By: Bivins S.B. No. 1876
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the consolidation of the enforcement and emergency
1-2 powers of the Texas Natural Resource Conservation Commission;
1-3 providing criminal, civil, and administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 5, Water Code, is amended by adding
1-6 Subchapter L to read as follows:
1-7 SUBCHAPTER L. EMERGENCY AND TEMPORARY ORDERS
1-8 Sec. 5.501. EMERGENCY AND TEMPORARY ORDER OR PERMIT;
1-9 TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITION. (a) For
1-10 the purposes and in the manner provided by this subchapter, the
1-11 commission:
1-12 (1) may issue a temporary or emergency mandatory,
1-13 permissive, or prohibitory order; and
1-14 (2) by temporary or emergency order may:
1-15 (A) issue a temporary permit; or
1-16 (B) temporarily suspend or amend a permit
1-17 condition.
1-18 (b) The commission may issue an emergency order under this
1-19 subchapter after providing the notice and opportunity for hearing
1-20 that the commission considers practicable under the circumstances
1-21 or without notice or hearing. Except as provided by Section 5.508,
1-22 notice must be given not later than the 10th day before the date
1-23 set for a hearing if the commission requires notice and hearing
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. Notice of the
5-14 action is adequate if the notice is mailed or hand delivered to the
5-15 last known address of the utility's headquarters.
5-16 Sec. 5.508. EMERGENCY ORDER FOR RATE INCREASE IN CERTAIN
5-17 SITUATIONS. (a) Notwithstanding the requirements of Section
5-18 13.187, the commission may authorize an emergency rate increase for
5-19 a utility for which a person has been appointed under Section 5.507
5-20 if the increase is necessary to ensure the provision of continuous
5-21 and adequate services to the utility's customers.
5-22 (b) A utility that receives an emergency rate increase under
5-23 this section shall provide to each ratepayer notice of the increase
5-24 as soon as possible, but not later than the first utility bill
5-25 issued at the new rate.
6-1 (c) Notwithstanding Section 5.505, an order may be issued
6-2 under this section for a term not to exceed 15 months. The
6-3 commission shall schedule a hearing to establish a final rate
6-4 within 15 months after the date on which an emergency rate increase
6-5 takes effect. The additional revenues collected under an emergency
6-6 rate increase are subject to refund if the commission finds that
6-7 the rate increase was larger than necessary to ensure continuous
6-8 and adequate service.
6-9 Sec. 5.509. TEMPORARY OR EMERGENCY ORDER RELATING TO
6-10 DISCHARGE OF WASTE OR POLLUTANTS. (a) The commission may issue an
6-11 emergency or temporary order relating to the discharge of waste or
6-12 pollutants into or adjacent to water in the state if:
6-13 (1) the order is necessary to enable action to be
6-14 taken more expeditiously than is otherwise provided by Chapter 26
6-15 to effectuate the policy and purposes of that chapter; and
6-16 (2) the commission finds that:
6-17 (A) the discharge is unavoidable to:
6-18 (i) prevent loss of life, serious injury,
6-19 or severe property damage;
6-20 (ii) prevent severe economic loss or
6-21 ameliorate serious drought conditions, to the extent consistent
6-22 with the requirements for United States Environmental Protection
6-23 Agency authorization of a state permit program; or
6-24 (iii) make necessary and unforeseen
6-25 repairs to a facility;
7-1 (B) there is no feasible alternative to the
7-2 proposed discharge;
7-3 (C) the discharge will not cause significant
7-4 hazard to human life and health, unreasonable damage to the
7-5 property of persons other than the applicant, or unreasonable
7-6 economic loss to persons other than the applicant; and
7-7 (D) the discharge will not present a significant
7-8 hazard to the uses that will be made of the receiving water after
7-9 the discharge.
7-10 (b) A person desiring a temporary or emergency order under
7-11 this section must submit an application under Section 5.502 that,
7-12 in addition to complying with that section:
7-13 (1) states the volume and quality of the proposed
7-14 discharge;
7-15 (2) explains the measures proposed to minimize the
7-16 volume and duration of the discharge; and
7-17 (3) explains the measures proposed to maximize the
7-18 waste treatment efficiency of units not taken out of service or
7-19 facilities provided for interim use.
7-20 Sec. 5.510. EMERGENCY ORDER CONCERNING UNDERGROUND OR
7-21 ABOVEGROUND STORAGE TANKS. (a) The commission may issue an
7-22 emergency order to the owner or operator of an underground or
7-23 aboveground storage tank regulated under Chapter 26 prohibiting the
7-24 owner or operator from allowing or continuing a release or
7-25 threatened release and requiring the owner or operator to take the
8-1 actions necessary to eliminate the release or threatened release,
8-2 if the commission finds that:
8-3 (1) there is an actual or threatened release of a
8-4 regulated substance; and
8-5 (2) more expeditious action than is otherwise provided
8-6 under Chapter 26 is necessary to protect the public health or
8-7 safety or the environment from harm.
8-8 (b) An emergency order issued under this section must be:
8-9 (1) mailed by certified mail, return receipt
8-10 requested, to each person identified in the order;
8-11 (2) hand delivered to each person identified in the
8-12 order; or
8-13 (3) on failure of service by certified mail or hand
8-14 delivery, served by publication one time in the Texas Register and
8-15 one time in a newspaper with general circulation in each county in
8-16 which any of the persons identified in the order has a last known
8-17 address.
8-18 Sec. 5.511. EMERGENCY ADMINISTRATIVE ORDER CONCERNING
8-19 IMMINENT AND SUBSTANTIAL ENDANGERMENT. The commission or the
8-20 executive director may issue an emergency administrative order
8-21 under Section 361.272, Health and Safety Code, in the manner
8-22 provided by this subchapter.
8-23 Sec. 5.512. EMERGENCY ORDER CONCERNING ACTIVITY OF SOLID
8-24 WASTE MANAGEMENT. The commission may issue an emergency order
8-25 concerning an activity of solid waste management under the
9-1 commission's jurisdiction, even if that activity is not covered by
9-2 a permit, if the commission finds that an emergency requiring
9-3 immediate action to protect the public health and safety exists.
9-4 Sec. 5.513. EMERGENCY ORDER CONCERNING ON-SITE SEWAGE
9-5 DISPOSAL SYSTEM. (a) The commission may issue an emergency order
9-6 suspending the registration of the installer of an on-site sewage
9-7 disposal system, regulating an on-site sewage disposal system, or
9-8 both, if the commission finds that an emergency exists and that the
9-9 public health and safety is endangered because of the operation of
9-10 an on-site sewage disposal system that does not comply with Chapter
9-11 366, Health and Safety Code, or a rule adopted under that chapter.
9-12 (b) If an order issued under this section is adopted without
9-13 notice or hearing, the order must set a time, not more than 30 days
9-14 after the order is issued, for a hearing to affirm, modify, or set
9-15 aside the order.
9-16 Sec. 5.514. ORDER ISSUED UNDER AIR EMERGENCY. (a) If the
9-17 commission finds that a generalized condition of air pollution
9-18 exists that creates an emergency requiring immediate action to
9-19 protect human health or safety, the commission, with the
9-20 concurrence of the governor, may issue an emergency order requiring
9-21 a person causing or contributing to the air pollution to
9-22 immediately reduce or discontinue the emission of air contaminants.
9-23 (b) If the commission finds that emissions from one or more
9-24 sources are causing imminent danger to human health or safety but
9-25 that there is not a generalized condition of air pollution under
10-1 Subsection (a), the commission may issue an emergency order
10-2 requiring the persons responsible for the emissions to immediately
10-3 reduce or discontinue the emissions.
10-4 (c) Notwithstanding Section 5.504, the commission shall
10-5 affirm, modify, or set aside an order issued under this section not
10-6 later than 24 hours after the hearing under that section begins and
10-7 without adjournment of the hearing.
10-8 (d) This section does not limit any power that the governor
10-9 or another officer may have to declare an emergency and to act on
10-10 that declaration if the power is conferred by law or inheres in the
10-11 office.
10-12 Sec. 5.515. EMERGENCY ORDER BECAUSE OF CATASTROPHE.
10-13 (a) The commission may issue an emergency order authorizing
10-14 immediate action for the addition, replacement, or repair of
10-15 facilities or control equipment necessitated by a catastrophe
10-16 occurring in this state and the emission of air contaminants during
10-17 the addition, replacement, or repair of those facilities if the
10-18 actions and emissions are otherwise precluded under Chapter 382,
10-19 Health and Safety Code.
10-20 (b) An order issued under this section:
10-21 (1) may authorize action only on:
10-22 (A) property on which a catastrophe has
10-23 occurred; or
10-24 (B) other property that is owned by the owner or
10-25 operator of the damaged facility and that produces the same
11-1 intermediates, products, or by-products; and
11-2 (2) must contain a schedule for submitting a complete
11-3 application for a permit under Section 382.0518, Health and Safety
11-4 Code.
11-5 (c) The person applying for an emergency order must
11-6 demonstrate that there will be no more than a de minimis increase
11-7 in the predicted concentration of air contaminants at or beyond the
11-8 property line of the other property on which action is authorized
11-9 under Subsection (b)(1)(B). The commission shall review and act on
11-10 an application submitted as provided by Subsection (b)(2) without
11-11 regard to construction activity under an order under this section.
11-12 (d) An applicant desiring an emergency order under this
11-13 section must submit an application under Section 5.502 that, in
11-14 addition to complying with that section:
11-15 (1) describes the catastrophe;
11-16 (2) states that:
11-17 (A) the construction and emissions are essential
11-18 to prevent loss of life, serious injury, severe property damage, or
11-19 severe economic loss not attributable to the applicant's actions
11-20 and are necessary for the addition, replacement, or repair of a
11-21 facility or control equipment necessitated by the catastrophe;
11-22 (B) there is no practicable alternative to the
11-23 proposed construction and emissions; and
11-24 (C) the emissions will not cause or contribute
11-25 to air pollution;
12-1 (3) estimates the dates on which the proposed
12-2 construction or emissions, or both, will begin and end;
12-3 (4) estimates the date on which the facility will
12-4 begin operation; and
12-5 (5) describes the quantity and type of air
12-6 contaminants proposed to be emitted.
12-7 (e) In this section, "catastrophe" means an unforeseen
12-8 event, including an act of God, an act of war, severe weather,
12-9 explosions, fire, or similar occurrences beyond the reasonable
12-10 control of the operator, that makes a facility or its related
12-11 appurtenances inoperable.
12-12 Sec. 5.516. EMERGENCY ORDER UNDER SECTION 401.056, HEALTH
12-13 AND SAFETY CODE. The commission may issue an emergency order under
12-14 Section 401.056, Health and Safety Code, in the manner provided by
12-15 this subchapter.
12-16 Sec. 5.517. EMERGENCY ORDERS FOR CORRECTIVE ACTION AND
12-17 MEASURES. (a) The commission may issue an emergency order under
12-18 Section 401.270, Health and Safety Code, to a person responsible
12-19 for an activity, including a past activity, concerning the recovery
12-20 or processing of source material or the disposal of by-product
12-21 material that requires any action, including a corrective measure
12-22 that is necessary to correct or remove the threat, if it appears
12-23 that there is an actual or threatened release of source material or
12-24 by-product material that presents an imminent and substantial
12-25 danger to the public health and safety or the environment,
13-1 regardless of whether the activity was lawful at the time.
13-2 (b) An emergency order may be issued under this section to:
13-3 (1) restrain the person from allowing or continuing
13-4 the release; and
13-5 (2) require the person to take any action necessary to
13-6 provide and implement an environmentally sound remedial action plan
13-7 designed to eliminate the release or threatened release.
13-8 (c) An emergency order issued under this section must be:
13-9 (1) mailed by certified mail, return receipt
13-10 requested, to each person identified in the order;
13-11 (2) hand delivered to each person identified in the
13-12 order; or
13-13 (3) on failure of service by certified mail or hand
13-14 delivery, served by publication one time in the Texas Register and
13-15 one time in a newspaper with general circulation in each county in
13-16 which any of the persons identified in the order has a last known
13-17 address.
13-18 (d) If an order issued under this section is adopted without
13-19 notice or hearing, the order must set a time, at least 10 but not
13-20 more than 30 days after the date the order is issued, for a hearing
13-21 to affirm, modify, or set aside the order. All provisions of the
13-22 order remain in effect during the pendency of the hearing unless
13-23 otherwise altered by the commission.
13-24 SECTION 2. Subtitle A, Title 2, Water Code, is amended by
13-25 adding Chapter 7 to read as follows:
14-1 CHAPTER 7. ENFORCEMENT
14-2 SUBCHAPTER A. GENERAL PROVISIONS
14-3 Sec. 7.001. DEFINITIONS. In this chapter:
14-4 (1) "Commission" means the Texas Natural Resource
14-5 Conservation Commission.
14-6 (2) "Permit" includes a license, certificate,
14-7 registration, approval, or other form of authorization. This
14-8 definition does not apply to Subchapter G.
14-9 Sec. 7.002. ENFORCEMENT AUTHORITY. The commission may
14-10 initiate an action under this chapter to enforce provisions of this
14-11 code and the Health and Safety Code within the commission's
14-12 jurisdiction as provided by Section 5.013 of this code and rules
14-13 adopted under those provisions. The commission or the executive
14-14 director may institute legal proceedings to compel compliance with
14-15 the relevant provisions of this code and the Health and Safety Code
14-16 and rules, orders, permits, or other decisions of the commission.
14-17 Sec. 7.003. ENFORCEMENT REPORT. (a) The commission shall
14-18 report at least once each month on enforcement actions taken by the
14-19 commission or others and the resolution of those actions.
14-20 (b) The report shall be an item for commission discussion at
14-21 a meeting of the commission for which public notice is given.
14-22 (c) If an enforcement action involves a suit filed for
14-23 injunctive relief or civil penalties, or both, the report shall
14-24 state the actual or projected time for resolution of the suit. A
14-25 copy of the report and of the minutes of the meeting reflecting
15-1 commission action relating to the report shall be filed with the
15-2 governor and the attorney general.
15-3 Sec. 7.004. REMEDIES CUMULATIVE. The remedies under this
15-4 chapter are cumulative of all other remedies. Nothing in this
15-5 chapter affects the right of a private corporation or individual to
15-6 pursue any available common law remedy to abate a condition of
15-7 pollution or other nuisance, to recover damages to enforce a right,
15-8 or to prevent or seek redress or compensation for the violation of
15-9 a right or otherwise redress an injury.
15-10 Sec. 7.005. EFFECT ON OTHER LAW. This chapter does not
15-11 exempt a person from complying with or being subject to other law.
15-12 (Sections 7.006-7.030 reserved for expansion
15-13 SUBCHAPTER B. CORRECTIVE ACTION AND INJUNCTIVE RELIEF
15-14 Sec. 7.031. CORRECTIVE ACTION RELATING TO HAZARDOUS WASTE.
15-15 (a) The commission shall require corrective action for a release
15-16 of hazardous waste or hazardous waste constituents from a solid
15-17 waste management unit at a solid waste processing, storage, or
15-18 disposal facility that is required to obtain a permit for the
15-19 management of hazardous waste and whose permit is issued after
15-20 November 8, 1984, regardless of when the waste is placed in the
15-21 unit.
15-22 (b) The commission shall establish schedules for compliance
15-23 for the corrective action if the corrective action cannot be
15-24 completed before permit issuance and shall require assurances of
15-25 financial responsibility for completing the corrective action.
16-1 (c) If, before the issuance of a permit, the commission
16-2 determines that there is or has been a release of hazardous waste
16-3 into the environment from a facility required to obtain a permit in
16-4 accordance with an approved state program under Section 3006 of the
16-5 federal Solid Waste Disposal Act, as amended by the Resource
16-6 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
16-7 Section 6901 et seq.), the commission may:
16-8 (1) issue an order requiring corrective action or
16-9 other response measures considered necessary to protect human
16-10 health or the environment; or
16-11 (2) institute a civil action under Subchapter D.
16-12 (d) An order issued under this section:
16-13 (1) may include a suspension or revocation of
16-14 authorization to operate;
16-15 (2) must state with reasonable specificity the nature
16-16 of the required corrective action or other response measure; and
16-17 (3) must specify a time for compliance.
16-18 (e) If a person named in the order does not comply with the
16-19 order, the commission may assess an administrative penalty or seek
16-20 a civil penalty in accordance with this chapter.
16-21 Sec. 7.032. INJUNCTIVE RELIEF. (a) The executive director
16-22 may enforce a commission rule or a provision of a permit issued by
16-23 the commission by injunction or other appropriate remedy.
16-24 (b) If it appears that a violation or threat of violation of
16-25 a statute within the commission's jurisdiction or a rule adopted or
17-1 an order or a permit issued under such a statute has occurred or is
17-2 about to occur, the executive director may have a suit instituted
17-3 in district court for injunctive relief to restrain the violation
17-4 or threat of violation.
17-5 (c) The suit may be brought in the county in which the
17-6 defendant resides or in the county in which the violation or threat
17-7 of violation occurs.
17-8 (d) In a suit brought under this section to enjoin a
17-9 violation or threat of violation described by Subsection (b), the
17-10 court may grant the commission, without bond or other undertaking,
17-11 any prohibitory or mandatory injunction the facts may warrant,
17-12 including a temporary restraining order and, after notice and
17-13 hearing, a temporary injunction or permanent injunction.
17-14 (e) On request of the executive director, the attorney
17-15 general or the prosecuting attorney in a county in which the
17-16 violation occurs shall initiate a suit in the name of the state for
17-17 injunctive relief. The suit may be brought independently of or in
17-18 conjunction with a suit under Subchapter D.
17-19 Sec. 7.033. RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH AND
17-20 SAFETY CODE, VIOLATION. The commission shall seek reimbursement,
17-21 either by a commission order or by a suit filed under Subchapter D
17-22 by the attorney general at the commission's request, of security
17-23 from the fund used by the commission to pay for actions, including
17-24 corrective measures, to remedy spills or contamination by
17-25 radioactive material resulting from a violation of Chapter 401,
18-1 Health and Safety Code, or a rule adopted or a license,
18-2 registration, or order issued under that chapter.
18-3 (Sections 7.034-7.050 reserved for expansion
18-4 SUBCHAPTER C. ADMINISTRATIVE PENALTIES
18-5 Sec. 7.051. ADMINISTRATIVE PENALTY. (a) The commission may
18-6 assess an administrative penalty against a person as provided by
18-7 this subchapter if:
18-8 (1) the person violates:
18-9 (A) a provision of this code or of the Health
18-10 and Safety Code that is within the commission's jurisdiction;
18-11 (B) a rule adopted or order issued by the
18-12 commission under a statute within the commission's jurisdiction; or
18-13 (C) a permit issued by the commission under a
18-14 statute within the commission's jurisdiction; and
18-15 (2) a county, political subdivision, or municipality
18-16 has not instituted a lawsuit and is not diligently prosecuting that
18-17 lawsuit under Subchapter I against the same person for the same
18-18 violation.
18-19 (b) This subchapter does not apply to violations of Chapter
18-20 11, 12, 13, 16, or 36 of this code, or Chapter 341, Health and
18-21 Safety Code.
18-22 Sec. 7.052. MAXIMUM PENALTY. (a) The amount of the penalty
18-23 for a violation of Chapter 18, 32, 33, or 34 of this code or
18-24 Chapter 366, 371, or 372, Health and Safety Code, may not exceed
18-25 $2,500 a day for each violation.
19-1 (b) The amount of the penalty for all other violations
19-2 within the jurisdiction of the commission to enforce may not exceed
19-3 $10,000 a day for each violation.
19-4 (c) Each day that a continuing violation occurs may be
19-5 considered a separate violation. The commission may authorize an
19-6 installment payment schedule for an administrative penalty assessed
19-7 under this subchapter, except for an administrative penalty
19-8 assessed under Section 7.057 or assessed after a hearing under
19-9 Section 7.058.
19-10 Sec. 7.053. FACTORS TO BE CONSIDERED IN DETERMINATION OF
19-11 PENALTY AMOUNT. In determining the amount of an administrative
19-12 penalty, the commission shall consider:
19-13 (1) the nature, circumstances, extent, duration, and
19-14 gravity of the prohibited act, with special emphasis on the
19-15 impairment of existing water rights or the hazard or potential
19-16 hazard created to the health or safety of the public;
19-17 (2) the impact of the violation on:
19-18 (A) air quality in the region;
19-19 (B) a receiving stream or underground water
19-20 reservoir;
19-21 (C) instream uses, water quality, aquatic and
19-22 wildlife habitat, or beneficial freshwater inflows to bays and
19-23 estuaries; or
19-24 (D) affected persons;
19-25 (3) with respect to the alleged violator:
20-1 (A) the history and extent of previous
20-2 violations;
20-3 (B) the degree of culpability, including whether
20-4 the violation was attributable to mechanical or electrical failures
20-5 and whether the violation could have been reasonably anticipated
20-6 and avoided;
20-7 (C) the demonstrated good faith, including
20-8 actions taken by the alleged violator to rectify the cause of the
20-9 violation and to compensate affected persons;
20-10 (D) economic benefit gained through the
20-11 violation; and
20-12 (E) the amount necessary to deter future
20-13 violations; and
20-14 (4) any other matters that justice may require.
20-15 Sec. 7.054. REPORT OF VIOLATION. If, after examination of a
20-16 possible violation and the facts surrounding that possible
20-17 violation, the executive director concludes that a violation has
20-18 occurred, the executive director may issue a preliminary report in
20-19 accordance with commission rules that includes recommendations
20-20 regarding any penalty or corrective action.
20-21 Sec. 7.055. NOTICE OF REPORT. Not later than the 10th day
20-22 after the date on which the report of a violation is issued, the
20-23 executive director shall give written notice of the report, in
20-24 accordance with commission rules, to the person charged with the
20-25 violation.
21-1 Sec. 7.056. CONSENT. Not later than the 20th day after the
21-2 date on which notice is received, the person charged may give to
21-3 the commission written consent to the executive director's report,
21-4 including the recommended penalty, or make a written request for a
21-5 hearing.
21-6 Sec. 7.057. DEFAULT. If the person charged with the
21-7 violation consents to the penalty recommended by the executive
21-8 director or does not timely respond to the notice, the commission
21-9 by order shall assess the penalty or order a hearing to be held on
21-10 the recommendations in the executive director's report. If the
21-11 commission assesses the penalty, the commission shall give written
21-12 notice of its decision to the person charged.
21-13 Sec. 7.058. HEARING. If the person charged requests or the
21-14 commission orders a hearing, the commission shall order and shall
21-15 give notice of the hearing. The commission by order may find that
21-16 a violation has occurred and may assess a penalty, may find that a
21-17 violation has occurred but that a penalty should not be assessed,
21-18 or may find that a violation has not occurred. In making a penalty
21-19 decision, the commission shall analyze each factor prescribed by
21-20 Section 7.053. All proceedings under this section are subject to
21-21 Chapter 2001, Government Code.
21-22 Sec. 7.059. NOTICE OF DECISION. The commission shall give
21-23 notice of its decision to the person charged. If the commission
21-24 finds that a violation has occurred and assesses a penalty, the
21-25 commission shall give written notice to the person charged of:
22-1 (1) the commission's findings;
22-2 (2) the amount of the penalty;
22-3 (3) the right to judicial review of the commission's
22-4 order; and
22-5 (4) other information required by law.
22-6 Sec. 7.060. NOTICE OF PENALTY. If the commission is
22-7 required to give notice of a penalty under Section 7.057 or 7.059,
22-8 the commission shall publish notice of its decision in the Texas
22-9 Register not later than the 10th day after the date on which the
22-10 decision is adopted.
22-11 Sec. 7.061. PAYMENT OF PENALTY; PETITION FOR REVIEW. Within
22-12 the 30-day period immediately following the date on which the
22-13 commission's order is final, as provided by Section 2001.144,
22-14 Government Code, the person charged with the penalty shall:
22-15 (1) pay the penalty in full;
22-16 (2) pay the first installment penalty payment in full;
22-17 (3) pay the penalty and file a petition for judicial
22-18 review, contesting either the amount of the penalty or the fact of
22-19 the violation or contesting both the fact of the violation and the
22-20 amount of the penalty; or
22-21 (4) without paying the penalty, file a petition for
22-22 judicial review contesting the occurrence of the violation and the
22-23 amount of the penalty.
22-24 Sec. 7.062. STAYS. Within the 30-day period described by
22-25 Section 7.061, a person who acts under Section 7.061(3) may:
23-1 (1) stay enforcement of the penalty by:
23-2 (A) paying the amount of the penalty to the
23-3 court for placement in an escrow account; or
23-4 (B) giving to the court a supersedeas bond that
23-5 is approved by the court for the amount of the penalty and that is
23-6 effective until all judicial review of the commission's order is
23-7 final; or
23-8 (2) request the court to stay enforcement of the
23-9 penalty by:
23-10 (A) filing with the court a sworn affidavit of
23-11 the person stating that the person is financially unable to give
23-12 the supersedeas bond; and
23-13 (B) sending a copy of the affidavit to the
23-14 executive director by certified mail.
23-15 Sec. 7.063. CONSENT TO AFFIDAVIT. If the executive director
23-16 receives a copy of an affidavit under Section 7.062(2), the
23-17 executive director may file with the court, within five days after
23-18 the date the copy is received, a contest to the affidavit. The
23-19 court shall hold a hearing on the facts alleged in the affidavit as
23-20 soon as practicable and shall stay the enforcement of the penalty
23-21 on finding that the alleged facts are true. The person who files
23-22 an affidavit has the burden of proving that the person is
23-23 financially unable to pay the penalty or give the supersedeas bond.
23-24 Sec. 7.064. JUDICIAL REVIEW. Judicial review of the order
23-25 or decision of the commission assessing the penalty is under
24-1 Subchapter G, Chapter 2001, Government Code.
24-2 Sec. 7.065. PENALTY REDUCED OR NOT ASSESSED. (a) If the
24-3 person paid the penalty and if the penalty is reduced or not
24-4 assessed by the court, the executive director shall remit to the
24-5 person charged the appropriate amount plus accrued interest if the
24-6 penalty has been paid or shall execute a release of the bond if a
24-7 supersedeas bond has been posted.
24-8 (b) The accrued interest on amounts remitted by the
24-9 executive director under this section shall be paid at a rate equal
24-10 to the rate charged on loans to depository institutions by the New
24-11 York Federal Reserve Bank and shall be paid for the period
24-12 beginning on the date the penalty is paid to the executive director
24-13 under Section 7.061 and ending on the day the penalty is remitted.
24-14 Sec. 7.066. REFERRAL TO ATTORNEY GENERAL. A person who does
24-15 not comply with Section 7.061 waives the right to judicial review,
24-16 and the commission or the executive director may refer the matter
24-17 to the attorney general for enforcement.
24-18 Sec. 7.067. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) The
24-19 commission may compromise, modify, or remit, with or without
24-20 conditions, an administrative penalty imposed under this
24-21 subchapter. In determining the appropriate amount of a penalty for
24-22 settlement of an administrative enforcement matter, the commission
24-23 may consider a respondent's willingness to contribute to
24-24 supplemental environmental projects that are approved by the
24-25 commission, giving preference to projects that benefit the
25-1 community in which the alleged violation occurred.
25-2 (b) In this section, "supplemental environmental project"
25-3 means a project that prevents pollution, reduces the amount of
25-4 pollutants reaching the environment, enhances the quality of the
25-5 environment, or contributes to public awareness of environmental
25-6 matters. The term does not include projects that are necessary to
25-7 bring the respondent into compliance with environmental laws or
25-8 that are necessary to remediate the environmental harm caused by
25-9 the alleged violation.
25-10 Sec. 7.068. FULL AND COMPLETE SATISFACTION. Payment of an
25-11 administrative penalty under this subchapter is full and complete
25-12 satisfaction of the violation for which the penalty is assessed and
25-13 precludes any other civil or criminal penalty for the same
25-14 violation.
25-15 Sec. 7.069. DISPOSITION OF PENALTY. A penalty collected
25-16 under this subchapter shall be deposited to the credit of the
25-17 general revenue fund.
25-18 Sec. 7.070. FINDINGS OF FACT NOT REQUIRED; RESERVATIONS.
25-19 Notwithstanding any other provision to the contrary, the commission
25-20 is not required to make findings of fact or conclusions of law
25-21 other than an uncontested finding that the commission has
25-22 jurisdiction in an agreed order compromising or settling an alleged
25-23 violation of a statute within the commission's jurisdiction or of a
25-24 rule adopted or an order or a permit issued under such a statute.
25-25 An agreed administrative order may include a reservation that:
26-1 (1) the order is not an admission of a violation of a
26-2 statute within the commission's jurisdiction or of a rule adopted
26-3 or an order or a permit issued under such a statute;
26-4 (2) the occurrence of a violation is in dispute; or
26-5 (3) the order is not intended to become a part of a
26-6 party's or a facility's compliance history.
26-7 Sec. 7.071. INADMISSIBILITY. An agreed administrative
26-8 order issued by the commission under this subchapter is not
26-9 admissible against a party to that order in a civil proceeding
26-10 unless the proceeding is brought by the attorney general's office
26-11 to:
26-12 (1) enforce the terms of that order; or
26-13 (2) pursue a violation of a statute within the
26-14 commission's jurisdiction or of a rule adopted or an order or a
26-15 permit issued under such a statute.
26-16 Sec. 7.072. RECOVERY OF PENALTY. An administrative penalty
26-17 owed under this subchapter may be recovered in a civil action
26-18 brought by the attorney general at the request of the commission.
26-19 Sec. 7.073. CORRECTIVE ACTION. If a person violates any
26-20 statute or rule within the commission's jurisdiction, the
26-21 commission may:
26-22 (1) assess against the person an administrative
26-23 penalty under this subchapter; and
26-24 (2) order the person to take corrective action.
26-25 Sec. 7.074. HEARING POWERS. The commission may exercise
27-1 under this subchapter the hearing powers authorized by Section
27-2 26.020.
27-3 Sec. 7.075. PUBLIC COMMENT. (a) Before the commission
27-4 approves an administrative order or proposed agreement to settle an
27-5 administrative enforcement action initiated under this subchapter
27-6 to which the commission is a party, the commission shall allow the
27-7 public to comment in writing on the proposed order or agreement.
27-8 Notice of the opportunity to comment shall be published in the
27-9 Texas Register not later than the 30th day before the date on which
27-10 the public comment period closes.
27-11 (b) The commission shall promptly consider any written
27-12 comments and may withdraw or withhold consent to the proposed order
27-13 or agreement if the comments disclose facts or considerations that
27-14 indicate that the consent is inappropriate, improper, inadequate,
27-15 or inconsistent with the requirements of this subchapter, another
27-16 statute within the commission's jurisdiction, or a rule adopted or
27-17 an order or a permit issued under such a statute. Further notice
27-18 of changes to the proposed order or agreement is not required to be
27-19 published if those changes arise from comments submitted in
27-20 response to a previous notice.
27-21 (c) This section does not apply to:
27-22 (1) a criminal enforcement proceeding; or
27-23 (2) an emergency order or other emergency relief that
27-24 is not a final order of the commission.
27-25 (d) Chapter 2001, Government Code, does not apply to public
28-1 comment under this section.
28-2 (Sections 7.076-7.100 reserved for expansion
28-3 SUBCHAPTER D. CIVIL PENALTIES
28-4 Sec. 7.101. VIOLATION. A person may not cause, suffer,
28-5 allow, or permit a violation of a statute within the commission's
28-6 jurisdiction or a rule adopted or an order or permit issued under
28-7 such a statute.
28-8 Sec. 7.102. MAXIMUM PENALTY. A person who causes, suffers,
28-9 allows, or permits a violation of a statute, rule, order, or permit
28-10 relating to Chapter 13, 18, 32, 33, or 34 of this code or Chapter
28-11 341, 366, 371, or 372, Health and Safety Code, shall be assessed
28-12 for each violation a civil penalty not less than $50 nor greater
28-13 than $5,000 for each day of each violation as the court or jury
28-14 considers proper. A person who causes, suffers, allows, or permits
28-15 a violation of a statute, rule, order, or permit relating to any
28-16 other matter within the commission's jurisdiction to enforce, other
28-17 than violations of Chapter 11, 12, 13, 16, or 36 of this code, or
28-18 Chapter 341, Health and Safety Code, shall be assessed for each
28-19 violation a civil penalty not less than $50 nor greater than
28-20 $25,000 for each day of each violation as the court or jury
28-21 considers proper. Each day of a continuing violation is a separate
28-22 violation.
28-23 Sec. 7.103. CONTINUING VIOLATIONS. If it is shown on a
28-24 trial of a defendant that the defendant has previously been
28-25 assessed a civil penalty for a violation of a statute within the
29-1 commission's jurisdiction or a rule adopted or an order or a permit
29-2 issued under such a statute within the year before the date on
29-3 which the violation being tried occurred, the defendant shall be
29-4 assessed a civil penalty not less than $100 nor greater than
29-5 $25,000 for each subsequent day and for each subsequent violation.
29-6 Each day of a continuing violation is a separate violation.
29-7 Sec. 7.104. NO PENALTY FOR FAILURE TO PAY CERTAIN FEES. A
29-8 civil penalty may not be assessed for failure to:
29-9 (1) pay a fee under Section 371.062, Health and Safety
29-10 Code; or
29-11 (2) file a report under Section 371.024, Health and
29-12 Safety Code.
29-13 Sec. 7.105. CIVIL SUIT. (a) On the request of the
29-14 executive director or the commission, the attorney general shall
29-15 institute a suit in the name of the state for injunctive relief
29-16 under Section 7.032, to recover a civil penalty, or for both
29-17 injunctive relief and a civil penalty.
29-18 (b) The commission, through the executive director, shall
29-19 refer a matter to the attorney general's office for enforcement
29-20 through civil suit if a person:
29-21 (1) is alleged to be making or to have made an
29-22 unauthorized discharge of waste into or adjacent to the waters in
29-23 the state at a new point of discharge without a permit in violation
29-24 of state law;
29-25 (2) has been the subject of two or more finally issued
30-1 administrative penalty orders for violations of Chapter 26
30-2 occurring at the same wastewater management system or other point
30-3 of discharge within the two years immediately preceding the date of
30-4 the first alleged violation currently under investigation at that
30-5 site;
30-6 (3) is alleged to be operating a new solid waste
30-7 facility, as defined in Section 361.003, Health and Safety Code,
30-8 without a permit in violation of state law;
30-9 (4) has been the subject of two or more finally issued
30-10 administrative penalty orders for violations of Chapter 361, Health
30-11 and Safety Code, occurring at the same facility within the two
30-12 years immediately preceding the date of the first alleged violation
30-13 currently under investigation at that site;
30-14 (5) is alleged to be constructing or operating a
30-15 facility at a new plant site without a permit required by Chapter
30-16 382, Health and Safety Code, in violation of state law; or
30-17 (6) has been the subject of two or more finally issued
30-18 administrative penalty orders for violations of Chapter 382, Health
30-19 and Safety Code, for violations occurring at the same plant site
30-20 within the two years immediately preceding the date of the first
30-21 alleged violation currently under investigation at that site.
30-22 (c) The suit may be brought in Travis County, in the county
30-23 in which the defendant resides, or in the county in which the
30-24 violation or threat of violation occurs.
30-25 Sec. 7.106. RESOLUTION THROUGH ADMINISTRATIVE ORDER. The
31-1 attorney general's office and the executive director may agree to
31-2 resolve any violation, before or after referral, by an
31-3 administrative order issued under Subchapter C by the commission
31-4 with the approval of the attorney general.
31-5 Sec. 7.107. DIVISION OF CIVIL PENALTY. Except in a suit
31-6 brought for a violation of Chapter 28 of this code or of Chapter
31-7 401, Health and Safety Code, a civil penalty recovered in a suit
31-8 brought under this subchapter by a local government shall be
31-9 equally divided between:
31-10 (1) the state; and
31-11 (2) the local government that brought the suit.
31-12 Sec. 7.108. ATTORNEY'S FEES. If the state prevails in a
31-13 suit under this subchapter it may recover reasonable attorney's
31-14 fees, court costs, and reasonable investigative costs incurred in
31-15 relation to the proceeding.
31-16 Sec. 7.109. PARKS AND WILDLIFE DEPARTMENT JURISDICTION.
31-17 (a) If it appears that a violation or a threat of violation of
31-18 Section 26.121 or a rule, permit, or order of the commission has
31-19 occurred or is occurring that affects aquatic life or wildlife, the
31-20 Parks and Wildlife Department, in the same manner as the commission
31-21 under this subchapter, may have a suit instituted in a district
31-22 court for injunctive relief or civil penalties, or both, as
31-23 authorized by this subchapter, against the person who committed or
31-24 is committing or threatening to commit the violation.
31-25 (b) In a suit brought under this section for a violation
32-1 that is the proximate cause of injury to aquatic life or wildlife
32-2 normally taken for commercial or sport purposes or to species on
32-3 which this life is directly dependent for food, the Parks and
32-4 Wildlife Department is entitled to recover damages for the injury.
32-5 In determining damages, the court may consider the valuation of the
32-6 injured resources established in rules adopted by the Parks and
32-7 Wildlife Department under Subchapter D, Chapter 12, Parks and
32-8 Wildlife Code, or the replacement cost of the injured resources.
32-9 Any recovery of damages for injury to aquatic life or wildlife
32-10 shall be deposited to the credit of the game, fish, and water
32-11 safety account under Section 11.032, Parks and Wildlife Code, and
32-12 the Parks and Wildlife Department shall use money recovered in a
32-13 suit brought under this section to replenish or enhance the injured
32-14 resources.
32-15 (c) The actual cost of investigation, reasonable attorney's
32-16 fees, and reasonable expert witness fees may also be recovered, and
32-17 those recovered amounts shall be credited to the same operating
32-18 accounts from which expenditures occurred.
32-19 (d) This section does not limit recovery for damages
32-20 available under other laws.
32-21 Sec. 7.110. COMMENTS. (a) Before the commission approves
32-22 an agreed final judgment, consent order, voluntary settlement
32-23 agreement, or other voluntary settlement agreement, or other
32-24 voluntary agreement that would finally settle a civil enforcement
32-25 action initiated under this chapter to which the State of Texas is
33-1 a party or before the court signs a judgment or other agreement
33-2 settling a judicial enforcement action other than an enforcement
33-3 action under Section 113 or 120 or Title II of the federal Clean
33-4 Air Act (42 U.S.C. Section 7401 et seq.), the attorney general
33-5 shall permit the public to comment in writing on the proposed
33-6 order, judgment, or other agreement.
33-7 (b) Notice of the opportunity to comment shall be published
33-8 in the Texas Register not later than the 30th day before the date
33-9 on which the public comment period closes.
33-10 (c) The attorney general shall promptly consider any written
33-11 comments and may withdraw or withhold consent to the proposed
33-12 order, judgment, or other agreement if the comments disclose facts
33-13 or considerations that indicate that the consent is inappropriate,
33-14 improper, inadequate, or inconsistent with the requirements of this
33-15 chapter, the statutes within the commission's jurisdiction, or a
33-16 rule adopted or an order or a permit issued under such a statute.
33-17 Further notice of changes to the proposed order, judgment, or other
33-18 agreement is not required to be published if those changes arise
33-19 from comments submitted in response to a previous notice.
33-20 (d) The attorney general may not oppose intervention by a
33-21 person who has standing to intervene as provided by Rule 60, Texas
33-22 Rules of Civil Procedure.
33-23 (e) This section does not apply to:
33-24 (1) criminal enforcement proceedings; or
33-25 (2) proposed temporary restraining orders, temporary
34-1 injunctions, emergency orders, or other emergency relief that is
34-2 not a final judgment or final order of the court or commission.
34-3 (f) Chapter 2001, Government Code, does not apply to public
34-4 comment under this section.
34-5 Sec. 7.111. RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH AND
34-6 SAFETY CODE, VIOLATION. On request by the commission, the attorney
34-7 general shall file suit to recover security under Section 7.033.
34-8 (Sections 7.112-7.140 reserved for expansion
34-9 SUBCHAPTER E. CRIMINAL OFFENSES AND PENALTIES
34-10 Sec. 7.141. DEFINITIONS. In this subchapter:
34-11 (1) "Appropriate regulatory agency" means the
34-12 commission, the Texas Department of Health, or any other agency
34-13 authorized to regulate the handling and disposal of medical waste.
34-14 (2) "Corporation" and "association" have the meanings
34-15 assigned by Section 1.07, Penal Code, except that the terms do not
34-16 include a government.
34-17 (3) "Large quantity generator" means a person who
34-18 generates more than 50 pounds of medical waste each month.
34-19 (4) "Medical waste" includes animal waste, bulk blood
34-20 and blood products, microbiological waste, pathological waste,
34-21 sharps, and special waste from health care-related facilities as
34-22 those terms are defined in 25 T.A.C. Section 1.132 (Texas
34-23 Department of Health, Definition, Treatment, and Disposition of
34-24 Special Waste from Health Care-Related Facilities). The term does
34-25 not include medical waste produced on farmland and ranchland as
35-1 defined by Section 252.001(6), Agriculture Code.
35-2 (5) "Serious bodily injury" has the meaning assigned
35-3 by Section 1.07, Penal Code.
35-4 (6) "Small quantity generator" means a person who
35-5 generates 50 pounds or less of medical waste each month.
35-6 Sec. 7.142. VIOLATIONS RELATING TO UNLAWFUL USE OF STATE
35-7 WATER. (a) A person commits an offense if the person violates:
35-8 (1) Section 11.081;
35-9 (2) Section 11.083;
35-10 (3) Section 11.084;
35-11 (4) Section 11.087;
35-12 (5) Section 11.088;
35-13 (6) Section 11.089;
35-14 (7) Section 11.090;
35-15 (8) Section 11.091;
35-16 (9) Section 11.092;
35-17 (10) Section 11.093;
35-18 (11) Section 11.094;
35-19 (12) Section 11.096;
35-20 (13) Section 11.203; or
35-21 (14) Section 11.205.
35-22 (b) An offense under Subsection (a)(9), (a)(10), or (a)(14)
35-23 is punishable under Section 7.187(1)(A) or Section 7.187(2)(B) or
35-24 both.
35-25 (c) An offense under Subsection (a)(1), (a)(2), (a)(4),
36-1 (a)(6), (a)(7), or (a)(8) is punishable under Section 7.187(1)(A)
36-2 or Section 7.187(2)(C) or both.
36-3 (d) An offense under Subsection (a)(3) or (a)(11) is
36-4 punishable under Section 7.187(1)(A) or Section 7.187(2)(D) or
36-5 both.
36-6 (e) An offense under Subsection (a)(5) is punishable under
36-7 Section 7.187(1)(A) or Section 7.187(2)(E) or both.
36-8 (f) Possession of state water when the right to its use has
36-9 not been acquired according to Chapter 11 is prima facie evidence
36-10 of a violation of Section 11.081.
36-11 (g) Possession or use of water on a person's land by a
36-12 person not entitled to the water under this code is prima facie
36-13 evidence of a violation of Section 11.083.
36-14 Sec. 7.143. VIOLATION OF MINIMUM STATE STANDARDS OR MODEL
36-15 POLITICAL SUBDIVISION RULES. (a) A person commits an offense if
36-16 the person knowingly or intentionally violates a rule adopted under
36-17 Subchapter J, Chapter 16.
36-18 (b) An offense under this section is a Class A misdemeanor.
36-19 Sec. 7.144. VIOLATION RELATING TO WEATHER MODIFICATION.
36-20 (a) A person commits an offense if the person violates Chapter 18
36-21 or any rule adopted or order or permit issued under Chapter 18.
36-22 (b) An offense under this section is a misdemeanor and is
36-23 punishable under Section 7.187(1)(A) or Section 7.187(2)(A) or
36-24 both.
36-25 Sec. 7.145. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE.
37-1 (a) A person commits an offense if the person, acting
37-2 intentionally or knowingly with respect to the person's conduct,
37-3 discharges or allows the discharge of a waste or pollutant into or
37-4 adjacent to water in the state that causes or threatens to cause
37-5 water pollution unless the waste or pollutant is discharged in
37-6 strict compliance with all required permits or with an order issued
37-7 or a rule adopted by the appropriate regulatory agency.
37-8 (b) An offense under this section is punishable for an
37-9 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
37-10 both.
37-11 (c) An offense under this section is punishable for a person
37-12 other than an individual under Section 7.187(1)(D).
37-13 Sec. 7.146. DISCHARGE FROM POINT SOURCE. (a) A person
37-14 commits an offense if the person, acting intentionally or knowingly
37-15 with respect to the person's conduct, discharges or allows the
37-16 discharge of a waste or pollutant from a point source in violation
37-17 of Chapter 26 or of a rule, permit, or order of the appropriate
37-18 regulatory agency.
37-19 (b) An offense under this section is punishable for an
37-20 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
37-21 both.
37-22 (c) An offense under this section is punishable for a person
37-23 other than an individual under Section 7.187(1)(D).
37-24 Sec. 7.147. UNAUTHORIZED DISCHARGE. (a) A person commits
37-25 an offense if the person discharges or allows the discharge of any
38-1 waste or pollutant into any water in the state that causes or
38-2 threatens to cause water pollution unless the waste or pollutant is
38-3 discharged in strict compliance with all required permits or with a
38-4 valid and currently effective order issued or rule adopted by the
38-5 appropriate regulatory agency.
38-6 (b) An offense under this section may be prosecuted without
38-7 alleging or proving any culpable mental state.
38-8 (c) An offense under this section is punishable for an
38-9 individual under Section 7.187(1)(B) or Section 7.187(2)(D) or
38-10 both.
38-11 (d) An offense under this section is punishable for a person
38-12 other than an individual under Section 7.187(1)(C).
38-13 Sec. 7.148. FAILURE TO PROPERLY USE POLLUTION CONTROL
38-14 MEASURES. (a) A person commits an offense if the person
38-15 intentionally or knowingly tampers with, modifies, disables, or
38-16 fails to use pollution control or monitoring devices, systems,
38-17 methods, or practices required by Chapter 26 or a rule adopted or a
38-18 permit or an order issued under Chapter 26 by the commission or one
38-19 of its predecessor agencies unless done in strict compliance with
38-20 the rule, permit, or order.
38-21 (b) An offense under this section is punishable for an
38-22 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
38-23 both.
38-24 (c) An offense under this section is punishable for a person
38-25 other than an individual under Section 7.187(1)(D).
39-1 Sec. 7.149. FALSE STATEMENT. (a) A person commits an
39-2 offense if the person intentionally or knowingly makes or causes to
39-3 be made a false material statement, representation, or
39-4 certification in, or omits or causes to be omitted material
39-5 information from, an application, notice, record, report, plan, or
39-6 other document, including monitoring device data, filed or required
39-7 to be maintained by Chapter 26 or by a rule adopted or a permit or
39-8 an order issued by the appropriate regulatory agency under Chapter
39-9 26.
39-10 (b) An offense under this section is punishable for an
39-11 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
39-12 both.
39-13 (c) An offense under this section is punishable for a person
39-14 other than an individual under Section 7.187(1)(D).
39-15 Sec. 7.150. FAILURE TO NOTIFY OR REPORT. (a) A person
39-16 commits an offense if the person intentionally or knowingly fails
39-17 to notify or report to the commission as required under Chapter 26
39-18 or by a rule adopted or a permit or an order issued by the
39-19 appropriate regulatory agency under Chapter 26.
39-20 (b) An offense under this section is punishable for an
39-21 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
39-22 both.
39-23 (c) An offense under this section is punishable for a person
39-24 other than an individual under Section 7.187(1)(D).
39-25 Sec. 7.151. FAILURE TO PAY FEE. (a) A person commits an
40-1 offense if the person intentionally or knowingly fails to pay a fee
40-2 required by Chapter 26 or by a rule adopted or a permit or an order
40-3 issued by the appropriate regulatory agency under Chapter 26.
40-4 (b) An offense under this section is punishable for an
40-5 individual under Section 7.187(1)(H) or Section 7.187(2)(B) or
40-6 both.
40-7 (c) An offense under this section is punishable for a person
40-8 other than an individual under Section 7.187(1)(H).
40-9 Sec. 7.152. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE
40-10 AND KNOWING ENDANGERMENT. (a) A person commits an offense if the
40-11 person, acting intentionally or knowingly, discharges or allows the
40-12 discharge of a waste or pollutant into or adjacent to water in the
40-13 state and by that action knowingly places another person in
40-14 imminent danger of death or serious bodily injury, unless the
40-15 discharge is made in strict compliance with all required permits or
40-16 with an order issued or rule adopted by the appropriate regulatory
40-17 agency.
40-18 (b) For purposes of Subsection (a), in determining whether a
40-19 defendant who is an individual knew that the violation placed
40-20 another person in imminent danger of death or serious bodily
40-21 injury, the defendant is responsible only for the defendant's
40-22 actual awareness or actual belief possessed. Knowledge possessed
40-23 by a person other than the defendant may not be attributed to the
40-24 defendant. To prove a defendant's actual knowledge, circumstantial
40-25 evidence may be used, including evidence that the defendant took
41-1 affirmative steps to be shielded from relevant information.
41-2 (c) An offense under this section is punishable for an
41-3 individual under Section 7.187(1)(D) or Section 7.187(2)(G) or
41-4 both. If an offense committed by an individual under this section
41-5 results in death or serious bodily injury to another person, the
41-6 individual may be punished under Section 7.187(1)(E) or Section
41-7 7.187(2)(I) or both.
41-8 (d) An offense under this section is punishable for a person
41-9 other than an individual under Section 7.187(1)(E). If an offense
41-10 committed by a person other than an individual under this section
41-11 results in death or serious bodily injury to another person, the
41-12 person may be punished under Section 7.187(1)(F).
41-13 Sec. 7.153. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE
41-14 AND ENDANGERMENT. (a) A person commits an offense if the person,
41-15 acting intentionally or knowingly with respect to the person's
41-16 conduct, discharges or allows the discharge of a waste or pollutant
41-17 into or adjacent to water in the state and by that action places
41-18 another person in imminent danger of death or serious bodily
41-19 injury, unless the discharge is made in strict compliance with all
41-20 required permits or with a valid and currently effective order
41-21 issued or rule adopted by the appropriate regulatory agency.
41-22 (b) An offense under this section is punishable for an
41-23 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
41-24 both. If an offense committed by an individual under this section
41-25 results in death or serious bodily injury to another person, the
42-1 individual may be punished under Section 7.187(1)(E) or Section
42-2 7.187(2)(G) or both.
42-3 (c) An offense under this section is punishable for a person
42-4 other than an individual under Section 7.187(1)(E). If an offense
42-5 committed by a person other than an individual under this section
42-6 results in death or serious bodily injury to another person, the
42-7 person may be punished under Section 7.187(1)(F).
42-8 Sec. 7.154. RECKLESS UNAUTHORIZED DISCHARGE AND
42-9 ENDANGERMENT. (a) A person commits an offense if the person,
42-10 acting recklessly with respect to the person's conduct, discharges
42-11 or allows the discharge of a waste or pollutant into or adjacent to
42-12 water in the state and by that action places another person in
42-13 imminent danger of death or serious bodily injury, unless the
42-14 discharge is made in strict compliance with all required permits or
42-15 with a valid and currently effective order issued or rule adopted
42-16 by the appropriate regulatory agency.
42-17 (b) An offense under this section is punishable for an
42-18 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
42-19 both. If an offense committed by an individual under this section
42-20 results in death or serious bodily injury to another person, the
42-21 individual may be punished under Section 7.187(1)(D) or Section
42-22 7.187(2)(F) or both.
42-23 (c) An offense under this section is punishable for a person
42-24 other than an individual under Section 7.187(1)(D). If an offense
42-25 committed by a person other than an individual under this section
43-1 results in death or serious bodily injury to another person, the
43-2 person may be punished under Section 7.187(1)(E).
43-3 Sec. 7.155. VIOLATION RELATING TO DISCHARGE OR SPILL.
43-4 (a) A person commits an offense if the person:
43-5 (1) operates, is in charge of, or is responsible for a
43-6 facility or vessel that causes a discharge or spill as defined by
43-7 Section 26.263 and does not report the spill or discharge on
43-8 discovery; or
43-9 (2) knowingly falsifies a record or report concerning
43-10 the prevention or cleanup of a discharge or spill.
43-11 (b) An offense under Subsection (a)(1) is a Class A
43-12 misdemeanor.
43-13 (c) An offense under Subsection (a)(2) is a felony of the
43-14 third degree.
43-15 Sec. 7.156. VIOLATION RELATING TO UNDERGROUND STORAGE TANK.
43-16 (a) A person or business entity commits an offense if:
43-17 (1) the person or business entity engages in the
43-18 installation, repair, or removal of an underground storage tank and
43-19 the person or business entity:
43-20 (A) does not hold a certificate of registration
43-21 issued under Section 26.452; and
43-22 (B) is not under the substantial control of a
43-23 person or business entity who holds a certificate of registration
43-24 issued under Section 26.452;
43-25 (2) the person or business entity:
44-1 (A) authorizes or allows the installation,
44-2 repair, or removal of an underground storage tank to be conducted
44-3 by a person or business entity who does not hold a certificate of
44-4 registration issued under Section 26.452; or
44-5 (B) authorizes or allows the installation,
44-6 repair, or removal of an underground storage tank to be performed
44-7 or supervised by a person or business entity who does not hold a
44-8 license issued under Section 26.456; or
44-9 (3) the conduct of the person or business entity makes
44-10 the person or business entity responsible for a violation of
44-11 Subchapter K, Chapter 26, or of a rule adopted or order issued
44-12 under that subchapter.
44-13 (b) A person commits an offense if the person performs or
44-14 supervises the installation, repair, or removal of an underground
44-15 storage tank unless:
44-16 (1) the person holds a license issued under Section
44-17 26.456; or
44-18 (2) another person who holds a license issued under
44-19 Section 26.456 is substantially responsible for the performance or
44-20 supervision of the installation, repair, or removal.
44-21 (c) An offense under this section is a Class A misdemeanor.
44-22 Sec. 7.157. VIOLATION RELATING TO INJECTION WELLS. (a) A
44-23 person commits an offense if the person knowingly or intentionally
44-24 violates Chapter 27 or a rule adopted or an order or a permit
44-25 issued under Chapter 27.
45-1 (b) An offense under this section is punishable under
45-2 Section 7.187(1)(B).
45-3 Sec. 7.158. VIOLATION RELATING TO PLUGGING WELLS. (a) A
45-4 person commits an offense if the person is the owner of a well that
45-5 is required to be cased or plugged by Chapter 28 and the person:
45-6 (1) fails or refuses to case or plug the well within
45-7 the 30-day period following the date of the commission's order to
45-8 do so; or
45-9 (2) fails to comply with any other order issued by the
45-10 commission under Chapter 28 within the 30-day period following the
45-11 date of the order.
45-12 (b) An offense under this section is a misdemeanor and is
45-13 punishable under Section 7.187(1)(A).
45-14 Sec. 7.159. VIOLATION RELATING TO WATER WELLS OR DRILLED OR
45-15 MINED SHAFTS. (a) A person commits an offense if the person
45-16 knowingly or intentionally violates Chapter 28 or a commission rule
45-17 adopted or an order or a permit issued under that chapter.
45-18 (b) An offense under this section is punishable under
45-19 Section 7.187(1)(B).
45-20 Sec. 7.160. VIOLATION RELATING TO CERTAIN SUBSURFACE
45-21 EXCAVATIONS. (a) A person commits an offense if the person
45-22 knowingly or intentionally violates Chapter 31 or a commission rule
45-23 adopted or an order or a permit issued under that chapter.
45-24 (b) An offense under this section is punishable under
45-25 Section 7.187(1)(B).
46-1 Sec. 7.161. VIOLATION RELATING TO SOLID WASTE IN ENCLOSED
46-2 CONTAINERS OR VEHICLES. (a) An operator of a solid waste facility
46-3 or a solid waste hauler commits an offense if the operator or
46-4 hauler disposes of solid waste in a completely enclosed container
46-5 or vehicle at a solid waste site or operation permitted as a Type
46-6 IV landfill:
46-7 (1) without having in possession the special permit
46-8 required by Section 361.091, Health and Safety Code;
46-9 (2) on a date or time not authorized by the
46-10 commission; or
46-11 (3) without a commission inspector present to verify
46-12 that the solid waste is free of putrescible, hazardous, and
46-13 infectious waste.
46-14 (b) An offense under this section is a Class B misdemeanor.
46-15 (c) This section does not apply to:
46-16 (1) a stationary compactor that is at a specific
46-17 location and that has an annual permit under Section 361.091,
46-18 Health and Safety Code, issued by the commission, on certification
46-19 to the commission by the generator that the contents of the
46-20 compactor are free of putrescible, hazardous, or infectious waste;
46-21 or
46-22 (2) an enclosed vehicle of a municipality if the
46-23 vehicle has a permit issued by the commission to transport brush or
46-24 construction-demolition waste and rubbish on designated dates, on
46-25 certification by the municipality to the commission that the
47-1 contents of the vehicle are free of putrescible, hazardous, or
47-2 infectious waste.
47-3 (d) In this section, "putrescible waste" means organic
47-4 waste, such as garbage, wastewater treatment plant sludge, and
47-5 grease trap waste, that may:
47-6 (1) be decomposed by microorganisms with sufficient
47-7 rapidity as to cause odors or gases; or
47-8 (2) provide food for or attract birds, animals, or
47-9 disease vectors.
47-10 Sec. 7.162. VIOLATIONS RELATING TO HAZARDOUS WASTE. (a) A
47-11 person commits an offense if the person, acting intentionally or
47-12 knowingly with respect to the person's conduct:
47-13 (1) transports, or causes or allows to be transported,
47-14 for storage, processing, or disposal, any hazardous waste to any
47-15 location that does not have all required permits;
47-16 (2) stores, processes, exports, or disposes of, or
47-17 causes to be stored, processed, exported, or disposed of, any
47-18 hazardous waste without all permits required by the appropriate
47-19 regulatory agency or in knowing violation of any material condition
47-20 or requirement of a permit or of an applicable interim status rule
47-21 or standard;
47-22 (3) omits or causes to be omitted material information
47-23 or makes or causes to be made any false material statement or
47-24 representation in any application, label, manifest, record, report,
47-25 permit, plan, or other document filed, maintained, or used to
48-1 comply with any requirement of Chapter 361, Health and Safety Code,
48-2 applicable to hazardous waste;
48-3 (4) generates, transports, stores, processes, or
48-4 disposes of, or otherwise handles, or causes to be generated,
48-5 transported, stored, processed, disposed of, or otherwise handled,
48-6 hazardous waste, whether the activity took place before or after
48-7 September 1, 1981, and who knowingly destroys, alters, conceals, or
48-8 does not file, or causes to be destroyed, altered, concealed, or
48-9 not filed, any record, application, manifest, report, or other
48-10 document required to be maintained or filed to comply with the
48-11 rules of the appropriate regulatory agency adopted under Chapter
48-12 361, Health and Safety Code;
48-13 (5) transports without a manifest, or causes or allows
48-14 to be transported without a manifest, any hazardous waste required
48-15 by rules adopted under Chapter 361, Health and Safety Code, to be
48-16 accompanied by a manifest;
48-17 (6) tampers with, modifies, disables, or fails to use
48-18 required pollution control or monitoring devices, systems, methods,
48-19 or practices, unless done in strict compliance with Chapter 361,
48-20 Health and Safety Code, or with an order, rule, or permit of the
48-21 appropriate regulatory agency;
48-22 (7) releases, causes, or allows the release of a
48-23 hazardous waste that causes or threatens to cause pollution, unless
48-24 the release is made in strict compliance with all required permits
48-25 or an order, rule, or permit of the appropriate regulatory agency;
49-1 or
49-2 (8) does not notify or report to the appropriate
49-3 regulatory agency as required by Chapter 361, Health and Safety
49-4 Code, or by a rule adopted or an order or a permit issued by the
49-5 appropriate regulatory agency under that chapter.
49-6 (b) An offense under Subsection (a)(1) or (a)(2) is
49-7 punishable for an individual under Section 7.187(1)(B) or Section
49-8 7.187(2)(G) or both. An offense under Subsection (a)(3), (a)(4),
49-9 or (a)(5) is punishable for an individual under Section 7.187(1)(B)
49-10 or Section 7.187(2)(E) or both. An offense under Subsection
49-11 (a)(6), (a)(7), or (a)(8) is punishable for an individual under
49-12 Section 7.187(1)(C) or Section 7.187(2)(D) or both.
49-13 (c) If it is shown on the trial of an individual that the
49-14 individual has been previously convicted of an offense under this
49-15 section, an offense under Subsection (a)(1) or (a)(2) is punishable
49-16 for an individual under Section 7.187(1)(C) or Section 7.187(2)(G)
49-17 or both, and an offense under Subsection (a)(3), (a)(4), or (a)(5)
49-18 is punishable for an individual under Section 7.187(1)(C) or
49-19 Section 7.187(2)(F) or both.
49-20 (d) An offense under Subsection (a)(1), (a)(2), (a)(3),
49-21 (a)(4), or (a)(5) is punishable for a person other than an
49-22 individual under Section 7.187(1)(D). If it is shown on the trial
49-23 of a person other than an individual that the person previously has
49-24 been convicted of an offense under Subsection (a)(1), (a)(2),
49-25 (a)(3), (a)(4), or (a)(5), the offense is punishable under Section
50-1 7.187(1)(E). An offense under Subsection (a)(6), (a)(7), or (a)(8)
50-2 is punishable for a person other than an individual under Section
50-3 7.187(1)(D).
50-4 Sec. 7.163. VIOLATIONS RELATING TO HAZARDOUS WASTE AND
50-5 ENDANGERMENT. (a) A person commits an offense if:
50-6 (1) acting intentionally or knowingly, the person
50-7 transports, processes, stores, exports, or disposes of, or causes
50-8 to be transported, processed, stored, exported, or disposed of,
50-9 hazardous waste in violation of Chapter 361, Health and Safety
50-10 Code, and by that action knowingly places another person in
50-11 imminent danger of death or serious bodily injury;
50-12 (2) acting intentionally or knowingly with respect to
50-13 the person's conduct, transports, processes, stores, exports, or
50-14 disposes of, or causes to be transported, processed, stored,
50-15 exported, or disposed of, hazardous waste in violation of Chapter
50-16 361, Health and Safety Code, and by that action places another
50-17 person in imminent danger of death or serious bodily injury, unless
50-18 the conduct charged is done in strict compliance with all required
50-19 permits or with an order issued or a rule adopted by the
50-20 appropriate regulatory agency;
50-21 (3) acting intentionally or knowingly with respect to
50-22 the person's conduct, releases or causes or allows the release of a
50-23 hazardous waste into the environment and by that action places
50-24 another person in imminent danger of death or serious bodily
50-25 injury, unless the release is made in strict compliance with all
51-1 required permits or an order issued or a rule adopted by the
51-2 appropriate regulatory agency; or
51-3 (4) acting recklessly with respect to the person's
51-4 conduct, releases or causes or allows the release of a hazardous
51-5 waste into the environment and by that action places another person
51-6 in imminent danger of death or serious bodily injury, unless the
51-7 release is made in strict compliance with all required permits or
51-8 an order issued or a rule adopted by the appropriate regulatory
51-9 agency.
51-10 (b) An offense under Subsection (a)(1) is punishable for an
51-11 individual under Section 7.187(1)(E) or Section 7.187(2)(H) or
51-12 both. An offense under Subsection (a)(1) is punishable for a
51-13 person other than an individual under Section 7.187(1)(F). If an
51-14 offense committed by an individual under Subsection (a)(1) results
51-15 in death or serious bodily injury to another person, the individual
51-16 may be punished under Section 7.187(1)(F) or Section 7.187(2)(J) or
51-17 both. If an offense committed by a person other than an individual
51-18 under Subsection (a)(1) results in death or serious bodily injury
51-19 to another person, the person may be punished under Section
51-20 7.187(1)(G). For purposes of Subsection (a)(1), in determining
51-21 whether a defendant who is an individual knew that the violation
51-22 placed another person in imminent danger of death or serious bodily
51-23 injury, the defendant is responsible only for the defendant's
51-24 actual awareness or actual belief possessed. Knowledge possessed
51-25 by a person other than the defendant may not be attributed to the
52-1 defendant. To prove a defendant's actual knowledge, circumstantial
52-2 evidence may be used, including evidence that the defendant took
52-3 affirmative steps to be shielded from relevant information.
52-4 (c) An offense under Subsection (a)(2) is punishable for an
52-5 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
52-6 both. An offense under Subsection (a)(2) is punishable for a
52-7 person other than an individual under Section 7.187(1)(E). If an
52-8 offense committed under Subsection (a)(2) results in death or
52-9 serious bodily injury to another person, an individual may be
52-10 punished under Section 7.187(1)(E) or Section 7.187(2)(G) or both.
52-11 If an offense committed by a person other than an individual under
52-12 Subsection (a)(2) results in death or serious bodily injury to
52-13 another person, the person may be punished under Section
52-14 7.187(1)(F).
52-15 (d) An offense under Subsection (a)(3) is punishable for an
52-16 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
52-17 both. An offense under Subsection (a)(3) is punishable for a
52-18 person other than an individual under Section 7.187(1)(E). If an
52-19 offense committed by an individual under Subsection (a)(3) results
52-20 in death or serious bodily injury to another person, the individual
52-21 may be punished under Section 7.187(1)(E) or Section 7.187(2)(G) or
52-22 both. If an offense committed by a person other than an individual
52-23 under Subsection (a)(3) results in death or serious bodily injury
52-24 to another person, the person may be punished under Section
52-25 7.187(1)(F).
53-1 (e) An offense under Subsection (a)(4) is punishable for an
53-2 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
53-3 both. An offense under Subsection (a)(4) is punishable for a
53-4 person other than an individual under Section 7.187(1)(E). If an
53-5 offense committed by an individual under Subsection (a)(4) results
53-6 in death or serious bodily injury to another person, the individual
53-7 may be punished under Section 7.187(1)(E) or Section 7.187(2)(E) or
53-8 both. If an offense committed by a person other than an individual
53-9 under Subsection (a)(4) results in death or serious bodily injury
53-10 to another person, the person may be punished under Section
53-11 7.187(1)(F).
53-12 Sec. 7.164. VIOLATIONS RELATING TO MEDICAL WASTE: LARGE
53-13 GENERATOR. (a) A person commits an offense if the person is a
53-14 large quantity generator and the person, acting intentionally or
53-15 knowingly with respect to the person's conduct:
53-16 (1) generates, collects, stores, processes, exports,
53-17 or disposes of, or causes or allows to be generated, collected,
53-18 stored, processed, exported, or disposed of, any medical waste
53-19 without all permits required by the appropriate regulatory agency
53-20 or in knowing violation of a material condition or requirement of a
53-21 permit or of an applicable interim status rule or standard; or
53-22 (2) generates, collects, stores, treats, transports,
53-23 or disposes of, or causes or allows to be generated, collected,
53-24 stored, treated, transported, or disposed of, or otherwise handles
53-25 any medical waste, and knowingly destroys, alters, conceals, or
54-1 does not file a record, report, manifest, or other document
54-2 required to be maintained or filed under rules adopted by the
54-3 appropriate regulatory agency.
54-4 (b) An offense under this section is punishable for an
54-5 individual under Section 7.187(1)(B) or Section 7.187(2)(G) or
54-6 both. If it is shown on the trial of an individual that the
54-7 individual has been previously convicted of an offense under this
54-8 section, the offense is punishable for an individual under Section
54-9 7.187(1)(C) or Section 7.187(2)(I) or both.
54-10 (c) An offense under this section is punishable for a person
54-11 other than an individual under Section 7.187(1)(B). If it is shown
54-12 on the trial of a person other than an individual that the person
54-13 has been previously convicted of an offense under this section, the
54-14 offense is punishable by Section 7.187(1)(C).
54-15 Sec. 7.165. VIOLATIONS RELATING TO MEDICAL WASTE: SMALL
54-16 GENERATOR. (a) A person commits an offense if the person is a
54-17 small quantity generator and the person, acting intentionally or
54-18 knowingly with respect to the person's conduct:
54-19 (1) generates, collects, stores, processes, exports,
54-20 or disposes of, or causes or allows to be generated, collected,
54-21 stored, processed, exported, or disposed of, any medical waste
54-22 without all permits required by the appropriate regulatory agency
54-23 or in knowing violation of any material condition or requirement of
54-24 a permit or of an applicable interim status rule or standard; or
54-25 (2) generates, collects, stores, treats, transports,
55-1 or disposes of, or causes or allows to be generated, collected,
55-2 stored, treated, transported, or disposed of, or otherwise handles
55-3 any medical waste, and knowingly destroys, alters, conceals, or
55-4 does not file a record, report, manifest, or other document
55-5 required to be maintained or filed under rules adopted by the
55-6 appropriate regulatory agency.
55-7 (b) An offense under this section is punishable for an
55-8 individual under Section 7.187(1)(A). If it is shown on the trial
55-9 of an individual that the individual has been previously convicted
55-10 of an offense under this section, the offense is punishable for an
55-11 individual under Section 7.187(1)(B) or Section 7.187(2)(C) or
55-12 both.
55-13 (c) An offense under this section is punishable for a person
55-14 other than an individual under Section 7.187(1)(B). If it is shown
55-15 on the trial of a person other than an individual that the person
55-16 has been previously convicted of an offense under this section, the
55-17 offense is punishable under Section 7.187(1)(C).
55-18 Sec. 7.166. VIOLATIONS RELATING TO TRANSPORTATION OF MEDICAL
55-19 WASTE. (a) A person commits an offense if the person, acting
55-20 intentionally or knowingly with respect to the person's conduct:
55-21 (1) transports, or causes or allows to be transported,
55-22 for storage, processing, or disposal, any medical waste to a
55-23 location that does not have all required permits;
55-24 (2) transports without a manifest, or causes or allows
55-25 to be transported without a manifest, any medical waste required to
56-1 be accompanied by a manifest under rules adopted by the appropriate
56-2 regulatory agency; or
56-3 (3) operates a vehicle that is transporting medical
56-4 waste, or that is authorized to transport medical waste, in
56-5 violation of a rule adopted by the appropriate regulatory agency,
56-6 including cleaning and safety regulations, that specifically
56-7 relates to the transportation of medical waste.
56-8 (b) An offense under this section is punishable for an
56-9 individual under Section 7.187(1)(B) or Section 7.187(2)(D) or
56-10 both. If it is shown on the trial of an individual that the
56-11 individual has been previously convicted of an offense under this
56-12 section, the offense is punishable for an individual under Section
56-13 7.187(1)(C) or Section 7.187(2)(E) or both.
56-14 (c) An offense under this section is punishable for a person
56-15 other than an individual under Section 7.187(1)(E). If it is shown
56-16 on the trial of a person other than an individual that the person
56-17 has been previously convicted of an offense under this section, the
56-18 offense is punishable under Section 7.187(1)(F).
56-19 Sec. 7.167. FALSE STATEMENTS RELATING TO MEDICAL WASTE.
56-20 (a) A person commits an offense if the person knowingly:
56-21 (1) makes a false material statement, or knowingly
56-22 causes or knowingly allows to be made a false material statement,
56-23 to a person who prepares a regulated medical waste label, manifest,
56-24 application, permit, plan, registration, record, report, or other
56-25 document required by an order or a rule of the appropriate
57-1 regulatory agency; or
57-2 (2) omits material information, or causes or allows
57-3 material information to be omitted, from a regulated medical waste
57-4 label, manifest, application, permit, plan, registration, record,
57-5 report, or other document required by an order or a rule of the
57-6 appropriate regulatory agency.
57-7 (b) An offense under this section is punishable for an
57-8 individual under Section 7.187(1)(B) or Section 7.187(2)(D) or
57-9 both. If it is shown on the trial of an individual that the
57-10 individual has been previously convicted of an offense under this
57-11 section, the offense is punishable for an individual under Section
57-12 7.187(1)(C) or Section 7.187(2)(E) or both.
57-13 (c) An offense under this section is punishable for a person
57-14 other than an individual under Section 7.187(1)(B). If it is shown
57-15 on the trial of a person other than an individual that the person
57-16 has been previously convicted of an offense under this section, the
57-17 offense is punishable under Section 7.187(1)(C).
57-18 Sec. 7.168. INTENTIONAL OR KNOWING VIOLATION RELATING TO
57-19 MEDICAL WASTE AND KNOWING ENDANGERMENT. (a) A person commits an
57-20 offense if the person, acting intentionally or knowingly,
57-21 transports, processes, stores, exports, or disposes of, or causes
57-22 to be transported, processed, stored, exported, or disposed of,
57-23 medical waste in violation of Chapter 361, Health and Safety Code,
57-24 and by that action knowingly places another person in imminent
57-25 danger of death or serious bodily injury.
58-1 (b) An offense under this section is punishable for an
58-2 individual under Section 7.187(1)(E) or Section 7.187(2)(H) or
58-3 both. If an offense committed by an individual under this section
58-4 results in death or serious bodily injury to another person, the
58-5 offense is punishable for an individual under Section 7.187(1)(F)
58-6 or Section 7.187(2)(J) or both.
58-7 (c) An offense under this section is punishable for a person
58-8 other than an individual under Section 7.187(1)(F). If an offense
58-9 committed by a person other than an individual under this section
58-10 results in death or serious bodily injury to another person, the
58-11 offense is punishable under Section 7.187(1)(G).
58-12 Sec. 7.169. INTENTIONAL OR KNOWING VIOLATION RELATING TO
58-13 MEDICAL WASTE AND ENDANGERMENT. (a) A person commits an offense
58-14 if the person, acting intentionally or knowingly with respect to
58-15 the person's conduct, transports, processes, stores, exports, or
58-16 disposes of medical waste in violation of Chapter 361, Health and
58-17 Safety Code, and by that action places another person in imminent
58-18 danger of death or serious bodily injury, unless the conduct
58-19 charged is done in strict compliance with all required permits or
58-20 with an order issued or rule adopted by the appropriate regulatory
58-21 agency.
58-22 (b) An offense under this section is punishable for an
58-23 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
58-24 both. If an offense committed by an individual under this section
58-25 results in death or serious bodily injury to another person, the
59-1 offense is punishable for an individual under Section 7.187(1)(E)
59-2 or Section 7.187(2)(G) or both.
59-3 (c) An offense under this section is punishable for a person
59-4 other than an individual under Section 7.187(1)(E). If an offense
59-5 committed by a person other than an individual under this section
59-6 results in death or serious bodily injury to another person, the
59-7 offense is punishable under Section 7.187(1)(F).
59-8 Sec. 7.170. INTENTIONAL OR KNOWING RELEASE OF MEDICAL WASTE
59-9 INTO ENVIRONMENT AND ENDANGERMENT. (a) A person commits an
59-10 offense if the person, acting intentionally or knowingly with
59-11 respect to the person's conduct, releases or causes or allows the
59-12 release of a medical waste into the environment and by that action
59-13 places another person in imminent danger of death or serious bodily
59-14 injury, unless the release is done in strict compliance with all
59-15 required permits or an order issued or rule adopted by the
59-16 appropriate regulatory agency.
59-17 (b) An offense under this section is punishable for an
59-18 individual under Section 7.187(1)(D) or Section 7.187(2)(G) or
59-19 both. If an offense committed by an individual under this section
59-20 results in death or serious bodily injury to another person, the
59-21 offense is punishable for an individual under Section 7.187(1)(E)
59-22 or Section 7.187(2)(G) or both.
59-23 (c) An offense under this section is punishable for a person
59-24 other than an individual under Section 7.187(1)(E). If an offense
59-25 committed by a person other than an individual under this section
60-1 results in death or serious bodily injury to another person, the
60-2 offense is punishable under Section 7.187(1)(F).
60-3 Sec. 7.171. RECKLESS RELEASE OF MEDICAL WASTE INTO
60-4 ENVIRONMENT AND ENDANGERMENT. (a) A person commits an offense if
60-5 the person, acting recklessly with respect to a person's conduct,
60-6 releases or causes or allows the release of a medical waste into
60-7 the environment and by that action places another person in
60-8 imminent danger of death or serious bodily injury, unless the
60-9 release is made in strict compliance with all required permits or
60-10 an order issued or rule adopted by the appropriate regulatory
60-11 agency.
60-12 (b) An offense under this section is punishable for an
60-13 individual under Section 7.187(1)(D) or Section 7.187(2)(D) or
60-14 both. If an offense committed by an individual under this section
60-15 results in death or serious bodily injury to another person, the
60-16 offense is punishable for an individual under Section 7.187(1)(E)
60-17 or Section 7.187(2)(E) or both.
60-18 (c) An offense under this section is punishable for a person
60-19 other than an individual under Section 7.187(1)(E). If an offense
60-20 committed by a person other than an individual under this section
60-21 results in death or serious bodily injury to another person, the
60-22 offense is punishable under Section 7.187(1)(F).
60-23 Sec. 7.172. FAILURE OF SEWAGE SYSTEM INSTALLER TO REGISTER.
60-24 (a) A person commits an offense if the person violates Section
60-25 366.071, Health and Safety Code.
61-1 (b) Except as provided by this subsection, an offense under
61-2 this section is a Class C misdemeanor. If it is shown on the trial
61-3 of the defendant that the defendant has been previously convicted
61-4 of an offense under this section, the offense is punishable under
61-5 Section 7.187(1)(A) or Section 7.187(2)(A) or both.
61-6 Sec. 7.173. VIOLATION RELATING TO SEWAGE DISPOSAL NEAR
61-7 INTERNATIONAL BORDER. (a) A person commits an offense if the
61-8 person violates a rule adopted by the commission under Chapter 366,
61-9 Health and Safety Code, or an order or resolution adopted by an
61-10 authorized agent under Subchapter C, Chapter 366, Health and Safety
61-11 Code, in a county that is contiguous to an international border.
61-12 (b) Except as provided by this subsection, an offense under
61-13 this section is a Class C misdemeanor. If it is shown on the trial
61-14 of the defendant that the defendant has been previously convicted
61-15 of an offense under this section, the offense is punishable under
61-16 Section 7.187(1)(A) or Section 7.187(2)(A) or both.
61-17 Sec. 7.174. VIOLATION OF SEWAGE DISPOSAL SYSTEM PERMIT
61-18 PROVISION. (a) A person commits an offense if the person begins
61-19 to construct, alter, repair, or extend an on-site sewage disposal
61-20 system owned by another person before the owner of the system
61-21 obtains a permit to construct, alter, repair, or extend the on-site
61-22 sewage disposal system as required by Subchapter D, Chapter 366,
61-23 Health and Safety Code.
61-24 (b) Except as provided by this subsection, an offense under
61-25 this section is a Class C misdemeanor. If it is shown on the trial
62-1 of the defendant that the defendant has previously been convicted
62-2 of an offense under this section, the offense is punishable under
62-3 Section 7.187(1)(A) or Section 7.187(2)(A) or both.
62-4 Sec. 7.175. EMERGENCY REPAIR NOT AN OFFENSE. An emergency
62-5 repair to an on-site sewage disposal system without a permit in
62-6 accordance with the rules adopted under Section 366.012(a)(1)(C),
62-7 Health and Safety Code, is not an offense under Section 7.172,
62-8 7.173, or 7.174 if a written statement describing the need for the
62-9 repair is provided to the commission or its authorized agent not
62-10 later than 72 hours after the repair is begun.
62-11 Sec. 7.176. VIOLATIONS RELATING TO HANDLING OF USED OIL.
62-12 (a) A person commits an offense if the person:
62-13 (1) intentionally discharges used oil into a sewer,
62-14 drainage system, septic tank, surface water or groundwater,
62-15 watercourse, or marine water;
62-16 (2) knowingly mixes or commingles used oil with solid
62-17 waste that is to be disposed of in landfills or directly disposes
62-18 of used oil on land or in landfills, unless the mixing or
62-19 commingling of used oil with solid waste that is to be disposed of
62-20 in landfills is incident to and the unavoidable result of the
62-21 mechanical shredding of motor vehicles, appliances, or other items
62-22 of scrap, used, or obsolete metals;
62-23 (3) knowingly transports, treats, stores, disposes of,
62-24 recycles, causes to be transported, or otherwise handles any used
62-25 oil within the state:
63-1 (A) in violation of standards or rules for the
63-2 management of used oil; or
63-3 (B) without first complying with the
63-4 registration requirements of Chapter 371, Health and Safety Code,
63-5 and rules adopted under that chapter;
63-6 (4) intentionally applies used oil to roads or land
63-7 for dust suppression, weed abatement, or other similar uses that
63-8 introduce used oil into the environment;
63-9 (5) violates an order of the commission to cease and
63-10 desist an activity prohibited by this section or a rule applicable
63-11 to a prohibited activity; or
63-12 (6) intentionally makes a false statement or
63-13 representation in an application, label, manifest, record, report,
63-14 permit, or other document filed, maintained, or used for purposes
63-15 of program compliance.
63-16 (b) It is an exception to the application of this section
63-17 that a person unknowingly disposes into the environment any used
63-18 oil that has not been properly segregated or separated by the
63-19 generator from other solid wastes.
63-20 (c) It is an exception to the application of Subsection
63-21 (a)(2) that the mixing or commingling of used oil with solid waste
63-22 that is to be disposed of in landfills is incident to and the
63-23 unavoidable result of the mechanical shredding of motor vehicles,
63-24 appliances, or other items of scrap, used, or obsolete metals.
63-25 (d) Except as provided by this subsection, an offense under
64-1 this section is punishable under Section 7.187(1)(B) or Section
64-2 7.187(2)(F), or both. If it is shown on the trial of the defendant
64-3 that the defendant has been previously convicted of an offense
64-4 under this section, the offense is punishable under Section
64-5 7.187(1)(C) or Section 7.187(2)(H) or both.
64-6 Sec. 7.177. VIOLATIONS OF CLEAN AIR ACT. (a) A person
64-7 commits an offense if the person intentionally or knowingly, with
64-8 respect to the person's conduct, violates:
64-9 (1) Section 382.0518(a), Health and Safety Code;
64-10 (2) Section 382.054, Health and Safety Code;
64-11 (3) Section 382.056(a), Health and Safety Code;
64-12 (4) Section 382.058(a), Health and Safety Code; or
64-13 (5) an order, permit, or exemption issued or a rule
64-14 adopted under Chapter 382, Health and Safety Code.
64-15 (b) An offense under this section is punishable for an
64-16 individual under Section 7.187(1)(B) or Section 7.187(2)(C) or
64-17 both.
64-18 (c) An offense under this section is punishable for a person
64-19 other than an individual under Section 7.187(1)(C).
64-20 Sec. 7.178. FAILURE TO PAY FEES UNDER CLEAN AIR ACT. (a) A
64-21 person commits an offense if the person intentionally or knowingly
64-22 does not pay a fee required by Chapter 382, Health and Safety Code,
64-23 or by a rule adopted or an order issued under that chapter.
64-24 (b) An offense under this section is punishable for an
64-25 individual under Section 7.187(1)(H) or Section 7.187(2)(B) or
65-1 both.
65-2 (c) An offense under this section is punishable for a person
65-3 other than an individual under Section 7.187(1)(H).
65-4 Sec. 7.179. FALSE REPRESENTATIONS UNDER CLEAN AIR ACT.
65-5 (a) A person commits an offense if the person intentionally or
65-6 knowingly makes or causes to be made a false material statement,
65-7 representation, or certification in, or omits material information
65-8 from, or knowingly alters, conceals, or does not file or maintain a
65-9 notice, application, record, report, plan, or other document
65-10 required to be filed or maintained by Chapter 382, Health and
65-11 Safety Code, or by a rule adopted or a permit or order issued under
65-12 that chapter.
65-13 (b) An offense under this section is punishable for an
65-14 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
65-15 both.
65-16 (c) An offense under this section is punishable for a person
65-17 other than an individual under Section 7.187(1)(D).
65-18 Sec. 7.180. FAILURE TO NOTIFY UNDER CLEAN AIR ACT. (a) A
65-19 person commits an offense if the person intentionally or knowingly
65-20 does not notify or report to the commission as required by Chapter
65-21 382, Health and Safety Code, or by a rule adopted or a permit or
65-22 order issued under that chapter.
65-23 (b) An offense under this section is punishable for an
65-24 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
65-25 both.
66-1 (c) An offense under this section is punishable for a person
66-2 other than an individual under Section 7.187(1)(D).
66-3 Sec. 7.181. IMPROPER USE OF MONITORING DEVICE. (a) A
66-4 person commits an offense if the person intentionally or knowingly
66-5 tampers with, modifies, disables, or fails to use a required
66-6 monitoring device; tampers with, modifies, or disables a monitoring
66-7 device; or falsifies, fabricates, or omits data from a monitoring
66-8 device, unless the act is done in strict compliance with Chapter
66-9 382, Health and Safety Code, or a permit, variance, or order issued
66-10 or a rule adopted by the commission.
66-11 (b) An offense under this section is punishable for an
66-12 individual under Section 7.187(1)(C) or Section 7.187(2)(D) or
66-13 both.
66-14 (c) An offense under this section is punishable for a person
66-15 other than an individual under Section 7.187(1)(D).
66-16 Sec. 7.182. RECKLESS EMISSION OF AIR CONTAMINANT AND
66-17 ENDANGERMENT. (a) A person commits an offense if the person
66-18 recklessly, with respect to the person's conduct, emits an air
66-19 contaminant that places another person in imminent danger of death
66-20 or serious bodily injury, unless the emission is made in strict
66-21 compliance with Chapter 382, Health and Safety Code, or a permit,
66-22 variance, or order issued or a rule adopted by the commission.
66-23 (b) An offense under this section is punishable for an
66-24 individual under Section 7.187(1)(D) or Section 7.187(2)(F) or
66-25 both.
67-1 (c) An offense under this section is punishable for a person
67-2 other than an individual under Section 7.187(1)(E).
67-3 Sec. 7.183. INTENTIONAL OR KNOWING EMISSION OF AIR
67-4 CONTAMINANT AND KNOWING ENDANGERMENT. (a) A person commits an
67-5 offense if the person intentionally or knowingly, with respect to
67-6 the person's conduct, emits an air contaminant with the knowledge
67-7 that the person is placing another person in imminent danger of
67-8 death or serious bodily injury unless the emission is made in
67-9 strict compliance with Chapter 382, Health and Safety Code, or a
67-10 permit, variance, or order issued or a rule adopted by the
67-11 commission.
67-12 (b) An offense under this section is punishable for an
67-13 individual under Section 7.187(1)(E) or Section 7.187(2)(F) or
67-14 both.
67-15 (c) An offense under this section is punishable for a person
67-16 other than an individual under Section 7.187(1)(F).
67-17 Sec. 7.184. VIOLATIONS RELATING TO RADIOACTIVE WASTE.
67-18 (a) A person commits an offense if the person:
67-19 (1) intentionally or knowingly violates a provision of
67-20 Chapter 401, Health and Safety Code, other than the offense
67-21 described by Subdivision (2); or
67-22 (2) intentionally or knowingly receives, processes,
67-23 concentrates, stores, transports, or disposes of radioactive waste
67-24 without a license issued under Chapter 401, Health and Safety Code.
67-25 (b) Except as provided by this subsection, an offense under
68-1 Subsection (a)(1) is a Class B misdemeanor. If it is shown on the
68-2 trial of the person that the person has previously been convicted
68-3 of an offense under Subsection (a)(1), the offense is a Class A
68-4 misdemeanor.
68-5 (c) Except as provided by this subsection, an offense under
68-6 Subsection (a)(2) is a Class A misdemeanor. If it is shown on the
68-7 trial of the person that the person has previously been convicted
68-8 of an offense under Subsection (a)(2), the offense is punishable
68-9 under Section 7.187(1)(D) or Section 7.187(2)(D) or both.
68-10 Sec. 7.185. KNOWING OR INTENTIONAL UNAUTHORIZED DISPOSAL OF
68-11 LEAD-ACID BATTERIES. (a) A person commits an offense if the
68-12 person knowingly or intentionally disposes of a lead-acid battery
68-13 other than as provided by Section 361.451, Health and Safety Code.
68-14 (b) An offense under this section is a Class A misdemeanor.
68-15 Sec. 7.186. SEPARATE OFFENSES. Each day a person engages in
68-16 conduct proscribed by this subchapter constitutes a separate
68-17 offense.
68-18 Sec. 7.187. PENALTIES. A person convicted of an offense
68-19 under this subchapter is punishable by:
68-20 (1) a fine, as imposed under the section creating the
68-21 offense, of:
68-22 (A) not more than $1,000;
68-23 (B) not less than $1,000 or more than $50,000;
68-24 (C) not less than $1,000 or more than $100,000;
68-25 (D) not less than $1,000 or more than $250,000;
69-1 (E) not less than $2,000 or more than $500,000;
69-2 (F) not less than $5,000 or more than
69-3 $1,000,000;
69-4 (G) not less than $10,000 or more than
69-5 $1,500,000; or
69-6 (H) not more than twice the amount of the
69-7 required fee;
69-8 (2) confinement for a period, as imposed by the
69-9 section creating the offense, not to exceed:
69-10 (A) 30 days;
69-11 (B) 90 days;
69-12 (C) 180 days;
69-13 (D) one year;
69-14 (E) two years;
69-15 (F) five years;
69-16 (G) 10 years;
69-17 (H) 15 years;
69-18 (I) 20 years; or
69-19 (J) 30 years; or
69-20 (3) both fine and confinement, as imposed by the
69-21 section creating the offense.
69-22 Sec. 7.188. REPEAT OFFENSES. If it is shown at the trial of
69-23 the defendant that the defendant has previously been convicted of
69-24 the same offense under this subchapter, the maximum punishment is
69-25 doubled with respect to both the fine and confinement, unless the
70-1 section creating the offense specifies otherwise.
70-2 Sec. 7.189. VENUE. Venue for prosecution of an alleged
70-3 violation under this subchapter is in:
70-4 (1) the county in which the violation is alleged to
70-5 have occurred;
70-6 (2) the county where the defendant resides;
70-7 (3) if the alleged violation involves the
70-8 transportation of a discharge, waste, or pollutant, any county to
70-9 which or through which the discharge, waste, or pollutant was
70-10 transported; or
70-11 (4) Travis County.
70-12 Sec. 7.190. DISPOSITION OF FINES. A fine recovered through
70-13 a prosecution brought under this subchapter shall be divided
70-14 equally between the state and any local government significantly
70-15 involved in prosecuting the case, except that if the court
70-16 determines that the state or the local government bore
70-17 significantly more of the burden of prosecuting the case, the court
70-18 may apportion up to 75 percent of the fine to the government that
70-19 predominantly prosecuted the case.
70-20 Sec. 7.191. NOTICE OF CONVICTION. In addition to a sentence
70-21 that may be imposed under this subchapter, a person other than an
70-22 individual that has been adjudged guilty of an offense may be
70-23 ordered by the court to give notice of the conviction to any person
70-24 the court considers appropriate.
70-25 Sec. 7.192. JUDGMENT OF CONVICTION. On conviction under
71-1 this subchapter, the clerk of the court in which the conviction is
71-2 returned shall send a copy of the judgment to the commission.
71-3 Sec. 7.193. PEACE OFFICERS. For purposes of this
71-4 subchapter, the authorized agents and employees of the Parks and
71-5 Wildlife Department are peace officers. Those agents and employees
71-6 are empowered to enforce this subchapter the same as any other
71-7 peace officer and for that purpose have the powers and duties of
71-8 peace officers assigned by Chapter 2, Code of Criminal Procedure.
71-9 Sec. 7.194. ALLEGATIONS. In alleging the name of a
71-10 defendant private corporation, it is sufficient to state in the
71-11 complaint, indictment, or information the corporate name or to
71-12 state any name or designation by which the corporation is known or
71-13 may be identified. It is not necessary to allege that the
71-14 defendant was lawfully incorporated.
71-15 Sec. 7.195. SUMMONS AND ARREST. (a) After a complaint is
71-16 filed or an indictment or information presented against a private
71-17 corporation under this subchapter, the court or clerk shall issue a
71-18 summons to the corporation. The summons shall be in the same form
71-19 as a capias except that:
71-20 (1) it shall summon the corporation to appear before
71-21 the court named at the place stated in the summons;
71-22 (2) it shall be accompanied by a certified copy of the
71-23 complaint, indictment, or information; and
71-24 (3) it shall provide that the corporation appear
71-25 before the court named at or before 10 a.m. of the Monday next
72-1 after the expiration of 20 days after it is served with summons,
72-2 except when service is made on the secretary of state, in which
72-3 instance the summons shall provide that the corporation appear
72-4 before the court named at or before 10 a.m. of the Monday next
72-5 after the expiration of 30 days after the secretary of state is
72-6 served with summons.
72-7 (b) No individual may be arrested upon a complaint,
72-8 indictment, or information against a private corporation.
72-9 Sec. 7.196. SERVICE OF SUMMONS. (a) A peace officer shall
72-10 serve a summons on a private corporation by personally delivering a
72-11 copy of it to the corporation's registered agent for service. If a
72-12 registered agent has not been designated or cannot with reasonable
72-13 diligence be found at the registered office, the peace officer
72-14 shall serve the summons by personally delivering a copy of it to
72-15 the president or a vice president of the corporation.
72-16 (b) If the peace officer certifies on the return that the
72-17 peace officer diligently but unsuccessfully attempted to effect
72-18 service under Subsection (a) or if the corporation is a foreign
72-19 corporation that has no certificate of authority, the peace officer
72-20 shall serve the summons on the secretary of state. On receipt of
72-21 the summons copy, the secretary of state shall immediately forward
72-22 it by certified or registered mail, return receipt requested,
72-23 addressed to the defendant corporation at its registered office or,
72-24 if it is a foreign corporation, at its principal office in the
72-25 state or country under whose law it was incorporated.
73-1 (c) The secretary of state shall keep a permanent record of
73-2 the date and time of receipt and the disposition of each summons
73-3 served under Subsection (b) together with the return receipt.
73-4 Sec. 7.197. ARRAIGNMENT AND PLEADINGS. In any criminal
73-5 action instituted against a private corporation under this
73-6 subchapter:
73-7 (1) appearance is for the purpose of arraignment; and
73-8 (2) the corporation has 10 full days after the day the
73-9 arraignment takes place and before the day the trial begins to file
73-10 written pleadings.
73-11 Sec. 7.198. APPEARANCE. (a) A defendant private
73-12 corporation appears through counsel or its representative.
73-13 (b) If a private corporation does not appear in response to
73-14 summons or appears but does not plead, the corporation is
73-15 considered to be present in person for all purposes, and the court
73-16 shall enter a plea of not guilty on the corporation's behalf and
73-17 may proceed with trial, judgment, and sentencing.
73-18 (c) After appearing and entering a plea in response to
73-19 summons, if a private corporation is absent without good cause at
73-20 any time during later proceedings, the corporation is considered to
73-21 be present in person for all purposes, and the court may proceed
73-22 with trial, judgment, or sentencing.
73-23 Sec. 7.199. FINE TREATED AS JUDGMENT IN CIVIL ACTION. If a
73-24 person other than an individual is found guilty of a violation of
73-25 this subchapter and a fine is imposed, the fine shall be entered
74-1 and docketed by the clerk of the court as a judgment against the
74-2 person, and the fine shall be of the same force and effect and be
74-3 enforced against the person in the same manner as if the judgment
74-4 were recovered in a civil action.
74-5 Sec. 7.200. EFFECT ON CERTAIN OTHER LAWS. Conduct
74-6 punishable as an offense under this subchapter that is also
74-7 punishable under another law may be prosecuted under either law.
74-8 Sec. 7.201. DEFENSE EXCLUDED. It is not a defense to
74-9 prosecution under this subchapter that the person did not know of
74-10 or was not aware of a rule, order, or statute.
74-11 Sec. 7.202. PROOF OF KNOWLEDGE. In determining whether a
74-12 defendant who is an individual knew that the violation placed
74-13 another person in imminent danger of death or serious bodily injury
74-14 under Section 7.168, 7.169, 7.170, or 7.171, the defendant is
74-15 responsible only for the defendant's actual awareness or actual
74-16 belief possessed. Knowledge possessed by a person other than the
74-17 defendant may not be attributed to the defendant. To prove a
74-18 defendant's actual knowledge, however, circumstantial evidence may
74-19 be used, including evidence that the defendant took affirmative
74-20 steps to be shielded from relevant information.
74-21 (Sections 7.203-7.250 reserved for expansion
74-22 SUBCHAPTER F. DEFENSES
74-23 Sec. 7.251. ACT OF GOD. If a person can establish that an
74-24 event that would otherwise be a violation of a statute within the
74-25 commission's jurisdiction or a rule adopted or an order or a permit
75-1 issued under such a statute was caused solely by an act of God,
75-2 war, strike, riot, or other catastrophe, the event is not a
75-3 violation of that statute, rule, order, or permit.
75-4 Sec. 7.252. DEFENSES TO ENDANGERMENT OFFENSES. It is an
75-5 affirmative defense to prosecution under Section 7.152, 7.153,
75-6 7.154, 7.163, 7.168, 7.169, 7.170, 7.171, 7.182, or 7.183 that:
75-7 (1) the conduct charged was freely consented to by the
75-8 person endangered and that the danger and conduct charged were
75-9 reasonably foreseeable hazards of the person's occupation,
75-10 business, or profession or a medical treatment or medical or
75-11 scientific experimentation conducted by professionally approved
75-12 methods and the person endangered had been made aware of the risks
75-13 involved before giving consent; or
75-14 (2) the person charged was an employee who was
75-15 carrying out the person's normal activities and was acting under
75-16 orders from the person's employer, unless the person charged
75-17 engaged in knowing and wilful violations.
75-18 Sec. 7.253. DEFENSES AVAILABLE TO PERSON RESPONSIBLE FOR
75-19 SOLID WASTE VIOLATIONS. (a) For purposes of an enforcement action
75-20 initiated under this chapter, a person responsible for solid waste
75-21 under Section 361.271, Health and Safety Code, is liable for a
75-22 violation of a statutory or regulatory prohibition against
75-23 releasing or creating an imminent threat of releasing solid waste
75-24 unless the person can establish by a preponderance of the evidence
75-25 that the release or threatened release was caused solely by an act
76-1 or omission of a third person and that the defendant:
76-2 (1) exercised due care concerning the solid waste,
76-3 considering the characteristics of the solid waste, in light of all
76-4 relevant facts and circumstances; and
76-5 (2) took precautions against foreseeable acts or
76-6 omissions of the third person and the consequences that could
76-7 foreseeably result from those acts or omissions.
76-8 (b) The defense under Subsection (a) does not apply if the
76-9 third person:
76-10 (1) is an employee or agent of the defendant; or
76-11 (2) has a direct or indirect contractual relationship
76-12 with the defendant and the act or omission of the third person
76-13 occurred in connection with the contractual relationship. The term
76-14 "contractual relationship" includes land contracts, deeds, or other
76-15 instruments transferring title or possession of real property.
76-16 (c) A defendant who enters into a contractual relationship
76-17 as provided by Subsection (b)(2) is not liable under a statute or
76-18 rule within the commission's jurisdiction if:
76-19 (1) the sole contractual relationship is acceptance
76-20 for rail carriage by a common carrier under a published tariff; or
76-21 (2) the defendant acquired the real property on which
76-22 the facility requiring the remedial action is located after the
76-23 disposal or placement of the hazardous substance on, in, or at the
76-24 facility, and the defendant establishes by a preponderance of the
76-25 evidence that:
77-1 (A) the defendant exercised due care concerning
77-2 the solid waste, considering the characteristics of the solid
77-3 waste, in light of all relevant facts and circumstances; and
77-4 (B) the defendant took precautions against
77-5 foreseeable acts or omissions of the third person and the
77-6 consequences that could foreseeably result from those acts or
77-7 omissions; or
77-8 (C) at the time the defendant acquired the
77-9 facility the defendant did not know and had no reason to know that
77-10 a hazardous substance that is the subject of the release or
77-11 threatened release was disposed of on, in, or at the facility;
77-12 (D) the defendant is a governmental entity that
77-13 acquired the facility by escheat, by other involuntary transfer or
77-14 acquisition, or by the exercise of the power of eminent domain; or
77-15 (E) the defendant acquired the facility by
77-16 inheritance or bequest.
77-17 (d) To demonstrate the condition under Subsection (c)(2)(C),
77-18 the defendant must have made, at the time of acquisition,
77-19 appropriate inquiry into the previous ownership and uses of the
77-20 property consistent with good commercial or customary practice in
77-21 an effort to minimize liability. In deciding whether the defendant
77-22 meets this condition, the court shall consider:
77-23 (1) any specialized knowledge or experience of the
77-24 defendant;
77-25 (2) the relationship of the purchase price to the
78-1 value of the property if the property were uncontaminated;
78-2 (3) commonly known or reasonably ascertainable
78-3 information about the property;
78-4 (4) the obvious presence or likely presence of
78-5 contamination of the property; and
78-6 (5) the defendant's ability to detect the
78-7 contamination by appropriate inspection.
78-8 (e) This section does not decrease the liability of a
78-9 previous owner or operator of a facility who is liable under a
78-10 statute or rule within the commission's jurisdiction. If the
78-11 defendant obtained actual knowledge of the release or threatened
78-12 release of a hazardous substance at a facility at the time the
78-13 defendant owned the real property on which the facility is located
78-14 and subsequently transferred ownership of the property to another
78-15 person without disclosing that knowledge, the defendant is liable
78-16 and a defense under this section is not available to the defendant.
78-17 (f) Subsections (c), (d), and (e) do not affect the
78-18 liability, under a statute or rule within the commission's
78-19 jurisdiction, of a defendant who, by an act or omission, caused or
78-20 contributed to the release or threatened release of a hazardous
78-21 substance that is the subject of the action concerning the
78-22 facility.
78-23 Sec. 7.254. DEFENSE TO USED OIL OFFENSES. It is an
78-24 affirmative defense to prosecution under Section 7.176 that the
78-25 person unknowingly disposed of used oil into the environment
79-1 because the used oil had not been properly segregated or separated
79-2 by the generator from other solid wastes.
79-3 Sec. 7.255. DEFENSE TO HAZARDOUS WASTE ENDANGERMENT. It is
79-4 an affirmative defense to prosecution under Section 7.163 that the
79-5 conduct charged was freely consented to by the person endangered
79-6 and that the danger and conduct charged were reasonably foreseeable
79-7 hazards of the person's occupation, business, or profession or a
79-8 medical treatment or medical or scientific experimentation
79-9 conducted by professionally approved methods and the person
79-10 endangered had been made aware of the risks involved before giving
79-11 consent.
79-12 Sec. 7.256. DEFENSE EXCLUDED. Unless otherwise provided by
79-13 this chapter, the fact that a person holds a permit issued by the
79-14 commission does not relieve that person from liability for the
79-15 violation of a statute within the commission's jurisdiction or a
79-16 rule adopted or an order or a permit issued under such a statute.
79-17 (Sections 7.257-7.300 reserved for expansion
79-18 SUBCHAPTER G. REVOCATION AND SUSPENSION OF PERMITS,
79-19 LICENSES, CERTIFICATES, AND REGISTRATIONS
79-20 Sec. 7.301. DEFINITION. In this subchapter:
79-21 (1) "License," "certificate," "registration," and
79-22 "exemption" have the meanings assigned by commission rule.
79-23 (2) "Permit holder" or "holder of a permit" includes
79-24 each member of a partnership or association and, with respect to a
79-25 corporation, each officer and the owner or owners of a majority of
80-1 the corporate stock, provided such partner or owner controls at
80-2 least 20 percent of the permit holder.
80-3 Sec. 7.302. GROUNDS FOR REVOCATION OR SUSPENSION OF PERMIT.
80-4 (a) This section applies to a permit or exemption issued by the
80-5 commission under:
80-6 (1) Chapter 18, 26, 27, 28, or 31 of this code;
80-7 (2) Subchapter C or R, Chapter 361, Health and Safety
80-8 Code;
80-9 (3) Subchapter D, Chapter 366, Health and Safety Code;
80-10 (4) Chapter 382, Health and Safety Code; or
80-11 (5) a rule adopted under any of those provisions.
80-12 (b) After notice and hearing, the commission may revoke,
80-13 suspend, or revoke and reissue a permit or exemption on any of the
80-14 following grounds:
80-15 (1) violating any term or condition of the permit, and
80-16 revocation, suspension, or revocation and reissuance is necessary
80-17 in order to maintain the quality of water or the quality of air in
80-18 the state, or to otherwise protect human health and the environment
80-19 consistent with the objectives of the statutes or rules within the
80-20 commission's jurisdiction;
80-21 (2) having a record of environmental violations in the
80-22 preceding five years at the permitted or exempted site;
80-23 (3) a discharge, release, or emission contravening a
80-24 pollution control standard set by the commission or contravening
80-25 the intent of a statute or rule described in Subsection (a);
81-1 (4) including a material mistake in a federal
81-2 operating permit issued under Chapter 382, Health and Safety Code,
81-3 or making an inaccurate statement in establishing an emissions
81-4 standard or other term or condition of a federal operating permit;
81-5 (5) misrepresenting or failing to disclose fully all
81-6 relevant facts in obtaining the permit or misrepresenting to the
81-7 commission any relevant fact at any time;
81-8 (6) a permit holder being indebted to the state for
81-9 fees, payment of penalties, or taxes imposed by the statutes or
81-10 rules within the commission's jurisdiction;
81-11 (7) a permit holder failing to ensure that the
81-12 management of the permitted facility conforms or will conform to
81-13 the statutes and rules within the commission's jurisdiction;
81-14 (8) the permit is subject to cancellation or
81-15 suspension under Section 26.084;
81-16 (9) abandoning the permit or operations under the
81-17 permit;
81-18 (10) the commission finds that a change in conditions
81-19 requires elimination of the discharge authorized by the permit; or
81-20 (11) with respect to a permit issued under Chapter 18,
81-21 failing to continue to possess qualifications necessary for the
81-22 issuance of an original permit.
81-23 Sec. 7.303. GROUNDS FOR REVOCATION OR SUSPENSION OF LICENSE,
81-24 CERTIFICATE, OR REGISTRATION. (a) This section applies to a
81-25 license, certificate, or registration issued:
82-1 (1) by the commission under:
82-2 (A) Section 26.0301 or 26.459 of this code;
82-3 (B) Chapter 18, 32, 33, or 34 of this code;
82-4 (C) Section 361.0861, 361.092, or 361.112,
82-5 Health and Safety Code; or
82-6 (D) Chapter 366, 371, or 401, Health and Safety
82-7 Code;
82-8 (2) by a county under Subchapter E, Chapter 361,
82-9 Health and Safety Code; or
82-10 (3) under a rule adopted under any of those
82-11 provisions.
82-12 (b) After notice and hearing, the commission may suspend or
82-13 revoke a license, certificate, or registration the commission or a
82-14 county has issued, place on probation a person whose license,
82-15 certificate, or registration has been suspended, reprimand the
82-16 holder of a license, certificate, or registration, or refuse to
82-17 renew or reissue a license, certificate, or registration on any of
82-18 the following grounds:
82-19 (1) having a record of environmental violations in the
82-20 preceding five years at the licensed, certified, or registered
82-21 site;
82-22 (2) committing fraud or deceit in obtaining the
82-23 license, certificate, or registration;
82-24 (3) demonstrating gross negligence, incompetency, or
82-25 misconduct while acting as holder of a license, certificate, or
83-1 registration;
83-2 (4) making an intentional misstatement or
83-3 misrepresentation of fact in information required to be maintained
83-4 or submitted to the commission by the holder of the license,
83-5 certificate, or registration;
83-6 (5) failing to keep and transmit records as required
83-7 by a statute within the commission's jurisdiction or a rule adopted
83-8 under such a statute;
83-9 (6) being indebted to the state for a fee, payment of
83-10 a penalty, or a tax imposed by a statute within the commission's
83-11 jurisdiction or a rule adopted under such a statute;
83-12 (7) with respect to a certificate of public
83-13 convenience and necessity, failing to provide continuous and
83-14 adequate service in the area, or part of the area, covered by the
83-15 certificate;
83-16 (8) with respect to a license issued under Chapter 18,
83-17 failing to continue to possess qualifications necessary for the
83-18 issuance of an original license;
83-19 (9) with respect to a certificate of competency issued
83-20 under Section 26.0301, violating a discharge permit of a sewage
83-21 treatment plant, unless:
83-22 (A) the holder of the certificate is unable to
83-23 properly operate the sewage treatment facility due to the refusal
83-24 of the permit holder to authorize necessary expenditures to operate
83-25 the sewage treatment facility properly; or
84-1 (B) failure of the sewage treatment facility to
84-2 comply with its discharge permit results from faulty design of the
84-3 sewage treatment facility;
84-4 (10) with respect to a license issued under Chapter
84-5 32, failing to advise a person for whom a well is being drilled
84-6 that injurious water has been encountered, is a pollution hazard,
84-7 and must be immediately plugged in an acceptable manner;
84-8 (11) with respect to a registration issued under
84-9 Chapter 366, Health and Safety Code, violating that chapter or a
84-10 rule adopted under that chapter; or
84-11 (12) with respect to a license issued under Subchapter
84-12 E, Chapter 361, Health and Safety Code, violating that chapter or
84-13 another applicable law or a commission rule governing the
84-14 processing, storage, or disposal of solid waste.
84-15 Sec. 7.304. SUSPENSION OF REGISTRATION OR REIMBURSEMENT
84-16 PAYMENT ISSUED UNDER WASTE TIRE RECYCLING PROGRAM. Notwithstanding
84-17 Sections 7.303, 7.305, and 7.306, the commission may suspend a
84-18 registration of or reimbursement payment to a waste tire processor,
84-19 waste tire transporter, waste tire generator, waste tire recycling
84-20 facility, or waste tire energy recovery facility, without notice or
84-21 hearing, on the initiation of an enforcement proceeding under this
84-22 chapter and while the proceeding is pending for a violation of
84-23 Subchapter P, Chapter 361, Health and Safety Code, or a rule
84-24 adopted or order issued under that subchapter.
84-25 Sec. 7.305. PROCEDURES. The commission by rule shall
85-1 establish procedures for public notice and any public hearing under
85-2 this subchapter. The procedures shall provide for notice to a
85-3 county that issued a license, certificate, or registration that is
85-4 the subject of the hearing.
85-5 Sec. 7.306. HEARINGS. A hearing under this subchapter shall
85-6 be conducted in accordance with the hearing rules adopted by the
85-7 commission and the applicable provisions of Chapter 2001,
85-8 Government Code.
85-9 Sec. 7.307. CONSENT. If the holder of a permit, license,
85-10 certificate, or registration requests or consents to the revocation
85-11 or suspension of the permit, license, certificate, or
85-12 registration, the executive director may revoke or suspend the
85-13 permit, license, exemption, certificate, or registration without a
85-14 hearing.
85-15 Sec. 7.308. OTHER RELIEF. A proceeding brought by the
85-16 commission under this subchapter does not affect the commission's
85-17 authority to bring suit for injunctive relief or penalty or both
85-18 under this chapter.
85-19 Sec. 7.309. PROBATION REQUIREMENTS. If a license,
85-20 certificate, or registration suspension is probated, the commission
85-21 may require the holder of the license, certificate, or
85-22 registration:
85-23 (1) to report regularly to the commission on matters
85-24 that are the basis of the probation;
85-25 (2) to limit activities to the areas prescribed by the
86-1 commission; or
86-2 (3) to continue or renew professional education until
86-3 the registrant attains a degree of skill satisfactory to the
86-4 commission in those areas that are the basis of the probation.
86-5 Sec. 7.310. REVOCATION OR SUSPENSION BY COUNTY. With
86-6 respect to a license, certificate, or registration issued by a
86-7 county under a statute or rule within the commission's
86-8 jurisdiction, the issuing county may suspend or revoke the license,
86-9 certificate, or registration on the grounds provided under Section
86-10 7.303.
86-11 (Sections 7.311-7.350 reserved for expansion
86-12 SUBCHAPTER H. SUIT BY OTHERS
86-13 Sec. 7.351. CIVIL SUITS. If it appears that a violation or
86-14 threat of violation of Chapter 16, 26, 28, or 34 of this code or
86-15 Chapter 341, 361, 371, 372, or 382, Health and Safety Code, or a
86-16 provision of Chapter 401, Health and Safety Code, under the
86-17 commission's jurisdiction or a rule adopted or an order or a permit
86-18 issued under those chapters or provisions has occurred or is
86-19 occurring in the jurisdiction of a local government, the local
86-20 government or, in the case of a violation of Chapter 401, Health
86-21 and Safety Code, a person affected as defined in that chapter, may
86-22 institute a civil suit under Subchapter D in the same manner as the
86-23 commission in a district court by its own attorney for the
86-24 injunctive relief or civil penalty, or both, as authorized by this
86-25 chapter against the person who committed, is committing, or is
87-1 threatening to commit the violation.
87-2 Sec. 7.352. RESOLUTION REQUIRED. In the case of a violation
87-3 of Chapter 26 of this code or Chapter 382, Health and Safety Code,
87-4 a local government may not exercise the enforcement power
87-5 authorized by this subchapter unless its governing body adopts a
87-6 resolution authorizing the exercise of the power.
87-7 Sec. 7.353. COMMISSION NECESSARY PARTY. In a suit brought
87-8 by a local government under this subchapter, the commission is a
87-9 necessary and indispensable party.
87-10 Sec. 7.354. COSTS AND FEES. A penalty collected in a suit
87-11 under this subchapter for a violation of Chapter 28 of this code or
87-12 Chapter 401, Health and Safety Code, shall be paid to the state.
87-13 If the suit is brought by a local government or, in the case of a
87-14 violation of Chapter 401, Health and Safety Code, a person affected
87-15 as defined in that chapter, the court shall include in any final
87-16 judgment in favor of the local government or affected person an
87-17 award to cover reasonable costs and attorney's fees.
87-18 Sec. 7.355. COMPLAINTS. In the case of a violation of
87-19 Chapter 401, Health and Safety Code, a local government or person
87-20 affected may file with the commission a written complaint and may
87-21 request an investigation of an alleged violation by a person who
87-22 holds a permit subject to the commission's jurisdiction.
87-23 Sec. 7.356. COMMISSION REPLY. The commission shall reply to
87-24 the local government or person affected who filed a complaint under
87-25 Section 7.355 in writing not later than the 60th day after the
88-1 complaint is received and shall provide a copy of any investigation
88-2 report relevant to the complaint together with a determination of
88-3 whether the alleged violation was committed.
88-4 Sec. 7.357. PROSECUTION. A local government or, in the case
88-5 of a violation of Chapter 401, Health and Safety Code, a person
88-6 affected as defined in that chapter may bring suit in the county in
88-7 which the alleged violation occurred or is about to occur, if the
88-8 commission does not have a suit filed before the 121st day after
88-9 the date on which the written complaint is filed under Section
88-10 7.355.
88-11 Sec. 7.358. OTHER REQUIREMENTS. In the case of a violation
88-12 of Chapter 34, the regulatory authority of any local government may
88-13 require compliance with any reasonable inspection requirements or
88-14 ordinances or regulations designed to protect the public water
88-15 supply and pay any reasonable fees imposed by the local government
88-16 relating to work performed within its jurisdiction.
88-17 SECTION 3. Section 11.081, Water Code, is amended to read as
88-18 follows:
88-19 Sec. 11.081. UNLAWFUL USE OF STATE WATER. [(a)] No person
88-20 may wilfully take, divert, or appropriate any state water for any
88-21 purpose without first complying with all applicable requirements of
88-22 this chapter.
88-23 [(b) A person who violates any provision of this section is
88-24 guilty of a misdemeanor and upon conviction is punishable by a fine
88-25 of not more than $100 or by confinement in the county jail for not
89-1 more than six months or by both.]
89-2 [(c) A person commits a separate offense each day he
89-3 continues to take, divert, or appropriate water in violation of
89-4 this section.]
89-5 [(d) Possession of state water when the right to its use has
89-6 not been acquired according to the provisions of this chapter is
89-7 prima facie evidence of a violation of this section.]
89-8 SECTION 4. Section 11.083, Water Code, is amended to read as
89-9 follows:
89-10 Sec. 11.083. OTHER UNLAWFUL TAKING. (a) No person may
89-11 wilfully open, close, change, or interfere with any headgate or
89-12 water box without lawful authority.
89-13 (b) No person may wilfully use water or conduct water
89-14 through his ditch or upon his land unless he is entitled to do so.
89-15 [(c) A person who violates any provision of this section is
89-16 guilty of a misdemeanor and upon conviction is punishable by a fine
89-17 of not less than $10 nor more than $1,000 or by confinement in the
89-18 county jail for not more than six months.]
89-19 [(d) The possession or use of water on his land by a person
89-20 not entitled to the water by the provisions of this code is prima
89-21 facie evidence of a violation of this section.]
89-22 SECTION 5. Section 11.084, Water Code, is amended to read as
89-23 follows:
89-24 Sec. 11.084. SALE OF PERMANENT WATER RIGHT WITHOUT A PERMIT.
89-25 [(a)] No person may sell or offer to sell a permanent water right
90-1 unless he has perfected a right to appropriate state water by a
90-2 certified filing, or unless he has obtained a permit from the
90-3 commission, authorizing the use of the water for the purposes for
90-4 which the permanent water right is conveyed.
90-5 [(b) A person who violates Subsection (a) of this section is
90-6 guilty of a misdemeanor and upon conviction is punishable by a fine
90-7 of not less than $100 nor more than $1,000 or by confinement in the
90-8 county jail for not more than one year or by both.]
90-9 SECTION 6. Subsection (c), Section 11.087, Water Code, is
90-10 amended to read as follows:
90-11 (c) Orders made by the commission to effectuate its rules
90-12 under this section shall be mailed [need not be published, but the
90-13 commission shall transmit a copy of every such order] by certified
90-14 mail to each diverter of water and to each reservoir owner on the
90-15 stream between the point of release and the point of destination of
90-16 the released water as shown by the records of the commission.
90-17 SECTION 7. Section 11.088, Water Code, is amended to read as
90-18 follows:
90-19 Sec. 11.088. DESTRUCTION OF WATERWORKS. [(a)] No person
90-20 may wilfully cut, dig, break down, destroy, or injure or open a
90-21 gate, bank, embankment, or side of any ditch, canal, reservoir,
90-22 flume, tunnel or feeder, pump or machinery, building, structure, or
90-23 other work which is the property of another, or in which another
90-24 owns an interest, or which is lawfully possessed or being used by
90-25 another, and which is used for irrigation, milling, mining,
91-1 manufacturing, the development of power, domestic purposes, or
91-2 stock raising, with intent to:
91-3 (1) maliciously injure a person, association,
91-4 corporation, water improvement or irrigation district;
91-5 (2) gain advantage for himself; or
91-6 (3) take or steal water or cause water to run out or
91-7 waste out of the ditch, canal, or reservoir, feeder, or flume for
91-8 his own advantage or to the injury of a person lawfully entitled to
91-9 the use of the water or the use or management of the ditch, canal,
91-10 tunnel, reservoir, feeder, flume, machine, structure, or other
91-11 irrigation work.
91-12 [(b) A person who violates any provision of this section is
91-13 guilty of a misdemeanor and upon conviction is punishable by a fine
91-14 of not less than $10 nor more than $1,000 or by confinement in the
91-15 county jail for not more than two years or by both.]
91-16 SECTION 8. Section 11.089, Water Code, is amended to read as
91-17 follows:
91-18 Sec. 11.089. JOHNSON GRASS OR RUSSIAN THISTLE. (a) No
91-19 person who owns, leases, or operates a ditch, canal, or reservoir
91-20 or who cultivates land abutting a reservoir, ditch, flume, canal,
91-21 wasteway, or lateral may permit Johnson grass or Russian thistle to
91-22 go to seed on the waterway within 10 feet of the high-water line if
91-23 the waterway crosses or lies on the land owned or controlled by
91-24 him.
91-25 (b) [A person who violates any provision of this section is
92-1 guilty of a misdemeanor and upon conviction is punishable by a fine
92-2 of not less than $25 nor more than $500 or by confinement in the
92-3 county jail for not less than 30 days nor more than six months or
92-4 by both.]
92-5 [(c)] The provisions of this section are not applicable in
92-6 Tom Green, Sterling, Irion, Schleicher, McCullough, Brewster,
92-7 Menard, Maverick, Kinney, Val Verde, and San Saba counties.
92-8 SECTION 9. Section 11.090, Water Code, is amended to read as
92-9 follows:
92-10 Sec. 11.090. POLLUTING AND LITTERING. [(a)] No person may
92-11 deposit in any canal, lateral, reservoir, or lake, used for a
92-12 purpose named in this chapter, the carcass of any dead animal, tin
92-13 cans, discarded buckets or pails, garbage, ashes, bailing or barbed
92-14 wire, earth, offal, or refuse of any character or any other article
92-15 which might pollute the water or obstruct the flow of a canal or
92-16 similar structure.
92-17 [(b) A person who violates any provision of this section is
92-18 guilty of a misdemeanor and upon conviction is punishable by a fine
92-19 of not less than $10 nor more than $100 or by confinement in the
92-20 county jail for not more than six months or by both.]
92-21 SECTION 10. Section 11.091, Water Code, is amended to read
92-22 as follows:
92-23 Sec. 11.091. INTERFERENCE WITH DELIVERY OF WATER UNDER
92-24 CONTRACT. [(a)] No person may wilfully take, divert, appropriate,
92-25 or interfere with the delivery of conserved or stored water under
93-1 Section 11.042 of this code.
93-2 [(b) A person who violates any provision of this section is
93-3 guilty of a misdemeanor and upon conviction is punishable by a fine
93-4 of not more than $100 or by confinement in the county jail for not
93-5 more than six months or by both.]
93-6 [(c) A person commits a separate offense each day he
93-7 continues to violate this section.]
93-8 [(d) On the petition of any interested party, the district
93-9 court of any county through which the water may pass shall enjoin
93-10 any actual or threatened act prohibited by this section.]
93-11 SECTION 11. Section 11.094, Water Code, is amended to read
93-12 as follows:
93-13 Sec. 11.094. PENALTY FOR USE OF WORKS DECLARED PUBLIC
93-14 NUISANCE. [(a)] No person may operate or attempt to operate any
93-15 waterworks or irrigation system or use any water under contract
93-16 with any waterworks or irrigation system that has been previously
93-17 declared to be a public nuisance.
93-18 [(b) A person who violates any provision of this section is
93-19 guilty of a misdemeanor and on conviction is punishable by a fine
93-20 of not more than $1,000 or by confinement in the county jail for
93-21 not more than one year or by both.]
93-22 SECTION 12. Section 11.096, Water Code, is amended to read
93-23 as follows:
93-24 Sec. 11.096. OBSTRUCTION OF NAVIGABLE STREAMS. [(a)] No
93-25 person may obstruct the navigation of any stream which can be
94-1 navigated by steamboats, keelboats, or flatboats by cutting and
94-2 felling trees or by building on or across the stream any dike,
94-3 milldam, bridge, or other obstruction.
94-4 [(b) A person who violates any provision of this section is
94-5 guilty of a misdemeanor and upon conviction is punishable by a fine
94-6 of not less than $50 nor more than $500.]
94-7 SECTION 13. Section 11.203, Water Code, is amended to read
94-8 as follows:
94-9 Sec. 11.203. ARTESIAN WELL: DRILLING RECORD. [(a)] A
94-10 person who drills an artesian well or has one drilled shall keep a
94-11 complete and accurate record of the depth, thickness, and character
94-12 of the different strata penetrated and when the well is completed
94-13 shall transmit a copy of the record to the commission by registered
94-14 mail.
94-15 [(b) A person who violates any provision of this section is
94-16 guilty of a misdemeanor and on conviction is punishable by a fine
94-17 of not less than $10 nor more than $100.]
94-18 SECTION 14. Section 11.205, Water Code, is amended to read
94-19 as follows:
94-20 Sec. 11.205. WASTING WATER FROM ARTESIAN WELL.
94-21 [(a)] Unless the water from an artesian well is used for a purpose
94-22 and in a manner in which it may be lawfully used on the owner's
94-23 land, it is waste and unlawful to wilfully cause or knowingly
94-24 permit the water to run off the owner's land or to percolate
94-25 through the stratum above which the water is found.
95-1 [(b) A person who commits waste as defined in this section
95-2 is guilty of a misdemeanor and on conviction is punishable by a
95-3 fine of not more than $500 or by confinement in the county jail for
95-4 not more than 90 days or by both.]
95-5 SECTION 15. Section 26.019, Water Code, is amended to read
95-6 as follows:
95-7 Sec. 26.019. ORDERS. [(a)] The commission is authorized to
95-8 issue orders and make determinations necessary to effectuate the
95-9 purposes of this chapter.
95-10 [(b) The commission shall set forth the findings on which it
95-11 bases any order granting or denying special relief requested of the
95-12 commission or involving a determination following a hearing on an
95-13 alleged violation of Section 26.121 of this code or directing a
95-14 person to perform or refrain from performing a certain act or
95-15 activity.]
95-16 SECTION 16. Section 26.0191, Water Code, is amended to read
95-17 as follows:
95-18 Sec. 26.0191. TEMPORARY OR [AND] EMERGENCY ORDER RELATING
95-19 [ORDERS AND AUTHORIZATIONS] TO DISCHARGE OF WASTE OR POLLUTANTS
95-20 [UNTREATED OR PARTIALLY TREATED WASTEWATER]. [(a)] The commission
95-21 may issue a temporary or emergency order [orders] relating to the
95-22 discharge of waste or pollutants under Section 5.509 [when this is
95-23 necessary to enable action to be taken more expeditiously than is
95-24 otherwise provided by this chapter to effectuate the policy and
95-25 purposes of this chapter].
96-1 [(b) A person desiring to obtain a temporary or emergency
96-2 order to discharge waste or pollutants, including untreated or
96-3 partially treated wastewater, into or adjacent to water in this
96-4 state shall submit a sworn application to the commission containing
96-5 the following information and any other information the commission
96-6 requires:]
96-7 [(1) a statement that the discharge is unavoidable to
96-8 prevent loss of life, serious injury, severe property damage, or
96-9 severe economic loss, or to make necessary and unforeseen repairs
96-10 to a facility, that there are no feasible alternatives to the
96-11 proposed discharge, and that the discharge will not cause
96-12 significant hazard to human life and health, unreasonable damage to
96-13 property of persons other than the applicant, or unreasonable
96-14 economic loss to persons other than the applicant;]
96-15 [(2) a statement that the proposed discharge will not
96-16 present a significant hazard to the uses that may be made of the
96-17 receiving water after the discharge;]
96-18 [(3) an estimate of the dates on which the proposed
96-19 discharge will begin and end;]
96-20 [(4) a statement of the volume and quality of the
96-21 proposed discharge;]
96-22 [(5) an explanation of measures proposed to minimize
96-23 the volume and duration of the discharge; and]
96-24 [(6) an explanation of measures proposed to maximize
96-25 the waste treatment efficiency of units not taken out of service or
97-1 facilities provided for interim use.]
97-2 [(c) The commission may issue emergency orders relating to
97-3 the discharge of waste or pollutants without notice and hearing, or
97-4 with such notice and hearing as the commission considers
97-5 practicable under the circumstances, only if the commission finds
97-6 the applicant's statement made under Subsection (b)(1) of this
97-7 section to be correct.]
97-8 [(d) If the commission issues an emergency order under this
97-9 authority without a hearing, the order shall fix a time and place
97-10 for a hearing to be held before the commission, which shall be held
97-11 as soon after the emergency order is issued as is practicable.]
97-12 [(e) At the hearing, the commission shall affirm, modify, or
97-13 set aside the emergency order. Any hearing on an emergency order
97-14 shall be conducted in accordance with Chapter 2001, Government
97-15 Code, or the rules of the commission. Any set of commission rules
97-16 concerning a hearing on an emergency order must include provisions
97-17 for presentation of evidence by the applicant under oath,
97-18 presentation of rebuttal evidence, and cross-examination of
97-19 witnesses.]
97-20 [(f) If emergency conditions exist which make it necessary
97-21 to take action more expeditiously than is otherwise provided by
97-22 this section, the executive director may authorize the discharge of
97-23 untreated or partially treated wastewater from a permitted facility
97-24 into or adjacent to water in the state if he determines that the
97-25 discharge is unavoidable to prevent loss of life, serious injury,
98-1 severe property damage, or severe economic loss, or to make
98-2 necessary and unforeseen repairs to the facility, that there are no
98-3 feasible alternatives to the discharge, and that the discharge will
98-4 not cause significant hazard to human life and health, unreasonable
98-5 damage to property of persons other than the applicant, or
98-6 unreasonable economic loss to persons other than the applicant. If
98-7 the executive director issues an authorization to discharge under
98-8 this authority, the commission shall hold a hearing as provided for
98-9 in Subsection (d) of this section as soon as practicable but in no
98-10 event later than 10 days after issuance of the authorization to
98-11 affirm, modify or set aside the authorization. The requirements of
98-12 Subsection (b) of this section shall be satisfied by the applicant
98-13 on or before such hearing date.]
98-14 [(g) The requirements of Section 26.022 of this code
98-15 relating to the time for notice, newspaper notice, and method of
98-16 giving a person notice do not apply to a hearing held on an
98-17 emergency permit under this section, but such general notice of the
98-18 hearing shall be given as the commission, under Subsections (c) and
98-19 (e) of this section, considers practicable under the circumstances.]
98-20 [(h) Temporary orders other than emergency orders require a
98-21 hearing before issuance of the order. The commission shall give
98-22 notice not less than 20 days before the date set for the hearing.]
98-23 SECTION 17. Subsection (a), Section 26.021, Water Code, is
98-24 amended to read as follows:
98-25 (a) The [Except for those hearings required to be held
99-1 before the commission under Section 26.0191(b) of this code, the]
99-2 commission may authorize the chief administrative law judge of the
99-3 State Office of Administrative Hearings to call and hold hearings
99-4 on any subject on which the commission may hold a hearing.
99-5 SECTION 18. Subsection (a), Section 26.022, Water Code, is
99-6 amended to read as follows:
99-7 (a) Except as otherwise provided in Sections 5.501, 5.504,
99-8 5.509, [26.0191] and 26.176 [of this code], the provisions of this
99-9 section apply to all hearings conducted in compliance with this
99-10 chapter.
99-11 SECTION 19. Section 26.029, Water Code (effective until
99-12 delegation of NPDES permit authority), is amended to read as
99-13 follows:
99-14 Sec. 26.029. CONDITIONS OF PERMIT; AMENDMENT[; REVOCATION
99-15 AND SUSPENSION]. (a) In each permit, the commission shall
99-16 prescribe the conditions on which it is issued, including:
99-17 (1) the duration of the permit;
99-18 (2) the location of the point of discharge of the
99-19 waste;
99-20 (3) the maximum quantity of waste that may be
99-21 discharged under the permit at any time and from time to time;
99-22 (4) the character and quality of waste that may be
99-23 discharged under the permit; and
99-24 (5) any monitoring and reporting requirements
99-25 prescribed by the commission for the permittee.
100-1 (b) After a public hearing, notice of which shall be given
100-2 to the permittee, the commission may require the permittee, from
100-3 time to time, for good cause, to conform to new or additional
100-4 conditions. The commission shall allow the permittee a reasonable
100-5 time to conform to the new or additional conditions, and on
100-6 application of the permittee, the commission may grant additional
100-7 time.
100-8 (c) A permit does not become a vested right in the
100-9 permittee. [After a public hearing, notice of which shall be given
100-10 to the permittee, the commission may revoke or suspend a permit for
100-11 good cause on any of the following grounds:]
100-12 [(1) the permittee has failed or is failing to comply
100-13 with the conditions of the permit;]
100-14 [(2) the permit is subject to cancellation or
100-15 suspension under Section 26.084 of this code;]
100-16 [(3) the permit or operations under the permit have
100-17 been abandoned; or]
100-18 [(4) the permit is no longer needed by the permittee.]
100-19 (d) The notice required by Subsection [Subsections] (b) [and
100-20 (c)] of this section shall be sent to the permittee at his last
100-21 known address as shown by the records of the commission.
100-22 [(e) If the permittee requests or consents to the revocation
100-23 or suspension of the permit, the executive director may revoke or
100-24 suspend the permit.]
100-25 SECTION 20. Section 26.029, Water Code (effective upon
101-1 delegation of NPDES permit authority), is amended to read as
101-2 follows:
101-3 Sec. 26.029. CONDITIONS OF PERMIT; AMENDMENT[; REVOCATION
101-4 AND SUSPENSION]. (a) In each permit, the commission shall
101-5 prescribe the conditions on which it is issued, including:
101-6 (1) the duration of the permit;
101-7 (2) the location of the point of discharge of the
101-8 waste;
101-9 (3) the maximum quantity of waste that may be
101-10 discharged under the permit at any time and from time to time;
101-11 (4) the character and quality of waste that may be
101-12 discharged under the permit; and
101-13 (5) any monitoring and reporting requirements
101-14 prescribed by the commission for the permittee.
101-15 (b) After a public hearing, notice of which shall be given
101-16 to the permittee, the commission may require the permittee, from
101-17 time to time, for good cause, in conformance with applicable laws,
101-18 to conform to new or additional conditions.
101-19 (c) A permit does not become a vested right in the
101-20 permittee. [After a public hearing in conformance with applicable
101-21 laws, notice of which shall be given to the permittee, the
101-22 commission may revoke or suspend a permit for good cause on any of
101-23 the following grounds:]
101-24 [(1) the permittee has failed or is failing to comply
101-25 with the conditions of the permit;]
102-1 [(2) the permit is subject to cancellation or
102-2 suspension under Section 26.084 of this code;]
102-3 [(3) the permit or operations under the permit have
102-4 been abandoned;]
102-5 [(4) the permit is no longer needed by the permittee;]
102-6 [(5) the commission finds that a change in conditions
102-7 requires elimination of the discharge;]
102-8 [(6) revocation or suspension is necessary in order to
102-9 maintain the quality of water in the state consistent with the
102-10 objectives of this chapter; or]
102-11 [(7) the permit was obtained by misrepresentation or
102-12 failure to disclose fully all relevant facts.]
102-13 (d) The notice required by Subsection [Subsections] (b) [and
102-14 (c)] of this section shall be sent to the permittee at his last
102-15 known address as shown by the records of the commission.
102-16 [(e) If the permittee requests or consents to the revocation
102-17 or suspension of the permit, the executive director may revoke or
102-18 suspend the permit.]
102-19 SECTION 21. Subsections (c), (d), and (e), Section 26.0301,
102-20 Water Code, are amended to read as follows:
102-21 (c) [The commission may suspend or revoke the certificate of
102-22 competency for sewage treatment facility operation of an individual
102-23 treatment facility operator or a sewage treatment facility
102-24 operations company, after notice and hearing before the commission,
102-25 if the holder of a certificate of competency is responsible for
103-1 violating a discharge permit of a sewage treatment plant.]
103-2 [(d) The holder of a certificate of competency is not
103-3 subject to the revocation or suspension of the certificate of
103-4 competency under Subsection (c) of this section if:]
103-5 [(1) the holder of a certificate is unable to properly
103-6 operate the sewage treatment facility due to the refusal of the
103-7 permittee to authorize necessary expenditures to operate the sewage
103-8 treatment facility properly; or]
103-9 [(2) failure of the sewage treatment facility to
103-10 comply with its discharge permit results from faulty design of the
103-11 sewage treatment facility.]
103-12 [(e)] The commission by rule shall set a fee to be paid by
103-13 each applicant or licensee on the issuance or renewal of a
103-14 certificate of competency under this section. The amount of the
103-15 fee is determined according to the costs of the commission in
103-16 administering this section, but may not exceed $25 annually for an
103-17 individual wastewater treatment plant operator and $500 annually
103-18 for a person, company, corporation, firm, or partnership that is in
103-19 the business as a wastewater treatment facility operations company.
103-20 The commission shall deposit any fees collected under this
103-21 subsection in the state treasury to the credit of the water quality
103-22 fund.
103-23 SECTION 22. Section 26.354, Water Code, is amended to read
103-24 as follows:
103-25 Sec. 26.354. Emergency Orders. The commission [(a)
104-1 Notwithstanding any other provision of this chapter, the executive
104-2 director] may issue an emergency order [orders] to an owner or
104-3 operator of [the persons identified in Subsection (e) of this
104-4 section if it appears that:]
104-5 [(1) there is an actual or threatened release of a
104-6 regulated substance from] an underground or aboveground storage
104-7 tank under Section 5.510[; and]
104-8 [(2) the executive director determines that more
104-9 expeditious corrective action than is otherwise provided for under
104-10 this chapter is necessary to protect the public health and safety
104-11 or the environment from harm].
104-12 [(b) An order issued under Subsection (a) of this section
104-13 may prohibit a person from allowing or continuing the release or
104-14 threatened release and require the person to take the actions
104-15 necessary to eliminate the release or threatened release.]
104-16 [(c) An emergency order issued under this section shall be:]
104-17 [(1) mailed by certified mail, return receipt
104-18 requested, to each person identified in the order;]
104-19 [(2) hand delivered to each person identified in the
104-20 order; or]
104-21 [(3) on failure of service by certified mail or hand
104-22 delivery, served by publication one time in the Texas Register and
104-23 one time in a newspaper with general circulation in each county in
104-24 which any of the persons had a last known address.]
104-25 [(d) An emergency order issued under this section does not
105-1 require notice or an adjudicative hearing before its issuance. If
105-2 the executive director issues an order under this section, the
105-3 commission shall fix a time and place for a hearing to affirm,
105-4 modify, or set aside the emergency order issued by the executive
105-5 director. The hearing before the commission shall be held as soon
105-6 as practicable after the issuance of the emergency order.]
105-7 [(e) The executive director may issue orders under this
105-8 section to the following persons:]
105-9 [(1) the owner of an underground or aboveground
105-10 storage tank; or]
105-11 [(2) the operator of an underground or aboveground
105-12 storage tank.]
105-13 SECTION 23. Section 26.459, Water Code, is amended to read
105-14 as follows:
105-15 Sec. 26.459. REINSTATEMENT [DENIAL, SUSPENSION, OR
105-16 REVOCATION] OF LICENSE OR CERTIFICATE OF REGISTRATION[;
105-17 REINSTATEMENT]. (a) The commission may [deny, suspend, revoke,
105-18 or] reinstate a license or certificate of registration.
105-19 (b) [The commission shall adopt rules establishing the
105-20 grounds for denial, suspension, revocation, or reinstatement of a
105-21 license or certificate of registration, and establishing procedures
105-22 for disciplinary actions.]
105-23 [(c) Proceedings relating to the suspension or revocation of
105-24 a license or certificate of registration issued under this
105-25 subchapter are subject to Chapter 2001, Government Code.]
106-1 [(d)] A person or business entity whose license or
106-2 certificate of registration has been revoked may apply for a new
106-3 license or certificate of registration after the expiration of one
106-4 year from the date of the revocation.
106-5 SECTION 24. Section 27.101, Water Code, is amended to read
106-6 as follows:
106-7 Sec. 27.101. CIVIL PENALTY. (a) A person who violates any
106-8 provision of this chapter under the jurisdiction of the railroad
106-9 commission, any rule of [the commission or] the railroad commission
106-10 made under this chapter, or any term, condition, or provision of a
106-11 permit issued by the railroad commission under this chapter shall
106-12 be subject to a civil penalty in any sum not exceeding $5,000 for
106-13 each day of noncompliance and for each act of noncompliance. A
106-14 violation under the jurisdiction of the commission is enforceable
106-15 as provided by Chapter 7.
106-16 (b) The action may be brought by the [executive director or
106-17 the] railroad commission in any court of competent jurisdiction in
106-18 the county where the offending activity is occurring or where the
106-19 defendant resides.
106-20 SECTION 25. Section 27.102, Water Code, is amended to read
106-21 as follows:
106-22 Sec. 27.102. INJUNCTION, ETC. (a) The [executive director
106-23 or the] railroad commission may enforce a provision of this chapter
106-24 under the jurisdiction of the railroad commission, any valid rule
106-25 made by the railroad commission under this chapter, or any term,
107-1 condition, or provision of a permit issued by the [commission or]
107-2 railroad commission under this chapter by injunction or other
107-3 appropriate remedy. The suit shall be brought in a court of
107-4 competent jurisdiction in the county where the offending activity
107-5 is occurring.
107-6 (b) The executive director may enforce a provision of this
107-7 chapter under the jurisdiction of the commission, a commission rule
107-8 adopted under this chapter, or a term, condition, or provision of a
107-9 permit issued by the commission under this chapter as provided by
107-10 Subchapter B, Chapter 7.
107-11 SECTION 26. Subsection (a), Section 27.103, Water Code, is
107-12 amended to read as follows:
107-13 (a) At the request of the [executive director or the]
107-14 railroad commission, the attorney general shall institute and
107-15 conduct a suit in the name of the State of Texas for injunctive
107-16 relief or to recover the civil penalty, or for both the injunctive
107-17 relief and civil penalty, authorized in Sections 27.101 and 27.102
107-18 of this chapter.
107-19 SECTION 27. Subsection (a), Section 27.105, Water Code, is
107-20 amended to read as follows:
107-21 (a) A person who knowingly or intentionally violates a
107-22 provision of this chapter under the jurisdiction of the railroad
107-23 commission, a rule of the [commission or] railroad commission, or a
107-24 term, condition, or provision of a permit issued by the railroad
107-25 commission under this chapter is subject to a fine of not more than
108-1 $5,000 for each violation and for each day of violation. A
108-2 violation under the jurisdiction of the commission is enforceable
108-3 under Section 7.157.
108-4 SECTION 28. Subsection (d), Section 361.011, Health and
108-5 Safety Code, is amended to read as follows:
108-6 (d) In matters relating to municipal solid waste management,
108-7 excluding management of hazardous municipal waste, the commission
108-8 shall[:]
108-9 [(1)] consider water pollution control and water
108-10 quality aspects and air pollution control and ambient air quality
108-11 aspects[; and]
108-12 [(2) consult with the attorney general's office for
108-13 assistance in determining whether referral to the attorney general
108-14 for enforcement is mandatory under Section 361.224 or whether
108-15 referral is appropriate, in the commission's discretion, for the
108-16 disposition of enforcement matters under this chapter].
108-17 SECTION 29. Section 361.035, Health and Safety Code, is
108-18 amended by adding Subsection (c) to read as follows:
108-19 (c) A penalty collected under Subchapter C or D, Chapter 7,
108-20 Water Code, for the late filing of a report required by this
108-21 section shall be deposited to the credit of the hazardous and solid
108-22 waste remediation fee fund.
108-23 SECTION 30. Section 361.089, Health and Safety Code, is
108-24 amended to read as follows:
108-25 Sec. 361.089. PERMIT DENIAL OR[,] AMENDMENT[, SUSPENSION OR
109-1 REVOCATION]; NOTICE AND HEARING. (a) The commission may, for good
109-2 cause, deny or[,] amend[, or revoke] a permit it issues or has
109-3 authority to issue for reasons pertaining to public health, air or
109-4 water pollution, or land use, or for a violation of this chapter or
109-5 other applicable laws or rules controlling the management of solid
109-6 waste.
109-7 (b) Except as provided by Section 361.110, the commission
109-8 shall notify each governmental entity listed under Section 361.067
109-9 and provide an opportunity for a hearing to the permit holder or
109-10 applicant and persons affected. The commission may also hold a
109-11 hearing on its own motion.
109-12 (c) The commission by rule shall establish procedures for
109-13 public notice and any public hearing under this section.
109-14 (d) Hearings under this section shall be conducted in
109-15 accordance with the hearing rules adopted by the commission and the
109-16 applicable provisions of Chapter 2001, Government Code.
109-17 (e) The commission may deny[, suspend for not more than 90
109-18 days, or revoke] an original or renewal permit if it is found,
109-19 after notice and hearing, that:
109-20 (1) the permit holder has a record of environmental
109-21 violations in the preceding five years at the permitted site;
109-22 (2) the applicant has a record of environmental
109-23 violations in the preceding five years at any site owned, operated,
109-24 or controlled by the applicant;
109-25 (3) the permit holder or applicant made a false or
110-1 misleading statement in connection with an original or renewal
110-2 application, either in the formal application or in any other
110-3 written instrument relating to the application submitted to the
110-4 commission, its officers, or its employees;
110-5 (4) the permit holder or applicant is indebted to the
110-6 state for fees, payment of penalties, or taxes imposed by this
110-7 title or by a rule of the commission; or
110-8 (5) the permit holder or applicant is unable to ensure
110-9 that the management of the hazardous waste management facility
110-10 conforms or will conform to this title and the rules of the
110-11 commission.
110-12 (f) Before denying[, suspending, or revoking] a permit under
110-13 this section, the commission must find:
110-14 (1) that a violation or violations are significant and
110-15 that the permit holder or applicant has not made a substantial
110-16 attempt to correct the violations; or
110-17 (2) that the permit holder or applicant is indebted to
110-18 the state for fees, payment of penalties, or taxes imposed by this
110-19 title or by a rule of the commission.
110-20 (g) For purposes of this section, the terms "permit holder"
110-21 and "applicant" include each member of a partnership or association
110-22 and, with respect to a corporation, each officer and the owner or
110-23 owners of a majority of the corporate stock, provided such partner
110-24 or owner controls at least 20 percent of the permit holder or
110-25 applicant and at least 20 percent of another business which
111-1 operates a solid waste management facility.
111-2 SECTION 31. Section 361.091, Health and Safety Code, is
111-3 amended by amending the heading and Subsections (i) through (m) to
111-4 read as follows:
111-5 Sec. 361.091. ENCLOSED CONTAINERS OR VEHICLES; PERMITS;
111-6 INSPECTIONS[; CRIMINAL PENALTY].
111-7 (i) [An operator of a solid waste facility or a solid waste
111-8 hauler commits an offense if the operator or hauler disposes of
111-9 solid waste in a completely enclosed container or vehicle at a
111-10 solid waste site or operation permitted as a Type IV landfill:]
111-11 [(1) without having in possession the special permit
111-12 required by this section;]
111-13 [(2) on a date or time not authorized by the
111-14 commission; or]
111-15 [(3) without a commission inspector present to verify
111-16 that the solid waste is free of putrescible, hazardous, and
111-17 infectious waste.]
111-18 [(j) An offense under this section is a Class B misdemeanor.]
111-19 [(k) Penalties under this section are in addition to any
111-20 other penalty applicable under this chapter.]
111-21 [(l)] This section does not apply to:
111-22 (1) a stationary compactor that is at a specific
111-23 location and that has an annual permit under this section issued by
111-24 the commission, on certification to the commission by the generator
111-25 that the contents of the compactor are free of putrescible,
112-1 hazardous, or infectious waste; or
112-2 (2) an enclosed vehicle of a municipality if the
112-3 vehicle has a permit issued by the commission to transport brush or
112-4 construction-demolition waste and rubbish on designated dates, on
112-5 certification by the municipality to the commission that the
112-6 contents of the vehicle are free of putrescible, hazardous, or
112-7 infectious waste.
112-8 (j) [(m)] In this section, "putrescible waste" means organic
112-9 waste, such as garbage, wastewater treatment plant sludge, and
112-10 grease trap waste, that may:
112-11 (1) be decomposed by microorganisms with sufficient
112-12 rapidity as to cause odors or gases; or
112-13 (2) provide food for or attract birds, animals, or
112-14 disease vectors.
112-15 SECTION 32. Section 361.140, Health and Safety Code, is
112-16 amended to read as follows:
112-17 Sec. 361.140. Interest and Penalties. (a) The commission
112-18 by rule shall establish requirements for the assessment of
112-19 penalties and interest for late payment of fees owed the state
112-20 under Sections 361.134 through 361.137. Penalties and interest
112-21 established under this section shall not exceed rates established
112-22 for delinquent taxes under Sections 111.060 and 111.061, Tax Code.
112-23 (b) [A person is subject to a civil penalty of up to $100
112-24 for each day the violation continues for failure to timely submit a
112-25 properly completed report as required by commission rule under
113-1 Section 361.035.]
113-2 [(c)] Interest collected under this section for late payment
113-3 of a fee shall be deposited in the state treasury to the credit of
113-4 the respective fund to which the late fee is credited.
113-5 [(d) Any penalty collected under this section for late
113-6 filing of reports shall be deposited in the state treasury to the
113-7 credit of the hazardous and solid waste remediation fee fund.]
113-8 SECTION 33. Section 361.160, Health and Safety Code, is
113-9 amended to read as follows:
113-10 Sec. 361.160. LICENSE AMENDMENT [AND REVOCATION]. (a) A
113-11 county may, for good cause, after hearing with notice to the
113-12 license holder and to the commission, [revoke or] amend a license
113-13 it issues for reasons concerning:
113-14 (1) public health;
113-15 (2) air or water pollution;
113-16 (3) land use; or
113-17 (4) a violation of this chapter or of other applicable
113-18 laws or rules controlling the processing, storage, or disposal of
113-19 solid waste.
113-20 (b) For similar reasons, the commission may for good cause
113-21 amend [or revoke] a license issued by a county, after hearing with
113-22 notice to:
113-23 (1) the license holder; and
113-24 (2) the county that issued the license.
113-25 SECTION 34. Subsection (a), Section 361.271, Health and
114-1 Safety Code, is amended to read as follows:
114-2 (a) Unless otherwise defined in applicable statutes and
114-3 rules [For the purpose of this subchapter], a person is responsible
114-4 for solid waste if the person:
114-5 (1) is any owner or operator of a solid waste
114-6 facility;
114-7 (2) owned or operated a solid waste facility at the
114-8 time of processing, storage, or disposal of any solid waste;
114-9 (3) by contract, agreement, or otherwise, arranged to
114-10 process, store, or dispose of, or arranged with a transporter for
114-11 transport to process, store, or dispose of, solid waste owned or
114-12 possessed by the person, by any other person or entity at:
114-13 (A) the solid waste facility owned or operated
114-14 by another person or entity that contains the solid waste; or
114-15 (B) the site to which the solid waste was
114-16 transported that contains the solid waste; or
114-17 (4) accepts or accepted any solid waste for transport
114-18 to a solid waste facility or site selected by the person.
114-19 SECTION 35. Section 361.274, Health and Safety Code, is
114-20 amended to read as follows:
114-21 Sec. 361.274. No Prior Notice Concerning Administrative
114-22 Order. An administrative order under Section 361.272 does not
114-23 require prior notice or an adjudicative hearing before the
114-24 commission. An emergency administrative order may be issued under
114-25 Subchapter L, Chapter 5, Water Code.
115-1 SECTION 36. Section 361.301, Health and Safety Code, is
115-2 amended to read as follows:
115-3 Sec. 361.301. Emergency Order. [(a)] The commission may
115-4 issue an emergency mandatory, permissive, or prohibitory order
115-5 concerning an activity of solid waste management under its
115-6 jurisdiction under Section 5.512, Water Code, even if the activity
115-7 is not covered by a permit[, if the commission determines that an
115-8 emergency requiring immediate action to protect the public health
115-9 and safety or the environment exists].
115-10 [(b) The order may be issued without notice and hearing or
115-11 with notice and hearing the commission considers practicable under
115-12 the circumstances.]
115-13 [(c) If an emergency order is issued under this section
115-14 without a hearing, the commission shall set a time and place for a
115-15 hearing to be held in accordance with the rules of the commission
115-16 to affirm, modify, or set aside the emergency order.]
115-17 [(d) The requirements of Section 361.088 concerning public
115-18 notice do not apply to the hearing, but general notice of the
115-19 hearing shall be given in accordance with the rules of the
115-20 commission.]
115-21 SECTION 37. Section 361.453, Health and Safety Code, is
115-22 amended to read as follows:
115-23 Sec. 361.453. INSPECTION OF BATTERY RETAILERS. The
115-24 commission shall produce, print, and distribute the notices
115-25 required by Section 361.452 to all places where lead-acid batteries
116-1 are offered for sale at retail. In performing its duties under
116-2 this section the commission may inspect any place, building, or
116-3 premises governed by Section 361.452. [Authorized employees of the
116-4 commission may issue warnings and citations to persons who fail to
116-5 comply with the requirements of Section 361.452.] Failure to post
116-6 the required notice within three days following warning shall
116-7 subject the establishment to an administrative or a civil penalty
116-8 under Chapter 7, Water Code [a fine of $100 per day].
116-9 SECTION 38. Section 366.016, Health and Safety Code, is
116-10 amended to read as follows:
116-11 Sec. 366.016. Emergency Orders. The [(a) If the]
116-12 commission or authorized agent may issue an emergency order
116-13 concerning an on-site sewage disposal system under Section 5.517,
116-14 Water Code [determines that an emergency exists and that the public
116-15 health or safety is endangered because of the operation of an
116-16 on-site sewage disposal system that does not comply with this
116-17 chapter or a rule adopted under this chapter, the commission or
116-18 authorized agent by order may:]
116-19 [(1) suspend the registration of the installer;]
116-20 [(2) regulate the on-site sewage disposal system; or]
116-21 [(3) both suspend the registration and regulate the
116-22 system].
116-23 [(b) The order may be issued without notice and hearing.]
116-24 [(c) If the emergency order is issued without a hearing, the
116-25 commission or authorized agent shall set a time and place for a
117-1 hearing to affirm, modify, or set aside the emergency order to be
117-2 held not later than the 30th day after the date on which the
117-3 emergency order is issued.]
117-4 [(d) General notice of the hearing shall be given in
117-5 accordance with the laws of this state and rules adopted by the
117-6 commission or authorized agent.]
117-7 [(e) The hearing shall be conducted in accordance with the
117-8 commission's rules or laws and rules governing the authorized
117-9 agent.]
117-10 SECTION 39. Subsection (c), Section 366.017, Health and
117-11 Safety Code, is amended to read as follows:
117-12 (c) The property owner may be assessed an administrative or
117-13 a civil penalty under Chapter 7, Water Code, [341] for each day
117-14 that the on-site sewage disposal system remains unrepaired.
117-15 SECTION 40. Section 371.041, Health and Safety Code, is
117-16 amended to read as follows:
117-17 Sec. 371.041. ACTIONS PROHIBITED. [(a)] A person may not
117-18 collect, transport, store, recycle, use, discharge, or dispose of
117-19 used oil in any manner that endangers the public health or welfare
117-20 or endangers or damages the environment.
117-21 [(b) A person commits an offense if the person:]
117-22 [(1) intentionally discharges used oil into a sewer,
117-23 drainage system, septic tank, surface water or groundwater,
117-24 watercourse, or marine water;]
117-25 [(2) knowingly mixes or commingles used oil with waste
118-1 that is to be disposed of in landfills or directly disposes of used
118-2 oil on land;]
118-3 [(3) knowingly transports, treats, stores, disposes
118-4 of, recycles, causes to be transported, or otherwise handles any
118-5 used oil within the state:]
118-6 [(A) in violation of standards or rules for the
118-7 management of used oil; or]
118-8 [(B) without first complying with the
118-9 registration requirements of Section 371.026 and rules adopted
118-10 under that section;]
118-11 [(4) intentionally applies used oil to roads or land
118-12 for dust suppression, weed abatement, or other similar uses that
118-13 introduce used oil into the environment;]
118-14 [(5) violates an order of the commission to cease and
118-15 desist any activity prohibited by this section or any rule
118-16 applicable to a prohibited activity; or]
118-17 [(6) intentionally makes a false statement or
118-18 representation in an application, label, manifest, record, report,
118-19 permit, or other document filed, maintained, or used for purposes
118-20 of program compliance.]
118-21 [(c) It is an exception to the application of Subsection (b)
118-22 if a person unknowingly disposes into the environment any used oil
118-23 that has not been properly segregated or separated by the generator
118-24 from other solid wastes.]
118-25 [(d) It is an exception to the application of Subsection
119-1 (b)(2) if the mixing or commingling of used oil with waste that is
119-2 to be disposed of in landfills is incident to and the unavoidable
119-3 result of the mechanical shredding of motor vehicles, appliances,
119-4 or other items of scrap, used, or obsolete metals.]
119-5 SECTION 41. Section 382.026, Health and Safety Code, is
119-6 amended to read as follows:
119-7 Sec. 382.026. Orders Issued Under Emergencies. The
119-8 commission may issue an order under an air emergency under Section
119-9 5.514, Water Code. [(a) When it appears to the commission or the
119-10 executive director that there exists a generalized condition of air
119-11 pollution that creates an emergency requiring immediate action to
119-12 protect human health or safety, the commission or the executive
119-13 director shall, with the governor's concurrence, order any person
119-14 causing or contributing to the air pollution immediately to reduce
119-15 or discontinue the emission of air contaminants.]
119-16 [(b) If the commission or the executive director finds that
119-17 emissions from one or more sources are causing imminent danger to
119-18 human health or safety, but that there is not a generalized
119-19 condition of air pollution under Subsection (a), the commission or
119-20 the executive director may order the persons responsible for the
119-21 emissions immediately to reduce or discontinue the emissions.]
119-22 [(c) An order issued under this section must set a time and
119-23 place of a hearing to be held before the commission as soon after
119-24 the order is issued as practicable.]
119-25 [(d) Section 382.031, relating to notice of a hearing, does
120-1 not apply to a hearing under this section, but a general notice of
120-2 the hearing shall be given that is, in the judgment of the
120-3 commission or the executive director, practicable under the
120-4 circumstances. The commission shall affirm, modify, or set aside
120-5 the order not later than 24 hours after the hearing begins and
120-6 without adjournment of the hearing.]
120-7 [(e) This section does not limit any power that the governor
120-8 or other officer may have to declare an emergency and to act on the
120-9 basis of that declaration if the power is conferred by law or
120-10 inheres in the office.]
120-11 SECTION 42. Subsection (b), Section 382.030, Health and
120-12 Safety Code, is amended to read as follows:
120-13 (b) Except for hearings required to be held before the
120-14 commission under Section 5.504, Water Code [382.026], the
120-15 commission may authorize the executive director to:
120-16 (1) call and hold a hearing on any subject on which
120-17 the commission may hold a hearing; and
120-18 (2) delegate the authority to hold any hearing called
120-19 by the executive director to one or more commission employees.
120-20 SECTION 43. Subsection (e), Section 382.031, Health and
120-21 Safety Code, is amended to read as follows:
120-22 (e) This section applies to all hearings held under this
120-23 chapter except as otherwise specified by Section 382.017[, 382.026,
120-24 or 382.063].
120-25 SECTION 44. Section 382.063, Health and Safety Code, is
121-1 amended to read as follows:
121-2 Sec. 382.063. Issuance of Emergency Order Because of
121-3 Catastrophe. (a) The commission may issue an emergency order
121-4 because of catastrophe under Section 5.515, Water Code [or the
121-5 executive director, on delegation of authority from the commission,
121-6 by emergency order may authorize immediate action for the addition,
121-7 replacement, or repair of facilities or control equipment
121-8 necessitated by a catastrophe occurring in this state, and the
121-9 emission of air contaminants during the addition, replacement, or
121-10 repair of those facilities, if the actions and emissions are
121-11 otherwise precluded under this chapter].
121-12 (b) [An order issued under this section must:]
121-13 [(1) be limited to a reasonable time specified by the
121-14 order;]
121-15 [(2) authorize action only on:]
121-16 [(A) property on which the catastrophe occurred;
121-17 or]
121-18 [(B) other property that is owned by the owner
121-19 or operator of the damaged facility and that produces the same
121-20 intermediates, products, or by-products; and]
121-21 [(3) contain a schedule for submission of a complete
121-22 application under Section 382.051.]
121-23 [(c) Under Subsection (b)(2)(B), the person applying for an
121-24 emergency order must demonstrate that there will be no more than a
121-25 de minimis increase in the predicted concentration of the air
122-1 contaminants at or beyond the property line of the other property.
122-2 The commission shall review and act on an application submitted as
122-3 provided by Subsection (b)(3) without regard to construction
122-4 activity under an order under this section.]
122-5 [(d) To receive an emergency order under this section, a
122-6 person must submit a sworn application to the commission or
122-7 executive director. The application must contain any information
122-8 the commission requires and:]
122-9 [(1) a description of the catastrophe;]
122-10 [(2) a statement that:]
122-11 [(A) the construction and emissions are
122-12 essential to prevent loss of life, serious injury, severe property
122-13 damage, or severe economic loss not attributable to the applicant's
122-14 actions and are necessary for the addition, replacement, or repair
122-15 of a facility or control equipment necessitated by the catastrophe;]
122-16 [(B) there are no practicable alternatives to
122-17 the proposed construction and emissions; and]
122-18 [(C) the emissions will not cause or contribute
122-19 to air pollution;]
122-20 [(3) an estimate of the dates on which the proposed
122-21 construction or emissions, or both, will begin and end;]
122-22 [(4) an estimate of the date on which the facility
122-23 will begin operation; and]
122-24 [(5) a description of the quantity and type of air
122-25 contaminants proposed to be emitted.]
123-1 [(e) The commission or executive director may issue an
123-2 emergency order under this section after providing the notice and
123-3 opportunity for hearing that the commission or executive director
123-4 considers practicable under the circumstances. If the commission
123-5 requires notice and hearing before issuing the order, it shall give
123-6 notice not later than the 10th day before the date set for the
123-7 hearing.]
123-8 [(f) Notice of the issuance of an emergency order shall be
123-9 provided in accordance with commission rules.]
123-10 [(g) If the commission or executive director issues an
123-11 emergency order under this section without a hearing, the order
123-12 shall set a time and place for a hearing to be held before the
123-13 commission or its designee as soon after the emergency order is
123-14 issued as practicable.]
123-15 [(h) Section 382.031, relating to notice of a hearing, does
123-16 not apply to a hearing on an emergency order, but such general
123-17 notice of the hearing shall be given that in the judgment of the
123-18 commission or the executive director is practicable under the
123-19 circumstances.]
123-20 [(i) At or following the hearing, the commission shall
123-21 affirm, modify, or set aside the emergency order. A hearing on an
123-22 emergency order shall be conducted in accordance with Chapter 2001,
123-23 Government Code and commission rules.]
123-24 [(j)] In this section, "catastrophe" means an unforeseen
123-25 event, including an act of God, an act of war, severe weather,
124-1 explosions, fire, or similar occurrences beyond the reasonable
124-2 control of the operator that makes a facility or its functionally
124-3 related appurtenances inoperable.
124-4 SECTION 45. Section 382.085, Health and Safety Code, is
124-5 amended to read as follows:
124-6 Sec. 382.085. UNAUTHORIZED EMISSIONS PROHIBITED[; CIVIL
124-7 PENALTY]. (a) Except as authorized by a commission rule or order,
124-8 a person may not cause, suffer, allow, or permit the emission of
124-9 any air contaminant or the performance of any activity that causes
124-10 or contributes to, or that will cause or contribute to, air
124-11 pollution.
124-12 (b) A person may not cause, suffer, allow, or permit the
124-13 emission of any air contaminant or the performance of any activity
124-14 in violation of this chapter or of any commission rule or order.
124-15 [(c) A person who violates any provision of this chapter or
124-16 any commission rule or order is subject to a civil penalty of not
124-17 less than $50 or more than $25,000 for each day of violation and
124-18 for each act of violation, as the court or jury considers proper.]
124-19 [(d) The state is entitled to half of a civil penalty
124-20 recovered in a suit brought under this chapter by one or more local
124-21 governments. The remainder shall be equally divided among the
124-22 local governments that first brought the suit.]
124-23 SECTION 46. Subsection (a), Section 401.054, Health and
124-24 Safety Code, is amended to read as follows:
124-25 (a) The department [or commission] shall provide notice and
125-1 an opportunity for a hearing on a matter under its jurisdiction as
125-2 provided by its formal hearing procedures and Chapter 2001,
125-3 Government Code, on written request of a person affected by any of
125-4 the following procedures:
125-5 (1) the denial, suspension, or revocation by the
125-6 department [agency] of a license or registration;
125-7 (2) the determination by the department [agency] of
125-8 compliance with or the grant of exemptions from a department [an
125-9 agency] rule or order; or
125-10 (3) the grant or amendment by the department [agency]
125-11 of a specific license.
125-12 SECTION 47. Section 401.270, Health and Safety Code, is
125-13 amended to read as follows:
125-14 Sec. 401.270. Corrective Action and Measures. (a) If the
125-15 commission finds that by-product material or the operation by which
125-16 that by-product material is derived threatens the public health and
125-17 safety or the environment, the commission by order may require any
125-18 action, including a corrective measure, that is necessary to
125-19 correct or remove the threat.
125-20 (b) [The commission may issue an emergency order to a person
125-21 responsible for an activity, including a past activity, concerning
125-22 the recovery or processing of source material or the disposal of
125-23 by-product material if it appears that there is an actual or
125-24 threatened release of source material or by-product material that
125-25 presents an imminent and substantial danger to the public health
126-1 and safety or the environment, regardless of whether the activity
126-2 was lawful at the time. The emergency order may be issued without
126-3 notice or hearing.]
126-4 [(c) An emergency order may be issued under Subsection (b)
126-5 to:]
126-6 [(1) restrain the person from allowing or continuing
126-7 the release or threatened release; and]
126-8 [(2) require the person to take any action necessary
126-9 to provide and implement an environmentally sound remedial action
126-10 plan designed to eliminate the release or threatened release.]
126-11 [(d) An emergency order issued under Subsection (b) shall:]
126-12 [(1) be delivered to the person identified by the
126-13 order by certified mail, return receipt requested;]
126-14 [(2) be delivered by hand delivery to the person
126-15 identified by the order; or]
126-16 [(3) on failure of delivery of the order by certified
126-17 mail or hand delivery, be served on the person by publication:]
126-18 [(A) once in the Texas Register; and]
126-19 [(B) once in a newspaper of general circulation
126-20 in each county in which was located the last known address of a
126-21 person identified by the order.]
126-22 [(e)] The commission shall use the security provided by the
126-23 license holder to pay the costs of actions that are taken or that
126-24 are to be taken under this section. The commission shall send to
126-25 the comptroller a copy of its order together with necessary written
127-1 requests authorizing the comptroller to:
127-2 (1) enforce security supplied by the licensee;
127-3 (2) convert an amount of security into cash, as
127-4 necessary; and
127-5 (3) disburse from the security in the fund the amount
127-6 necessary to pay the costs.
127-7 (c) The commission may issue an emergency order under this
127-8 section as provided by Section 5.517, Water Code.
127-9 [(f) If the order issued by the commission pursuant to this
127-10 section is adopted without notice or hearing, the order shall set a
127-11 time, at least 10 but not more than 30 days following the date of
127-12 issuance of the emergency order, and a place for a hearing to be
127-13 held in accordance with the rules of the commission. As a result
127-14 of this hearing, the commission shall decide whether to affirm,
127-15 modify, or set aside the emergency order. All provisions of the
127-16 emergency order shall remain in force and effect during the
127-17 pendency of the hearing, unless otherwise altered by the
127-18 commission.]
127-19 SECTION 48. Section 401.341, Health and Safety Code, is
127-20 amended to read as follows:
127-21 Sec. 401.341. JUDICIAL REVIEW. A person who is affected by
127-22 a final decision of the department [or commission] and who has
127-23 exhausted all administrative remedies available in the appropriate
127-24 agency is entitled to judicial review under Chapter 2001,
127-25 Government Code.
128-1 SECTION 49. Section 401.342, Health and Safety Code, is
128-2 amended to read as follows:
128-3 Sec. 401.342. SUIT BY ATTORNEY GENERAL. (a) The attorney
128-4 general, at the request of the department [or commission] regarding
128-5 an activity under its jurisdiction, shall institute an action in a
128-6 district court in Travis County or in any county in which a
128-7 violation occurs or is about to occur if in the department's
128-8 [requesting agency's] judgment a person has engaged in or is about
128-9 to engage in an act or practice that violates or will violate this
128-10 chapter or a rule, license, registration, or order adopted or
128-11 issued by the department [requesting agency] under this chapter.
128-12 The attorney general may determine the court in which suit will be
128-13 instituted.
128-14 (b) The attorney general may petition the court for:
128-15 (1) an order enjoining the act or practice or an order
128-16 directing compliance and reimbursement of the fund, if applicable;
128-17 (2) civil penalties as provided by Section 401.381; or
128-18 (3) a permanent or temporary injunction, restraining
128-19 order, or other appropriate order if the department [requesting
128-20 agency] shows that the person engaged in or is about to engage in
128-21 any of the acts or practices.
128-22 SECTION 50. Section 401.343, Health and Safety Code, is
128-23 amended to read as follows:
128-24 Sec. 401.343. RECOVERY OF SECURITY. (a) The department [or
128-25 commission] shall seek reimbursement, either by an order of the
129-1 department [agency] or a suit filed by the attorney general at the
129-2 department's [agency's] request, of security from the fund used by
129-3 the department [agency] to pay for actions, including corrective
129-4 measures, to remedy spills or contamination by radioactive material
129-5 resulting from a violation of this chapter relating to an activity
129-6 under the department's [agency's] jurisdiction or a rule, license,
129-7 registration, or order adopted or issued by the department [agency]
129-8 under this chapter.
129-9 (b) On request by the department [agency], the attorney
129-10 general shall file suit to recover security under this section.
129-11 SECTION 51. Subsection (a), Section 401.381, Health and
129-12 Safety Code, is amended to read as follows:
129-13 (a) A person who violates this chapter, a department [or
129-14 commission] rule or order, or a license or registration condition
129-15 is subject to a civil penalty of not less than $100 or more than
129-16 $25,000 for each violation and for each day that a continuing
129-17 violation occurs.
129-18 SECTION 52. Subsections (a) and (c), Section 401.384, Health
129-19 and Safety Code, are amended to read as follows:
129-20 (a) The department [or commission] may assess a civil
129-21 penalty as provided by this section and Sections 401.385-401.391
129-22 against a person who violates a provision of this chapter relating
129-23 to an activity under the department's [agency's] jurisdiction, a
129-24 rule or order adopted by the department [agency] under this
129-25 chapter, or a condition of a license or registration issued by the
130-1 department [agency] under this chapter.
130-2 (c) In determining the amount of the penalty, the department
130-3 [agency] shall consider:
130-4 (1) the seriousness of the violation, including the
130-5 nature, circumstances, extent, and gravity of the prohibited acts
130-6 and the hazard or potential hazard created to the public health or
130-7 safety;
130-8 (2) the history of previous violations;
130-9 (3) the amount necessary to deter future violations;
130-10 (4) efforts to correct the violation; and
130-11 (5) any other matters that justice requires.
130-12 SECTION 53. Section 401.385, Health and Safety Code, is
130-13 amended to read as follows:
130-14 Sec. 401.385. PRELIMINARY REPORT OF VIOLATION. If the
130-15 department [or commission], after an investigation, concludes that
130-16 a violation relating to an activity under its jurisdiction has
130-17 occurred, the department [agency] may issue a preliminary report:
130-18 (1) stating the facts that support the conclusion;
130-19 (2) recommending that a civil penalty under Section
130-20 401.384 be imposed; and
130-21 (3) recommending the amount of the penalty, which
130-22 shall be based on the seriousness of the violation as determined
130-23 from the facts surrounding the violation.
130-24 SECTION 54. Subsection (a), Section 401.386, Health and
130-25 Safety Code, is amended to read as follows:
131-1 (a) The department [or commission] shall give written notice
131-2 of its preliminary report to the person charged with the violation
131-3 not later than the 10th day after the date on which the report is
131-4 issued.
131-5 SECTION 55. Section 401.387, Health and Safety Code, is
131-6 amended to read as follows:
131-7 Sec. 401.387. CONSENT TO PENALTY. (a) If the person
131-8 charged with the violation consents to the penalty recommended by
131-9 the department [or commission] or does not respond to the notice on
131-10 time, the commissioner or the commissioner's designee, [or the
131-11 commission, as appropriate,] by order shall assess that penalty or
131-12 order a hearing to be held on the findings and recommendations in
131-13 the report.
131-14 (b) If the commissioner or the commissioner's designee [or
131-15 the commission] assesses the recommended penalty, the department
131-16 [or the commission, as appropriate,] shall give written notice to
131-17 the person charged of the decision and that person must pay the
131-18 penalty.
131-19 SECTION 56. Section 401.388, Health and Safety Code, is
131-20 amended to read as follows:
131-21 Sec. 401.388. HEARING AND DECISION. (a) If the person
131-22 charged requests a hearing, the commissioner [or the commission, as
131-23 appropriate,] shall order a hearing and shall give notice of that
131-24 hearing.
131-25 (b) The hearing shall be held by a hearing examiner
132-1 designated by the commissioner [or the commission, as appropriate].
132-2 (c) The hearing examiner shall make findings of fact and
132-3 promptly issue to the commissioner [or the commission, as
132-4 appropriate,] a written decision as to the occurrence of the
132-5 violation and a recommendation of the amount of the proposed
132-6 penalty if a penalty is warranted.
132-7 (d) Based on the findings of fact and the recommendations of
132-8 the hearing examiner, the commissioner [or the commission, as
132-9 appropriate,] by order may find that a violation has occurred and
132-10 assess a civil penalty or may find that no violation occurred.
132-11 (e) All proceedings under Subsections (a)-(d) are subject to
132-12 Chapter 2001, Government Code.
132-13 (f) The commissioner [or the commission, as appropriate,]
132-14 shall give notice to the person charged of the commissioner's [or
132-15 the commission's] decision, and if the commissioner [or the
132-16 commission, as appropriate,] finds that a violation has occurred
132-17 and a civil penalty has been assessed, the commissioner [or the
132-18 commission, as appropriate,] shall give to the person charged
132-19 written notice of:
132-20 (1) the commissioner's [or the commission's] findings;
132-21 (2) the amount of the penalty; and
132-22 (3) the person's right to judicial review of the
132-23 commissioner's [or the commission's] order.
132-24 SECTION 57. Section 401.389, Health and Safety Code, is
132-25 amended to read as follows:
133-1 Sec. 401.389. DISPOSITION OF PENALTY; JUDICIAL REVIEW.
133-2 (a) Not later than the 30th day after the date on which the
133-3 commissioner's [or the commission's] order is final, the person
133-4 charged with the penalty shall pay the full amount of the penalty
133-5 or file a petition for judicial review.
133-6 (b) If the person seeks judicial review of the violation,
133-7 the amount of the penalty, or both, the person, within the time
133-8 provided by Subsection (a), shall:
133-9 (1) send the amount of the penalty to the commissioner
133-10 [or the commission, as appropriate,] for placement in an escrow
133-11 account; or
133-12 (2) post with the commissioner [or the commission, as
133-13 appropriate,] a supersedeas bond in a form approved by the
133-14 commissioner [or the commission, as appropriate,] for the amount of
133-15 the penalty, the bond to be effective until judicial review of the
133-16 order or decision is final.
133-17 (c) The commissioner [or the commission, as appropriate,]
133-18 may request enforcement by the attorney general if the person
133-19 charged fails to comply with this section.
133-20 (d) Judicial review of the order or decision of the
133-21 commissioner [or the commission] assessing the penalty shall be
133-22 under Subchapter G, Chapter 2001, Government Code.
133-23 SECTION 58. Section 401.390, Health and Safety Code, is
133-24 amended to read as follows:
133-25 Sec. 401.390. REMITTING PENALTY PAYMENTS; RELEASING BONDS.
134-1 (a) If a penalty is reduced or not assessed, the commissioner [or
134-2 the commission, as appropriate,] shall:
134-3 (1) remit to the person charged the appropriate amount
134-4 of any penalty payment plus accrued interest; or
134-5 (2) execute a release of the bond if a supersedeas
134-6 bond has been posted.
134-7 (b) Accrued interest on amounts remitted by the commissioner
134-8 [or the commission] shall be paid:
134-9 (1) at a rate equal to the rate charged on loans to
134-10 depository institutions by the New York Federal Reserve Bank; and
134-11 (2) for the period beginning on the date the penalty
134-12 is paid to the commissioner under Section 401.389(a) and ending on
134-13 the date the penalty is remitted.
134-14 SECTION 59. Subchapter J, Chapter 401, Health and Safety
134-15 Code, is amended by adding Section 401.393 to read as follows:
134-16 Sec. 401.393. COMMISSION ENFORCEMENT. The commission may
134-17 enforce the provisions of this chapter under the commission's
134-18 jurisdiction as provided by Chapter 7, Water Code.
134-19 SECTION 60. (a) The following provisions of the Water Code
134-20 are repealed:
134-21 (1) Sections 11.087(d), 11.095, 12.141, 13.411,
134-22 13.4133, 13.414, 13.4151, 13.416, and 13.417;
134-23 (2) Sections 13.505, 16.352 through 16.354, 16.356,
134-24 18.121 through 18.123, 18.171, 18.172, 26.016, 26.122 through
134-25 26.126, 26.132 through 26.134, 26.136, 26.174, 26.211 through
135-1 26.214, 26.216, 26.218 through 26.227, 26.268, 26.353, and 26.460;
135-2 (3) Section 27.1015;
135-3 (4) Section 28.013;
135-4 (5) Subchapter E, Chapter 28; and
135-5 (6) Sections 31.019, 32.010 through 32.012, 32.015,
135-6 33.008 through 33.010, 33.013, and 34.010 through 34.014.
135-7 (b) The following provisions of the Health and Safety Code
135-8 are repealed:
135-9 (1) Sections 341.050, 361.011(e), 361.164, and
135-10 361.198;
135-11 (2) Subchapters G and H, Chapter 361;
135-12 (3) Sections 361.280, 361.302, 361.303, 361.451(c),
135-13 361.455, 361.456, 361.483 through 361.4832, 361.489, 361.491,
135-14 361.540, 361.560, 361.562 through 361.567, 366.015, and 366.077;
135-15 (4) Subchapter F, Chapter 366; and
135-16 (5) Sections 370.009, 371.042 through 371.045,
135-17 372.004, 372.005, 382.004, 382.005, 382.059, 382.081 through
135-18 382.084, 382.086 through 382.096, 382.114, 401.391, and 401.392.
135-19 SECTION 61. This Act takes effect September 1, 1997.
135-20 SECTION 62. (a) A change in law made by this Act that
135-21 relates to an offense or penalty applies only to an offense
135-22 committed on or after September 1, 1997. For purposes of this
135-23 section, an offense is committed before September 1, 1997, if any
135-24 element of the offense occurs before that date. An offense
135-25 committed before September 1, 1997, is covered by the law in effect
136-1 when the offense was committed, and the former law is continued in
136-2 effect for that purpose.
136-3 (b) A change in law made by this Act that relates to an
136-4 administrative or civil penalty or the revocation of a permit,
136-5 license, certificate, registration, or other form of authorization
136-6 issued by the Texas Natural Resource Conservation Commission
136-7 applies only to a violation that occurred on or after September 1,
136-8 1997. A violation that occurs before September 1, 1997, is covered
136-9 by the law in effect when the violation occurred, and the former
136-10 law is continued in effect for that purpose.
136-11 SECTION 63. The importance of this legislation and the
136-12 crowded condition of the calendars in both houses create an
136-13 emergency and an imperative public necessity that the
136-14 constitutional rule requiring bills to be read on three several
136-15 days in each house be suspended, and this rule is hereby suspended.
136-16 COMMITTEE AMENDMENT NO. 1
136-17 Amend S.B. No. 1876 as follows:
136-18 (1) In SECTION 1 of the bill, in added Section 5.501(b),
136-19 Water Code (Senate engrossment, page 1, line 21), strike "5.508"
136-20 and substitute "5.506".
136-21 (2) In SECTION 1 of the bill, added Section 5.507, Water
136-22 Code (Senate engrossment, page 5, line 13), at the end of the first
136-23 sentence between "utility" and the period, insert "under Section
136-24 13.4132".
136-25 (3) In SECTION 1 of the bill, added Section 5.508(a), Water
137-1 Code (Senate engrossment, page 5, lines 19 and 20), between
137-2 "Section 5.507" and "if" insert "or 13.412 or for which a receiver
137-3 has been appointed under Section 13.4132".
137-4 (4) In SECTION 2 of the bill, added Section 7.033, Water
137-5 Code (Senate engrossment, page 17, line 23), strike "from the fund"
137-6 and substitute "from the radiation and perpetual care fund".
137-7 (5) In SECTION 2 of the bill, in added Section 7.033, Water
137-8 Code (Senate engrossment, page 18, line 1), between "Code," and
137-9 "or" insert "relating to an activity under the commission's
137-10 jurisdiction".
137-11 (6) In SECTION 2 of the bill, added Section 7.033, Water
137-12 Code (Senate engrossment, page 18, line 2), between "issued" and
137-13 "under" insert "by the commission".
137-14 (7) In SECTION 2 of the bill, added Section 7.051(a)(2),
137-15 Water Code (Senate engrossment, page 18, line 17), strike "I" and
137-16 substitute "H".
137-17 (8) In SECTION 2 of the bill, added Section 7.102, Water
137-18 Code (Senate engrossment, page 28, lines 10 and 11), strike "13,"
137-19 and "341,".
137-20 (9) In SECTION 2 of the bill, added Section 7.109, Water
137-21 Code (Senate engrossment, page 31, line 21), strike "subchapter"
137-22 and substitute "chapter".
137-23 (10) In SECTION 2 of the bill, strike added Section 7.255,
137-24 Water Code (Senate engrossment, page 79, lines 3 through 11), and
137-25 renumber the subsequent added section of that code accordingly.
138-1 (11) In SECTION 2 of the bill, added Section 7.302(b)(3),
138-2 Water Code (Senate engrossment, page 80, line 23), between "(3)"
138-3 and "a" insert "causing".
138-4 (12) In SECTION 2 of the bill, added Section 7.303(b), Water
138-5 Code, strike Subdivision (7) (Senate engrossment, page 83, lines 12
138-6 through 15) and renumber the remaining subdivisions of that section
138-7 accordingly.
138-8 (13) In SECTION 2 of the bill, added Section 7.351, Water
138-9 Code (Senate engrossment, page 86, line 15), strike "341,".
138-10 (14) In SECTION 60 of the bill, Subsection (a), strike
138-11 Subdivision (1)(Senate engrossment, page 134, lines 21 and 22) and
138-12 substitute new Subdivision (1) to read as follows:
138-13 "(1) Sections 11.087(d), 11.095, and 12.141;".
138-14 (15) In SECTION 60 of the bill, Subsection (a)(2)(Senate
138-15 engrossment, page 134, line 23), strike "13.505,".
138-16 (16) In SECTION 60 of the bill, Subsection (b)(1)(Senate
138-17 engrossment, page 135, line 9), strike "341.050,".
138-18 (17) Strike SECTION 61 of the bill (Senate engrossment, page
138-19 135, line 19) and substitute a new SECTION 61 to read as follows:
138-20 SECTION 61. (a) Except as provided by this section, this
138-21 Act takes effect September 1, 1997.
138-22 (b) If S.B. No. 1857, H.B. No. 3462, or another Act
138-23 transferring jurisdiction over by-product material as defined by
138-24 Section 401.003(3)(B), Health and Safety Code, and over the
138-25 recovery and processing of radioactive source material from the
139-1 Texas Natural Resource Conservation Commission to the Texas
139-2 Department of Health is enacted by the 75th Legislature, Regular
139-3 Session, 1997, and becomes law, Section 5.517, Water Code, as added
139-4 by Section 1 of this Act, and the amendment to Section 401.270,
139-5 Health and Safety Code, made by Section 47 of this Act, have no
139-6 effect.
139-7 75R14469 MI-F Chisum