a)(3) results

52-23    in death or serious bodily injury to another person, the individual

52-24    may be punished under Section 7.187(1)(E) or Section 7.187(2)(G) or

52-25    both.  If an offense committed by a person other than an individual

 53-1    under Subsection (a)(3) results in death or serious bodily injury

 53-2    to another person, the person may be punished under Section

 53-3    7.187(1)(F).

 53-4          (e)  An offense under Subsection (a)(4) is punishable for an

 53-5    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

 53-6    both.  An offense under Subsection (a)(4) is punishable for a

 53-7    person other than an individual under Section 7.187(1)(E).  If an

 53-8    offense committed by an individual under Subsection (a)(4) results

 53-9    in death or serious bodily injury to another person, the individual

53-10    may be punished under Section 7.187(1)(E) or Section 7.187(2)(E) or

53-11    both.  If an offense committed by a person other than an individual

53-12    under Subsection (a)(4) results in death or serious bodily injury

53-13    to another person, the person may be punished under Section

53-14    7.187(1)(F).

53-15          Sec. 7.164.  VIOLATIONS RELATING TO MEDICAL WASTE:  LARGE

53-16    GENERATOR.  (a)  A person commits an offense if the person is a

53-17    large quantity generator and the person, acting intentionally or

53-18    knowingly with respect to the person's conduct:

53-19                (1)  generates, collects, stores, processes, exports,

53-20    or disposes of, or causes or allows to be generated, collected,

53-21    stored, processed, exported, or disposed of, any medical waste

53-22    without all permits required by the appropriate regulatory agency

53-23    or in knowing violation of a material condition or requirement of a

53-24    permit or of an applicable interim status rule or standard; or

53-25                (2)  generates, collects, stores, treats, transports,

 54-1    or disposes of, or causes or allows to be generated, collected,

 54-2    stored, treated, transported, or disposed of, or otherwise handles

 54-3    any medical waste, and knowingly destroys, alters, conceals, or

 54-4    does not file a record, report, manifest, or other document

 54-5    required to be maintained or filed under rules adopted by the

 54-6    appropriate regulatory agency.

 54-7          (b)  An offense under this section is punishable for an

 54-8    individual under Section 7.187(1)(B) or Section 7.187(2)(G) or

 54-9    both.  If it is shown on the trial of an individual that the

54-10    individual has been previously convicted of an offense under this

54-11    section, the offense is punishable for an individual under Section

54-12    7.187(1)(C) or Section 7.187(2)(I) or both.

54-13          (c)  An offense under this section is punishable for a person

54-14    other than an individual under Section 7.187(1)(B).  If it is shown

54-15    on the trial of a person other than an individual that the person

54-16    has been previously convicted of an offense under this section, the

54-17    offense is punishable by Section 7.187(1)(C).

54-18          Sec. 7.165.  VIOLATIONS RELATING TO MEDICAL WASTE:  SMALL

54-19    GENERATOR.  (a)  A person commits an offense if the person is a

54-20    small quantity generator and the person, acting intentionally or

54-21    knowingly with respect to the person's conduct:

54-22                (1)  generates, collects, stores, processes, exports,

54-23    or disposes of, or causes or allows to be generated, collected,

54-24    stored, processed, exported, or disposed of, any medical waste

54-25    without all permits required by the appropriate regulatory agency

 55-1    or in knowing violation of any material condition or requirement of

 55-2    a permit or of an applicable interim status rule or standard; or

 55-3                (2)  generates, collects, stores, treats, transports,

 55-4    or disposes of, or causes or allows to be generated, collected,

 55-5    stored, treated, transported, or disposed of, or otherwise handles

 55-6    any medical waste, and knowingly destroys, alters, conceals, or

 55-7    does not file a record, report, manifest, or other document

 55-8    required to be maintained or filed under rules 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)(A).  If it is shown on the trial

55-12    of an individual that the individual has been previously convicted

55-13    of an offense under this section, the offense is punishable for an

55-14    individual under Section 7.187(1)(B) or Section 7.187(2)(C) or

55-15    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)(B).  If it is shown

55-18    on the trial of a person other than an individual that the person

55-19    has been previously convicted of an offense under this section, the

55-20    offense is punishable under Section 7.187(1)(C).

55-21          Sec. 7.166.  VIOLATIONS RELATING TO TRANSPORTATION OF MEDICAL

55-22    WASTE.  (a)  A person commits an offense if the person, acting

55-23    intentionally or knowingly with respect to the person's conduct:

55-24                (1)  transports, or causes or allows to be transported,

55-25    for storage, processing, or disposal, any medical waste to a

 56-1    location that does not have all required permits;

 56-2                (2)  transports without a manifest, or causes or allows

 56-3    to be transported without a manifest, any medical waste required to

 56-4    be accompanied by a manifest under rules adopted by the appropriate

 56-5    regulatory agency; or

 56-6                (3)  operates a vehicle that is transporting medical

 56-7    waste, or that is authorized to transport medical waste, in

 56-8    violation of a rule adopted by the appropriate regulatory agency,

 56-9    including cleaning and safety regulations, that specifically

56-10    relates to the transportation of medical waste.

56-11          (b)  An offense under this section is punishable for an

56-12    individual under Section 7.187(1)(B) or Section 7.187(2)(D) or

56-13    both.  If it is shown on the trial of an individual that the

56-14    individual has been previously convicted of an offense under this

56-15    section, the offense is punishable for an individual under Section

56-16    7.187(1)(C) or Section 7.187(2)(E) or both.

56-17          (c)  An offense under this section is punishable for a person

56-18    other than an individual under Section 7.187(1)(E).  If it is shown

56-19    on the trial of a person other than an individual that the person

56-20    has been previously convicted of an offense under this section, the

56-21    offense is punishable under Section 7.187(1)(F).

56-22          Sec. 7.167.  FALSE STATEMENTS RELATING TO MEDICAL WASTE.

56-23    (a)  A person commits an offense if the person knowingly:

56-24                (1)  makes a false material statement, or knowingly

56-25    causes or knowingly allows to be made a false material statement,

 57-1    to a person who prepares a regulated medical waste label, manifest,

 57-2    application, permit, plan, registration, record, report, or other

 57-3    document required by an order or a rule of the appropriate

 57-4    regulatory agency; or

 57-5                (2)  omits material information, or causes or allows

 57-6    material information to be omitted, from a regulated medical waste

 57-7    label, manifest, application, permit, plan, registration, record,

 57-8    report, or other document required by an order or a rule of the

 57-9    appropriate regulatory agency.

57-10          (b)  An offense under this section is punishable for an

57-11    individual under Section 7.187(1)(B) or Section 7.187(2)(D) or

57-12    both.  If it is shown on the trial of an individual that the

57-13    individual has been previously convicted of an offense under this

57-14    section, the offense is punishable for an individual under Section

57-15    7.187(1)(C) or Section 7.187(2)(E) or both.

57-16          (c)  An offense under this section is punishable for a person

57-17    other than an individual under Section 7.187(1)(B).  If it is shown

57-18    on the trial of a person other than an individual that the person

57-19    has been previously convicted of an offense under this section, the

57-20    offense is punishable under Section 7.187(1)(C).

57-21          Sec. 7.168.  INTENTIONAL OR KNOWING VIOLATION RELATING TO

57-22    MEDICAL WASTE AND KNOWING ENDANGERMENT.  (a)  A person commits an

57-23    offense if the person, acting intentionally or knowingly,

57-24    transports, processes, stores, exports, or disposes of, or causes

57-25    to be transported, processed, stored, exported, or disposed of,

 58-1    medical waste in violation of Chapter 361, Health and Safety Code,

 58-2    and by that action knowingly places another person in imminent

 58-3    danger of death or serious bodily injury.

 58-4          (b)  An offense under this section is punishable for an

 58-5    individual under Section 7.187(1)(E) or Section 7.187(2)(H) or

 58-6    both.  If an offense committed by an individual under this section

 58-7    results in death or serious bodily injury to another person, the

 58-8    offense is punishable for an individual under Section 7.187(1)(F)

 58-9    or Section 7.187(2)(J) or both.

58-10          (c)  An offense under this section is punishable for a person

58-11    other than an individual under Section 7.187(1)(F).  If an offense

58-12    committed by a person other than an individual under this section

58-13    results in death or serious bodily injury to another person, the

58-14    offense is punishable under Section 7.187(1)(G).

58-15          Sec. 7.169.  INTENTIONAL OR KNOWING VIOLATION RELATING TO

58-16    MEDICAL WASTE AND ENDANGERMENT.  (a)  A person commits an offense

58-17    if the person, acting intentionally or knowingly with respect to

58-18    the person's conduct, transports, processes, stores, exports, or

58-19    disposes of medical waste in violation of Chapter 361, Health and

58-20    Safety Code, and by that action places another person in imminent

58-21    danger of death or serious bodily injury, unless the conduct

58-22    charged is done in strict compliance with all required permits or

58-23    with an order issued or rule adopted by the appropriate regulatory

58-24    agency.

58-25          (b)  An offense under this section is punishable for an

 59-1    individual under Section 7.187(1)(D) or Section 7.187(2)(F) or

 59-2    both.  If an offense committed by an individual under this section

 59-3    results in death or serious bodily injury to another person, the

 59-4    offense is punishable for an individual under Section 7.187(1)(E)

 59-5    or Section 7.187(2)(G) or both.

 59-6          (c)  An offense under this section is punishable for a person

 59-7    other than an individual under Section 7.187(1)(E).  If an offense

 59-8    committed by a person other than an individual under this section

 59-9    results in death or serious bodily injury to another person, the

59-10    offense is punishable under Section 7.187(1)(F).

59-11          Sec. 7.170.  INTENTIONAL OR KNOWING RELEASE OF MEDICAL WASTE

59-12    INTO ENVIRONMENT AND ENDANGERMENT.  (a)  A person commits an

59-13    offense if the person, acting intentionally or knowingly with

59-14    respect to the person's conduct, releases or causes or allows the

59-15    release of a medical waste into the environment and by that action

59-16    places another person in imminent danger of death or serious bodily

59-17    injury, unless the release is done in strict compliance with all

59-18    required permits or an order issued or rule adopted by the

59-19    appropriate regulatory agency.

59-20          (b)  An offense under this section is punishable for an

59-21    individual under Section 7.187(1)(D) or Section 7.187(2)(G) or

59-22    both.  If an offense committed by an individual under this section

59-23    results in death or serious bodily injury to another person, the

59-24    offense is punishable for an individual under Section 7.187(1)(E)

59-25    or Section 7.187(2)(G) or 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)(E).  If an offense

 60-3    committed by a person other than an individual under this section

 60-4    results in death or serious bodily injury to another person, the

 60-5    offense is punishable under Section 7.187(1)(F).

 60-6          Sec. 7.171.  RECKLESS RELEASE OF MEDICAL WASTE INTO

 60-7    ENVIRONMENT AND ENDANGERMENT.  (a)  A person commits an offense if

 60-8    the person, acting recklessly with respect to a person's conduct,

 60-9    releases or causes or allows the release of a medical waste into

60-10    the environment and by that action places another person in

60-11    imminent danger of death or serious bodily injury, unless the

60-12    release is made in strict compliance with all required permits or

60-13    an order issued or rule adopted by the appropriate regulatory

60-14    agency.

60-15          (b)  An offense under this section is punishable for an

60-16    individual under Section 7.187(1)(D) or Section 7.187(2)(D) or

60-17    both.  If an offense committed by an individual under this section

60-18    results in death or serious bodily injury to another person, the

60-19    offense is punishable for an individual under Section 7.187(1)(E)

60-20    or Section 7.187(2)(E) or both.

60-21          (c)  An offense under this section is punishable for a person

60-22    other than an individual under Section 7.187(1)(E).  If an offense

60-23    committed by a person other than an individual under this section

60-24    results in death or serious bodily injury to another person, the

60-25    offense is punishable under Section 7.187(1)(F).

 61-1          Sec. 7.172.  FAILURE OF SEWAGE SYSTEM INSTALLER TO REGISTER.

 61-2    (a)  A person commits an offense if the person violates Section

 61-3    366.071, Health and Safety Code.

 61-4          (b)  Except as provided by this subsection, an offense under

 61-5    this section is a Class C misdemeanor.  If it is shown on the trial

 61-6    of the defendant that the defendant has been previously convicted

 61-7    of an offense under this section, the offense is punishable under

 61-8    Section 7.187(1)(A) or Section 7.187(2)(A) or both.

 61-9          Sec. 7.173.  VIOLATION RELATING TO SEWAGE DISPOSAL NEAR

61-10    INTERNATIONAL BORDER.  (a)  A person commits an offense if the

61-11    person violates a rule adopted by the commission under Chapter 366,

61-12    Health and Safety Code, or an order or resolution adopted by an

61-13    authorized agent under Subchapter C, Chapter 366, Health and Safety

61-14    Code, in a county that is contiguous to an international border.

61-15          (b)  Except as provided by this subsection, an offense under

61-16    this section is a Class C misdemeanor.  If it is shown on the trial

61-17    of the defendant that the defendant has been previously convicted

61-18    of an offense under this section, the offense is punishable under

61-19    Section 7.187(1)(A) or Section 7.187(2)(A) or both.

61-20          Sec. 7.174.  VIOLATION OF SEWAGE DISPOSAL SYSTEM PERMIT

61-21    PROVISION.  (a)  A person commits an offense if the person begins

61-22    to construct, alter, repair, or extend an on-site sewage disposal

61-23    system owned by another person before the owner of the system

61-24    obtains a permit to construct, alter, repair, or extend the on-site

61-25    sewage disposal system as required by Subchapter D, Chapter 366,

 62-1    Health and Safety Code.

 62-2          (b)  Except as provided by this subsection, an offense under

 62-3    this section is a Class C misdemeanor.  If it is shown on the trial

 62-4    of the defendant that the defendant has previously been convicted

 62-5    of an offense under this section, the offense is punishable under

 62-6    Section 7.187(1)(A) or Section 7.187(2)(A) or both.

 62-7          Sec. 7.175.  EMERGENCY REPAIR NOT AN OFFENSE.  An emergency

 62-8    repair to an on-site sewage disposal system without a permit in

 62-9    accordance with the rules adopted under Section 366.012(a)(1)(C),

62-10    Health and Safety Code, is not an offense under Section 7.172,

62-11    7.173, or 7.174 if a written statement describing the need for the

62-12    repair is provided to the commission or its authorized agent not

62-13    later than 72 hours after the repair is begun.

62-14          Sec. 7.176.  VIOLATIONS RELATING TO HANDLING OF USED OIL.

62-15    (a)  A person commits an offense if the person:

62-16                (1)  intentionally discharges used oil into a sewer,

62-17    drainage system, septic tank, surface water or groundwater,

62-18    watercourse, or marine water;

62-19                (2)  knowingly mixes or commingles used oil with solid

62-20    waste that is to be disposed of in landfills or directly disposes

62-21    of used oil on land or in landfills, unless the mixing or

62-22    commingling of used oil with solid waste that is to be disposed of

62-23    in landfills is incident to and the unavoidable result of the

62-24    mechanical shredding of motor vehicles, appliances, or other items

62-25    of scrap, used, or obsolete metals;

 63-1                (3)  knowingly transports, treats, stores, disposes of,

 63-2    recycles, causes to be transported, or otherwise handles any used

 63-3    oil within the state:

 63-4                      (A)  in violation of standards or rules for the

 63-5    management of used oil; or

 63-6                      (B)  without first complying with the

 63-7    registration requirements of Chapter 371, Health and Safety Code,

 63-8    and rules adopted under that chapter;

 63-9                (4)  intentionally applies used oil to roads or land

63-10    for dust suppression, weed abatement, or other similar uses that

63-11    introduce used oil into the environment;

63-12                (5)  violates an order of the commission to cease and

63-13    desist an activity prohibited by this section or a rule applicable

63-14    to a prohibited activity; or

63-15                (6)  intentionally makes a false statement or

63-16    representation in an application, label, manifest, record, report,

63-17    permit, or other document filed, maintained, or used for purposes

63-18    of program compliance.

63-19          (b)  It is an exception to the application of this section

63-20    that a person unknowingly disposes into the environment any used

63-21    oil that has not been properly segregated or separated by the

63-22    generator from other solid wastes.

63-23          (c)  It is an exception to the application of Subsection

63-24    (a)(2) that the mixing or commingling of used oil with solid waste

63-25    that is to be disposed of in landfills is incident to and the

 64-1    unavoidable result of the mechanical shredding of motor vehicles,

 64-2    appliances, or other items of scrap, used, or obsolete metals.

 64-3          (d)  Except as provided by this subsection, an offense under

 64-4    this section is punishable under Section 7.187(1)(B) or Section

 64-5    7.187(2)(F), or both.  If it is shown on the trial of the defendant

 64-6    that the defendant has been previously convicted of an offense

 64-7    under this section, the offense is punishable under Section

 64-8    7.187(1)(C) or Section 7.187(2)(H) or both.

 64-9          Sec. 7.177.  VIOLATIONS OF CLEAN AIR ACT.  (a)  A person

64-10    commits an offense if the person intentionally or knowingly, with

64-11    respect to the person's conduct, violates:

64-12                (1)  Section 382.0518(a), Health and Safety Code;

64-13                (2)  Section 382.054, Health and Safety Code;

64-14                (3)  Section 382.056(a), Health and Safety Code;

64-15                (4)  Section 382.058(a), Health and Safety Code; or

64-16                (5)  an order, permit, or exemption issued or a rule

64-17    adopted under Chapter 382, Health and Safety Code.

64-18          (b)  An offense under this section is punishable for an

64-19    individual under Section 7.187(1)(B) or Section 7.187(2)(C) or

64-20    both.

64-21          (c)  An offense under this section is punishable for a person

64-22    other than an individual under Section 7.187(1)(C).

64-23          Sec. 7.178.  FAILURE TO PAY FEES UNDER CLEAN AIR ACT.  (a)  A

64-24    person commits an offense if the person intentionally or knowingly

64-25    does not pay a fee required by Chapter 382, Health and Safety Code,

 65-1    or by a rule adopted or an order issued under that chapter.

 65-2          (b)  An offense under this section is punishable for an

 65-3    individual under Section 7.187(1)(H) or Section 7.187(2)(B) or

 65-4    both.

 65-5          (c)  An offense under this section is punishable for a person

 65-6    other than an individual under Section 7.187(1)(H).

 65-7          Sec. 7.179.  FALSE REPRESENTATIONS UNDER CLEAN AIR ACT.

 65-8    (a)  A person commits an offense if the person intentionally or

 65-9    knowingly makes or causes to be made a false material statement,

65-10    representation, or certification in, or omits material information

65-11    from, or knowingly alters, conceals, or does not file or maintain a

65-12    notice, application, record, report, plan, or other document

65-13    required to be filed or maintained by Chapter 382, Health and

65-14    Safety Code, or by a rule adopted or a permit or order issued under

65-15    that chapter.

65-16          (b)  An offense under this section is punishable for an

65-17    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

65-18    both.

65-19          (c)  An offense under this section is punishable for a person

65-20    other than an individual under Section 7.187(1)(D).

65-21          Sec. 7.180.  FAILURE TO NOTIFY UNDER CLEAN AIR ACT.  (a)  A

65-22    person commits an offense if the person intentionally or knowingly

65-23    does not notify or report to the commission as required by Chapter

65-24    382, Health and Safety Code, or by a rule adopted or a permit or

65-25    order issued under that chapter.

 66-1          (b)  An offense under this section is punishable for an

 66-2    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

 66-3    both.

 66-4          (c)  An offense under this section is punishable for a person

 66-5    other than an individual under Section 7.187(1)(D).

 66-6          Sec. 7.181.  IMPROPER USE OF MONITORING DEVICE.  (a)  A

 66-7    person commits an offense if the person intentionally or knowingly

 66-8    tampers with, modifies, disables, or fails to use a required

 66-9    monitoring device; tampers with, modifies, or disables a monitoring

66-10    device; or falsifies, fabricates, or omits data from a monitoring

66-11    device, unless the act is done in strict compliance with Chapter

66-12    382, Health and Safety Code, or a permit, variance, or order issued

66-13    or a rule adopted by the commission.

66-14          (b)  An offense under this section is punishable for an

66-15    individual under Section 7.187(1)(C) or Section 7.187(2)(D) or

66-16    both.

66-17          (c)  An offense under this section is punishable for a person

66-18    other than an individual under Section 7.187(1)(D).

66-19          Sec. 7.182.  RECKLESS EMISSION OF AIR CONTAMINANT AND

66-20    ENDANGERMENT.  (a)  A person commits an offense if the person

66-21    recklessly, with respect to the person's conduct, emits an air

66-22    contaminant that places another person in imminent danger of death

66-23    or serious bodily injury, unless the emission is made in strict

66-24    compliance with Chapter 382, Health and Safety Code, or a permit,

66-25    variance, or order issued or a rule adopted by the commission.

 67-1          (b)  An offense under this section is punishable for an

 67-2    individual under Section 7.187(1)(D) or Section 7.187(2)(F) or

 67-3    both.

 67-4          (c)  An offense under this section is punishable for a person

 67-5    other than an individual under Section 7.187(1)(E).

 67-6          Sec. 7.183.  INTENTIONAL OR KNOWING EMISSION OF AIR

 67-7    CONTAMINANT AND KNOWING ENDANGERMENT.  (a)  A person commits an

 67-8    offense if the person intentionally or knowingly, with respect to

 67-9    the person's conduct, emits an air contaminant with the knowledge

67-10    that the person is placing another person in imminent danger of

67-11    death or serious bodily injury unless the emission is made in

67-12    strict compliance with Chapter 382, Health and Safety Code, or a

67-13    permit, variance, or order issued or a rule adopted by the

67-14    commission.

67-15          (b)  An offense under this section is punishable for an

67-16    individual under Section 7.187(1)(E) or Section 7.187(2)(F) or

67-17    both.

67-18          (c)  An offense under this section is punishable for a person

67-19    other than an individual under Section 7.187(1)(F).

67-20          Sec. 7.184.  VIOLATIONS RELATING TO RADIOACTIVE WASTE.

67-21    (a)  A person commits an offense if the person:

67-22                (1)  intentionally or knowingly violates a provision of

67-23    Chapter 401, Health and Safety Code, other than the offense

67-24    described by Subdivision (2); or

67-25                (2)  intentionally or knowingly receives, processes,

 68-1    concentrates, stores, transports, or disposes of radioactive waste

 68-2    without a license issued under Chapter 401, Health and Safety Code.

 68-3          (b)  Except as provided by this subsection, an offense under

 68-4    Subsection (a)(1) is a Class B misdemeanor.  If it is shown on the

 68-5    trial of the person that the person has previously been convicted

 68-6    of an offense under Subsection (a)(1), the offense is a Class A

 68-7    misdemeanor.

 68-8          (c)  Except as provided by this subsection, an offense under

 68-9    Subsection (a)(2) is a Class A misdemeanor.  If it is shown on the

68-10    trial of the person that the person has previously been convicted

68-11    of an offense under Subsection (a)(2), the offense is punishable

68-12    under Section 7.187(1)(D) or Section 7.187(2)(D) or both.

68-13          Sec. 7.185.  KNOWING OR INTENTIONAL UNAUTHORIZED DISPOSAL OF

68-14    LEAD-ACID BATTERIES.  (a)  A person commits an offense if the

68-15    person knowingly or intentionally disposes of a lead-acid battery

68-16    other than as provided by Section 361.451, Health and Safety Code.

68-17          (b)  An offense under this section is a Class A misdemeanor.

68-18          Sec. 7.186.  SEPARATE OFFENSES.  Each day a person engages in

68-19    conduct proscribed by this subchapter constitutes a separate

68-20    offense.

68-21          Sec. 7.187.  PENALTIES.  A person convicted of an offense

68-22    under this subchapter is punishable by:

68-23                (1)  a fine, as imposed under the section creating the

68-24    offense, of:

68-25                      (A)  not more than $1,000;

 69-1                      (B)  not less than $1,000 or more than $50,000;

 69-2                      (C)  not less than $1,000 or more than $100,000;

 69-3                      (D)  not less than $1,000 or more than $250,000;

 69-4                      (E)  not less than $2,000 or more than $500,000;

 69-5                      (F)  not less than $5,000 or more than

 69-6    $1,000,000;

 69-7                      (G)  not less than $10,000 or more than

 69-8    $1,500,000; or

 69-9                      (H)  not more than twice the amount of the

69-10    required fee;

69-11                (2)  confinement for a period, as imposed by the

69-12    section creating the offense, not to exceed:

69-13                      (A)  30 days;

69-14                      (B)  90 days;

69-15                      (C)  180 days;

69-16                      (D)  one year;

69-17                      (E)  two years;

69-18                      (F)  five years;

69-19                      (G)  10 years;

69-20                      (H)  15 years;

69-21                      (I)  20 years; or

69-22                      (J)  30 years; or

69-23                (3)  both fine and confinement, as imposed by the

69-24    section creating the offense.

69-25          Sec. 7.188.  REPEAT OFFENSES.  If it is shown at the trial of

 70-1    the defendant that the defendant has previously been convicted of

 70-2    the same offense under this subchapter, the maximum punishment is

 70-3    doubled with respect to both the fine and confinement, unless the

 70-4    section creating the offense specifies otherwise.

 70-5          Sec. 7.189.  VENUE.  Venue for prosecution of an alleged

 70-6    violation under this subchapter is in:

 70-7                (1)  the county in which the violation is alleged to

 70-8    have occurred;

 70-9                (2)  the county where the defendant resides;

70-10                (3)  if the alleged violation involves the

70-11    transportation of a discharge, waste, or pollutant, any county to

70-12    which or through which the discharge, waste, or pollutant was

70-13    transported; or

70-14                (4)  Travis County.

70-15          Sec. 7.190.  DISPOSITION OF FINES.  A fine recovered through

70-16    a prosecution brought under this subchapter shall be divided

70-17    equally between the state and any local government significantly

70-18    involved in prosecuting the case, except that if the court

70-19    determines that the state or the local government bore

70-20    significantly more of the burden of prosecuting the case, the court

70-21    may apportion up to 75 percent of the fine to the government that

70-22    predominantly prosecuted the case.

70-23          Sec. 7.191.  NOTICE OF CONVICTION.  In addition to a sentence

70-24    that may be imposed under this subchapter, a person other than an

70-25    individual that has been adjudged guilty of an offense may be

 71-1    ordered by the court to give notice of the conviction to any person

 71-2    the court considers appropriate.

 71-3          Sec. 7.192.  JUDGMENT OF CONVICTION.  On conviction under

 71-4    this subchapter, the clerk of the court in which the conviction is

 71-5    returned shall send a copy of the judgment to the commission.

 71-6          Sec. 7.193.  PEACE OFFICERS.  For purposes of this

 71-7    subchapter, the authorized agents and employees of the Parks and

 71-8    Wildlife Department are peace officers.  Those agents and employees

 71-9    are empowered to enforce this subchapter the same as any other

71-10    peace officer and for that purpose have the powers and duties of

71-11    peace officers assigned by Chapter 2, Code of Criminal Procedure.

71-12          Sec. 7.194.  ALLEGATIONS.  In alleging the name of a

71-13    defendant private corporation, it is sufficient to state in the

71-14    complaint, indictment, or information the corporate name or to

71-15    state any name or designation by which the corporation is known or

71-16    may be identified.  It is not necessary to allege that the

71-17    defendant was lawfully incorporated.

71-18          Sec. 7.195.  SUMMONS AND ARREST.  (a)  After a complaint is

71-19    filed or an indictment or information presented against a private

71-20    corporation under this subchapter, the court or clerk shall issue a

71-21    summons to the corporation.  The summons shall be in the same form

71-22    as a capias except that:

71-23                (1)  it shall summon the corporation to appear before

71-24    the court named at the place stated in the summons;

71-25                (2)  it shall be accompanied by a certified copy of the

 72-1    complaint, indictment, or information; and

 72-2                (3)  it shall provide that the corporation appear

 72-3    before the court named at or before 10 a.m. of the Monday next

 72-4    after the expiration of 20 days after it is served with summons,

 72-5    except when service is made on the secretary of state, in which

 72-6    instance the summons shall provide that the corporation appear

 72-7    before the court named at or before 10 a.m. of the Monday next

 72-8    after the expiration of 30 days after the secretary of state is

 72-9    served with summons.

72-10          (b)  No individual may be arrested upon a complaint,

72-11    indictment, or information against a private corporation.

72-12          Sec. 7.196.  SERVICE OF SUMMONS.  (a)  A peace officer shall

72-13    serve a summons on a private corporation by personally delivering a

72-14    copy of it to the corporation's registered agent for service.  If a

72-15    registered agent has not been designated or cannot with reasonable

72-16    diligence be found at the registered office, the peace officer

72-17    shall serve the summons by personally delivering a copy of it to

72-18    the president or a vice president of the corporation.

72-19          (b)  If the peace officer certifies on the return that the

72-20    peace officer diligently but unsuccessfully attempted to effect

72-21    service under Subsection (a) or if the corporation is a foreign

72-22    corporation that has no certificate of authority, the peace officer

72-23    shall serve the summons on the secretary of state.  On receipt of

72-24    the summons copy, the secretary of state shall immediately forward

72-25    it by certified or registered mail, return receipt requested,

 73-1    addressed to the defendant corporation at its registered office or,

 73-2    if it is a foreign corporation, at its principal office in the

 73-3    state or country under whose law it was incorporated.

 73-4          (c)  The secretary of state shall keep a permanent record of

 73-5    the date and time of receipt and the disposition of each summons

 73-6    served under Subsection (b) together with the return receipt.

 73-7          Sec. 7.197.  ARRAIGNMENT AND PLEADINGS.  In any criminal

 73-8    action instituted against a private corporation under this

 73-9    subchapter:

73-10                (1)  appearance is for the purpose of arraignment; and

73-11                (2)  the corporation has 10 full days after the day the

73-12    arraignment takes place and before the day the trial begins to file

73-13    written pleadings.

73-14          Sec. 7.198.  APPEARANCE.  (a)  A defendant private

73-15    corporation appears through counsel or its representative.

73-16          (b)  If a private corporation does not appear in response to

73-17    summons or appears but does not plead, the corporation is

73-18    considered to be present in person for all purposes, and the court

73-19    shall enter a plea of not guilty on the corporation's behalf and

73-20    may proceed with trial, judgment, and sentencing.

73-21          (c)  After appearing and entering a plea in response to

73-22    summons, if a private corporation is absent without good cause at

73-23    any time during later proceedings, the corporation is considered to

73-24    be present in person for all purposes, and the court may proceed

73-25    with trial, judgment, or sentencing.

 74-1          Sec. 7.199.  FINE TREATED AS JUDGMENT IN CIVIL ACTION.  If a

 74-2    person other than an individual is found guilty of a violation of

 74-3    this subchapter and a fine is imposed, the fine shall be entered

 74-4    and docketed by the clerk of the court as a judgment against the

 74-5    person, and the fine shall be of the same force and effect and be

 74-6    enforced against the person in the same manner as if the judgment

 74-7    were recovered in a civil action.

 74-8          Sec. 7.200.  EFFECT ON CERTAIN OTHER LAWS.  Conduct

 74-9    punishable as an offense under this subchapter that is also

74-10    punishable under another law may be prosecuted under either law.

74-11          Sec. 7.201.  DEFENSE EXCLUDED.  It is not a defense to

74-12    prosecution under this subchapter that the person did not know of

74-13    or was not aware of a rule, order, or statute.

74-14          Sec. 7.202.  PROOF OF KNOWLEDGE.  In determining whether a

74-15    defendant who is an individual knew that the violation placed

74-16    another person in imminent danger of death or serious bodily injury

74-17    under Section 7.168, 7.169, 7.170, or 7.171, the defendant is

74-18    responsible only for the defendant's actual awareness or actual

74-19    belief possessed.  Knowledge possessed by a person other than the

74-20    defendant may not be attributed to the defendant.  To prove a

74-21    defendant's actual knowledge, however, circumstantial evidence may

74-22    be used, including evidence that the defendant took affirmative

74-23    steps to be shielded from relevant information.

74-24               (Sections 7.203-7.250 reserved for expansion

 75-1                          SUBCHAPTER F.  DEFENSES

 75-2          Sec. 7.251.  ACT OF GOD.  If a person can establish that an

 75-3    event that would otherwise be a violation of a statute within the

 75-4    commission's jurisdiction or a rule adopted or an order or a permit

 75-5    issued under such a statute was caused solely by an act of God,

 75-6    war, strike, riot, or other catastrophe, the event is not a

 75-7    violation of that statute, rule, order, or permit.

 75-8          Sec. 7.252.  DEFENSES TO ENDANGERMENT OFFENSES.  It is an

 75-9    affirmative defense to prosecution under Section 7.152, 7.153,

75-10    7.154, 7.163, 7.168, 7.169, 7.170, 7.171, 7.182, or 7.183 that:

75-11                (1)  the conduct charged was freely consented to by the

75-12    person endangered and that the danger and conduct charged were

75-13    reasonably foreseeable hazards of the person's occupation,

75-14    business, or profession or a medical treatment or medical or

75-15    scientific experimentation conducted by professionally approved

75-16    methods and the person endangered had been made aware of the risks

75-17    involved before giving consent; or

75-18                (2)  the person charged was an employee who was

75-19    carrying out the person's normal activities and was acting under

75-20    orders from the person's employer, unless the person charged

75-21    engaged in knowing and wilful violations.

75-22          Sec. 7.253.  DEFENSES AVAILABLE TO PERSON RESPONSIBLE FOR

75-23    SOLID WASTE VIOLATIONS.  (a)  For purposes of an enforcement action

75-24    initiated under this chapter, a person responsible for solid waste

75-25    under Section 361.271, Health and Safety Code, is liable for a

 76-1    violation of a statutory or regulatory prohibition against

 76-2    releasing or creating an imminent threat of releasing solid waste

 76-3    unless the person can establish by a preponderance of the evidence

 76-4    that the release or threatened release was caused solely by an act

 76-5    or omission of a third person and that the defendant:

 76-6                (1)  exercised due care concerning the solid waste,

 76-7    considering the characteristics of the solid waste, in light of all

 76-8    relevant facts and circumstances; and

 76-9                (2)  took precautions against foreseeable acts or

76-10    omissions of the third person and the consequences that could

76-11    foreseeably result from those acts or omissions.

76-12          (b)  The defense under Subsection (a) does not apply if the

76-13    third person:

76-14                (1)  is an employee or agent of the defendant; or

76-15                (2)  has a direct or indirect contractual relationship

76-16    with the defendant and the act or omission of the third person

76-17    occurred in connection with the contractual relationship.  The term

76-18    "contractual relationship" includes land contracts, deeds, or other

76-19    instruments transferring title or possession of real property.

76-20          (c)  A defendant who enters into a contractual relationship

76-21    as provided by Subsection (b)(2) is not liable under a statute or

76-22    rule within the commission's jurisdiction if:

76-23                (1)  the sole contractual relationship is acceptance

76-24    for rail carriage by a common carrier under a published tariff; or

76-25                (2)  the defendant acquired the real property on which

 77-1    the facility requiring the remedial action is located after the

 77-2    disposal or placement of the hazardous substance on, in, or at the

 77-3    facility, and the defendant establishes by a preponderance of the

 77-4    evidence that:

 77-5                      (A)  the defendant exercised due care concerning

 77-6    the solid waste, considering the characteristics of the solid

 77-7    waste, in light of all relevant facts and circumstances; and

 77-8                      (B)  the defendant took precautions against

 77-9    foreseeable acts or omissions of the third person and the

77-10    consequences that could foreseeably result from those acts or

77-11    omissions; or

77-12                      (C)  at the time the defendant acquired the

77-13    facility the defendant did not know and had no reason to know that

77-14    a hazardous substance that is the subject of the release or

77-15    threatened release was disposed of on, in, or at the facility;

77-16                      (D)  the defendant is a governmental entity that

77-17    acquired the facility by escheat, by other involuntary transfer or

77-18    acquisition, or by the exercise of the power of eminent domain; or

77-19                      (E)  the defendant acquired the facility by

77-20    inheritance or bequest.

77-21          (d)  To demonstrate the condition under Subsection (c)(2)(C),

77-22    the defendant must have made, at the time of acquisition,

77-23    appropriate inquiry into the previous ownership and uses of the

77-24    property consistent with good commercial or customary practice in

77-25    an effort to minimize liability.  In deciding whether the defendant

 78-1    meets this condition, the court shall consider:

 78-2                (1)  any specialized knowledge or experience of the

 78-3    defendant;

 78-4                (2)  the relationship of the purchase price to the

 78-5    value of the property if the property were uncontaminated;

 78-6                (3)  commonly known or reasonably ascertainable

 78-7    information about the property;

 78-8                (4)  the obvious presence or likely presence of

 78-9    contamination of the property; and

78-10                (5)  the defendant's ability to detect the

78-11    contamination by appropriate inspection.

78-12          (e)  This section does not decrease the liability of a

78-13    previous owner or operator of a facility who is liable under a

78-14    statute or rule within the commission's jurisdiction.  If the

78-15    defendant obtained actual knowledge of the release or threatened

78-16    release of a hazardous substance at a facility at the time the

78-17    defendant owned the real property on which the facility is located

78-18    and subsequently transferred ownership of the property to another

78-19    person without disclosing that knowledge, the defendant is liable

78-20    and a defense under this section is not available to the defendant.

78-21          (f)  Subsections (c), (d), and (e) do not affect the

78-22    liability, under a statute or rule within the commission's

78-23    jurisdiction, of a defendant who, by an act or omission, caused or

78-24    contributed to the release or threatened release of a hazardous

78-25    substance that is the subject of the action concerning the

 79-1    facility.

 79-2          Sec. 7.254.  DEFENSE TO USED OIL OFFENSES.  It is an

 79-3    affirmative defense to prosecution under Section 7.176 that the

 79-4    person unknowingly disposed of used oil into the environment

 79-5    because the used oil had not been properly segregated or separated

 79-6    by the generator from other solid wastes.

 79-7          Sec. 7.255.  DEFENSE EXCLUDED.  Unless otherwise provided by

 79-8    this chapter, the fact that a person holds a permit issued by the

 79-9    commission does not relieve that person from liability for the

79-10    violation of a statute within the commission's jurisdiction or a

79-11    rule adopted or an order or a permit issued under such a statute.

79-12               (Sections 7.256-7.300 reserved for expansion

79-13           SUBCHAPTER G.  REVOCATION AND SUSPENSION OF PERMITS,

79-14                 LICENSES, CERTIFICATES, AND REGISTRATIONS

79-15          Sec. 7.301.  DEFINITION.  In this subchapter:

79-16                (1)  "License," "certificate," "registration," and

79-17    "exemption" have the meanings assigned by commission rule.

79-18                (2)  "Permit holder" or "holder of a permit" includes

79-19    each member of a partnership or association and, with respect to a

79-20    corporation, each officer and the owner or owners of a majority of

79-21    the corporate stock, provided such partner or owner controls at

79-22    least 20 percent of the permit holder.

79-23          Sec. 7.302.  GROUNDS FOR REVOCATION OR SUSPENSION OF PERMIT.

79-24    (a)  This section applies to a permit or exemption issued by the

79-25    commission under:

 80-1                (1)  Chapter 18, 26, 27, 28, or 31 of this code;

 80-2                (2)  Subchapter C or R, Chapter 361, Health and Safety

 80-3    Code;

 80-4                (3)  Subchapter D, Chapter 366, Health and Safety Code;

 80-5                (4)  Chapter 382, Health and Safety Code; or

 80-6                (5)  a rule adopted under any of those provisions.

 80-7          (b)  After notice and hearing, the commission may revoke,

 80-8    suspend, or revoke and reissue a permit or exemption on any of the

 80-9    following grounds:

80-10                (1)  violating any term or condition of the permit, and

80-11    revocation, suspension, or revocation and reissuance is necessary

80-12    in order to maintain the quality of water or the quality of air in

80-13    the state, or to otherwise protect human health and the environment

80-14    consistent with the objectives of the statutes or rules within the

80-15    commission's jurisdiction;

80-16                (2)  having a record of environmental violations in the

80-17    preceding five years at the permitted or exempted site;

80-18                (3)  causing a discharge, release, or emission

80-19    contravening a pollution control standard set by the commission or

80-20    contravening the intent of a statute or rule described in

80-21    Subsection (a);

80-22                (4)  including a material mistake in a federal

80-23    operating permit issued under Chapter 382, Health and Safety Code,

80-24    or making an inaccurate statement in establishing an emissions

80-25    standard or other term or condition of a federal operating permit;

 81-1                (5)  misrepresenting or failing to disclose fully all

 81-2    relevant facts in obtaining the permit or misrepresenting to the

 81-3    commission any relevant fact at any time;

 81-4                (6)  a permit holder being indebted to the state for

 81-5    fees, payment of penalties, or taxes imposed by the statutes or

 81-6    rules within the commission's jurisdiction;

 81-7                (7)  a permit holder failing to ensure that the

 81-8    management of the permitted facility conforms or will conform to

 81-9    the statutes and rules within the commission's jurisdiction;

81-10                (8)  the permit is subject to cancellation or

81-11    suspension under Section 26.084;

81-12                (9)  abandoning the permit or operations under the

81-13    permit;

81-14                (10)  the commission finds that a change in conditions

81-15    requires elimination of the discharge authorized by the permit; or

81-16                (11)  with respect to a permit issued under Chapter 18,

81-17    failing to continue to possess qualifications necessary for the

81-18    issuance of an original permit.

81-19          Sec. 7.303.  GROUNDS FOR REVOCATION OR SUSPENSION OF LICENSE,

81-20    CERTIFICATE, OR REGISTRATION.  (a)  This section applies to a

81-21    license, certificate, or registration issued:

81-22                (1)  by the commission under:

81-23                      (A)  Section 26.0301 or 26.459 of this code;

81-24                      (B)  Chapter 18, 32, 33, or 34 of this code;

81-25                      (C)  Section 361.0861, 361.092, or 361.112,

 82-1    Health and Safety Code; or

 82-2                      (D)  Chapter 366, 371, or 401, Health and Safety

 82-3    Code;

 82-4                (2)  by a county under Subchapter E, Chapter 361,

 82-5    Health and Safety Code; or

 82-6                (3)  under a rule adopted under any of those

 82-7    provisions.

 82-8          (b)  After notice and hearing, the commission may suspend or

 82-9    revoke a license, certificate, or registration the commission or a

82-10    county has issued, place on probation a person whose license,

82-11    certificate, or registration has been suspended, reprimand the

82-12    holder of a license, certificate, or registration, or refuse to

82-13    renew or reissue a license, certificate, or registration on any of

82-14    the following grounds:

82-15                (1)  having a record of environmental violations in the

82-16    preceding five years at the licensed, certified, or registered

82-17    site;

82-18                (2)  committing fraud or deceit in obtaining the

82-19    license, certificate, or registration;

82-20                (3)  demonstrating gross negligence, incompetency, or

82-21    misconduct while acting as holder of a license, certificate, or

82-22    registration;

82-23                (4)  making an intentional misstatement or

82-24    misrepresentation of fact in information required to be maintained

82-25    or submitted to the commission by the holder of the license,

 83-1    certificate, or registration;

 83-2                (5)  failing to keep and transmit records as required

 83-3    by a statute within the commission's jurisdiction or a rule adopted

 83-4    under such a statute;

 83-5                (6)  being indebted to the state for a fee, payment of

 83-6    a penalty, or a tax imposed by a statute within the commission's

 83-7    jurisdiction or a rule adopted under such a statute;

 83-8                (7)  with respect to a license issued under Chapter 18,

 83-9    failing to continue to possess qualifications necessary for the

83-10    issuance of an original license;

83-11                (8)  with respect to a certificate of competency issued

83-12    under Section 26.0301, violating a discharge permit of a sewage

83-13    treatment plant, unless:

83-14                      (A)  the holder of the certificate is unable to

83-15    properly operate the sewage treatment facility due to the refusal

83-16    of the permit holder to authorize necessary expenditures to operate

83-17    the sewage treatment facility properly; or

83-18                      (B)  failure of the sewage treatment facility to

83-19    comply with its discharge permit results from faulty design of the

83-20    sewage treatment facility;

83-21                (9)  with respect to a license issued under Chapter 32,

83-22    failing to advise a person for whom a well is being drilled that

83-23    injurious water has been encountered, is a pollution hazard, and

83-24    must be immediately plugged in an acceptable manner;

83-25                (10)  with respect to a registration issued under

 84-1    Chapter 366, Health and Safety Code, violating that chapter or a

 84-2    rule adopted under that chapter; or

 84-3                (11)  with respect to a license issued under Subchapter

 84-4    E, Chapter 361, Health and Safety Code, violating that chapter or

 84-5    another applicable law or a commission rule governing the

 84-6    processing, storage, or disposal of solid waste.

 84-7          Sec. 7.304.  SUSPENSION OF REGISTRATION OR REIMBURSEMENT

 84-8    PAYMENT ISSUED UNDER WASTE TIRE RECYCLING PROGRAM.  Notwithstanding

 84-9    Sections 7.303, 7.305, and 7.306, the commission may suspend a

84-10    registration of or reimbursement payment to a waste tire processor,

84-11    waste tire transporter, waste tire generator, waste tire recycling

84-12    facility, or waste tire energy recovery facility, without notice or

84-13    hearing, on the initiation of an enforcement proceeding under this

84-14    chapter and while the proceeding is pending for a violation of

84-15    Subchapter P, Chapter 361, Health and Safety Code, or a rule

84-16    adopted or order issued under that subchapter.

84-17          Sec. 7.305.  PROCEDURES.  The commission by rule shall

84-18    establish procedures for public notice and any public hearing under

84-19    this subchapter.  The procedures shall provide for notice to a

84-20    county that issued a license, certificate, or registration that is

84-21    the subject of the hearing.

84-22          Sec. 7.306.  HEARINGS.  A hearing under this subchapter shall

84-23    be conducted in accordance with the hearing rules adopted by the

84-24    commission and the applicable provisions of Chapter 2001,

84-25    Government Code.

 85-1          Sec. 7.307.  CONSENT.  If the holder of a permit, license,

 85-2    certificate, or registration requests or consents to the revocation

 85-3    or suspension of the permit, license, certificate,  or

 85-4    registration, the executive director may revoke or suspend the

 85-5    permit, license, exemption, certificate, or registration without a

 85-6    hearing.

 85-7          Sec. 7.308.  OTHER RELIEF.  A proceeding brought by the

 85-8    commission under this subchapter does not affect the commission's

 85-9    authority to bring suit for injunctive relief or penalty or both

85-10    under this chapter.

85-11          Sec. 7.309.  PROBATION REQUIREMENTS.  If a license,

85-12    certificate, or registration suspension is probated, the commission

85-13    may require the holder of the license, certificate, or

85-14    registration:

85-15                (1)  to report regularly to the commission on matters

85-16    that are the basis of the probation;

85-17                (2)  to limit activities to the areas prescribed by the

85-18    commission; or

85-19                (3)  to continue or renew professional education until

85-20    the registrant attains a degree of skill satisfactory to the

85-21    commission in those areas that are the basis of the probation.

85-22          Sec. 7.310.  REVOCATION OR SUSPENSION BY COUNTY.  With

85-23    respect to a license, certificate, or registration issued by a

85-24    county under a statute or rule within the commission's

85-25    jurisdiction, the issuing county may suspend or revoke the license,

 86-1    certificate, or registration on the grounds provided under Section

 86-2    7.303.

 86-3               (Sections 7.311-7.350 reserved for expansion

 86-4                       SUBCHAPTER H.  SUIT BY OTHERS

 86-5          Sec. 7.351.  CIVIL SUITS.  If it appears that a violation or

 86-6    threat of violation of Chapter 16, 26, 28, or 34 of this code or

 86-7    Chapter 361, 371, 372, or 382, Health and Safety Code, or a

 86-8    provision of Chapter 401, Health and Safety Code, under the

 86-9    commission's jurisdiction or a rule adopted or an order or a permit

86-10    issued under those chapters or provisions has occurred or is

86-11    occurring in the jurisdiction of a local government, the local

86-12    government or, in the case of a violation of Chapter 401, Health

86-13    and Safety Code, a person affected as defined in that chapter, may

86-14    institute a civil suit under Subchapter D in the same manner as the

86-15    commission in a district court by its own attorney for the

86-16    injunctive relief or civil penalty, or both, as authorized by this

86-17    chapter against the person who committed, is committing, or is

86-18    threatening to commit the violation.

86-19          Sec. 7.352.  RESOLUTION REQUIRED.  In the case of a violation

86-20    of Chapter 26 of this code or Chapter 382, Health and Safety Code,

86-21    a local government may not exercise the enforcement power

86-22    authorized by this subchapter unless its governing body adopts a

86-23    resolution authorizing the exercise of the power.

86-24          Sec. 7.353.  COMMISSION NECESSARY PARTY.  In a suit brought

86-25    by a local government under this subchapter, the commission is a

 87-1    necessary and indispensable party.

 87-2          Sec. 7.354.  COSTS AND FEES.  A penalty collected in a suit

 87-3    under this subchapter for a violation of Chapter 28 of this code or

 87-4    Chapter 401, Health and Safety Code, shall be paid to the state.

 87-5    If the suit is brought by a local government or, in the case of a

 87-6    violation of Chapter 401, Health and Safety Code, a person affected

 87-7    as defined in that chapter, the court shall include in any final

 87-8    judgment in favor of the local government or affected person an

 87-9    award to cover reasonable costs and attorney's fees.

87-10          Sec. 7.355.  COMPLAINTS.  In the case of a violation of

87-11    Chapter 401, Health and Safety Code, a local government or person

87-12    affected may file with the commission a written complaint and may

87-13    request an investigation of an alleged violation by a person who

87-14    holds a permit subject to the commission's jurisdiction.

87-15          Sec. 7.356.  COMMISSION REPLY.  The commission shall reply to

87-16    the local government or person affected who filed a complaint under

87-17    Section 7.355 in writing not later than the 60th day after the

87-18    complaint is received and shall provide a copy of any investigation

87-19    report relevant to the complaint together with a determination of

87-20    whether the alleged violation was committed.

87-21          Sec. 7.357.  PROSECUTION.  A local government or, in the case

87-22    of a violation of Chapter 401, Health and Safety Code, a person

87-23    affected as defined in that chapter may bring suit in the county in

87-24    which the alleged violation occurred or is about to occur, if the

87-25    commission does not have a suit filed before the 121st day after

 88-1    the date on which the written complaint is filed under Section

 88-2    7.355.

 88-3          Sec. 7.358.  OTHER REQUIREMENTS.  In the case of a violation

 88-4    of Chapter 34, the regulatory authority of any local government may

 88-5    require compliance with any reasonable inspection requirements or

 88-6    ordinances or regulations designed to protect the public water

 88-7    supply and pay any reasonable fees imposed by the local government

 88-8    relating to work performed within its jurisdiction.

 88-9          SECTION 3.  Section 11.081, Water Code, is amended to read as

88-10    follows:

88-11          Sec. 11.081.  UNLAWFUL USE OF STATE WATER.  [(a)]  No person

88-12    may wilfully take, divert, or appropriate any state water for any

88-13    purpose without first complying with all applicable requirements of

88-14    this chapter.

88-15          [(b)  A person who violates any provision of this section is

88-16    guilty of a misdemeanor and upon conviction is punishable by a fine

88-17    of not more than $100 or by confinement in the county jail for not

88-18    more than six months or by both.]

88-19          [(c)  A person commits a separate offense each day he

88-20    continues to take, divert, or appropriate water in violation of

88-21    this section.]

88-22          [(d)  Possession of state water when the right to its use has

88-23    not been acquired according to the provisions of this chapter is

88-24    prima facie evidence of a violation of this section.]

88-25          SECTION 4.  Section 11.083, Water Code, is amended to read as

 89-1    follows:

 89-2          Sec. 11.083.  OTHER UNLAWFUL TAKING.  (a)  No person may

 89-3    wilfully open, close, change, or interfere with any headgate or

 89-4    water box without lawful authority.

 89-5          (b)  No person may wilfully use water or conduct water

 89-6    through his ditch or upon his land unless he is entitled to do so.

 89-7          [(c)  A person who violates any provision of this section is

 89-8    guilty of a misdemeanor and upon conviction is punishable by a fine

 89-9    of not less than $10 nor more than $1,000 or by confinement in the

89-10    county jail for not more than six months.]

89-11          [(d)  The possession or use of water on his land by a person

89-12    not entitled to the water by the provisions of this code is prima

89-13    facie evidence of a violation of this section.]

89-14          SECTION 5.  Section 11.084, Water Code, is amended to read as

89-15    follows:

89-16          Sec. 11.084.  SALE OF PERMANENT WATER RIGHT WITHOUT A PERMIT.

89-17    [(a)]  No person may sell or offer to sell a permanent water right

89-18    unless he has perfected a right to appropriate state water by a

89-19    certified filing, or unless he has obtained a permit from the

89-20    commission, authorizing the use of the water for the purposes for

89-21    which the permanent water right is conveyed.

89-22          [(b)  A person who violates Subsection (a) of this section is

89-23    guilty of a misdemeanor and upon conviction is punishable by a fine

89-24    of not less than $100 nor more than $1,000 or by confinement in the

89-25    county jail for not more than one year or by both.]

 90-1          SECTION 6.  Subsection (c), Section 11.087, Water Code, is

 90-2    amended to read as follows:

 90-3          (c)  Orders made by the commission to effectuate its rules

 90-4    under this section shall be mailed [need not be published, but the

 90-5    commission shall transmit a copy of every such order] by certified

 90-6    mail to each diverter of water and to each reservoir owner on the

 90-7    stream between the point of release and the point of destination of

 90-8    the released water as shown by the records of the commission.

 90-9          SECTION 7.  Section 11.088, Water Code, is amended to read as

90-10    follows:

90-11          Sec. 11.088.  DESTRUCTION OF WATERWORKS.  [(a)]  No person

90-12    may wilfully cut, dig, break down, destroy, or injure or open a

90-13    gate, bank, embankment, or side of any ditch, canal, reservoir,

90-14    flume, tunnel or feeder, pump or machinery, building, structure, or

90-15    other work which is the property of another, or in which another

90-16    owns an interest, or which is lawfully possessed or being used by

90-17    another, and which is used for irrigation, milling, mining,

90-18    manufacturing, the development of power, domestic purposes, or

90-19    stock raising, with intent to:

90-20                (1)  maliciously injure a person, association,

90-21    corporation, water improvement or irrigation district;

90-22                (2)  gain advantage for himself; or

90-23                (3)  take or steal water or cause water to run out or

90-24    waste out of the ditch, canal, or reservoir, feeder, or flume for

90-25    his own advantage or to the injury of a person lawfully entitled to

 91-1    the use of the water or the use or management of the ditch, canal,

 91-2    tunnel, reservoir, feeder, flume, machine, structure, or other

 91-3    irrigation work.

 91-4          [(b)  A person who violates any provision of this section is

 91-5    guilty of a misdemeanor and upon conviction is punishable by a fine

 91-6    of not less than $10 nor more than $1,000 or by confinement in the

 91-7    county jail for not more than two years or by both.]

 91-8          SECTION 8.  Section 11.089, Water Code, is amended to read as

 91-9    follows:

91-10          Sec. 11.089.  JOHNSON GRASS OR RUSSIAN THISTLE.  (a)  No

91-11    person who owns, leases, or operates a ditch, canal, or reservoir

91-12    or who cultivates land abutting a reservoir, ditch, flume, canal,

91-13    wasteway, or lateral may permit Johnson grass or Russian thistle to

91-14    go to seed on the waterway within 10 feet of the high-water line if

91-15    the waterway crosses or lies on the land owned or controlled by

91-16    him.

91-17          (b)  [A person who violates any provision of this section is

91-18    guilty of a misdemeanor and upon conviction is punishable by a fine

91-19    of not less than $25 nor more than $500 or by confinement in the

91-20    county jail for not less than 30 days nor more than six months or

91-21    by both.]

91-22          [(c)]  The provisions of this section are not applicable in

91-23    Tom Green, Sterling, Irion, Schleicher, McCullough, Brewster,

91-24    Menard, Maverick, Kinney, Val Verde, and San Saba counties.

91-25          SECTION 9.  Section 11.090, Water Code, is amended to read as

 92-1    follows:

 92-2          Sec. 11.090.  POLLUTING AND LITTERING.  [(a)]  No person may

 92-3    deposit in any canal, lateral, reservoir, or lake, used for a

 92-4    purpose named in this chapter, the carcass of any dead animal, tin

 92-5    cans, discarded buckets or pails, garbage, ashes, bailing or barbed

 92-6    wire, earth, offal, or refuse of any character or any other article

 92-7    which might pollute the water or obstruct the flow of a canal or

 92-8    similar structure.

 92-9          [(b)  A person who violates any provision of this section is

92-10    guilty of a misdemeanor and upon conviction is punishable by a fine

92-11    of not less than $10 nor more than $100 or by confinement in the

92-12    county jail for not more than six months or by both.]

92-13          SECTION 10.  Section 11.091, Water Code, is amended to read

92-14    as follows:

92-15          Sec. 11.091.  INTERFERENCE WITH DELIVERY OF WATER UNDER

92-16    CONTRACT.  [(a)]  No person may wilfully take, divert, appropriate,

92-17    or interfere with the delivery of conserved or stored water under

92-18    Section 11.042 of this code.

92-19          [(b)  A person who violates any provision of this section is

92-20    guilty of a misdemeanor and upon conviction is punishable by a fine

92-21    of not more than $100 or by confinement in the county jail for not

92-22    more than six months or by both.]

92-23          [(c)  A person commits a separate offense each day he

92-24    continues to violate this section.]

92-25          [(d)  On the petition of any interested party, the district

 93-1    court of any county through which the water may pass shall enjoin

 93-2    any actual or threatened act prohibited by this section.]

 93-3          SECTION 11.  Section 11.094, Water Code, is amended to read

 93-4    as follows:

 93-5          Sec. 11.094.  PENALTY FOR USE OF WORKS DECLARED PUBLIC

 93-6    NUISANCE.  [(a)]  No person may operate or attempt to operate any

 93-7    waterworks or irrigation system or use any water under contract

 93-8    with any waterworks or irrigation system that has been previously

 93-9    declared to be a public nuisance.

93-10          [(b)  A person who violates any provision of this section is

93-11    guilty of a misdemeanor and on conviction is punishable by a fine

93-12    of not more than $1,000 or by confinement in the county jail for

93-13    not more than one year or by both.]

93-14          SECTION 12.  Section 11.096, Water Code, is amended to read

93-15    as follows:

93-16          Sec. 11.096.  OBSTRUCTION OF NAVIGABLE STREAMS.  [(a)]  No

93-17    person may obstruct the navigation of any stream which can be

93-18    navigated by steamboats, keelboats, or flatboats by cutting and

93-19    felling trees or by building on or across the stream any dike,

93-20    milldam, bridge, or other obstruction.

93-21          [(b)  A person who violates any provision of this section is

93-22    guilty of a misdemeanor and upon conviction is punishable by a fine

93-23    of not less than $50 nor more than $500.]

93-24          SECTION 13.  Section 11.203, Water Code, is amended to read

93-25    as follows:

 94-1          Sec. 11.203.  ARTESIAN WELL:  DRILLING RECORD.  [(a)]  A

 94-2    person who drills an artesian well or has one drilled shall keep a

 94-3    complete and accurate record of the depth, thickness, and character

 94-4    of the different strata penetrated and when the well is completed

 94-5    shall transmit a copy of the record to the commission by registered

 94-6    mail.

 94-7          [(b)  A person who violates any provision of this section is

 94-8    guilty of a misdemeanor and on conviction is punishable by a fine

 94-9    of not less than $10 nor more than $100.]

94-10          SECTION 14.  Section 11.205, Water Code, is amended to read

94-11    as follows:

94-12          Sec. 11.205.  WASTING WATER FROM ARTESIAN WELL.

94-13    [(a)]  Unless the water from an artesian well is used for a purpose

94-14    and in a manner in which it may be lawfully used on the owner's

94-15    land, it is waste and unlawful to wilfully cause or knowingly

94-16    permit the water to run off the owner's land or to percolate

94-17    through the stratum above which the water is found.

94-18          [(b)  A person who commits waste as defined in this section

94-19    is guilty of a misdemeanor and on conviction is punishable by a

94-20    fine of not more than $500 or by confinement in the county jail for

94-21    not more than 90 days or by both.]

94-22          SECTION 15.  Section 26.019, Water Code, is amended to read

94-23    as follows:

94-24          Sec. 26.019.  ORDERS.  [(a)]  The commission is authorized to

94-25    issue orders and make determinations necessary to effectuate the

 95-1    purposes of this chapter.

 95-2          [(b)  The commission shall set forth the findings on which it

 95-3    bases any order granting or denying special relief requested of the

 95-4    commission or involving a determination following a hearing on an

 95-5    alleged violation of Section 26.121 of this code or directing a

 95-6    person to perform or refrain from performing a certain act or

 95-7    activity.]

 95-8          SECTION 16.  Section 26.0191, Water Code, is amended to read

 95-9    as follows:

95-10          Sec. 26.0191.  TEMPORARY OR [AND] EMERGENCY ORDER RELATING

95-11    [ORDERS AND AUTHORIZATIONS] TO DISCHARGE OF WASTE OR POLLUTANTS

95-12    [UNTREATED OR PARTIALLY TREATED WASTEWATER].  [(a)]  The commission

95-13    may issue a temporary or emergency order [orders] relating to the

95-14    discharge of waste or pollutants under Section 5.509 [when this is

95-15    necessary to enable action to be taken more expeditiously than is

95-16    otherwise provided by this chapter to effectuate the policy and

95-17    purposes of this chapter].

95-18          [(b)  A person desiring to obtain a temporary or emergency

95-19    order to discharge waste or pollutants, including untreated or

95-20    partially treated wastewater, into or adjacent to water in this

95-21    state shall submit a sworn application to the commission containing

95-22    the following information and any other information the commission

95-23    requires:]

95-24                [(1)  a statement that the discharge is unavoidable to

95-25    prevent loss of life, serious injury, severe property damage, or

 96-1    severe economic loss, or to make necessary and unforeseen repairs

 96-2    to a facility, that there are no feasible alternatives to the

 96-3    proposed discharge, and that the discharge will not cause

 96-4    significant hazard to human life and health, unreasonable damage to

 96-5    property of persons other than the applicant, or unreasonable

 96-6    economic loss to persons other than the applicant;]

 96-7                [(2)  a statement that the proposed discharge will not

 96-8    present a significant hazard to the uses that may be made of the

 96-9    receiving water after the discharge;]

96-10                [(3)  an estimate of the dates on which the proposed

96-11    discharge will begin and end;]

96-12                [(4)  a statement of the volume and quality of the

96-13    proposed discharge;]

96-14                [(5)  an explanation of measures proposed to minimize

96-15    the volume and duration of the discharge; and]

96-16                [(6)  an explanation of measures proposed to maximize

96-17    the waste treatment efficiency of units not taken out of service or

96-18    facilities provided for interim use.]

96-19          [(c)  The commission may issue emergency orders relating to

96-20    the discharge of waste or pollutants without notice and hearing, or

96-21    with such notice and hearing as the commission considers

96-22    practicable under the circumstances, only if the commission finds

96-23    the applicant's statement made under Subsection (b)(1) of this

96-24    section to be correct.]

96-25          [(d)  If the commission issues an emergency order under this

 97-1    authority without a hearing, the order shall fix a time and place

 97-2    for a hearing to be held before the commission, which shall be held

 97-3    as soon after the emergency order is issued as is practicable.]

 97-4          [(e)  At the hearing, the commission shall affirm, modify, or

 97-5    set aside the emergency order.  Any hearing on an emergency order

 97-6    shall be conducted in accordance with Chapter 2001, Government

 97-7    Code, or the rules of the commission.  Any set of commission rules

 97-8    concerning a hearing on an emergency order must include provisions

 97-9    for presentation of evidence by the applicant under oath,

97-10    presentation of rebuttal evidence, and cross-examination of

97-11    witnesses.]

97-12          [(f)  If emergency conditions exist which make it necessary

97-13    to take action more expeditiously than is otherwise provided by

97-14    this section, the executive director may authorize the discharge of

97-15    untreated or partially treated wastewater from a permitted facility

97-16    into or adjacent to water in the state if he determines that the

97-17    discharge is unavoidable to prevent loss of life, serious injury,

97-18    severe property damage, or severe economic loss, or to make

97-19    necessary and unforeseen repairs to the facility, that there are no

97-20    feasible alternatives to the discharge, and that the discharge will

97-21    not cause significant hazard to human life and health, unreasonable

97-22    damage to property of persons other than the applicant, or

97-23    unreasonable economic loss to persons other than the applicant.  If

97-24    the executive director issues an authorization to discharge under

97-25    this authority, the commission shall hold a hearing as provided for

 98-1    in Subsection (d) of this section as soon as practicable but in no

 98-2    event later than 10 days after issuance of the authorization to

 98-3    affirm, modify or set aside the authorization.  The requirements of

 98-4    Subsection (b) of this section shall be satisfied by the applicant

 98-5    on or before such hearing date.]

 98-6          [(g)  The requirements of Section 26.022 of this code

 98-7    relating to the time for notice, newspaper notice, and method of

 98-8    giving a person notice do not apply to a hearing held on an

 98-9    emergency permit under this section, but such general notice of the

98-10    hearing shall be given as the commission, under Subsections (c) and

98-11    (e) of this section, considers practicable under the circumstances.]

98-12          [(h)  Temporary orders other than emergency orders require a

98-13    hearing before issuance of the order.  The commission shall give

98-14    notice not less than 20 days before the date set for the hearing.]

98-15          SECTION 17.  Subsection (a), Section 26.021, Water Code, is

98-16    amended to read as follows:

98-17          (a)  The [Except for those hearings required to be held

98-18    before the commission under Section 26.0191(b) of this code, the]

98-19    commission may authorize the chief administrative law judge of the

98-20    State Office of Administrative Hearings to call and hold hearings

98-21    on any subject on which the commission may hold a hearing.

98-22          SECTION 18.  Subsection (a), Section 26.022, Water Code, is

98-23    amended to read as follows:

98-24          (a)  Except as otherwise provided in Sections 5.501, 5.504,

98-25    5.509, [26.0191] and 26.176 [of this code], the provisions of this

 99-1    section apply to all hearings conducted in compliance with this

 99-2    chapter.

 99-3          SECTION 19.  Section 26.029, Water Code (effective until

 99-4    delegation of NPDES permit authority), is amended to read as

 99-5    follows:

 99-6          Sec. 26.029.  CONDITIONS OF PERMIT; AMENDMENT[; REVOCATION

 99-7    AND SUSPENSION].  (a)  In each permit, the commission shall

 99-8    prescribe the conditions on which it is issued, including:

 99-9                (1)  the duration of the permit;

99-10                (2)  the location of the point of discharge of the

99-11    waste;

99-12                (3)  the maximum quantity of waste that may be

99-13    discharged under the permit at any time and from time to time;

99-14                (4)  the character and quality of waste that may be

99-15    discharged under the permit; and

99-16                (5)  any monitoring and reporting requirements

99-17    prescribed by the commission for the permittee.

99-18          (b)  After a public hearing, notice of which shall be given

99-19    to the permittee, the commission may require the permittee, from

99-20    time to time, for good cause, to conform to new or additional

99-21    conditions.  The commission shall allow the permittee a reasonable

99-22    time to conform to the new or additional conditions, and on

99-23    application of the permittee, the commission may grant additional

99-24    time.

99-25          (c)  A permit does not become a vested right in the

 100-1   permittee.  [After a public hearing, notice of which shall be given

 100-2   to the permittee, the commission may revoke or suspend a permit for

 100-3   good cause on any of the following grounds:]

 100-4               [(1)  the permittee has failed or is failing to comply

 100-5   with the conditions of the permit;]

 100-6               [(2)  the permit is subject to cancellation or

 100-7   suspension under Section 26.084 of this code;]

 100-8               [(3)  the permit or operations under the permit have

 100-9   been abandoned; or]

100-10               [(4)  the permit is no longer needed by the permittee.]

100-11         (d)  The notice required by Subsection [Subsections] (b) [and

100-12   (c)] of this section shall be sent to the permittee at his last

100-13   known address as shown by the records of the commission.

100-14         [(e)  If the permittee requests or consents to the revocation

100-15   or suspension of the permit, the executive director may revoke or

100-16   suspend the permit.]

100-17         SECTION 20.  Section 26.029, Water Code (effective upon

100-18   delegation of NPDES permit authority), is amended to read as

100-19   follows:

100-20         Sec. 26.029.  CONDITIONS OF PERMIT; AMENDMENT[; REVOCATION

100-21   AND SUSPENSION].  (a)  In each permit, the commission shall

100-22   prescribe the conditions on which it is issued, including:

100-23               (1)  the duration of the permit;

100-24               (2)  the location of the point of discharge of the

100-25   waste;

 101-1               (3)  the maximum quantity of waste that may be

 101-2   discharged under the permit at any time and from time to time;

 101-3               (4)  the character and quality of waste that may be

 101-4   discharged under the permit; and

 101-5               (5)  any monitoring and reporting requirements

 101-6   prescribed by the commission for the permittee.

 101-7         (b)  After a public hearing, notice of which shall be given

 101-8   to the permittee, the commission may require the permittee, from

 101-9   time to time, for good cause, in conformance with applicable laws,

101-10   to conform to new or additional conditions.

101-11         (c)  A permit does not become a vested right in the

101-12   permittee.  [After a public hearing in conformance with applicable

101-13   laws, notice of which shall be given to the permittee, the

101-14   commission may revoke or suspend a permit for good cause on any of

101-15   the following grounds:]

101-16               [(1)  the permittee has failed or is failing to comply

101-17   with the conditions of the permit;]

101-18               [(2)  the permit is subject to cancellation or

101-19   suspension under Section 26.084 of this code;]

101-20               [(3)  the permit or operations under the permit have

101-21   been abandoned;]

101-22               [(4)  the permit is no longer needed by the permittee;]

101-23               [(5)  the commission finds that a change in conditions

101-24   requires elimination of the discharge;]

101-25               [(6)  revocation or suspension is necessary in order to

 102-1   maintain the quality of water in the state consistent with the

 102-2   objectives of this chapter; or]

 102-3               [(7)  the permit was obtained by misrepresentation or

 102-4   failure to disclose fully all relevant facts.]

 102-5         (d)  The notice required by Subsection [Subsections] (b) [and

 102-6   (c)] of this section shall be sent to the permittee at his last

 102-7   known address as shown by the records of the commission.

 102-8         [(e)  If the permittee requests or consents to the revocation

 102-9   or suspension of the permit, the executive director may revoke or

102-10   suspend the permit.]

102-11         SECTION 21.  Subsections (c), (d), and (e), Section 26.0301,

102-12   Water Code, are amended to read as follows:

102-13         (c)  [The commission may suspend or revoke the certificate of

102-14   competency for sewage treatment facility operation of an individual

102-15   treatment facility operator or a sewage treatment facility

102-16   operations company, after notice and hearing before the commission,

102-17   if the holder of a certificate of competency is responsible for

102-18   violating a discharge permit of a sewage treatment plant.]

102-19         [(d)  The holder of a certificate of competency is not

102-20   subject to the revocation or suspension of the certificate of

102-21   competency under Subsection (c) of this section if:]

102-22               [(1)  the holder of a certificate is unable to properly

102-23   operate the sewage treatment facility due to the refusal of the

102-24   permittee to authorize necessary expenditures to operate the sewage

102-25   treatment facility properly; or]

 103-1               [(2)  failure of the sewage treatment facility to

 103-2   comply with its discharge permit results from faulty design of the

 103-3   sewage treatment facility.]

 103-4         [(e)]  The commission by rule shall set a fee to be paid by

 103-5   each applicant or licensee on the issuance or renewal of a

 103-6   certificate of competency under this section.  The amount of the

 103-7   fee is determined according to the costs of the commission in

 103-8   administering this section, but may not exceed $25 annually for an

 103-9   individual wastewater treatment plant operator and $500 annually

103-10   for a person, company, corporation, firm, or partnership that is in

103-11   the business as a wastewater treatment facility operations company.

103-12   The commission shall deposit any fees collected under this

103-13   subsection in the state treasury to the credit of the water quality

103-14   fund.

103-15         SECTION 22.  Section 26.354, Water Code, is amended to read

103-16   as follows:

103-17         Sec. 26.354.  Emergency Orders.  The commission

103-18   [(a)  Notwithstanding any other provision of this chapter, the

103-19   executive director] may issue an emergency order [orders] to an

103-20   owner or operator of [the persons identified in Subsection (e) of

103-21   this section if it appears that:]

103-22               [(1)  there is an actual or threatened release of a

103-23   regulated substance from] an underground or aboveground storage

103-24   tank under Section 5.510[; and]

103-25               [(2)  the executive director determines that more

 104-1   expeditious corrective action than is otherwise provided for under

 104-2   this chapter is necessary to protect the public health and safety

 104-3   or the environment from harm].

 104-4         [(b)  An order issued under Subsection (a) of this section

 104-5   may prohibit a person from allowing or continuing the release or

 104-6   threatened release and require the person to take the actions

 104-7   necessary to eliminate the release or threatened release.]

 104-8         [(c)  An emergency order issued under this section shall be:]

 104-9               [(1)  mailed by certified mail, return receipt

104-10   requested, to each person identified in the order;]

104-11               [(2)  hand delivered to each person identified in the

104-12   order; or]

104-13               [(3)  on failure of service by certified mail or hand

104-14   delivery, served by publication one time in the Texas Register and

104-15   one time in a newspaper with general circulation in each county in

104-16   which any of the persons had a last known address.]

104-17         [(d)  An emergency order issued under this section does not

104-18   require notice or an adjudicative hearing before its issuance.  If

104-19   the executive director issues an order under this section, the

104-20   commission shall fix a time and place for a hearing to affirm,

104-21   modify, or set aside the emergency order issued by the executive

104-22   director.  The hearing before the commission shall be held as soon

104-23   as practicable after the issuance of the emergency order.]

104-24         [(e)  The executive director may issue orders under this

104-25   section to the following persons:]

 105-1               [(1)  the owner of an underground or aboveground

 105-2   storage tank; or]

 105-3               [(2)  the operator of an underground or aboveground

 105-4   storage tank.]

 105-5         SECTION 23.  Section 26.459, Water Code, is amended to read

 105-6   as follows:

 105-7         Sec. 26.459.  REINSTATEMENT [DENIAL, SUSPENSION, OR

 105-8   REVOCATION] OF LICENSE OR CERTIFICATE OF REGISTRATION[;

 105-9   REINSTATEMENT].  (a)  The commission may [deny, suspend, revoke,

105-10   or] reinstate a license or certificate of registration.

105-11         (b)  [The commission shall adopt rules establishing the

105-12   grounds for denial, suspension, revocation, or reinstatement of a

105-13   license or certificate of registration, and establishing procedures

105-14   for disciplinary actions.]

105-15         [(c)  Proceedings relating to the suspension or revocation of

105-16   a license or certificate of registration issued under this

105-17   subchapter are subject to Chapter 2001, Government Code.]

105-18         [(d)]  A person or business entity whose license or

105-19   certificate of registration has been revoked may apply for a new

105-20   license or certificate of registration after the expiration of one

105-21   year from the date of the revocation.

105-22         SECTION 24.  Section 27.101, Water Code, is amended to read

105-23   as follows:

105-24         Sec. 27.101.  CIVIL PENALTY.  (a)  A person who violates any

105-25   provision of this chapter under the jurisdiction of the railroad

 106-1   commission, any rule of [the commission or] the railroad commission

 106-2   made under this chapter, or any term, condition, or provision of a

 106-3   permit issued by the railroad commission under this chapter shall

 106-4   be subject to a civil penalty in any sum not exceeding $5,000 for

 106-5   each day of noncompliance and for each act of noncompliance.  A

 106-6   violation under the jurisdiction of the commission is enforceable

 106-7   as provided by Chapter 7.

 106-8         (b)  The action may be brought by the [executive director or

 106-9   the] railroad commission in any court of competent jurisdiction in

106-10   the county where the offending activity is occurring or where the

106-11   defendant resides.

106-12         SECTION 25.  Section 27.102, Water Code, is amended to read

106-13   as follows:

106-14         Sec. 27.102.  INJUNCTION, ETC.  (a)  The [executive director

106-15   or the] railroad commission may enforce a provision of this chapter

106-16   under the jurisdiction of the railroad commission, any valid rule

106-17   made by the railroad commission under this chapter, or any term,

106-18   condition, or provision of a permit issued by the [commission or]

106-19   railroad commission under this chapter by injunction or other

106-20   appropriate remedy.  The suit shall be brought in a court of

106-21   competent jurisdiction in the county where the offending activity

106-22   is occurring.

106-23         (b)  The executive director may enforce a provision of this

106-24   chapter under the jurisdiction of the commission, a commission rule

106-25   adopted under this chapter, or a term, condition, or provision of a

 107-1   permit issued by the commission under this chapter as provided by

 107-2   Subchapter B, Chapter 7.

 107-3         SECTION 26.  Subsection (a), Section 27.103, Water Code, is

 107-4   amended to read as follows:

 107-5         (a)  At the request of the [executive director or the]

 107-6   railroad commission, the attorney general shall institute and

 107-7   conduct a suit in the name of the State of Texas for injunctive

 107-8   relief or to recover the civil penalty, or for both the injunctive

 107-9   relief and civil penalty, authorized in Sections 27.101 and 27.102

107-10   of this chapter.

107-11         SECTION 27.  Subsection (a), Section 27.105, Water Code, is

107-12   amended to read as follows:

107-13         (a)  A person who knowingly or intentionally violates a

107-14   provision of this chapter under the jurisdiction of the railroad

107-15   commission, a rule of the [commission or] railroad commission, or a

107-16   term, condition, or provision of a permit issued by the railroad

107-17   commission under this chapter is subject to a fine of not more than

107-18   $5,000 for each violation and for each day of violation.  A

107-19   violation under the jurisdiction of the commission is enforceable

107-20   under Section 7.157.

107-21         SECTION 28.  Subsection (d), Section 361.011, Health and

107-22   Safety Code, is amended to read as follows:

107-23         (d)  In matters relating to municipal solid waste management,

107-24   excluding management of hazardous municipal waste, the commission

107-25   shall[:]

 108-1               [(1)]  consider water pollution control and water

 108-2   quality aspects and air pollution control and ambient air quality

 108-3   aspects[; and]

 108-4               [(2)  consult with the attorney general's office for

 108-5   assistance in determining whether referral to the attorney general

 108-6   for enforcement is mandatory under Section 361.224 or whether

 108-7   referral is appropriate, in the commission's discretion, for the

 108-8   disposition of enforcement matters under this chapter].

 108-9         SECTION 29.  Section 361.035, Health and Safety Code, is

108-10   amended by adding Subsection (c) to read as follows:

108-11         (c)  A penalty collected under Subchapter C or D, Chapter 7,

108-12   Water Code, for the late filing of a report required by this

108-13   section shall be deposited to the credit of the hazardous and solid

108-14   waste remediation fee fund.

108-15         SECTION 30.  Section 361.089, Health and Safety Code, is

108-16   amended to read as follows:

108-17         Sec. 361.089.  PERMIT DENIAL OR[,] AMENDMENT[, SUSPENSION OR

108-18   REVOCATION]; NOTICE AND HEARING.  (a)  The commission may, for good

108-19   cause, deny or[,] amend[, or revoke] a permit it issues or has

108-20   authority to issue for reasons pertaining to public health, air or

108-21   water pollution, or land use, or for a violation of this chapter or

108-22   other applicable laws or rules controlling the management of solid

108-23   waste.

108-24         (b)  Except as provided by Section 361.110, the commission

108-25   shall notify each governmental entity listed under Section 361.067

 109-1   and provide an opportunity for a hearing to the permit holder or

 109-2   applicant and persons affected.  The commission may also hold a

 109-3   hearing on its own motion.

 109-4         (c)  The commission by rule shall establish procedures for

 109-5   public notice and any public hearing under this section.

 109-6         (d)  Hearings under this section shall be conducted in

 109-7   accordance with the hearing rules adopted by the commission and the

 109-8   applicable provisions of Chapter 2001, Government Code.

 109-9         (e)  The commission may deny[, suspend for not more than 90

109-10   days, or revoke] an original or renewal permit if it is found,

109-11   after notice and hearing, that:

109-12               (1)  the permit holder has a record of environmental

109-13   violations in the preceding five years at the permitted site;

109-14               (2)  the applicant has a record of environmental

109-15   violations in the preceding five years at any site owned, operated,

109-16   or controlled by the applicant;

109-17               (3)  the permit holder or applicant made a false or

109-18   misleading statement in connection with an original or renewal

109-19   application, either in the formal application or in any other

109-20   written instrument relating to the application submitted to the

109-21   commission, its officers, or its employees;

109-22               (4)  the permit holder or applicant is indebted to the

109-23   state for fees, payment of penalties, or taxes imposed by this

109-24   title or by a rule of the commission; or

109-25               (5)  the permit holder or applicant is unable to ensure

 110-1   that the management of the hazardous waste management facility

 110-2   conforms or will conform to this title and the rules of the

 110-3   commission.

 110-4         (f)  Before denying[, suspending, or revoking] a permit under

 110-5   this section, the commission must find:

 110-6               (1)  that a violation or violations are significant and

 110-7   that the permit holder or applicant has not made a substantial

 110-8   attempt to correct the violations; or

 110-9               (2)  that the permit holder or applicant is indebted to

110-10   the state for fees, payment of penalties, or taxes imposed by this

110-11   title or by a rule of the commission.

110-12         (g)  For purposes of this section, the terms "permit holder"

110-13   and "applicant" include each member of a partnership or association

110-14   and, with respect to a corporation, each officer and the owner or

110-15   owners of a majority of the corporate stock, provided such partner

110-16   or owner controls at least 20 percent of the permit holder or

110-17   applicant and at least 20 percent of another business which

110-18   operates a solid waste management facility.

110-19         SECTION 31.  Section 361.091, Health and Safety Code, is

110-20   amended by amending the heading and Subsections (i) through (m) to

110-21   read as follows:

110-22         Sec. 361.091.  ENCLOSED CONTAINERS OR VEHICLES; PERMITS;

110-23   INSPECTIONS[; CRIMINAL PENALTY].

110-24         (i)  [An operator of a solid waste facility or a solid waste

110-25   hauler commits an offense if the operator or hauler disposes of

 111-1   solid waste in a completely enclosed container or vehicle at a

 111-2   solid waste site or operation permitted as a Type IV landfill:]

 111-3               [(1)  without having in possession the special permit

 111-4   required by this section;]

 111-5               [(2)  on a date or time not authorized by the

 111-6   commission; or]

 111-7               [(3)  without a commission inspector present to verify

 111-8   that the solid waste is free of putrescible, hazardous, and

 111-9   infectious waste.]

111-10         [(j)  An offense under this section is a Class B misdemeanor.]

111-11         [(k)  Penalties under this section are in addition to any

111-12   other penalty applicable under this chapter.]

111-13         [(l)]  This section does not apply to:

111-14               (1)  a stationary compactor that is at a specific

111-15   location and that has an annual permit under this section issued by

111-16   the commission, on certification to the commission by the generator

111-17   that the contents of the compactor are free of putrescible,

111-18   hazardous, or infectious waste; or

111-19               (2)  an enclosed vehicle of a municipality if the

111-20   vehicle has a permit issued by the commission to transport brush or

111-21   construction-demolition waste and rubbish on designated dates, on

111-22   certification by the municipality to the commission that the

111-23   contents of the vehicle are free of putrescible, hazardous, or

111-24   infectious waste.

111-25         (j) [(m)]  In this section, "putrescible waste" means organic

 112-1   waste, such as garbage, wastewater treatment plant sludge, and

 112-2   grease trap waste, that may:

 112-3               (1)  be decomposed by microorganisms with sufficient

 112-4   rapidity as to cause odors or gases; or

 112-5               (2)  provide food for or attract birds, animals, or

 112-6   disease vectors.

 112-7         SECTION 32.  Section 361.140, Health and Safety Code, is

 112-8   amended to read as follows:

 112-9         Sec. 361.140.  Interest and Penalties.  (a)  The commission

112-10   by rule shall establish requirements for the assessment of

112-11   penalties and interest for late payment of fees owed the state

112-12   under Sections 361.134 through 361.137.  Penalties and interest

112-13   established under this section shall not exceed rates established

112-14   for delinquent taxes under Sections 111.060 and 111.061, Tax Code.

112-15         (b)  [A person is subject to a civil penalty of up to $100

112-16   for each day the violation continues for failure to timely submit a

112-17   properly completed report as required by commission rule under

112-18   Section 361.035.]

112-19         [(c)]  Interest collected under this section for late payment

112-20   of a fee shall be deposited in the state treasury to the credit of

112-21   the respective fund to which the late fee is credited.

112-22         [(d)  Any penalty collected under this section for late

112-23   filing of reports shall be deposited in the state treasury to the

112-24   credit of the hazardous and solid waste remediation fee fund.]

112-25         SECTION 33.  Section 361.160, Health and Safety Code, is

 113-1   amended to read as follows:

 113-2         Sec. 361.160.  LICENSE AMENDMENT [AND REVOCATION].  (a)  A

 113-3   county may, for good cause, after hearing with notice to the

 113-4   license holder and to the commission, [revoke or] amend a license

 113-5   it issues for reasons concerning:

 113-6               (1)  public health;

 113-7               (2)  air or water pollution;

 113-8               (3)  land use; or

 113-9               (4)  a violation of this chapter or of other applicable

113-10   laws or rules controlling the processing, storage, or disposal of

113-11   solid waste.

113-12         (b)  For similar reasons, the commission may for good cause

113-13   amend [or revoke] a license issued by a county, after hearing with

113-14   notice to:

113-15               (1)  the license holder; and

113-16               (2)  the county that issued the license.

113-17         SECTION 34.  Subsection (a), Section 361.271, Health and

113-18   Safety Code, is amended to read as follows:

113-19         (a)  Unless otherwise defined in applicable statutes and

113-20   rules [For the purpose of this subchapter], a person is responsible

113-21   for solid waste if the person:

113-22               (1)  is any owner or operator of a solid waste

113-23   facility;

113-24               (2)  owned or operated a solid waste facility at the

113-25   time of processing, storage, or disposal of any solid waste;

 114-1               (3)  by contract, agreement, or otherwise, arranged to

 114-2   process, store, or dispose of, or arranged with a transporter for

 114-3   transport to process, store, or dispose of, solid waste owned or

 114-4   possessed by the person, by any other person or entity at:

 114-5                     (A)  the solid waste facility owned or operated

 114-6   by another person or entity that contains the solid waste; or

 114-7                     (B)  the site to which the solid waste was

 114-8   transported that contains the solid waste; or

 114-9               (4)  accepts or accepted any solid waste for transport

114-10   to a solid waste facility or site selected by the person.

114-11         SECTION 35.  Section 361.274, Health and Safety Code, is

114-12   amended to read as follows:

114-13         Sec. 361.274.  No Prior Notice Concerning Administrative

114-14   Order.  An administrative order under Section 361.272 does not

114-15   require prior notice or an adjudicative hearing before the

114-16   commission.  An emergency administrative order may be issued under

114-17   Subchapter L, Chapter 5, Water Code.

114-18         SECTION 36.  Section 361.301, Health and Safety Code, is

114-19   amended to read as follows:

114-20         Sec. 361.301.  Emergency Order.  [(a)]  The commission may

114-21   issue an emergency mandatory, permissive, or prohibitory order

114-22   concerning an activity of solid waste management under its

114-23   jurisdiction under Section 5.512, Water Code, even if the activity

114-24   is not covered by a permit[, if the commission determines that an

114-25   emergency requiring immediate action to protect the public health

 115-1   and safety or the environment exists].

 115-2         [(b)  The order may be issued without notice and hearing or

 115-3   with notice and hearing the commission considers practicable under

 115-4   the circumstances.]

 115-5         [(c)  If an emergency order is issued under this section

 115-6   without a hearing, the commission shall set a time and place for a

 115-7   hearing to be held in accordance with the rules of the commission

 115-8   to affirm, modify, or set aside the emergency order.]

 115-9         [(d)  The requirements of Section 361.088 concerning public

115-10   notice do not apply to the hearing, but general notice of the

115-11   hearing shall be given in accordance with the rules of the

115-12   commission.]

115-13         SECTION 37.  Section 361.453, Health and Safety Code, is

115-14   amended to read as follows:

115-15         Sec. 361.453.  INSPECTION OF BATTERY RETAILERS.  The

115-16   commission shall produce, print, and distribute the notices

115-17   required by Section 361.452 to all places where lead-acid batteries

115-18   are offered for sale at retail.  In performing its duties under

115-19   this section the commission may inspect any place, building, or

115-20   premises governed by Section 361.452.  [Authorized employees of the

115-21   commission may issue warnings and citations to persons who fail to

115-22   comply with the requirements of Section 361.452.]  Failure to post

115-23   the required notice within three days following warning shall

115-24   subject the establishment to an administrative or a civil penalty

115-25   under Chapter 7, Water Code [a fine of $100 per day].

 116-1         SECTION 38.  Section 366.016, Health and Safety Code, is

 116-2   amended to read as follows:

 116-3         Sec. 366.016.  Emergency Orders.  The [(a)  If the]

 116-4   commission or authorized agent may issue an emergency order

 116-5   concerning an on-site sewage disposal system under Section 5.517,

 116-6   Water Code [determines that an emergency exists and that the public

 116-7   health or safety is endangered because of the operation of an

 116-8   on-site sewage disposal system that does not comply with this

 116-9   chapter or a rule adopted under this chapter, the commission or

116-10   authorized agent by order may:]

116-11               [(1)  suspend the registration of the installer;]

116-12               [(2)  regulate the on-site sewage disposal system; or]

116-13               [(3)  both suspend the registration and regulate the

116-14   system].

116-15         [(b)  The order may be issued without notice and hearing.]

116-16         [(c)  If the emergency order is issued without a hearing, the

116-17   commission or authorized agent shall set a time and place for a

116-18   hearing to affirm, modify, or set aside the emergency order to be

116-19   held not later than the 30th day after the date on which the

116-20   emergency order is issued.]

116-21         [(d)  General notice of the hearing shall be given in

116-22   accordance with the laws of this state and rules adopted by the

116-23   commission or authorized agent.]

116-24         [(e)  The hearing shall be conducted in accordance with the

116-25   commission's rules or laws and rules governing the authorized

 117-1   agent.]

 117-2         SECTION 39.  Subsection (c), Section 366.017, Health and

 117-3   Safety Code, is amended to read as follows:

 117-4         (c)  The property owner may be assessed an administrative or

 117-5   a civil penalty under Chapter 7, Water Code, [341] for each day

 117-6   that the on-site sewage disposal system remains unrepaired.

 117-7         SECTION 40.  Section 371.041, Health and Safety Code, is

 117-8   amended to read as follows:

 117-9         Sec. 371.041.  ACTIONS PROHIBITED.  [(a)]  A person may not

117-10   collect, transport, store, recycle, use, discharge, or dispose of

117-11   used oil in any manner that endangers the public health or welfare

117-12   or endangers or damages the environment.

117-13         [(b)  A person commits an offense if the person:]

117-14               [(1)  intentionally discharges used oil into a sewer,

117-15   drainage system, septic tank, surface water or groundwater,

117-16   watercourse, or marine water;]

117-17               [(2)  knowingly mixes or commingles used oil with waste

117-18   that is to be disposed of in landfills or directly disposes of used

117-19   oil on land;]

117-20               [(3)  knowingly transports, treats, stores, disposes

117-21   of, recycles, causes to be transported, or otherwise handles any

117-22   used oil within the state:]

117-23                     [(A)  in violation of standards or rules for the

117-24   management of used oil; or]

117-25                     [(B)  without first complying with the

 118-1   registration requirements of Section 371.026 and rules adopted

 118-2   under that section;]

 118-3               [(4)  intentionally applies used oil to roads or land

 118-4   for dust suppression, weed abatement, or other similar uses that

 118-5   introduce used oil into the environment;]

 118-6               [(5)  violates an order of the commission to cease and

 118-7   desist any activity prohibited by this section or any rule

 118-8   applicable to a prohibited activity; or]

 118-9               [(6)  intentionally makes a false statement or

118-10   representation in an application, label, manifest, record, report,

118-11   permit, or other document filed, maintained, or used for purposes

118-12   of program compliance.]

118-13         [(c)  It is an exception to the application of Subsection (b)

118-14   if a person unknowingly disposes into the environment any used oil

118-15   that has not been properly segregated or separated by the generator

118-16   from other solid wastes.]

118-17         [(d)  It is an exception to the application of Subsection

118-18   (b)(2) if the mixing or commingling of used oil with waste that is

118-19   to be disposed of in landfills is incident to and the unavoidable

118-20   result of the mechanical shredding of motor vehicles, appliances,

118-21   or other items of scrap, used, or obsolete metals.]

118-22         SECTION 41.  Section 382.026, Health and Safety Code, is

118-23   amended to read as follows:

118-24         Sec. 382.026.  Orders Issued Under Emergencies.  The

118-25   commission may issue an order under an air emergency under Section

 119-1   5.514, Water Code. [(a)  When it appears to the commission or the

 119-2   executive director that there exists a generalized condition of air

 119-3   pollution that creates an emergency requiring immediate action to

 119-4   protect human health or safety, the commission or the executive

 119-5   director shall, with the governor's concurrence, order any person

 119-6   causing or contributing to the air pollution immediately to reduce

 119-7   or discontinue the emission of air contaminants.]

 119-8         [(b)  If the commission or the executive director finds that

 119-9   emissions from one or more sources are causing imminent danger to

119-10   human health or safety, but that there is not a generalized

119-11   condition of air pollution under Subsection (a), the commission or

119-12   the executive director may order the persons responsible for the

119-13   emissions immediately to reduce or discontinue the emissions.]

119-14         [(c)  An order issued under this section must set a time and

119-15   place of a hearing to be held before the commission as soon after

119-16   the order is issued as practicable.]

119-17         [(d)  Section 382.031, relating to notice of a hearing, does

119-18   not apply to a hearing under this section, but a general notice of

119-19   the hearing shall be given that is, in the judgment of the

119-20   commission or the executive director, practicable under the

119-21   circumstances.  The commission shall affirm, modify, or set aside

119-22   the order not later than 24 hours after the hearing begins and

119-23   without adjournment of the hearing.]

119-24         [(e)  This section does not limit any power that the governor

119-25   or other officer may have to declare an emergency and to act on the

 120-1   basis of that declaration if the power is conferred by law or

 120-2   inheres in the office.]

 120-3         SECTION 42.  Subsection (b), Section 382.030, Health and

 120-4   Safety Code, is amended to read as follows:

 120-5         (b)  Except for hearings required to be held before the

 120-6   commission under Section 5.504, Water Code [382.026], the

 120-7   commission may authorize the executive director to:

 120-8               (1)  call and hold a hearing on any subject on which

 120-9   the commission may hold a hearing; and

120-10               (2)  delegate the authority to hold any hearing called

120-11   by the executive director to one or more commission employees.

120-12         SECTION 43.  Subsection (e), Section 382.031, Health and

120-13   Safety Code, is amended to read as follows:

120-14         (e)  This section applies to all hearings held under this

120-15   chapter except as otherwise specified by Section 382.017[, 382.026,

120-16   or 382.063].

120-17         SECTION 44.  Section 382.063, Health and Safety Code, is

120-18   amended to read as follows:

120-19         Sec. 382.063.  Issuance of Emergency Order Because of

120-20   Catastrophe.  (a)  The commission may issue an emergency order

120-21   because of catastrophe under Section 5.515, Water Code [or the

120-22   executive director, on delegation of authority from the commission,

120-23   by emergency order may authorize immediate action for the addition,

120-24   replacement, or repair of facilities or control equipment

120-25   necessitated by a catastrophe occurring in this state, and the

 121-1   emission of air contaminants during the addition, replacement, or

 121-2   repair of those facilities, if the actions and emissions are

 121-3   otherwise precluded under this chapter].

 121-4         (b)  [An order issued under this section must:]

 121-5               [(1)  be limited to a reasonable time specified by the

 121-6   order;]

 121-7               [(2)  authorize action only on:]

 121-8                     [(A)  property on which the catastrophe occurred;

 121-9   or]

121-10                     [(B)  other property that is owned by the owner

121-11   or operator of the damaged facility and that produces the same

121-12   intermediates, products, or by-products; and]

121-13               [(3)  contain a schedule for submission of a complete

121-14   application under Section 382.051.]

121-15         [(c)  Under Subsection (b)(2)(B), the person applying for an

121-16   emergency order must demonstrate that there will be no more than a

121-17   de minimis increase in the predicted concentration of the air

121-18   contaminants at or beyond the property line of the other property.

121-19   The commission shall review and act on an application submitted as

121-20   provided by Subsection (b)(3) without regard to construction

121-21   activity under an order under this section.]

121-22         [(d)  To receive an emergency order under this section, a

121-23   person must submit a sworn application to the commission or

121-24   executive director.  The application must contain any information

121-25   the commission requires and:]

 122-1               [(1)  a description of the catastrophe;]

 122-2               [(2)  a statement that:]

 122-3                     [(A)  the construction and emissions are

 122-4   essential to prevent loss of life, serious injury, severe property

 122-5   damage, or severe economic loss not attributable to the applicant's

 122-6   actions and are necessary for the addition, replacement, or repair

 122-7   of a facility or control equipment necessitated by the catastrophe;]

 122-8                     [(B)  there are no practicable alternatives to

 122-9   the proposed construction and emissions; and]

122-10                     [(C)  the emissions will not cause or contribute

122-11   to air pollution;]

122-12               [(3)  an estimate of the dates on which the proposed

122-13   construction or emissions, or both, will begin and end;]

122-14               [(4)  an estimate of the date on which the facility

122-15   will begin operation; and]

122-16               [(5)  a description of the quantity and type of air

122-17   contaminants proposed to be emitted.]

122-18         [(e)  The commission or executive director may issue an

122-19   emergency order under this section after providing the notice and

122-20   opportunity for hearing that the commission or executive director

122-21   considers practicable under the circumstances.  If the commission

122-22   requires notice and hearing before issuing the order, it shall give

122-23   notice not later than the 10th day before the date set for the

122-24   hearing.]

122-25         [(f)  Notice of the issuance of an emergency order shall be

 123-1   provided in accordance with commission rules.]

 123-2         [(g)  If the commission or executive director issues an

 123-3   emergency order under this section without a hearing, the order

 123-4   shall set a time and place for a hearing to be held before the

 123-5   commission or its designee as soon after the emergency order is

 123-6   issued as practicable.]

 123-7         [(h)  Section 382.031, relating to notice of a hearing, does

 123-8   not apply to a hearing on an emergency order, but such general

 123-9   notice of the hearing shall be given that in the judgment of the

123-10   commission or the executive director is practicable under the

123-11   circumstances.]

123-12         [(i)  At or following the hearing, the commission shall

123-13   affirm, modify, or set aside the emergency order.  A hearing on an

123-14   emergency order shall be conducted in accordance with Chapter 2001,

123-15   Government Code and commission rules.]

123-16         [(j)]  In this section, "catastrophe" means an unforeseen

123-17   event, including an act of God, an act of war, severe weather,

123-18   explosions, fire, or similar occurrences beyond the reasonable

123-19   control of the operator that makes a facility or its functionally

123-20   related appurtenances inoperable.

123-21         SECTION 45.  Section 382.085, Health and Safety Code, is

123-22   amended to read as follows:

123-23         Sec. 382.085.  UNAUTHORIZED EMISSIONS PROHIBITED[; CIVIL

123-24   PENALTY].  (a)  Except as authorized by a commission rule or order,

123-25   a person may not cause, suffer, allow, or permit the emission of

 124-1   any air contaminant or the performance of any activity that causes

 124-2   or contributes to, or that will cause or contribute to, air

 124-3   pollution.

 124-4         (b)  A person may not cause, suffer, allow, or permit the

 124-5   emission of any air contaminant or the performance of any activity

 124-6   in violation of this chapter or of any commission rule or order.

 124-7         [(c)  A person who violates any provision of this chapter or

 124-8   any commission rule or order is subject to a civil penalty of not

 124-9   less than $50 or more than $25,000 for each day of violation and

124-10   for each act of violation, as the court or jury considers proper.]

124-11         [(d)  The state is entitled to half of a civil penalty

124-12   recovered in a suit brought under this chapter by one or more local

124-13   governments.  The remainder shall be equally divided among the

124-14   local governments that first brought the suit.]

124-15         SECTION 46.  Subsection (a), Section 401.054, Health and

124-16   Safety Code, is amended to read as follows:

124-17         (a)  The department [or commission] shall provide notice and

124-18   an opportunity for a hearing on a matter under its jurisdiction as

124-19   provided by its formal hearing procedures and Chapter 2001,

124-20   Government Code, on written request of a person affected by any of

124-21   the following procedures:

124-22               (1)  the denial, suspension, or revocation by the

124-23   department [agency] of a license or registration;

124-24               (2)  the determination by the department [agency] of

124-25   compliance with or the grant of exemptions from a department [an

 125-1   agency] rule or order; or

 125-2               (3)  the grant or amendment by the department [agency]

 125-3   of a specific license.

 125-4         SECTION 47.  Section 401.270, Health and Safety Code, is

 125-5   amended to read as follows:

 125-6         Sec. 401.270.  Corrective Action and Measures.  (a)  If the

 125-7   commission finds that by-product material or the operation by which

 125-8   that by-product material is derived threatens the public health and

 125-9   safety or the environment, the commission by order may require any

125-10   action, including a corrective measure, that is necessary to

125-11   correct or remove the threat.

125-12         (b)  [The commission may issue an emergency order to a person

125-13   responsible for an activity, including a past activity, concerning

125-14   the recovery or processing of source material or the disposal of

125-15   by-product material if it appears that there is an actual or

125-16   threatened release of source material or by-product material that

125-17   presents an imminent and substantial danger to the public health

125-18   and safety or the environment, regardless of whether the activity

125-19   was lawful at the time.  The emergency order may be issued without

125-20   notice or hearing.]

125-21         [(c)  An emergency order may be issued under Subsection (b)

125-22   to:]

125-23               [(1)  restrain the person from allowing or continuing

125-24   the release or threatened release; and]

125-25               [(2)  require the person to take any action necessary

 126-1   to provide and implement an environmentally sound remedial action

 126-2   plan designed to eliminate the release or threatened release.]

 126-3         [(d)  An emergency order issued under Subsection (b) shall:]

 126-4               [(1)  be delivered to the person identified by the

 126-5   order by certified mail, return receipt requested;]

 126-6               [(2)  be delivered by hand delivery to the person

 126-7   identified by the order; or]

 126-8               [(3)  on failure of delivery of the order by certified

 126-9   mail or hand delivery, be served on the person by publication:]

126-10                     [(A)  once in the Texas Register; and]

126-11                     [(B)  once in a newspaper of general circulation

126-12   in each county in which was located the last known address of a

126-13   person identified by the order.]

126-14         [(e)]  The commission shall use the security provided by the

126-15   license holder to pay the costs of actions that are taken or that

126-16   are to be taken under this section.  The commission shall send to

126-17   the comptroller a copy of its order together with necessary written

126-18   requests authorizing the comptroller to:

126-19               (1)  enforce security supplied by the licensee;

126-20               (2)  convert an amount of security into cash, as

126-21   necessary; and

126-22               (3)  disburse from the security in the fund the amount

126-23   necessary to pay the costs.

126-24         (c)  The commission may issue an emergency order under this

126-25   section as provided by Section 5.517, Water Code.

 127-1         [(f)  If the order issued by the commission pursuant to this

 127-2   section is adopted without notice or hearing, the order shall set a

 127-3   time, at least 10 but not more than 30 days following the date of

 127-4   issuance of the emergency order, and a place for a hearing to be

 127-5   held in accordance with the rules of the commission.  As a result

 127-6   of this hearing, the commission shall decide whether to affirm,

 127-7   modify, or set aside the emergency order.  All provisions of the

 127-8   emergency order shall remain in force and effect during the

 127-9   pendency of the hearing, unless otherwise altered by the

127-10   commission.]

127-11         SECTION 48.  Section 401.341, Health and Safety Code, is

127-12   amended to read as follows:

127-13         Sec. 401.341.  JUDICIAL REVIEW.  A person who is affected by

127-14   a final decision of the department [or commission] and who has

127-15   exhausted all administrative remedies available in the appropriate

127-16   agency is entitled to judicial review under Chapter 2001,

127-17   Government Code.

127-18         SECTION 49.  Section 401.342, Health and Safety Code, is

127-19   amended to read as follows:

127-20         Sec. 401.342.  SUIT BY ATTORNEY GENERAL.  (a)  The attorney

127-21   general, at the request of the department [or commission] regarding

127-22   an activity under its jurisdiction, shall institute an action in a

127-23   district court in Travis County or in any county in which a

127-24   violation occurs or is about to occur if in the department's

127-25   [requesting agency's] judgment a person has engaged in or is about

 128-1   to engage in an act or practice that violates or will violate this

 128-2   chapter or a rule, license, registration, or order adopted or

 128-3   issued by the department [requesting agency] under this chapter.

 128-4   The attorney general may determine the court in which suit will be

 128-5   instituted.

 128-6         (b)  The attorney general may petition the court for:

 128-7               (1)  an order enjoining the act or practice or an order

 128-8   directing compliance and reimbursement of the fund, if applicable;

 128-9               (2)  civil penalties as provided by Section 401.381; or

128-10               (3)  a permanent or temporary injunction, restraining

128-11   order, or other appropriate order if the department [requesting

128-12   agency] shows that the person engaged in or is about to engage in

128-13   any of the acts or practices.

128-14         SECTION 50.  Section 401.343, Health and Safety Code, is

128-15   amended to read as follows:

128-16         Sec. 401.343.  RECOVERY OF SECURITY.  (a)  The department [or

128-17   commission] shall seek reimbursement, either by an order of the

128-18   department [agency] or a suit filed by the attorney general at the

128-19   department's [agency's] request, of security from the fund used by

128-20   the department [agency] to pay for actions, including corrective

128-21   measures, to remedy spills or contamination by radioactive material

128-22   resulting from a violation of this chapter relating to an activity

128-23   under the department's [agency's] jurisdiction or a rule, license,

128-24   registration, or order adopted or issued by the department [agency]

128-25   under this chapter.

 129-1         (b)  On request by the department [agency], the attorney

 129-2   general shall file suit to recover security under this section.

 129-3         SECTION 51.  Subsection (a), Section 401.381, Health and

 129-4   Safety Code, is amended to read as follows:

 129-5         (a)  A person who violates this chapter, a department [or

 129-6   commission] rule or order, or a license or registration condition

 129-7   is subject to a civil penalty of not less than $100 or more than

 129-8   $25,000 for each violation and for each day that a continuing

 129-9   violation occurs.

129-10         SECTION 52.  Subsections (a) and (c), Section 401.384, Health

129-11   and Safety Code, are amended to read as follows:

129-12         (a)  The department [or commission] may assess a civil

129-13   penalty as provided by this section and Sections 401.385-401.391

129-14   against a person who violates a provision of this chapter relating

129-15   to an activity under the department's [agency's] jurisdiction, a

129-16   rule or order adopted by the department [agency] under this

129-17   chapter, or a condition of a license or registration issued by the

129-18   department [agency] under this chapter.

129-19         (c)  In determining the amount of the penalty, the department

129-20   [agency] shall consider:

129-21               (1)  the seriousness of the violation, including the

129-22   nature, circumstances, extent, and gravity of the prohibited acts

129-23   and the hazard or potential hazard created to the public health or

129-24   safety;

129-25               (2)  the history of previous violations;

 130-1               (3)  the amount necessary to deter future violations;

 130-2               (4)  efforts to correct the violation; and

 130-3               (5)  any other matters that justice requires.

 130-4         SECTION 53.  Section 401.385, Health and Safety Code, is

 130-5   amended to read as follows:

 130-6         Sec. 401.385.  PRELIMINARY REPORT OF VIOLATION.  If the

 130-7   department [or commission], after an investigation, concludes that

 130-8   a violation relating to an activity under its jurisdiction has

 130-9   occurred, the department [agency] may issue a preliminary report:

130-10               (1)  stating the facts that support the conclusion;

130-11               (2)  recommending that a civil penalty under Section

130-12   401.384 be imposed; and

130-13               (3)  recommending the amount of the penalty, which

130-14   shall be based on the seriousness of the violation as determined

130-15   from the facts surrounding the violation.

130-16         SECTION 54.  Subsection (a), Section 401.386, Health and

130-17   Safety Code, is amended to read as follows:

130-18         (a)  The department [or commission] shall give written notice

130-19   of its preliminary report to the person charged with the violation

130-20   not later than the 10th day after the date on which the report is

130-21   issued.

130-22         SECTION 55.  Section 401.387, Health and Safety Code, is

130-23   amended to read as follows:

130-24         Sec. 401.387.  CONSENT TO PENALTY.  (a)  If the person

130-25   charged with the violation consents to the penalty recommended by

 131-1   the department [or commission] or does not respond to the notice on

 131-2   time, the commissioner or the commissioner's designee, [or the

 131-3   commission, as appropriate,] by order shall assess that penalty or

 131-4   order a hearing to be held on the findings and recommendations in

 131-5   the report.

 131-6         (b)  If the commissioner or the commissioner's designee [or

 131-7   the commission] assesses the recommended penalty, the department

 131-8   [or the commission, as appropriate,] shall give written notice to

 131-9   the person charged of the decision and that person must pay the

131-10   penalty.

131-11         SECTION 56.  Section 401.388, Health and Safety Code, is

131-12   amended to read as follows:

131-13         Sec. 401.388.  HEARING AND DECISION.  (a)  If the person

131-14   charged requests a hearing, the commissioner [or the commission, as

131-15   appropriate,] shall order a hearing and shall give notice of that

131-16   hearing.

131-17         (b)  The hearing shall be held by a hearing examiner

131-18   designated by the commissioner [or the commission, as appropriate].

131-19         (c)  The hearing examiner shall make findings of fact and

131-20   promptly issue to the commissioner [or the commission, as

131-21   appropriate,] a written decision as to the occurrence of the

131-22   violation and a recommendation of the amount of the proposed

131-23   penalty if a penalty is warranted.

131-24         (d)  Based on the findings of fact and the recommendations of

131-25   the hearing examiner, the commissioner [or the commission, as

 132-1   appropriate,] by order may find that a violation has occurred and

 132-2   assess a civil penalty or may find that no violation occurred.

 132-3         (e)  All proceedings under Subsections (a)-(d) are subject to

 132-4   Chapter 2001, Government Code.

 132-5         (f)  The commissioner [or the commission, as appropriate,]

 132-6   shall give notice to the person charged of the commissioner's [or

 132-7   the commission's] decision, and if the commissioner [or the

 132-8   commission, as appropriate,] finds that a violation has occurred

 132-9   and a civil penalty has been assessed, the commissioner [or the

132-10   commission, as appropriate,] shall give to the person charged

132-11   written notice of:

132-12               (1)  the commissioner's [or the commission's] findings;

132-13               (2)  the amount of the penalty; and

132-14               (3)  the person's right to judicial review of the

132-15   commissioner's [or the commission's] order.

132-16         SECTION 57.  Section 401.389, Health and Safety Code, is

132-17   amended to read as follows:

132-18         Sec. 401.389.  DISPOSITION OF PENALTY; JUDICIAL REVIEW.

132-19   (a)  Not later than the 30th day after the date on which the

132-20   commissioner's [or the commission's] order is final, the person

132-21   charged with the penalty shall pay the full amount of the penalty

132-22   or file a petition for judicial review.

132-23         (b)  If the person seeks judicial review of the violation,

132-24   the amount of the penalty, or both, the person, within the time

132-25   provided by Subsection (a), shall:

 133-1               (1)  send the amount of the penalty to the commissioner

 133-2   [or the commission, as appropriate,] for placement in an escrow

 133-3   account; or

 133-4               (2)  post with the commissioner [or the commission, as

 133-5   appropriate,] a supersedeas bond in a form approved by the

 133-6   commissioner [or the commission, as appropriate,] for the amount of

 133-7   the penalty, the bond to be effective until judicial review of the

 133-8   order or decision is final.

 133-9         (c)  The commissioner [or the commission, as appropriate,]

133-10   may request enforcement by the attorney general if the person

133-11   charged fails to comply with this section.

133-12         (d)  Judicial review of the order or decision of the

133-13   commissioner [or the commission] assessing the penalty shall be

133-14   under Subchapter G, Chapter 2001, Government Code.

133-15         SECTION 58.  Section 401.390, Health and Safety Code, is

133-16   amended to read as follows:

133-17         Sec. 401.390.  REMITTING PENALTY PAYMENTS; RELEASING BONDS.

133-18   (a)  If a penalty is reduced or not assessed, the commissioner [or

133-19   the commission, as appropriate,] shall:

133-20               (1)  remit to the person charged the appropriate amount

133-21   of any penalty payment plus accrued interest; or

133-22               (2)  execute a release of the bond if a supersedeas

133-23   bond has been posted.

133-24         (b)  Accrued interest on amounts remitted by the commissioner

133-25   [or the commission] shall be paid:

 134-1               (1)  at a rate equal to the rate charged on loans to

 134-2   depository institutions by the New York Federal Reserve Bank; and

 134-3               (2)  for the period beginning on the date the penalty

 134-4   is paid to the commissioner under Section 401.389(a) and ending on

 134-5   the date the penalty is remitted.

 134-6         SECTION 59.  Subchapter J, Chapter 401, Health and Safety

 134-7   Code, is amended by adding Section 401.393 to read as follows:

 134-8         Sec. 401.393.  COMMISSION ENFORCEMENT.  The commission may

 134-9   enforce the provisions of this chapter under the commission's

134-10   jurisdiction as provided by Chapter 7, Water Code.

134-11         SECTION 60.  (a)  The following provisions of the Water Code

134-12   are repealed:

134-13               (1)  Sections 11.087(d), 11.095, and 12.141;

134-14               (2)  Sections 16.352 through 16.354, 16.356, 18.121

134-15   through 18.123, 18.171, 18.172, 26.016, 26.122 through 26.126,

134-16   26.132 through 26.134, 26.136, 26.174, 26.211 through 26.214,

134-17   26.216, 26.218 through 26.227, 26.268, 26.353, and 26.460;

134-18               (3)  Section 27.1015;

134-19               (4)  Section 28.013;

134-20               (5)  Subchapter E, Chapter 28; and

134-21               (6)  Sections 31.019, 32.010 through 32.012, 32.015,

134-22   33.008 through 33.010, 33.013, and 34.010 through 34.014.

134-23         (b)  The following provisions of the Health and Safety Code

134-24   are repealed:

134-25               (1)  Sections 361.011(e), 361.164, and 361.198;

 135-1               (2)  Subchapters G and H, Chapter 361;

 135-2               (3)  Sections 361.280, 361.302, 361.303, 361.451(c),

 135-3   361.455, 361.456, 361.483 through 361.4832, 361.489, 361.491,

 135-4   361.540, 361.560, 361.562 through 361.567, 366.015, and 366.077;

 135-5               (4)  Subchapter F, Chapter 366; and

 135-6               (5)  Sections 370.009, 371.042 through 371.045,

 135-7   372.004, 372.005, 382.004, 382.005, 382.059, 382.081 through

 135-8   382.084, 382.086 through 382.096, 382.114, 401.391, and 401.392.

 135-9         SECTION 61.  (a)  Except as provided by this section, this

135-10   Act takes effect September 1, 1997.

135-11         (b)  If S.B. No. 1857,  H.B. No. 3462, or another Act

135-12   transferring jurisdiction over by-product material as defined by

135-13   Section 401.003(3)(B), Health and Safety Code, and over the

135-14   recovery and processing of radioactive source material from the

135-15   Texas Natural Resource Conservation Commission to the Texas

135-16   Department of Health is enacted by the 75th Legislature, Regular

135-17   Session, 1997, and becomes law, Section 5.517, Water Code, as added

135-18   by Section 1 of this Act, and the amendment to Section 401.270,

135-19   Health and Safety Code, made by Section 47 of this Act, have no

135-20   effect.

135-21         SECTION 62.  (a)  A change in law made by this Act that

135-22   relates to an offense or penalty applies only to an offense

135-23   committed on or after September 1, 1997.  For purposes of this

135-24   section, an offense is committed before September 1, 1997, if any

135-25   element of the offense occurs before that date.  An offense

 136-1   committed before September 1, 1997, is covered by the law in effect

 136-2   when the offense was committed, and the former law is continued in

 136-3   effect for that purpose.

 136-4         (b)  A change in law made by this Act that relates to an

 136-5   administrative or civil penalty or the revocation of a permit,

 136-6   license, certificate, registration, or other form of authorization

 136-7   issued by the Texas Natural Resource Conservation Commission

 136-8   applies only to a violation that occurred on or after September 1,

 136-9   1997.  A violation that occurs before September 1, 1997, is covered

136-10   by the law in effect when the violation occurred, and the former

136-11   law is continued in effect for that purpose.

136-12         SECTION 63.  The importance of this legislation and the

136-13   crowded condition of the calendars in both houses create an

136-14   emergency and an imperative public necessity that the

136-15   constitutional rule requiring bills to be read on three several

136-16   days in each house be suspended, and this rule is hereby suspended.

         _______________________________     _______________________________

             President of the Senate              Speaker of the House

               I hereby certify that S.B. No. 1876 passed the Senate on

         May 1, 1997, by a viva-voce vote; and that the Senate concurred in

         House amendment on May 31, 1997, by a viva-voce vote.

                                             _______________________________

                                                 Secretary of the Senate

               I hereby certify that S.B. No. 1876 passed the House, with

         amendment, on May 28, 1997, by a non-record vote.

                                             _______________________________

                                                 Chief Clerk of the House

         Approved:

         _______________________________

                     Date

         _______________________________

                   Governor