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