By Bivins S.B. No. 1876
75R9275 T
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to consolidating all enforcement authority of the Texas
1-3 Natural Resource Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. REPEALER. The following laws are repealed:
1-6 (a) the following provisions of the Water Code: Sections
1-7 11.082, 11.095, 11.139, 11.148, 12.141, 13.411, 13.412, 13.413,
1-8 13.4131, 13.4132, 13.4133, 13.414, 13.415, 13.4151, 13.416, 13.417,
1-9 13.418, 13.419, 13.505, 16.352, 16.353, 16.354, 16.356, 18.121,
1-10 18.171, 18.172, 26.016, 26.020, 26.122, 26.123, 26.124, 26.125,
1-11 26.126, 26.132, 26.133, 26.136, 26.134, 26.211, 26.212, 26.2121,
1-12 26.2125, 26.2126, 26.213, 26.214, 26.216, 26.217, 26.218, 26.219,
1-13 26.220, 26.221, 26.222, 26.223, 26.224, 26.225, 26.226, 26.227,
1-14 26.268, 26.459, 26.460, 27.101, 27.1011, 27.1012, 27.1013, 27.1014,
1-15 27.1015, 27.102, 27.103, 27.104, 27.105, 28.013, 28.061, 28.062,
1-16 28.063, 28.064, 28.065, 28.066, 28.067, 31.019, 32.010, 32.011,
1-17 32.012, 32.015, 33.008, 33.009, 33.010, 33.013, 34.010, 34.011,
1-18 34.012, 34.013, 34.014.
1-19 (b) the following provisions of the Health and Safety Code:
1-20 Sections 341.047, 341.048, 341.049, 341.050, 341.091, 341.092,
1-21 361.164, 361.160, 361.198, 361.221, 361.2215, 361.222, 361.2225,
1-22 361.2226, 361.223, 361.224, 361.225, 361.226, 361.227, 361.228,
1-23 361.229, 361.230, 361.231, 361.232, 361.233, 361.234, 361.235,
1-24 361.251, 361.252, 361.272, 361.273, 361.274, 361.275, 361.280,
2-1 361.301, 361.302, 361.303, 361.455, 361.456, 361.483, 361.4831,
2-2 361.4832, 361.489, 361.491, 361.540, 361.560, 361.562, 361.5625,
2-3 361.563, 361.564, 361.565, 361.566, 361.567, 366.015, 366.016,
2-4 366.077, 366.091, 366.092, 366.0921, 366.0922, 366.0923, 366.0924,
2-5 366.093, 370.009, 371.041, 371.042, 371.043, 371.044, 371.045,
2-6 372.004, 372.005, 382.005, 382.026, 382.059, 382.081, 382.083,
2-7 382.084, 382.086, 382.087, 382.088, 382.089, 382.090, 382.091,
2-8 382.092, 382.093, 382.094, 382.095, 382.096, 382.114, 401.056,
2-9 401.342, 401.381, 401.382, 401.383, 401.384, 401.385, 401.386,
2-10 401.387, 401.388, 401.389, 401.390, 401.391, 401.392.
2-11 SECTION 2. AMENDMENT. Subtitle A, Title 2, Water Code, is
2-12 amended by adding Chapter 7 to read as follows:
2-13 SUBCHAPTER A. ENFORCEMENT AUTHORITY.
2-14 Sec. 7.001. AUTHORITY. The commission has authority to
2-15 initiate an action under this subchapter to enforce certain
2-16 provisions of this code and the Health and Safety Code within the
2-17 jurisdiction of the commission as provided by Section 5.013 and
2-18 rules adopted under those provisions. The commission or the
2-19 executive director may institute legal proceedings to compel
2-20 compliance with the relevant provisions of this Code and the Health
2-21 and Safety Code, rules, orders, permits or other decisions of the
2-22 commission.
2-23 Sec. 7.002. ENFORCEMENT REPORT. The commission shall
2-24 prepare a report on enforcement actions taken and the resolution of
2-25 those actions at least once each month. The report must be an item
2-26 for commission discussion at a meeting of the commission for which
2-27 public notice is given. If an enforcement action involves a suit
3-1 filed for injunctive relief or civil penalties or both, the report
3-2 must state the actual or projected time for resolution of the suit.
3-3 Copies of the report and minutes of the meeting reflecting action
3-4 taken by the commission relating to the report shall be filed with
3-5 the governor and the attorney general.
3-6 (Sections 7.003-7.010 reserved for expansion
3-7 SUBCHAPTER B. EMERGENCY AND TEMPORARY ORDERS;
3-8 CORRECTIVE ACTION; INJUNCTIVE RELIEF
3-9 Sec. 7.011 EMERGENCY AND TEMPORARY ORDERS AND PERMITS;
3-10 TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITIONS. (a) The
3-11 commission may issue temporary or emergency mandatory, permissive,
3-12 or prohibitory orders, temporarily issue permits by temporary or
3-13 emergency order, or temporarily suspend or amend permit conditions
3-14 by temporary or emergency order.
3-15 (b) The commission may issue an emergency order under this
3-16 subchapter after providing the notice and opportunity for hearing
3-17 that the commission considers practicable under the circumstances,
3-18 or with no notice or hearing. Except as provided by Section 7.013,
3-19 if the commission requires notice and hearing before issuing the
3-20 order, notice shall be given not later than the l0th day before the
3-21 date set for the hearing. The commission shall give notice not less
3-22 than 20 days before the date set for a hearing on a temporary
3-23 order.
3-24 (c) The commission may delegate the authority by order or
3-25 rule to the executive director to receive applications and issue
3-26 emergency orders without notice or hearing, and to authorize a
3-27 representative or representatives in writing to act in his stead,
4-1 under this subchapter.
4-2 (d) Any person other than the executive director or his
4-3 representative who desires an emergency or temporary order under
4-4 this subchapter must submit a sworn written application to the
4-5 commission. The application must contain:
4-6 (1) a description of the condition of emergency or
4-7 other condition justifying the issuance of the order;
4-8 (2) a statement setting forth facts which support the
4-9 findings required under this subchapter;
4-10 (3) an estimate of the dates on which the proposed
4-11 order should begin and end;
4-12 (4) a description of the action sought and activity
4-13 proposed to be allowed, mandated, or prohibited; and
4-14 (5) any other statements or information required by
4-15 this subchapter or by the commission.
4-16 (e) If the commission or the executive director or his
4-17 representative issues an emergency order under this subchapter
4-18 without a hearing, the order shall set a time and place for a
4-19 hearing to be held before the commission or its designee as soon
4-20 after the order is issued as practicable.
4-21 (f) At or following the hearing, the commission shall
4-22 affirm, modify, or set aside the emergency order. A hearing to
4-23 affirm, modify, or set aside an emergency order shall be conducted
4-24 in accordance with Chapter 2001, Government Code and commission
4-25 rules. Commission rules concerning hearings to affirm, modify, or
4-26 set aside emergency orders must include provisions for presentation
4-27 of evidence by the applicant under oath, presentation of rebuttal
5-1 evidence, and cross-examination of witnesses.
5-2 (g) An emergency or temporary order issued under this
5-3 subchapter must be limited to a reasonable time specified by the
5-4 order. The term of an emergency order may not exceed 120 days.
5-5 (h) Notice of the issuance of an emergency order shall be
5-6 provided in accordance with commission rules.
5-7 (i) Government Code, Chapter 2001 does not apply to the
5-8 issuance of an emergency order or permit under this subchapter
5-9 without a hearing.
5-10 (j) The statutes under which the commission acts and which
5-11 require notice of hearing or set procedures for the issuance of
5-12 permits do not apply to a hearing on an emergency order or permit
5-13 unless they specifically require notice for emergency orders, but
5-14 such general notice of the hearing shall be given that in the
5-15 judgment of the commission is practicable under the circumstances.
5-16 (k) An emergency or temporary order issued under this
5-17 subchapter does not vest in the permittee any rights and shall
5-18 expire and be canceled in accordance with its terms.
5-19 Sec. 7.012. EMERGENCY PERMITS FOR DIVERSION AND USE OF
5-20 WATER. (a) The commission may, by emergency order, grant an
5-21 emergency permit for the diversion and use of water if it finds
5-22 that emergency conditions exist which threaten the public health,
5-23 safety, and welfare and which override the necessity to comply with
5-24 established statutory procedures.
5-25 Sec. 7.013. EMERGENCY SUSPENSION OF PERMIT CONDITIONS
5-26 RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND
5-27 INSTREAM USES. (a) The commission may, by emergency or temporary
6-1 order, suspend permit conditions relating to beneficial inflows to
6-2 affected bays and estuaries and instream uses when the commission
6-3 finds that an emergency exists and cannot practicably be resolved
6-4 in other ways.
6-5 (b) Before the commission suspends a permit condition under
6-6 this section, written notice must be given to the Parks and
6-7 Wildlife Department of the proposed suspension. The commission
6-8 shall give the Parks and Wildlife Department an opportunity to
6-9 submit comments on the proposed suspension within 72 hours from
6-10 such time and shall consider those comments before issuing an order
6-11 imposing the suspension.
6-12 (c) The commission may suspend permit conditions under this
6-13 section without notice to any other interested party other than the
6-14 Parks and Wildlife Department as provided by Subsection (c).
6-15 However, all affected persons shall be notified immediately by
6-16 publication, and a hearing to determine whether the suspension
6-17 should be affirmed, modified, or set aside shall be held.
6-18 Sec. 7.014. EMERGENCY WORKS SAFETY ORDERS. (a) The
6-19 commission may issue an emergency order, either mandatory or
6-20 prohibitory in nature, directing the owner of a dam, levee, or
6-21 other water-storage or flood-control work to repair, modify,
6-22 maintain, dewater, or remove a work if the commission finds that
6-23 the existing condition of the work is creating or will cause
6-24 extensive or severe property damage or economic loss to others or
6-25 is posing an immediate and serious threat to human life or health
6-26 and that other procedures available to the commission to remedy or
6-27 prevent the occurrence will result in unreasonable delay.
7-1 Sec. 7.015. EMERGENCY ORDERS TO COMPEL WATER OR SEWER
7-2 SERVICE. The commission may issue an emergency order:
7-3 (a) to compel a water or sewer service provider that has
7-4 obtained or is required to obtain a certificate of public
7-5 convenience and necessity to provide continuous and adequate water
7-6 service, sewer service, or both, if it finds that the
7-7 discontinuance of the service is imminent or has occurred because
7-8 of the service provider's actions or failure to act;
7-9 (b) to compel a retail public utility to provide an
7-10 emergency interconnection with a neighboring retail public utility
7-11 for the provision of temporary water or sewer service, or both, if
7-12 it finds that service discontinuance or serious impairment in
7-13 service is imminent or has occurred; and
7-14 (c) to establish reasonable compensation for temporary
7-15 service required under Subsection (b) and to allow the retail
7-16 public utility receiving the service to make a temporary adjustment
7-17 to its rate structure to ensure proper payment.
7-18 Sec. 7.016. EMERGENCY ORDERS FOR OPERATION OF UTILITY THAT
7-19 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
7-20 The commission may issue an emergency order appointing a willing
7-21 person to temporarily manage and operate a utility under Section
7-22 13.4132 if notice is mailed or hand-delivered to the last known
7-23 address of the utility's headquarters.
7-24 Sec. 7.017. EMERGENCY ORDERS FOR RATE INCREASES IN CERTAIN
7-25 SITUATIONS. Notwithstanding the requirements of Section 13.187,
7-26 the commission may authorize an emergency rate increase for a
7-27 utility for which a person has been appointed under Section 7.016
8-1 or Section 13.4132 or for which a receiver has been appointed under
8-2 Section 13.412 if the increase is necessary to ensure the provision
8-3 of continuous and adequate services to the utility's customers.
8-4 Sec. 7.018. TEMPORARY AND EMERGENCY ORDERS AND
8-5 AUTHORIZATIONS TO DISCHARGE UNTREATED OR PARTIALLY TREATED WATER.
8-6 (a) The commission may issue an emergency or temporary order
8-7 relating to the discharge of waste or pollutants into or adjacent
8-8 to water in this state when this is necessary to enable action to
8-9 be taken more expeditiously than is otherwise provided by Chapter
8-10 26 to effectuate the policy and purposes of that chapter, if it
8-11 finds that:
8-12 (1) the discharge is unavoidable to prevent loss of
8-13 life, serious injury, severe property damage, or severe economic
8-14 loss, or to make necessary and unforeseen repairs to a facility;
8-15 (2) there are no feasible alternatives to the proposed
8-16 discharge;
8-17 (3) the discharge will not cause significant hazard to
8-18 human life and health, unreasonable damage to the property of
8-19 persons other than the applicant, or unreasonable economic loss to
8-20 persons other than the applicant; and
8-21 (4) the discharge will not present a significant
8-22 hazard to the uses that will be made of the receiving water after
8-23 the discharge.
8-24 (b) A person desiring a temporary or emergency order under
8-25 this section must submit an application to the commission under
8-26 Section 7.011(d), which must also contain the following:
8-27 (1) a statement of the volume and quality of the
9-1 proposed discharge;
9-2 (2) an explanation of the measures proposed to
9-3 minimize the volume and duration of the discharge; and
9-4 (3) an explanation of the measures proposed to
9-5 maximize the waste treatment efficiency of units not taken out of
9-6 service or facilities provided for interim use.
9-7 Sec. 7.019. EMERGENCY ORDERS CONCERNING UNDERGROUND OR
9-8 ABOVE-GROUND STORAGE TANKS. (a) The commission may issue an
9-9 emergency order to the owner or operator of an underground or
9-10 aboveground storage tank regulated under Chapter 26 of this code,
9-11 prohibiting the owner from allowing or continuing a release or
9-12 threatened release and requiring the owner to take the actions
9-13 necessary to eliminate the release or threatened release, if it
9-14 finds that:
9-15 (1) there is an actual or threatened release of a
9-16 regulated substance; and
9-17 (2) more expeditious action than is otherwise provided
9-18 under Chapter 26 is necessary to protect the public health or
9-19 safety or the environment from harm.
9-20 (b) An emergency order issued under this section shall be:
9-21 (1) mailed by certified mail, return receipt
9-22 requested, to each person identified in the order;
9-23 (2) hand delivered to each person identified in the
9-24 order; or
9-25 (3) on failure of service by certified mail or hand
9-26 delivery, served by publication one time in the Texas Register and
9-27 one time in a newspaper with general circulation in each county in
10-1 which any of such persons has a last known address.
10-2 Sec. 7.020. EMERGENCY ADMINISTRATIVE ORDERS TO PERSONS
10-3 RESPONSIBLE FOR SOLID WASTE. The commission or executive director
10-4 may issue emergency administrative orders under Section 361.272 and
10-5 Section 361.274, Health and Safety Code.
10-6 Sec. 7.021. EMERGENCY ORDERS CONCERNING ACTIVITIES OF SOLID
10-7 WASTE MANAGEMENT. The commission may issue an emergency order
10-8 concerning an activity of solid waste management under its
10-9 jurisdiction, even if that activity is not covered by a permit, if
10-10 it finds that an emergency requiring immediate action to protect
10-11 the public health and safety exists.
10-12 Sec. 7.022. ORDERS ISSUED UNDER AIR EMERGENCIES. (a) If
10-13 the commission finds that a generalized condition of air pollution
10-14 exists that creates an emergency requiring immediate action to
10-15 protect human health or safety, it may, with the concurrence of the
10-16 governor, issue an emergency order requiring any person causing or
10-17 contributing to the air pollution to immediately reduce or
10-18 discontinue the emission of air contaminants.
10-19 (b) If the commission finds that emissions from one or more
10-20 sources are causing imminent danger to human health or safety, but
10-21 that there is not a generalized condition of air pollution under
10-22 Subsection (a), it may issue an emergency order requiring the
10-23 persons responsible for the emissions to immediately reduce or
10-24 discontinue the emissions.
10-25 (c) The commission shall affirm, modify, or set aside an
10-26 order issued under this section not later than 24 hours after the
10-27 hearing begins and without adjournment of the hearing.
11-1 (d) This section does not limit any power that the governor
11-2 or other officer may have to declare an emergency and to act on the
11-3 basis of that declaration if the power is conferred by law or
11-4 inheres in the office.
11-5 Sec. 7.023. ISSUANCE OF EMERGENCY ORDER BECAUSE OF
11-6 CATASTROPHE. (a) The commission may issue an emergency order
11-7 authorizing immediate action for the addition, replacement, or
11-8 repair of facilities or control equipment necessitated by a
11-9 catastrophe occurring in this state and the emission of air
11-10 contaminants during the addition, replacement, or repair of those
11-11 facilities, if the actions and emissions are otherwise precluded
11-12 under Chapter 382, Health and Safety Code, if it finds that:
11-13 (1) the construction and emissions are essential to
11-14 prevent loss of life, serious injury, severe property damage, or
11-15 severe economic loss not attributable to the applicant's actions
11-16 and are necessary for the addition, replacement or repair of a
11-17 facility or control equipment necessitated by the catastrophe;
11-18 (2) there are no practicable alternatives to proposed
11-19 construction and emissions; and
11-20 (3) the emissions will not cause or contribute to air
11-21 pollution.
11-22 (b) An order issued under this section must:
11-23 (1) authorize action only on:
11-24 (A) property on which catastrophe occurred; or
11-25 (B) other property that is owned by the owner or
11-26 operator of the damaged facility and that produces the same
11-27 intermediates, products, or byproducts; and
12-1 (2) contain a schedule for submission of a complete
12-2 application under Section 382.051, Health and Safety Code.
12-3 (c) Under Subsection (b)(1)(B), the person applying for an
12-4 emergency order must demonstrate that there will be no more than a
12-5 de minimis increase in the predicted concentration of air
12-6 contaminants at or beyond the property line of the other property.
12-7 The commission shall review and act on an application submitted as
12-8 provided by Subsection (b)(2) without regard to construction
12-9 activity under an order under this section.
12-10 (d) An applicant desiring a temporary or emergency order
12-11 under this section must submit a sworn application to the
12-12 commission under 7.011(d) which must also contain the following:
12-13 (1) a description of the catastrophe;
12-14 (2) a statement that:
12-15 (A) the construction and emissions are essential
12-16 to prevent loss of life, serious injury, severe property damage, or
12-17 severe economic loss not attributable to the applicant's actions
12-18 and are necessary for the addition, replacement or repair of a
12-19 facility or control equipment necessitated by the catastrophe;
12-20 (B) there are no practicable alternatives to
12-21 proposed construction and emissions; and
12-22 (C) the emissions will not cause or contribute
12-23 to air pollution.
12-24 (3) estimate of the dates on which the proposed
12-25 construction or emissions, or both, will begin and end;
12-26 (4) an estimate of the date on which the facility will
12-27 begin operation; and
13-1 (5) a description of the quantity and type of air
13-2 contaminants proposed to be emitted.
13-3 (e) In this section, "catastrophe" means an unforeseen
13-4 event, including an act of God, an act of war, severe weather,
13-5 explosions, fire, or similar occurrences beyond the reasonable
13-6 control of the operator that makes a facility or its related
13-7 appurtenances inoperable.
13-8 Sec. 7.024. EMERGENCY ORDERS UNDER SECTION 401.056, HEALTH
13-9 AND SAFETY CODE. The commission may issue an emergency order under
13-10 Section 401.056, Health and Safety Code in the manner provided in
13-11 this subchapter.
13-12 Sec. 7.025. EMERGENCY ORDERS FOR CORRECTIVE ACTION AND
13-13 MEASURES. (a) The commission may issue an emergency order under
13-14 Section 401.270, Health and Safety Code to a person responsible for
13-15 an activity, including a past activity, concerning the recovery or
13-16 processing of source material or the disposal of by-product
13-17 material requiring any action, including a corrective measure, that
13-18 is necessary to correct or remove the threat, if it finds that
13-19 by-product material or the operation by which that by-product
13-20 material is derived threatens the public health and safety and the
13-21 environment, regardless of whether the activity was lawful at the
13-22 time.
13-23 (b) An emergency order may be issued under this section to:
13-24 (1) restrain the person from allowing or continuing
13-25 the release; and
13-26 (2) require the person to take any action necessary to
13-27 provide and implement an environmentally sound remedial action plan
14-1 designed to eliminate the release or threatened release.
14-2 (c) An emergency order issued under this section shall be:
14-3 (1) mailed by certified mail, return receipt
14-4 requested, to each person identified in the order;
14-5 (2) hand delivered to each person identified in the
14-6 order; or
14-7 (3) on failure of service by certified mail or hand
14-8 delivery, served by publication one time in the Texas Register and
14-9 one time in a newspaper with general circulation in each county in
14-10 which any of such persons has a last known address.
14-11 (d) If the order is adopted without notice or hearing, the
14-12 order shall set a time, at least 10 but not more than 30 days
14-13 following the date of issuance of the order, for a hearing to be
14-14 held to affirm, modify, or set aside the order. All provisions of
14-15 the order shall remain in effect during the pendency of the
14-16 hearing, unless otherwise altered by the commission.
14-17 Sec. 7.026. TEMPORARY EMERGENCY TRANSFER OF USE OF SURFACE
14-18 WATER RIGHT. (a) The commission may temporarily transfer the use
14-19 of all or part of a surface water right from an owner holding a
14-20 permit or certificate of adjudication for other than domestic or
14-21 municipal use to a city or utility for domestic or municipal use by
14-22 emergency order if it finds that a drought emergency exists which
14-23 threatens the public health, safety, and welfare or the environment
14-24 and which cannot practicably be resolved in other ways.
14-25 (b) An order issued under this section must be conditioned
14-26 upon the deposit by the applicant with the executive director of a
14-27 bond or other surety sufficient in the opinion of the executive
15-1 director or commission to discharge the city or utility's potential
15-2 liability under this section.
15-3 (c) An applicant desiring an emergency order under this
15-4 section must submit a sworn application to the commission under
15-5 7.011(d), which must also contain the following:
15-6 (1) a description of the condition of drought
15-7 emergency;
15-8 (2) a statement that:
15-9 (A) the order sought is essential to prevent a
15-10 danger to the public health, safety, and welfare or the environment
15-11 not attributable to the applicant's actions;
15-12 (B) there are no practicable alternatives to the
15-13 proposed order; and
15-14 (3) a statement, in a form acceptable to the executive
15-15 director and legally binding on the applicant, that the applicant
15-16 will timely pay the amounts for which the applicant may be
15-17 potentially liable under this section and will fully indemnify and
15-18 hold harmless the state, the executive director, and the commission
15-19 from any and all liability for the order sought.
15-20 (d) The city or utility to whom the temporary use of part or
15-21 all of a surface water right is transferred is liable to the owner
15-22 from whom the use is transferred for the fair market value of the
15-23 water transferred as well as for any damages proximately caused by
15-24 the transfer of use.
15-25 (e) If the city or utility and the water right owner do not
15-26 agree on the amount due, or if full payment is not made, within 60
15-27 days of the termination of an order issued under this section,
16-1 either may file suit to recover or determine the amount due in a
16-2 district court in the county where the diversion point or points of
16-3 the water right whose use in being transferred is located.
16-4 (f) The prevailing party in a suit filed under this section
16-5 is entitled to recover reasonable attorneys' fees.
16-6 Sec. 7.027. CORRECTIVE ACTION. (a) The commission shall
16-7 require corrective action for a release of hazardous waste or
16-8 hazardous waste constituents from a solid waste management unit at
16-9 a solid waste processing, storage, or disposal facility that is
16-10 required to obtain a permit for the management of hazardous waste
16-11 and whose permit is issued after November 8, 1984, regardless of
16-12 when the waste is placed in the unit.
16-13 (b) The commission shall establish schedules for compliance
16-14 for the corrective action, if the corrective action cannot be
16-15 completed before permit issuance, and shall require assurances of
16-16 financial responsibility for completing the corrective action.
16-17 (c) If, before the issuance of a permit, the commission
16-18 determines that there is or has been a release of hazardous waste
16-19 into the environment from a facility required to obtain a permit in
16-20 accordance with an approved state program under Section 3006 of the
16-21 federal Solid Waste Disposal Act, as amended by the Resource
16-22 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
16-23 Section 6901 et seq.), the commission may:
16-24 (1) issue an order requiring corrective action or
16-25 other response measures considered necessary to protect human
16-26 health or the environment; or
16-27 (2) institute a civil action under Subchapter D.
17-1 (d) An order issued under this section:
17-2 (1) may include a suspension or revocation of
17-3 authorization to operate;
17-4 (2) must state with reasonable specificity the nature
17-5 of the required corrective action or other response measure; and
17-6 (3) must specify a time for compliance.
17-7 (e) If any person named in the order does not comply with
17-8 the order, the agency issuing the order may assess a penalty in
17-9 accordance with this chapter.
17-10 Sec. 7.028. INJUNCTIVE RELIEF. (a) The executive director
17-11 may enforce any valid commission rule, or any term, condition, or
17-12 provision of a permit issued by the commission by injunction or
17-13 other appropriate remedy.
17-14 (b) If it appears that a violation or threat of violation of
17-15 a provision of this code or the Health and Safety Code within the
17-16 commission's jurisdiction, or any rule or order adopted under the
17-17 commission's jurisdiction has occurred or is about to occur and is
17-18 causing or may cause immediate injury or constitutes a significant
17-19 threat to the health, welfare, or personal property of a citizen or
17-20 a local government, the commission, the local government, or the
17-21 state may bring suit in district court for injunctive relief to
17-22 restrain the violation or the threat of violation.
17-23 (c) The suit shall be brought either in the county in which
17-24 the defendant resides or in the county in which the violation or
17-25 threat of violation occurs.
17-26 (d) In any suit brought to enjoin a violation or threat of
17-27 violation of this chapter or any rule, permit, or order of the
18-1 commission, the court may grant the commission, without bond or
18-2 other undertaking, any prohibitory or mandatory injunction the
18-3 facts may warrant, including temporary restraining orders, after
18-4 notice and hearing, temporary injunctions, and permanent
18-5 injunctions.
18-6 (e) On request of the executive director, the attorney
18-7 general or the prosecuting attorney in a county in which the
18-8 violation occurs shall initiate a suit in the name of the state for
18-9 injunctive relief. The suit may be brought independently of or in
18-10 conjunction with a suit under Subchapter D.
18-11 SUBCHAPTER C. ADMINISTRATIVE PENALTIES
18-12 Sec. 7.031. PENALTY FOR VIOLATIONS. The commission may
18-13 assess an administrative penalty against a person as provided by
18-14 this section if:
18-15 (a) the person violates:
18-16 (1) any provision of this code or the Health and
18-17 Safety Code that is within the commission's jurisdiction;
18-18 (2) a rule or order adopted by the commission that is
18-19 within the commission's jurisdiction; or
18-20 (3) a permit or registration issued by the commission
18-21 under the statutes and rules within the commission's jurisdiction;
18-22 and
18-23 (b) no county, political subdivision, or municipality has
18-24 instituted a lawsuit and is diligently prosecuting that lawsuit
18-25 under Subchapter I against the same person for the same violation.
18-26 Sec. 7.032. MAXIMUM PENALTY. The amount of the penalty for
18-27 violations of Chapters 13, 18, 32, 33, 34 of this code and Chapters
19-1 341, 366, 371, and 372 of the Health and Safety Code may not exceed
19-2 $2,500 a day for each violation. The amount of the penalty for all
19-3 other violations within the jurisdiction of the commission to
19-4 enforce may not exceed $10,000 a day for each violation. Each day
19-5 that a continuing violation occurs may be considered a separate
19-6 violation. The commission may authorize an installment payment
19-7 schedule for administrative orders issued under this section,
19-8 except in administrative orders issued under Section 7.037, or
19-9 orders issued after a hearing under Section 7.038.
19-10 Sec. 7.033. FACTORS. In determining the amount of the
19-11 penalty, the commission shall consider:
19-12 (a) the nature, circumstances, extent, duration, and gravity
19-13 of the prohibited act with special emphasis on the impairment of
19-14 existing water rights or hazard or potential hazard created to the
19-15 health or safety of the public;
19-16 (b) the impact of the violation on:
19-17 (1) air quality in the region;
19-18 (2) a receiving stream or underground water reservoir;
19-19 (3) instream uses, water quality, aquatic and wildlife
19-20 habitat, or beneficial freshwater inflows to bays and estuaries; or
19-21 (4) affected persons;
19-22 (c) with respect to the alleged violator:
19-23 (1) the history and extent of previous violations;
19-24 (2) the degree of culpability, including whether the
19-25 violation was attributable to mechanical or electrical failures and
19-26 whether the violation could have been reasonably anticipated and
19-27 avoided;
20-1 (3) the demonstrated good faith, including actions
20-2 taken by the alleged violator to rectify the cause of the violation
20-3 and to compensate affected persons;
20-4 (4) economic benefit gained through the violation; and
20-5 (5) the amount necessary to deter future violations;
20-6 and
20-7 (d) any other matters that justice may require.
20-8 Sec. 7.034. REPORT. If, after examination of a possible
20-9 violation and the facts surrounding that possible violation, the
20-10 executive director concludes that a violation has occurred, the
20-11 executive director may issue a preliminary report pursuant to
20-12 commission rules.
20-13 Sec. 7.035. NOTICE OF REPORT. Not later than the 10th day
20-14 after the date on which the report is issued, the executive
20-15 director shall give written notice of the report to the person
20-16 charged with the violation pursuant to commission rules.
20-17 Sec. 7.036. CONSENT. Not later than the 20th day after the
20-18 date on which notice is received, the person charged may give to
20-19 the commission written consent to the executive director's report,
20-20 including the recommended penalty, or make a written request for a
20-21 hearing.
20-22 Sec. 7.037. DEFAULT. If the person charged with the
20-23 violation consents to the penalty recommended by the executive
20-24 director or does not timely respond to the notice, the commission
20-25 by order shall assess the penalty or order a hearing to be held on
20-26 the findings and recommendations in the executive director's
20-27 report. If the commission assesses the penalty, the commission
21-1 shall give written notice to the person charged of its decision.
21-2 Sec. 7.038. HEARING. If the person charged requests or the
21-3 commission orders a hearing, the commission shall order and shall
21-4 give notice of the hearing. The commission by order may find that a
21-5 violation has occurred and may assess a penalty, may find that a
21-6 violation has occurred but that no penalty should be assessed, or
21-7 may find that no violation has occurred. In making a penalty
21-8 decision, the commission shall analyze each factor prescribed by
21-9 Section 7.033. All proceedings under this subchapter are subject
21-10 to Chapter 2001, Government Code.
21-11 Sec. 7.039. DECISION. The commission shall give notice of
21-12 its decision to the person charged, and if the commission finds
21-13 that a violation has occurred and assesses a penalty, the
21-14 commission shall give written notice to the person charged of:
21-15 (a) the commission's findings;
21-16 (b) the amount of the penalty;
21-17 (c) the right to judicial review of the commission's order;
21-18 and
21-19 (d) other information required by law.
21-20 Sec. 7.040. NOTICE OF PENALTY. If the commission is
21-21 required to give notice of a penalty under Section 7.037 or Section
21-22 7.039, the commission shall file notice of its decision in the
21-23 Texas Register not later than the 10th day after the date on which
21-24 the decision is adopted.
21-25 Sec. 7.041. PAYMENT. Within the 30-day period immediately
21-26 following the date on which the commission's order is final, as
21-27 provided by Section 2001.144, Government Code, the person charged
22-1 with the penalty shall:
22-2 (a) pay the penalty in full;
22-3 (b) pay the first installment penalty payment in full;
22-4 (c) pay the penalty and file a petition for judicial review,
22-5 contesting either the amount of the penalty or the fact of the
22-6 violation or contesting both the fact of the violation and the
22-7 amount of the penalty; or
22-8 (d) without paying the penalty, file a petition for judicial
22-9 review contesting the occurrence of the violation and the amount of
22-10 the penalty.
22-11 Sec. 7.042. STAYS. Within the 30-day period, a person who
22-12 acts under Section 7.041(c) may:
22-13 (a) stay enforcement of the penalty by:
22-14 (1) paying the amount of the penalty to the court for
22-15 placement in an escrow account; or
22-16 (2) giving to the court a supersedeas bond that is
22-17 approved by the court for the amount of the penalty and that is
22-18 effective until all judicial review of the commission's order is
22-19 final; or
22-20 (b) request the court to stay enforcement of the penalty by:
22-21 (1) filing with the court a sworn affidavit of the
22-22 person stating that the person is financially unable to give the
22-23 supersedeas bond; and
22-24 (2) sending a copy of the affidavit to the executive
22-25 director by certified mail.
22-26 Sec. 7.043. CONSENT TO AFFIDAVIT. If the executive director
22-27 receives a copy of an affidavit under Section 7.041(b), the
23-1 executive director may file with the court, within five days after
23-2 the date the copy is received, a contest to the affidavit. The
23-3 court shall hold a hearing on the facts alleged in the affidavit as
23-4 soon as practicable and shall stay the enforcement of the penalty
23-5 on finding that the alleged facts are true. The person who files
23-6 an affidavit has the burden of proving that the person is
23-7 financially unable to pay the penalty or give the supersedeas bond.
23-8 Sec. 7.044. JUDICIAL REVIEW. Judicial review of the order
23-9 or decision of the commission assessing the penalty shall be under
23-10 Subchapter G, Chapter 2001, Government Code.
23-11 Sec. 7.045. PENALTY REDUCED OR NOT ASSESSED. (a) If the
23-12 person paid the penalty and the if the penalty is reduced or not
23-13 assessed by the court, the executive director shall remit to the
23-14 person charged the appropriate amount plus accrued interest if the
23-15 penalty has been paid or shall execute a release of the bond if a
23-16 supersedeas bond has been posted.
23-17 (b) The accrued interest on amounts remitted by the
23-18 executive director under this section shall be paid at a rate equal
23-19 to the rate charged on loans to depository institutions by the New
23-20 York Federal Reserve Bank and shall be paid for the period
23-21 beginning on the date the penalty is paid to the executive director
23-22 under Section 7.041 and ending on the day the penalty is remitted.
23-23 Sec. 7.046. REFERRAL TO ATTORNEY GENERAL. A person who
23-24 fails to comply with Section 7.041 waives the right to judicial
23-25 review, and the commission or the executive director may refer the
23-26 matter to the attorney general for enforcement.
23-27 Sec. 7.047. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) The
24-1 commission may compromise, modify, or remit, with or without
24-2 conditions, a civil penalty imposed under this subchapter. In
24-3 determining the appropriate amount of a penalty for settlement of
24-4 an administrative enforcement matter, the commission, in its
24-5 discretion, may consider the willingness of a respondent to
24-6 contribute to supplemental environmental projects that are approved
24-7 by the commission, giving preference to those projects that benefit
24-8 the community in which the alleged violation occurred.
24-9 (b) In this section, "supplemental environmental project"
24-10 means a project that prevents pollution, reduces the amount of
24-11 pollutants reaching the environment, enhances the quality of the
24-12 environment, or contributes to public awareness of environmental
24-13 matters. The term does not include projects that are necessary to
24-14 bring the respondent into compliance with environmental laws or
24-15 that are necessary to remediate the environmental harm caused by
24-16 the alleged violation.
24-17 Sec. 7.048. FULL AND COMPLETE SATISFACTION. Payment of a
24-18 penalty under this subchapter is full and complete satisfaction of
24-19 the violation for which the administrative penalty is assessed and
24-20 precludes any other civil or criminal penalty for the same
24-21 violation.
24-22 Sec. 7.049. GENERAL REVENUE FUND. A penalty collected under
24-23 this subchapter shall be deposited in the state treasury to the
24-24 credit of the general revenue fund.
24-25 Sec. 7.050. RESERVATIONS. Notwithstanding any other
24-26 provision to the contrary, the commission is not required to make
24-27 findings of fact or conclusions of law, other than an uncontested
25-1 finding that the commission has jurisdiction in an agreed order
25-2 compromising or settling an alleged violation of this chapter. An
25-3 agreed administrative order may include a reservation that:
25-4 (a) the order is not an admission of a violation of the
25-5 provisions of this code or the Health and Safety Code within the
25-6 jurisdiction of the commission or a rule adopted under those
25-7 provisions;
25-8 (b) the occurrence of a violation is in dispute; or
25-9 (c) the order is not intended to become a part of a party's
25-10 or a facility's compliance history.
25-11 Sec. 7.051. INADMISSIBILITY. An agreed administrative order
25-12 issued by the commission under this subchapter shall not be
25-13 admissible against a party to that order in a civil proceedings,
25-14 unless the proceeding is brought by the attorney general's office
25-15 to:
25-16 (a) enforce the terms of that order; or
25-17 (b) pursue violations of this code or the Health and Safety
25-18 Code.
25-19 Sec. 7.052. CIVIL ACTIONS. An administrative penalty owed
25-20 under this section may be recovered in a civil action brought by
25-21 the attorney general at the request of the commission.
25-22 Sec. 7.053. CORRECTIVE ACTION. If a person violates any
25-23 statute or rule within the commission's jurisdiction, the
25-24 commission may:
25-25 (a) assess against the person an administrative penalty
25-26 under this section; and
25-27 (b) order the person to take corrective action.
26-1 Sec. 7.054. SUBPOENA. For enforcement matters arising under
26-2 Chapter 34, the commission may compel the attendance of witnesses
26-3 before it as in civil cases in the district court by issuance of a
26-4 subpoena.
26-5 Sec. 7.055. PUBLICATION. (a) Before the commission
26-6 approves an administrative order or proposed agreement to settle an
26-7 administrative enforcement action initiated under this chapter to
26-8 which the commission is a party, the commission shall permit the
26-9 public to comment in writing on the proposed order or agreement.
26-10 Notice of the opportunity to comment shall be published in the
26-11 Texas Register not later than the 30th day before the date on which
26-12 the public comment period closes.
26-13 (b) The commission shall promptly consider any written
26-14 comments and may withdraw or withhold consent to the proposed order
26-15 or agreement if the comments disclose facts or considerations that
26-16 indicate that the consent is inappropriate, improper, inadequate,
26-17 or inconsistent with the requirements of the provisions of this
26-18 code and the Water Code within the commission's jurisdiction. No
26-19 further notice of changes to the proposed order or agreement must
26-20 be published if those changes arise from comments submitted in
26-21 response to a previous notice.
26-22 (c) This section does not apply to criminal enforcement
26-23 proceedings and does not apply to emergency orders or other
26-24 emergency relief that is not a final order of the commission.
26-25 (d) Chapter 2001, Government Code, does not apply to public
26-26 comment under this section.
26-27 SUBCHAPTER D. CIVIL PENALTIES
27-1 Sec. 7.071. VIOLATION. A person may not cause, suffer,
27-2 allow, or permit a violation of a provision of a statute within the
27-3 commission's jurisdiction or a rule, order, permit, license, or
27-4 certificate adopted under the commission's jurisdiction.
27-5 Sec. 7.072. MAXIMUM PENALTY. A person who causes, suffers,
27-6 allows, or permits a violation under the statutes, rules, orders,
27-7 permits, certificates, or licenses relating to Chapters 13, 18, 32,
27-8 33 and 34 of this code and Chapters 341, 366, 371, and 372 of the
27-9 Health and Safety Code shall be assessed for each violation a civil
27-10 penalty up to $5,000 for each day of each violation as the court or
27-11 jury considers proper. A person who causes, suffers, allows, or
27-12 permits a violation under the statutes, rules, orders, permits,
27-13 certificates, or licenses relating to all other violations within
27-14 the commission's jurisdiction to enforce shall be assessed for each
27-15 violation a civil penalty up to $25,000 for each day of each
27-16 violation as the court or jury considers proper. Each day of a
27-17 continuing violation is a separate violation.
27-18 Sec. 7.073. CONTINUING VIOLATIONS. If it is shown on a
27-19 trial of the defendant that the defendant has previously been
27-20 assessed a civil penalty under this section within a year before
27-21 the date on which the violation being tried occurred, the defendant
27-22 shall be assessed a civil penalty up to $25,000 for each subsequent
27-23 day and for each subsequent violation. Each day of a continuing
27-24 violation is a separate violation.
27-25 Sec. 7.074. CIVIL SUIT. On the request of the executive
27-26 director or the commission, the attorney general shall institute a
27-27 suit in the name of the state for injunctive relief under Section
28-1 7.014 to recover a civil penalty, or for both injunctive relief and
28-2 a civil penalty. The suit may be brought in Travis County, in the
28-3 county in which the defendant resides, or in the county in which
28-4 the violation or threat of violation occurs.
28-5 Sec. 7.075. RESOLUTION THROUGH ADMINISTRATIVE ORDER. The
28-6 attorney general's office and the executive director may agree to
28-7 resolve any violations, before or after referral, by an
28-8 administrative order issued by the commission with the approval of
28-9 the attorney general.
28-10 Sec. 7.076. DIVISION OF CIVIL PENALTIES. Civil penalties
28-11 recovered in a suit brought under this section by a local
28-12 government shall be equally divided between:
28-13 (a) the state; and
28-14 (b) the local government that brought the suit.
28-15 Sec. 7.077. ATTORNEY'S FEES. If the state prevails in a
28-16 suit under this section, it may recover reasonable attorney's fees,
28-17 court costs, and reasonable investigative costs incurred in
28-18 relation to the proceeding.
28-19 Sec. 7.078. PARKS AND WILDLIFE DEPARTMENT JURISDICTION.
28-20 Whenever it appears that a violation or a threat of violation of
28-21 any provision of Section 26.121 or any rule, permit or order of the
28-22 commission has occurred or is occurring that affects aquatic life
28-23 or wildlife, the Parks and Wildlife Department, in the same manner
28-24 as the commission in this section, may have a suit instituted in a
28-25 district court for injunctive relief or civil penalties or both, as
28-26 authorized by this section, against the person who committed or is
28-27 committing or threatening to commit the violation. In a suit
29-1 brought under this section for a violation that is the proximate
29-2 cause of injury to aquatic life or wildlife normally taken for
29-3 commercial or sport purposes or to species on which this life is
29-4 directly dependent for food, Parks and Wildlife Department is
29-5 entitled to recover damages for the injury. In determining
29-6 damages, the court may consider the valuation of the injured
29-7 resources established in rules adopted by the Parks and Wildlife
29-8 Department under Subchapter D, Chapter 12 of the Parks and Wildlife
29-9 Code, or the replacement cost of the injured resources. Any
29-10 recovery of damages for injury to aquatic life or wildlife shall be
29-11 deposited to the credit of the game, fish, and water safety account
29-12 under Section 11.032, Parks and Wildlife Code, and the Parks and
29-13 Wildlife Department shall use such funds recovered under this
29-14 section to replenish or enhance the injured resource. The actual
29-15 cost of investigation, reasonable attorney's fees, and reasonable
29-16 expert witness fees may also be recovered, and those recovered
29-17 amounts shall be credited to the same operating accounts from which
29-18 expenditures occurred. This section does not limit recovery for
29-19 damages available under other laws.
29-20 Sec. 7.079. PUBLICATION. (a) Before the commission
29-21 approves an agreed final judgment, consent order, voluntary
29-22 settlement agreement, or other voluntary settlement agreement, or
29-23 other voluntary agreement that would finally settle a civil
29-24 enforcement action initiated under this chapter to which the State
29-25 of Texas is a party or before the court signs a judgment or other
29-26 agreement settling a judicial enforcement action other than an
29-27 enforcement action under Section 113 or 120 or Title II of the
30-1 federal Clean Air Act (42 U.S.C. Section 7401 et seq.), the
30-2 attorney general shall permit the public to comment in writing on
30-3 the proposed order, judgment, or other agreement.
30-4 (b) Notice of the opportunity to comment shall be published
30-5 in the Texas Register not later than the 30th day before the date
30-6 on which the public comment period closes.
30-7 (c) The attorney general shall promptly consider any written
30-8 comments and may withdraw or withhold consent to the proposed
30-9 order, judgment, or other agreement if the comments disclose facts
30-10 or considerations that indicate that the consent is inappropriate,
30-11 improper, inadequate, or inconsistent with the requirements of this
30-12 chapter. No further notice of changes to the proposed order,
30-13 judgment, or other agreement must be published if those changes
30-14 arise from comments submitted in response to a previous notice.
30-15 (d) The attorney general may not oppose intervention by a
30-16 person who has standing to invervene, as provided by Rule 60, Texas
30-17 Rules of Civil Procedure.
30-18 (e) This section does not apply to criminal enforcement
30-19 proceedings and does not apply to proposed temporary restraining
30-20 orders, temporary injunctions, emergency orders, or other emergency
30-21 relief that is not a final judgment or final order of the court or
30-22 commission.
30-23 (f) Chapter 2001, Government Code, does not apply to public
30-24 comment under this section.
30-25 SUBCHAPTER E. CRIMINAL OFFENSES AND PENALTIES
30-26 Sec. 7.101. DEFINITIONS. In this subchapter:
30-27 (a) "Appropriate regulatory agency" means the Texas Natural
31-1 Resource Conservation Commission, the Texas Department of Health,
31-2 or any other agency authorized to regulate the handling and
31-3 disposal of medical waste.
31-4 (b) "Corporation" and "association" have the meanings
31-5 assigned by Section 1.07, Penal Code, except that the terms do not
31-6 include a government.
31-7 (c) "Large quantity generator" means a person who generates
31-8 more than 50 pounds of medical waste per month.
31-9 (d) "Medical waste" includes animal waste, bulk blood and
31-10 blood products, microbiological waste, pathological waste, sharps,
31-11 and special waste from health care-related facilities as those
31-12 terms are defined in 25 Texas Administrative Code Section 1.132
31-13 (Tex. Dept. Of Health, Definition, Treatment, and Disposition of
31-14 Special Waste from Health Care-Related Facilities). The term does
31-15 not include medical waste produced on farmland and ranchland as
31-16 defined in Section 252.001(6), Agriculture Code.
31-17 (e) "Person" means an individual, corporation, company,
31-18 association, firm, partnership, joint stock company, foundation,
31-19 institution, trust, society, union, or any other association of
31-20 individuals.
31-21 (f) "Serious bodily injury" has the meaning assigned by
31-22 Section 1.07, Penal Code;
31-23 (g) "Small quantity generator" means a person who generates
31-24 50 pounds or less of medical waste per month.
31-25 Sec. 7.102. VIOLATION OF CHAPTER 13. (a) A person commits
31-26 an offense if the person wilfully and knowingly violates Chapter
31-27 13.
32-1 (b) An offense under this section is a felony of the third
32-2 degree.
32-3 Sec. 7.103. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE.
32-4 (a) A person commits an offense if the person, acting
32-5 intentionally or knowingly with respect to the person's conduct,
32-6 discharges or permits the discharge of a waste or pollutant into or
32-7 adjacent to water in the state that causes or threatens to cause
32-8 water pollution unless the waste or pollutant is discharged in
32-9 strict compliance with all required permits or with a valid and
32-10 currently effective order issued or rule adopted by the appropriate
32-11 regulatory agency.
32-12 (b) An offense under this section is punishable for an
32-13 individual under Section 7.138(c) or Section 7.139(d) or both.
32-14 (c) An offense under this subsection is punishable for a
32-15 person other than an individual under Section 7.138(c).
32-16 7.104. DISCHARGE FROM POINT SOURCE. (a) A person commits
32-17 an offense if the person, acting intentionally or knowingly with
32-18 respect to the person's conduct, discharges or permits the
32-19 discharge of a waste or pollutant from a point source in violation
32-20 of Chapter 26 or of a rule, permit, or order of the appropriate
32-21 regulatory agency.
32-22 (b) An offense under this subsection is punishable for an
32-23 individual under Section 7.138(c) or Section 7.139(d) or both.
32-24 (c) An offense under this section is punishable for a person
32-25 other than an individual under Section 7.138(c).
32-26 Sec. 7.105. UNAUTHORIZED DISCHARGE. (a) A person commits
32-27 an offense if the person, discharges or permits the discharge of
33-1 any waste or pollutant into any water in the state that causes or
33-2 threatens to cause water pollution unless the waste or pollutant is
33-3 discharged in strict compliance with all required permits or with a
33-4 valid and currently effective order issued or rule adopted by the
33-5 appropriate regulatory agency.
33-6 (b) An offense under this section may be prosecuted without
33-7 alleging or proving any culpable mental state.
33-8 (c) An offense under this section is punishable for an
33-9 individual under Section 7.138(c) or Section 7.139(d) or both.
33-10 (d) An offense under this section is punishable for a person
33-11 other than an individual under Section 7.138(c).
33-12 Sec. 7.106. FAILING TO PROPERLY USE POLLUTION CONTROL
33-13 MEASURES. (a) A person commits an offense if the person,
33-14 intentionally or knowingly tampers with, modifies, disables, or
33-15 fails to use pollution control or monitoring devices, systems,
33-16 methods, or practices required by Chapter 26 or a rule, permit, or
33-17 order of the commission or one of its predecessor agencies unless
33-18 done in strict compliance with the rule, permit, or order.
33-19 (b) An offense under this section is punishable for an
33-20 individual under Section 7.138(b) or Section 7.139(d) or both.
33-21 (c) An offense under this section is punishable for a person
33-22 other than an individual under Section 7.138(c).
33-23 Sec. 7.107. FALSE STATEMENT. (a) A person commits an
33-24 offense if the person intentionally or knowingly makes or causes to
33-25 be made a false material statement, representation, or
33-26 certification in, or omits or causes to be omitted material
33-27 information from, an application, notice, record, report, plan, or
34-1 other document, including monitoring device data, filed or required
34-2 to be maintained by Chapter 26, or by a rule, permit, or order of
34-3 the appropriate regulatory agency.
34-4 (b) An offense under this section is punishable for an
34-5 individual under Section 7.138(b) or Section 7.139(d) or both.
34-6 (c) An offense under this section is punishable for a person
34-7 other than an individual under Section 7.138(c).
34-8 Sec. 7.108. FAILURE TO NOTIFY OR REPORT. (a) A person
34-9 commits an offense if the person intentionally or knowingly fails
34-10 to notify or report to the commission as required under Chapter 26
34-11 or by a rule, permit, or order of the appropriate regulatory
34-12 agency.
34-13 (b) An offense under this section is punishable for an
34-14 individual under Section 7.138(b) or Section 7.139(d) or both.
34-15 (c) An offense under this section is punishable for a person
34-16 other than an individual under Section 7.138(c).
34-17 Sec. 7.109. FAILURE TO PAY FEE. (a) A person commits an
34-18 offense if the person intentionally or knowingly fails to pay a fee
34-19 required by Chapter 26 or by a rule, permit, or order of the
34-20 appropriate regulatory agency.
34-21 (b) An offense under this section is punishable for an
34-22 individual under Section 7.138(g) or Section 7.139(b) or both.
34-23 (c) An offense under this section is punishable for a person
34-24 other than an individual under Section 7.138(g).
34-25 Sec. 7.110. VIOLATION RELATING TO KNOWING OR INTENTIONAL
34-26 UNAUTHORIZED DISCHARGE AND ENDANGERMENT. (a) A person commits an
34-27 offense if the person acting intentionally or knowingly, discharges
35-1 or permits the discharge of a waste or pollutant into or adjacent
35-2 to water in the state and thereby knowingly places any other person
35-3 in imminent danger of death or serious bodily injury, unless the
35-4 discharge is made in strict compliance with all required permits or
35-5 with a valid and currently effective order issued or rule adopted
35-6 by the appropriate regulatory agency.
35-7 (b) For purposes of subsection (a), in determining whether a
35-8 defendant who is an individual knew that the violation placed
35-9 another person in imminent danger of death or serious bodily
35-10 injury, the defendant is responsible only for the defendant's
35-11 actual awareness or actual belief possessed. Knowledge possessed
35-12 by a person other than the defendant may not be attributed to the
35-13 defendant. To prove a defendant's actual knowledge, circumstantial
35-14 evidence may be used, including evidence that the defendant took
35-15 affirmative steps to be shielded from relevant information.
35-16 (c) An offense under this section is punishable for an
35-17 individual under Section 7.138(d) or Section 7.139(g) or both. If
35-18 an offense committed by an individual under this section results in
35-19 death or serious bodily injury to any person, the individual may be
35-20 punished under Section 7.138(e) or Section 7.139(i) or both.
35-21 (d) An offense under this section is punishable for a person
35-22 other than an individual under Section 7.138(e). If an offense
35-23 committed by a person other than an individual under this
35-24 subsection results in death or serious bodily injury to any person,
35-25 the person may be punished under Section 7.138(f).
35-26 Sec. 7.111. VIOLATION RELATING TO UNAUTHORIZED DISCHARGE AND
35-27 INTENTIONAL OR KNOWING ENDANGERMENT. (a) A person commits an
36-1 offense if the person, acting intentionally or knowingly with
36-2 respect to the person's conduct, discharges or permits the
36-3 discharge of a waste or pollutant into or adjacent to water in the
36-4 state, thereby placing any other person in imminent danger of death
36-5 or serious bodily injury, unless the discharge is made in strict
36-6 compliance with all required permits or with a valid and currently
36-7 effective order issued or rule adopted by the appropriate
36-8 regulatory agency.
36-9 (b) An offense under this section is punishable for an
36-10 individual under Section 7.138(c) or Section 7.139(f) or both. If
36-11 an offense committed by an individual under this section results in
36-12 death or serious bodily injury to any person, the individual may be
36-13 punished under Sections 7.138(d) or Section 7.139(g) or both.
36-14 (c) An offense under this section is punishable for a person
36-15 other than an individual under Section 7.138(d). If an offense
36-16 committed by a person other than an individual under this section
36-17 results in death or serious bodily injury to any person, the person
36-18 may be punished under Section 7.138(g).
36-19 Sec. 7.112. VIOLATION RELATING TO RECKLESS UNAUTHORIZED
36-20 DISCHARGE AND ENDANGERMENT. (a) A person commits an offense if
36-21 the person, acting recklessly with respect to the person's conduct,
36-22 discharges or permits the discharge of a waste or pollutant into or
36-23 adjacent to water in the state, thereby placing any other person in
36-24 imminent danger of death or serious bodily injury, unless the
36-25 discharge is made in strict compliance with all required permits or
36-26 with a valid and currently effective order issued or rule adopted
36-27 by the appropriate regulatory agency.
37-1 (b) An offense under this section is punishable for an
37-2 individual under Section 7.138(c) or Section 7.139(d) or both. If
37-3 an offense committed by an individual under this section results in
37-4 death or serious bodily injury to any person, the individual may be
37-5 punished under Section 7.138(d) or Section 7.139(f) or both.
37-6 (c) An offense under this section is punishable for a person
37-7 other than an individual under Section 7.138(d). If an offense
37-8 committed by a person other than an individual under this section
37-9 results in death or serious bodily injury to any person, the person
37-10 may be punished under Section 7.138(e).
37-11 Sec. 7.113. VIOLATION RELATING TO INJECTION WELLS. (a) A
37-12 person commits an offense if the person knowingly or intentionally
37-13 violates Chapter 27, a rule of the commission, or a term,
37-14 condition, or provision of a permit issued under Chapter 27.
37-15 (b) An offense under this section is punishable under
37-16 Section 7.138(a).
37-17 Sec. 7.114. VIOLATION RELATING TO WATER WELLS AND DRILLED OR
37-18 MINED SHAFTS. (a) A person commits an offense if the person
37-19 knowingly or intentionally violates Chapter 28, a rule of the
37-20 commission, or a term, condition, or provision of a permit issued
37-21 under Chapter 28.
37-22 (b) An offense under this section is punishable under
37-23 Section 7.138(a).
37-24 Sec. 7.115. VIOLATIONS RELATING TO PUBLIC DRINKING WATER AND
37-25 WATER SUPPLIES. (a) A person commits an offense if the person:
37-26 (1) violates a provision of Section 341.031, Health
37-27 and Safety Code;
38-1 (2) violates a provision of Section 341.032(a) or (b),
38-2 Health and Safety Code;
38-3 (3) violates a provision of Section 341.033(a)-(f),
38-4 Health and Safety Code;
38-5 (4) constructs a drinking water supply system without
38-6 submitting completed plans and specifications as required by
38-7 Section 341.035(a), Health and Safety Code;
38-8 (5) establishes a drinking water supply system without
38-9 the commission's approval as required by Section 341.035(a), Health
38-10 and Safety Code;
38-11 (6) violates a provision of Section 341.035(b) or (c),
38-12 Health and Safety Code;
38-13 (7) fails to remove a sign as required by Section
38-14 341.035(e), Health and Safety Code; or
38-15 (8) violates a provision of Section 341.036, Health
38-16 and Safety Code;
38-17 (b) An offense under this section is a Class C misdemeanor
38-18 punishable under Section 7.138(a).
38-19 (c) If it is shown on the trial of the defendant that the
38-20 defendant has been convicted of an offense under this section
38-21 within a year before the date on which the offense being tried
38-22 occurred, the subsequent offense under this section is a Class B
38-23 misdemeanor.
38-24 Sec. 7.116. VIOLATIONS RELATING TO HAZARDOUS WASTE. (a) A
38-25 person commits an offense if the person, acting intentionally or
38-26 knowingly with respect to the person's conduct:
38-27 (1) transports, or causes or permits to be
39-1 transported, for storage, processing, or disposal, any hazardous
39-2 waste to any location that does not have all required permits;
39-3 (2) stores, processes, exports, or disposes of, or
39-4 causes to be stored, processed, exported, or disposed of, any
39-5 hazardous waste without all permits required by the appropriate
39-6 regulatory agency or in knowing violation of any material condition
39-7 or requirement of a permit or of an applicable interim status rule
39-8 or standard;
39-9 (3) omits or causes to be omitted material information
39-10 or makes or causes to be made any false material statement or
39-11 representation in any application, label, manifest, record, report,
39-12 permit, plan, or other document filed, maintained, or used to
39-13 comply with any requirement of Chapter 361, Health and Safety Code
39-14 applicable to hazardous waste;
39-15 (4) generates, transports, stores, processes, or
39-16 disposes of, or otherwise handles, or causes to be generated,
39-17 transported, stored, processed, disposed of, or otherwise handled,
39-18 hazardous waste, whether the activity took place before or after
39-19 September 1, 1981, and who knowingly destroys, alters, conceals, or
39-20 does not file, or causes to be destroyed, altered, concealed, or
39-21 not filed, any record, application, manifest, report, or other
39-22 document required to be maintained or filed to comply with the
39-23 rules of the appropriate regulatory agency adopted under Chapter
39-24 361, Health and Safety Code;
39-25 (5) transports without a manifest, or causes or
39-26 permits to be transported without a manifest, any hazardous waste
39-27 required by rules adopted under Chapter 361, Health and Safety Code
40-1 to be accompanied by a manifest;
40-2 (6) tampers with, modifies, disables, or fails to use
40-3 required pollution control or monitoring devices, systems, methods,
40-4 or practices, unless done in strict compliance with Chapter 361,
40-5 Health and Safety Code or with a valid and currently effective
40-6 order, rule, or permit of the appropriate regulatory agency;
40-7 (7) releases, causes, or permits the release of a
40-8 hazardous waste that causes or threatens to cause pollution, unless
40-9 the release is made in strict compliance with all required permits
40-10 or a valid and currently effective order, rule, or permit of the
40-11 appropriate regulatory agency; or
40-12 (8) fails to notify or report to the appropriate
40-13 regulatory agency as required by this chapter or by a valid and
40-14 currently effective order, rule, or permit of the appropriate
40-15 regulatory agency.
40-16 (b) An offense under Subsection (a)(1) or (a)(2) is
40-17 punishable for an individual under Section 7.138(a) or Section
40-18 7.139(g) or both. An offense under Subsection (a)(3), (a)(4), or
40-19 (a)(5) is punishable for an individual under Section 7.138(a) or
40-20 Section 7.139(e) or both. An offense under Subsection (a)(6),
40-21 (a)(7), or (a)(8) is punishable for an individual under Section
40-22 7.138(b) or Section 7.139(d) or both.
40-23 (c) If it is shown on the trial of an individual that the
40-24 individual previously has been convicted of an offense under this
40-25 section, an offense under Subsection (a)(1) or (a)(2) is punishable
40-26 for an individual by Section 7.138(b) or 7.139(g) or both, and an
40-27 offense under Subsection (a)(3), (a)(4), or (a)(5) is punishable
41-1 for an individual by Section 7.138(b) or Section 7.139(f) or both.
41-2 (d) An offense under Subsection (a)(1), (a)(2), (a)(3),
41-3 (a)(4), or (a)(5) is punishable for a person other than an
41-4 individual under Section 7.138(c). If it is shown on the trial of
41-5 a person other than an individual that the person previously has
41-6 been convicted of an offense under Subsection (a)(1), (a)(2),
41-7 (a)(3), (a)(4), or (a)(5), the offense is punishable by Section
41-8 7.138(e). An offense under Subsection (a)(6), (a)(7), or (a)(8) is
41-9 punishable for a person other than an individual under Section
41-10 7.138(c).
41-11 Sec. 7.117. VIOLATIONS RELATING TO MEDICAL WASTE: LARGE
41-12 GENERATOR. (a) A person commits an offense if the person is a
41-13 large quantity generator and the person, acting intentionally or
41-14 knowingly with respect to the person's conduct:
41-15 (1) generates, collects, stores, processes, exports,
41-16 or disposes of, or causes or permits to be generated, collected,
41-17 stored, processed, exported, or disposed of, any medical waste
41-18 without all permits required by the appropriate regulatory agency
41-19 or in knowing violation of any material condition or requirement of
41-20 a permit or of an applicable interim status rule or standard; or
41-21 (2) generates, collects, stores, treats, transports,
41-22 or disposes of, or causes or permits to be generated, collected,
41-23 stored, treated, transported, or disposed of, or otherwise handles
41-24 any medical waste, and knowingly destroys, alters, conceals, or
41-25 fails to file any record, report, manifest, or other document
41-26 required to be maintained or filed under rules or regulations
41-27 adopted by the appropriate regulatory agency.
42-1 (b) An offense under this section is punishable for an
42-2 individual under Section 7.138(c) or Section 7.139(g) or both. If
42-3 it is shown on the trial of an individual that the individual has
42-4 previously been convicted of an offense under this section, the
42-5 offense is punishable for an individual under Section 7.138(d) or
42-6 Section 7.139(i) or both.
42-7 (c) An offense under this section is punishable for a person
42-8 other than an individual under Section 7.138(e). If it is shown on
42-9 the trial of a person other than an individual that the person has
42-10 previously been convicted of an offense under this section, the
42-11 offense is punishable by Section 7.138(f).
42-12 Sec. 7.118. VIOLATIONS RELATING TO MEDICAL WASTE: SMALL
42-13 GENERATOR. (a) A person commits an offense if the person is a
42-14 small quantity generator and the person, acting intentionally or
42-15 knowingly with respect to the person's conduct:
42-16 (1) generates, collects, stores, processes, exports,
42-17 or disposes of, or causes or permits to be generated, collected,
42-18 stored processes, exported, or disposed of, any medical waste
42-19 without all permits required by the appropriate regulatory agency
42-20 or in knowing violation of any material condition or requirement of
42-21 a permit or of an applicable interim status rule or standard; or
42-22 (2) generates, collects, stores, treats, transports,
42-23 or disposes of, or causes or permits to be generated, collected,
42-24 stored, treated, transported, or disposed of, or otherwise handles
42-25 any medical waste, and knowingly destroys, alters, conceals, or
42-26 fails to file any record, report, manifest, or other document
42-27 required to be maintained or filed under rules or regulations
43-1 adopted by the appropriate regulatory agency.
43-2 (b) An offense under this section is punishable for an
43-3 individual under Section 7.138(b). If it is shown on the trial of
43-4 an individual that the individual previously has been convicted of
43-5 an offense under this section, the offense is punishable for an
43-6 individual under Section 7.138(d) or Section 7.139(c) or both.
43-7 (c) An offense under this section is punishable for a person
43-8 other than an individual under Section 7.138(d). If it is shown on
43-9 the trial of a person other than an individual that the person
43-10 previously has been convicted of an offense under this section, the
43-11 offense is punishable by Section 7.138(d).
43-12 Sec. 7.119. VIOLATIONS RELATING TO MEDICAL WASTE
43-13 TRANSPORTATION. (a) A person commits an offense if the person
43-14 acting intentionally or knowingly with respect to the person's
43-15 conduct:
43-16 (1) transports, or causes or permits to be
43-17 transported, for storage, processing, or disposal, any medical
43-18 waste to any location that does not have all required permits;
43-19 (2) transports without a manifest, or causes or
43-20 permits to be transported without a manifest, any medical waste
43-21 required to be accompanied by a manifest under rules or regulations
43-22 adopted by the appropriate regulatory agency; or
43-23 (3) operates any vehicle transporting medical waste,
43-24 or which is authorized to transport medical waste, in violation of
43-25 any rule or regulation prescribed by the appropriate regulatory
43-26 agency, including cleaning and safety regulations, which
43-27 specifically relate to the transportation of medical waste.
44-1 (b) An offense under this section is punishable for an
44-2 individual under Section 7.138(b) or Section 7.139(d), or both. If
44-3 it is shown on the trial of an individual that the individual
44-4 previously has been convicted of an offense under this section, the
44-5 offense is punishable for an individual under Section 7.138(c) or
44-6 Section 7.139(e), or both.
44-7 (c) An offense under this subsection is punishable for a
44-8 person other than an individual under Section 7.138(e). If it is
44-9 shown on the trial of a person other than an individual that the
44-10 person previously has been convicted of an offense under this
44-11 section, the offense is punishable by Section 7.138(f).
44-12 Sec. 7.120. KNOWING VIOLATIONS RELATING TO MEDICAL WASTE.
44-13 (a) A person commits an offense if the person knowingly:
44-14 (1) makes a false material statement, or knowingly
44-15 causes or knowingly permits to be made a false material statement,
44-16 to any person who prepares any regulated medical waste label,
44-17 manifest, application, permit, plan, registration, record, report,
44-18 or other document required by a valid and currently effective
44-19 order, rule, or regulation of the appropriate regulatory agency; or
44-20 (2) omits material information, or causes or permits
44-21 material information to be omitted, from any regulated medical
44-22 waste label, manifest, application, permit, plan, registration,
44-23 record, report, or other document required by a valid and currently
44-24 effective order, rule, or regulation of the appropriate regulatory
44-25 agency.
44-26 (b) An offense under this section is punishable for an
44-27 individual under Section 7.138(b) or Section 7.139(d), or both. If
45-1 it is shown on the trial of an individual that the individual
45-2 previously has been convicted of an offense under this section, the
45-3 offense is punishable for an individual under Section 7.138(c) or
45-4 Section 7.139(e), or both.
45-5 (c) An offense under this section is punishable for a person
45-6 other than an individual under Section 7.138(d). If it is shown on
45-7 the trial of a person other than an individual that the person
45-8 previously has been convicted of an offense under this section, the
45-9 offense is punishable by Section 7.138(d).
45-10 Sec. 7.121. INTENTIONAL OR KNOWING VIOLATION RELATING TO
45-11 MEDICAL WASTE AND ENDANGERMENT. (a) A person commits an offense
45-12 if the person acting intentionally or knowingly, the person
45-13 transports, processes, stores, exports, or disposes of, or causes
45-14 to be transported, processed, stored, exported, or disposed of,
45-15 medical waste in violation of Chapter 361, Health and Safety Code
45-16 and thereby knowingly places any other person in imminent danger of
45-17 death or serious bodily injury.
45-18 (b) An offense under this section is punishable for an
45-19 individual under Section 7.138(d) or Section 7.139(h), or both. If
45-20 an offense committed by an individual under this section results in
45-21 death or serious bodily injury to any person, the offense is
45-22 punishable for an individual under Section 7.138(e) or Section
45-23 7.139(j), or both.
45-24 (c) An offense under this section is punishable for a person
45-25 other than an individual under Section 7.138(e). If an offense
45-26 committed by a person other than an individual under this section
45-27 results in death or serious bodily injury to any person, the
46-1 offense is punishable under Section 7.138(f).
46-2 Sec. 7.122. INTENTIONAL OR KNOWING ENDANGERMENT VIOLATION
46-3 RELATING TO MEDICAL WASTE. (a) A person commits an offense if the
46-4 person, acting intentionally or knowingly with respect to the
46-5 person's conduct, transports, processes, stores, exports, or
46-6 disposes of medical waste in violation of Chapter 361, Health and
46-7 Safety Code, thereby placing any other person in imminent danger of
46-8 death or serious bodily injury, unless the conduct charged is done
46-9 in strict compliance with all required permits or with a valid and
46-10 currently effective order issued or rule adopted by the appropriate
46-11 regulatory agency.
46-12 (b) An offense under this section is punishable for an
46-13 individual under Section 7.138(c) or Section 7.139(f), or both. If
46-14 an offense committed by an individual under this section results in
46-15 death or serious bodily injury to any person, the offense is
46-16 punishable for an individual under Section 7.138(d) or Section
46-17 7.139(g), or both.
46-18 (c) An offense under this section is punishable for a person
46-19 other than an individual under Section 7.138(d). If an offense
46-20 committed by a person other than an individual under this section
46-21 results in death or serious bodily injury to any person, the
46-22 offense is punishable under Section 7.138(e).
46-23 Sec. 7.123. RELEASE OF MEDICAL WASTE INTO ENVIRONMENT.
46-24 (a) A person commits an offense if the person, acting
46-25 intentionally or knowingly with respect to the person's conduct,
46-26 releases or causes or permits the release of a medical waste into
46-27 the environment, thereby placing any other person in imminent
47-1 danger of death or serious bodily injury, unless the release is
47-2 done in strict compliance with all required permits or a valid and
47-3 currently effective order issued or rule adopted by the appropriate
47-4 regulatory agency.
47-5 (b) An offense under this section is punishable for an
47-6 individual under Section 7.138(d) or Section 7.139(g), or both. If
47-7 an offense committed by an individual under this section results in
47-8 death or serious bodily injury to any person, the offense is
47-9 punishable for an individual under Section 7.138(d) or Section
47-10 7.139(g), or both.
47-11 (c) An offense under this section is punishable for a person
47-12 other than an individual under Section 7.138(d). If an offense
47-13 committed by a person other than an individual under this section
47-14 results in death or serious bodily injury to any person, the
47-15 offense is punishable under Section 7.138(e).
47-16 Sec. 7.124. RECKLESS RELEASE OF MEDICAL WASTE INTO
47-17 ENVIRONMENT AND ENDANGERMENT. (a) A person commits an offense if
47-18 the person, acting recklessly with respect to a person's conduct,
47-19 releases or causes or permits the release of a medical waste into
47-20 the environment, thereby placing any other person in imminent
47-21 danger of death or serious bodily injury, unless the release is
47-22 made in strict compliance with all required permits or a valid and
47-23 currently effective order issued or rule adopted by the appropriate
47-24 regulatory agency.
47-25 (b) An offense under this section is punishable for an
47-26 individual under Section 7.138(d) or Section 7.139(d), or both. If
47-27 an offense committed by an individual under this section results in
48-1 death or serious bodily injury to any person, the offense is
48-2 punishable for an individual under Section 7.138(d) or Section
48-3 7.139(e), or both.
48-4 (c) An offense under this section is punishable for a person
48-5 other than an individual under Section 7.138(d). If an offense
48-6 committed by a person other than an individual under this section
48-7 results in death or serious bodily injury to any person, the
48-8 offense is punishable by Section 7.138(e).
48-9 Sec. 7.125. FAILURE OF SEWAGE SYSTEM INSTALLER TO REGISTER.
48-10 (a) A person commits an offense if the person violates Section
48-11 366.071, Health and Safety Code.
48-12 (b) An offense under this section is a Class C misdemeanor
48-13 unless it is shown on the trial of the defendant that the defendant
48-14 has previously been convicted of an offense under this section, in
48-15 which event the offense is punishable under Section 7.138(a) or
48-16 Section 7.139(a), or both.
48-17 Sec. 7.126. VIOLATION RELATING TO SEWAGE DISPOSAL NEAR
48-18 INTERNATIONAL BORDER. (a) A person commits an offense if the
48-19 person violates a rule adopted by the commission under Chapter 366,
48-20 Health and Safety Code or an order or resolution adopted by an
48-21 authorized agent under Subchapter C, Chapter 366, Health and Safety
48-22 Code in a county that is contiguous to an international border.
48-23 (b) An offense under this section is a Class C misdemeanor
48-24 unless it is shown on the trial of the defendant that the defendant
48-25 has previously been convicted of an offense under this section, in
48-26 which event the offense is punishable under Section 7.138(a) or
48-27 Section 7.139(a), or both.
49-1 Sec. 7.127. VIOLATION OF SEWAGE DISPOSAL SYSTEM PERMIT
49-2 PROVISIONS. (a) A person commits an offense if the person begins
49-3 to construct, alter, repair, or extend an on-site sewage disposal
49-4 system owned by another person before the owner of the system
49-5 obtains a permit to construct, alter, repair, or extend the on-site
49-6 sewage disposal system as required by Subchapter D, Chapter 366,
49-7 Health and Safety Code.
49-8 (b) An offense under this section is a Class C misdemeanor
49-9 unless it is shown on the trial of the defendant that the defendant
49-10 has previously been convicted of an offense under this section, in
49-11 which event the offense is punishable under Section 7.138(a) or
49-12 Section 7.139(a), or both.
49-13 Sec. 7.128. HANDLING USED OIL VIOLATIONS. (a) A person
49-14 commits an offense if the person:
49-15 (1) intentionally discharges used oil into a sewer,
49-16 drainage system, septic tank, surface water or groundwater,
49-17 watercourse, or marine water;
49-18 (2) knowingly mixes or commingles used oil with solid
49-19 waste that is to be disposed of in landfills or directly disposes
49-20 of used oil on land or in landfills, unless the mixing or
49-21 commingling of used oil with solid waste that is to be disposed of
49-22 in landfills is incident to and the unavoidable result of the
49-23 mechanical shredding of motor vehicles, appliances, or other items
49-24 of scraps used, or obsolete metals;
49-25 (3) knowingly transports, treats, stores, disposes of,
49-26 recycles, causes to be transported, or otherwise handles any used
49-27 oil within the state:
50-1 (A) in violation of standards or rules for the
50-2 management of used oil; or
50-3 (B) without first complying with the
50-4 registration requirements of Section 371.026, Health and Safety
50-5 Code and rules adopted under that section;
50-6 (4) intentionally applies used oil to roads or land
50-7 for dust suppression, weed abatement, or other similar uses that
50-8 introduce used oil into the environment;
50-9 (5) violates an order of the commission to cease and
50-10 desist any activity prohibited by this section or any rule
50-11 applicable to a prohibited activity; or
50-12 (6) intentionally makes a false statement or
50-13 representation in an application, label, manifest, record, report,
50-14 permit, or other document filed, maintained, or used for purposes
50-15 of program compliance.
50-16 (b) It is an exception to the application of this section if
50-17 a person unknowingly disposes into the environment any used oil
50-18 that has not been properly segregated or separated by the generator
50-19 from other solid wastes.
50-20 (c) It is an exception to the application of Subsection
50-21 (a)(2) if the mixing or commingling of used oil with solid waste
50-22 that is to be disposed of in landfills is incident to and the
50-23 unavoidable result of the mechanical shredding of motor vehicles,
50-24 appliances, or other items of scrap, used, or obsolete metals.
50-25 (d) An offense under this section is punishable under
50-26 Section 7.138(f) or confinement for a period of at least six months
50-27 but not to exceed 5 years, or both unless it is shown on the trial
51-1 of the defendant that the defendant has previously been convicted
51-2 of an offense under this section, in which event the offense is
51-3 punishable under Section 7.138(f) or Section 7.139(g), or both.
51-4 Sec. 7.129. VIOLATIONS OF CLEAN AIR ACT. (a) A person
51-5 commits an offense if the person intentionally or knowingly, with
51-6 respect to the person's conduct, violates:
51-7 (1) Section 382.0518(a), Health and Safety Code;
51-8 (2) Section 382.054, Health and Safety Code;
51-9 (3) Section 382.056(a), Health and Safety Code;
51-10 (4) Section 382.058(a), Health and Safety Code; or
51-11 (5) an order, permit, rule, or exemption issued under
51-12 Chapter 382, Health and Safety Code.
51-13 (b) An offense under this section is punishable for an
51-14 individual under Section 7.138(c) or Section 7.139(c), or both.
51-15 (c) An offense under this section is punishable for a person
51-16 other than an individual under Section 7.138(c).
51-17 Sec. 7.130. FAILURE TO PAY FEES UNDER CLEAN AIR ACT. (a) A
51-18 person commits an offense if the person intentionally or knowingly
51-19 fails to pay a fee required by Chapter 382, Health and Safety Code
51-20 or by a rule adopted or order issued under Chapter 382, Health and
51-21 Safety Code.
51-22 (b) An offense under this section is punishable for an
51-23 individual under Section 7.138(g) or Section 7.139(b), or both.
51-24 (c) An offense under this section is punishable for a person
51-25 other than an individual under Section 7.138(g).
51-26 Sec. 7.131. FALSE REPRESENTATIONS UNDER CLEAN AIR ACT.
51-27 (a) A person commits an offense if the person intentionally or
52-1 knowingly makes or causes to be made any false material statement,
52-2 representation, or certification in, or omits material information
52-3 from, or knowingly alters, conceals, or does not file or maintain
52-4 any notice, application, record, report, plan, or other document
52-5 required to be filed or maintained by Chapter 382, Health and
52-6 Safety Code or by a rule adopted or permit or order issued under
52-7 Chapter 382, Health and Safety Code.
52-8 (b) An offense under this section is punishable for an
52-9 individual under Section 7.138(b) or Section 7.139(d), or both.
52-10 (c) An offense under this section is punishable for a person
52-11 other than an individual under Section 7.138(c).
52-12 Sec. 7.132. FAILURE TO NOTIFY UNDER CLEAN AIR ACT. (a) A
52-13 person commits an offense if the person intentionally or knowingly
52-14 fails to notify or report to the commission as required by Chapter
52-15 382, Health and Safety Code or by a rule adopted or permit or order
52-16 issued under Chapter 382, Health and Safety Code.
52-17 (b) An offense under this section is punishable for an
52-18 individual under Section 7.138(b) or Section 7.139(d), or both.
52-19 (c) An offense under this section is punishable for a person
52-20 other than an individual under Section 7.138(c).
52-21 Sec. 7.133. FAILURE TO PROPERLY USE MONITORING DEVICE.
52-22 (a) A person commits an offense if the person intentionally or
52-23 knowingly tampers with, modifies, disables, or fails to use a
52-24 required monitoring device; tampers with, modifies, or disables a
52-25 monitoring device; or falsifies, fabricates, or omits data from a
52-26 monitoring device, unless done in strict compliance with Chapter
52-27 382, Health and Safety Code or a permit, rule, variance, or other
53-1 order issued by the commission.
53-2 (b) An offense under this section is punishable for an
53-3 individual under Section 7.138(c) or Section 7.139(d), or both.
53-4 (c) An offense under this section is punishable for a person
53-5 other than an individual under Section 7.138(d).
53-6 Sec. 7.134. RECKLESS EMISSION OF AIR CONTAMINANT AND
53-7 ENDANGERMENT. (a) A person commits an offense if the person
53-8 recklessly, with respect to the person's conduct, emits an air
53-9 contaminant that places any other person in imminent danger of
53-10 death or serious bodily injury unless the emission is made in
53-11 strict compliance with Chapter 382, Health and Safety Code or a
53-12 permit, rule, variance, or other order issued by the commission.
53-13 (b) An offense under this section is punishable for an
53-14 individual under Section 7.138(c) or Section 7.139(f), or both.
53-15 (c) An offense under this section is punishable for a person
53-16 other than an individual under Section 7.138(d).
53-17 Sec. 7.135. INTENTIONAL OR KNOWING EMISSION OF AIR
53-18 CONTAMINANT AND ENDANGERMENT. (a) A person commits an offense if
53-19 the person intentionally or knowingly, with respect to the person's
53-20 conduct, emits an air contaminant with the knowledge that the
53-21 person is placing any other person in imminent danger of death or
53-22 serious bodily injury unless the emission is made in strict
53-23 compliance with Chapter 382, Health and Safety Code or a permit,
53-24 rule, variance, or other order issued by the commission.
53-25 (b) An offense under this section is punishable for an
53-26 individual under Section 7.138(c) or Section 7.139(f), or both.
53-27 (c) An offense under this section is punishable for a person
54-1 other than an individual under Section 7.138(d).
54-2 Sec. 7.136. VIOLATIONS RELATING TO RADIOACTIVE WASTE.
54-3 (a) A person commits an offense if the person:
54-4 (1) intentionally or knowingly violates a provision of
54-5 Chapter 401, Health and Safety Code other than the offense
54-6 described by Section 401.383, Health and Safety Code; or
54-7 (2) intentionally or knowingly receives, processes,
54-8 concentrates, stores, transports, or disposes of radioactive waste
54-9 without a license issued under Chapter 401, Health and Safety Code.
54-10 (b) An offense under Subsection (a)(1) is a Class B
54-11 misdemeanor, unless it is shown on the trial of the person that the
54-12 person has previously been convicted of an offense under Subsection
54-13 (a)(1), in which event the offense is a Class A misdemeanor.
54-14 (c) An offense under Subsection (a)(2) is a Class A
54-15 misdemeanor, unless it is shown on the trial of the person that the
54-16 person has previously been convicted of an offense under Subsection
54-17 (a)(2), in which event the offense is punishable under Section
54-18 7.138 or Section 7.139, or both.
54-19 Sec. 7.137. SEPARATE OFFENSES. Each day a person engages in
54-20 conduct proscribed by this subchapter constitutes a separate
54-21 offense.
54-22 Sec. 7.138. FINES. As provided in the relevant offense in
54-23 Sections 7.102 - 7.136, a person convicted of an offense under this
54-24 subchapter shall pay a fine of:
54-25 (a) not less than $100 or more than $50,000;
54-26 (b) not less than $200 or more than $100,000;
54-27 (c) not less than $1,000 or more than $250,000;
55-1 (d) not less than $2,000 or more than $500,000;
55-2 (e) not less than $5,000 or more than $1,000,000;
55-3 (f) not less than $10,000 or more than $1,500,000; or
55-4 (g) not more than twice the amount of the required fee.
55-5 Sec. 7.139. CONFINEMENT. As provided in the relevant
55-6 offense in Sections 7.102 - 7.136, a person convicted of an offense
55-7 under this subchapter shall be punishable by confinement for a
55-8 period not to exceed:
55-9 (a) 30 days;
55-10 (b) 90 days;
55-11 (c) 180 days;
55-12 (d) one year;
55-13 (e) two years;
55-14 (f) five years;
55-15 (g) 10 years;
55-16 (h) 15 years;
55-17 (i) 20 years; or
55-18 (j) 30 years.
55-19 Sec. 7.140. REPEAT OFFENSES. If it is shown at the trial of
55-20 the defendant that the defendant has previously been convicted of
55-21 the same offense under this subchapter, the maximum punishment is
55-22 doubled with respect to both the fine and confinement, unless the
55-23 offense in Sections 7.102 - 7.136 specifies otherwise.
55-24 Sec. 7.141. VENUE. Venue for prosecution of an alleged
55-25 violation under this subchapter is in:
55-26 (a) the county in which the violation is alleged to have
55-27 occurred;
56-1 (b) the county where the defendant resides;
56-2 (c) any county to which or through which the discharge,
56-3 waste, or pollutant was transported; or
56-4 (d) Travis County.
56-5 Sec. 7.142. FINES FOR STATE AND LOCAL PROSECUTION. A fine
56-6 recovered through a prosecution brought under this subchapter shall
56-7 be divided equally between the state and any local government
56-8 significantly involved in prosecuting the case, except that if the
56-9 court determines that the state or the local government bore
56-10 significantly more of the burden of prosecuting the case, it may
56-11 apportion up to 75 percent of the fine to the government that
56-12 predominantly prosecuted the case.
56-13 Sec. 7.143. NOT AN OFFENSE. An emergency repair to an
56-14 on-site sewage disposal system without a permit in accordance with
56-15 the rules adopted under Section 366.012(a)(1)(c), Health and Safety
56-16 Code, is not an offense under this section if a written statement
56-17 describing the need for the repair is provided to the commission or
56-18 its authorized agent not later than 72 hours after the repair is
56-19 begun.
56-20 Sec. 7.144. NOTICE OF CONVICTION. In addition to a sentence
56-21 that may be imposed under this subchapter, a person other than an
56-22 individual that has been adjudged guilty of an offense may be
56-23 ordered by the court to give notice of the conviction to any person
56-24 the court considers appropriate.
56-25 Sec. 7.145. JUDGMENT OF CONVICTION. On conviction under
56-26 this subchapter, the clerk of the court in which the conviction is
56-27 returned shall forward a copy of the judgment to the commission.
57-1 Sec. 7.146. PEACE OFFICERS. For purposes of this
57-2 subchapter, the authorized agents and employees of the Parks and
57-3 Wildlife Department are constituted peace officers. These agents
57-4 and employees are empowered to enforce the provisions of this
57-5 subchapter the same as any other peace officer, and for such
57-6 purpose shall have the powers and duties of peace officers as set
57-7 forth in the Code of Criminal Procedure.
57-8 Sec. 7.147. ALLEGATIONS. In alleging the name of a
57-9 defendant private corporation, it is sufficient to state in the
57-10 complaint, indictment, or information the corporate name or to
57-11 state any name or designation by which the corporation is known or
57-12 may be identified. It is not necessary to allege that the
57-13 defendant was lawfully incorporated.
57-14 Sec. 7.148. SUMMONS AND ARREST. (a) After a complaint is
57-15 filed or an indictment or information presented against a private
57-16 corporation under the provisions of this subchapter, the court or
57-17 clerk shall issue a summons to the corporation. The summons shall
57-18 be in the same form as a capias except that:
57-19 (1) it shall summon the corporation to appear before
57-20 the court named at the place stated in the summons;
57-21 (2) it shall be accompanied by a certified copy of the
57-22 complaint, indictment, or information; and
57-23 (3) it shall provide that the corporation appear
57-24 before the court named at or before 10 a.m. of the Monday next
57-25 after the expiration of 20 days after it is served with summons,
57-26 except when service is made upon the Secretary of State, in which
57-27 instance the summons shall provide that the corporation appear
58-1 before the court named at or before 10 a.m. of the Monday next
58-2 after the expiration of 30 days after the Secretary of State is
58-3 served with summons.
58-4 (b) No individual may be arrested upon a complaint,
58-5 indictment, or information against a private corporation.
58-6 Sec. 7.149. SERVICE OF SUMMONS. (a) A peace officer shall
58-7 serve a summons on a private corporation by personally delivering a
58-8 copy of it to the corporation's registered agent for service. If a
58-9 registered agent has not been designated or cannot with reasonable
58-10 diligence be found at the registered office, the peace officer
58-11 shall serve the summons by personally delivering a copy of it to
58-12 the president or a vice-president of the corporation.
58-13 (b) If the peace officer certifies on the return that he
58-14 diligently but unsuccessfully attempted to effect service under
58-15 Subsection (a) or if the corporation is a foreign corporation that
58-16 has no certificate of authority, he shall serve the summons on the
58-17 Secretary of State by personally delivering a copy of it to him or
58-18 to the assistant secretary of state or to any clerk in charge of
58-19 the corporation department of his office. On receipt of the
58-20 summons copy, the Secretary of State shall immediately forward it
58-21 by certified or registered mail, return receipt requested,
58-22 addressed to the defendant corporation at its registered office or,
58-23 if it is a foreign corporation, at its principal office in the
58-24 state or country under whose law it was incorporated.
58-25 (c) The Secretary of State shall keep a permanent record of
58-26 the date and time of receipt and his disposition of each summons
58-27 served under Subsection (b) together with the return receipt.
59-1 Sec. 7.150. ARRAIGNMENT AND PLEADINGS. In all criminal
59-2 actions instituted against a private corporation under the
59-3 provisions of this subchapter:
59-4 (a) appearance is for the purpose of arraignment; and
59-5 (b) the corporation has 10 full days after the day the
59-6 arraignment takes place and before the day the trial begins to file
59-7 written pleadings.
59-8 Sec. 7.151. APPEARANCE. (a) A defendant private
59-9 corporation appears through counsel or its representative.
59-10 (b) If a private corporation does not appear in response to
59-11 summons or appears but fails or refuses to plead, it is considered
59-12 to be present in person for all purposes, and the court shall enter
59-13 a plea of not guilty in its behalf and may proceed with trial,
59-14 judgment, and sentencing.
59-15 (c) After appearing and entering a plea in response to
59-16 summons, if a private corporation is absent without good cause at
59-17 any time during later proceedings, it is considered to be present
59-18 in person for all purposes, and the court may proceed with trial,
59-19 judgment, or sentencing.
59-20 Sec. 7.152. FINE TREATED AS JUDGMENT IN CIVIL ACTION. If a
59-21 person other than an individual is found guilty of a violation of
59-22 this subchapter and a fine imposed, the fine shall be entered and
59-23 docketed by the clerk of the court as a judgment against the
59-24 person, and the fine shall be of the same force and effect and be
59-25 enforced against the person in the same manner as if the judgment
59-26 were recovered in a civil action.
59-27 Sec. 7.153. EFFECT ON CERTAIN OTHER LAWS. Conduct
60-1 punishable as an offense under this subchapter that is also
60-2 punishable under another law may be prosecuted under either law.
60-3 Sec. 7.154. DEFENSE EXCLUDED. It is not a defense to
60-4 prosecution under this subchapter that the person did not know or
60-5 was not aware of a rule, order, or statute.
60-6 SUBCHAPTER F. DEFENSES
60-7 Sec. 7.181. ACT OF GOD. If a person can establish that an
60-8 event which would otherwise be a violation of the statutes and
60-9 rules within the Commission's jurisdiction was caused solely by an
60-10 act of God, war, strike, riot or other catastrophe, the event is
60-11 not a violation of the statutes and rules within the Commission's
60-12 jurisdiction.
60-13 Sec. 7.182. DEFENSES TO ENDANGERMENT OFFENSES. (a) It is
60-14 an affirmative defense to prosecution under Sections 7.121, 7.122,
60-15 7.123, and 7.124 that the conduct charged was freely consented to
60-16 by the person endangered and that the danger and conduct charged
60-17 were reasonably foreseeable hazards of the person's occupation,
60-18 business, or profession or a medical treatment or medical or
60-19 scientific experimentation conducted by professionally approved
60-20 methods and the person endangered had been made aware of the risks
60-21 involved before giving consent.
60-22 (b) It is an affirmative defense to prosecution under
60-23 Section 7.121 of this subchapter that the person charged was an
60-24 employee who was carrying out the person's normal activities and
60-25 was acting under orders from the person's employer, unless the
60-26 person charged engaged in knowing and wilful violations.
60-27 Sec. 7.183. DEFENSES AVAILABLE TO PERSON RESPONSIBLE FOR
61-1 SOLID WASTE VIOLATIONS. (a) A person responsible for solid waste
61-2 as defined in Section 361.271, Health and Safety Code who violates
61-3 the statutes and rules within the Commission's jurisdiction is
61-4 liable unless the person can establish by a preponderance of the
61-5 evidence that the release or threatened release was caused solely
61-6 by an act or omission of a third person and that the defendant:
61-7 (1) exercised due care concerning the solid waste,
61-8 considering the characteristics of the solid waste, in light of
61-9 all relevant facts and circumstances; and
61-10 (2) took precautions against foreseeable acts or
61-11 omissions of the third person and the consequences that could
61-12 foreseeably result from those acts or omissions.
61-13 (b) The defense under Subsection (a) does not apply if the
61-14 third person:
61-15 (1) is an employee or agent of the defendant; or
61-16 (2) has a direct or indirect contractual relationship
61-17 with the defendant and the act or omission of the third person
61-18 occurred in connection with the contractual relationship. The term
61-19 "contractual relationship" includes land contracts, deeds, or other
61-20 instruments transferring title or possession of real property.
61-21 (c) A defendant who enters into a contractual relationship
61-22 as provided by Subsection (b)(2) is not liable under the statutes
61-23 and rules within the commission's jurisdiction if:
61-24 (1) the sole contractual relationship is acceptance
61-25 for rail carriage by a common carrier under a published tariff; or
61-26 (2) the defendant acquired the real property on which
61-27 the facility requiring the remedial action is located, after the
62-1 disposal or placement of the hazardous substance on, in, or at the
62-2 facility and the defendant establishes by a preponderance of the
62-3 evidence that:
62-4 (A) the defendant exercised due care concerning
62-5 the solid waste, considering the characteristics of the solid
62-6 waste, in light of all relevant facts and circumstances; and
62-7 (B) the defendant took precautions against
62-8 foreseeable acts or omissions of the third person and the
62-9 consequences that could foreseeably result from those acts or
62-10 omissions; or
62-11 (C) at the time the defendant acquired the
62-12 facility the defendant did not know and had no reason to know that
62-13 a hazardous substance that is the subject of the release or
62-14 threatened release was disposed of on, in, or at the facility;
62-15 (D) the defendant is a governmental entity that
62-16 acquired the facility by escheat, by other involuntary transfer or
62-17 acquisition, or by the exercise of the power of eminent domain; or
62-18 (E) the defendant acquired the facility by
62-19 inheritance or bequest.
62-20 (d) To demonstrate the condition under Subsection (c)(2)(C),
62-21 the defendant must have made, at the time of acquisition,
62-22 appropriate inquiry into the previous ownership and uses of the
62-23 property consistent with good commercial or customary practice in
62-24 an effort to minimize liability. In deciding whether the defendant
62-25 meets this condition, the court shall consider:
62-26 (1) any specialized knowledge or experience of the
62-27 defendant;
63-1 (2) the relationship of the purchase price to the
63-2 value of the property if the property were uncontaminated;
63-3 (3) commonly known or reasonably ascertainable
63-4 information about the property;
63-5 (4) the obvious presence or likely presence of
63-6 contamination of the property; and
63-7 (5) the defendant's ability to detect the
63-8 contamination by appropriate inspection.
63-9 (e) This section does not decrease the liability of a
63-10 previous owner or operator of a facility who is liable under the
63-11 statutes and rules within the commission's jurisdiction. If the
63-12 defendant obtained actual knowledge of the release or threatened
63-13 release of a hazardous substance at a facility at the time the
63-14 defendant owned the real property on which the facility is located
63-15 and subsequently transferred ownership of the property to another
63-16 person without disclosing that knowledge, the defendant is liable
63-17 and a defense under this section is not available to the defendant.
63-18 (f) Subsections (c)-(e) do not affect the liability under
63-19 the statutes and rules within the commission's jurisdiction of a
63-20 defendant who, by an act or omission, caused or contributed to the
63-21 release or threatened release of a hazardous substance that is the
63-22 subject of the action concerning the facility.
63-23 SUBCHAPTER G. REVOCATION AND SUSPENSION OF PERMITS,
63-24 LICENSES AND CERTIFICATES OF REGISTRATION
63-25 Sec. 7.201. GROUNDS FOR REVOCATION OR SUSPENSION OF PERMITS.
63-26 After notice and hearing, the commission may revoke, suspend, or
63-27 revoke and reissue a permit, a federal operating permit,
64-1 preconstruction permit, or exemption issued under the statutes or
64-2 rules within the commission's jurisdiction, on any of the following
64-3 grounds:
64-4 (a) Violating any of the terms or conditions of the permit
64-5 or exemption and revocation, suspension, or revocation and
64-6 reissuance is necessary in order to maintain the quality of water
64-7 or the quality of air in the state, or to otherwise protect human
64-8 health and the environment consistent with the objectives of the
64-9 statutes or rules within the commission's jurisdiction.
64-10 (b) Committing an actual or potential release to the
64-11 environment, and compliance history of the permit holder evidences
64-12 three release or potential release violations within the past five
64-13 years;
64-14 (c) Contravening pollution control standards set by the
64-15 commission or contravening the intent of the statutes and rules
64-16 within the commission's jurisdiction;
64-17 (d) Including a material mistake in a federal operating
64-18 permit or making inaccurate statements in establishing the
64-19 emissions standards or other terms or conditions of a federal
64-20 operating permit;
64-21 (e) Misrepresenting or failing to disclose fully all
64-22 relevant facts in obtaining the permit;
64-23 (f) A permit holder being indebted to the state for fees,
64-24 payment of penalties, or taxes imposed by the statutes or rules
64-25 within the commission's jurisdiction;
64-26 (g) A permit holder failing to ensure that the management of
64-27 its facility conforms or will conform to the statutes and rules
65-1 within the commission's jurisdiction;
65-2 (h) The permit is subject to cancellation or suspension
65-3 under Section 26.084;
65-4 (i) Abandoning the permit or operations under the permit;
65-5 (j) The commission finds that a change in conditions
65-6 requires elimination of the discharge authorized by the permit; or
65-7 (h) With respect to permits issued pursuant to Chapter 18,
65-8 failing to continue to possess qualifications necessary for the
65-9 issuance of an original permit.
65-10 Sec. 7.202. GROUNDS FOR REVOCATION OR SUSPENSION OF LICENSES
65-11 AND CERTIFICATES OF REGISTRATION. With respect to licenses,
65-12 certifications and registrations issued pursuant to the statutes or
65-13 rules within the commission's jurisdiction, after notice and
65-14 hearing, the commission may suspend or revoke a license,
65-15 certification, or registration it has issued, place on probation a
65-16 person whose license, certification or registration has been
65-17 suspended, reprimand a licensee certificate holder or registrant,
65-18 refuse to renew or refuse to reissue a license, certificate or
65-19 registration on any of the following grounds:
65-20 (a) Committing an actual or potential release to the
65-21 environment, and compliance history of the licensee, certificate
65-22 holder or registrant evidences three release or potential release
65-23 violations within the past five years;
65-24 (b) Committing fraud or deceit in obtaining a license,
65-25 certification or registration;
65-26 (c) Demonstrating gross negligence, incompetency, or
65-27 misconduct while acting as a licensee, certificate holder or
66-1 registrant;
66-2 (d) Making an intentional misstatement or misrepresentation
66-3 of fact in information required to be maintained or submitted to
66-4 the commission by the licensee, certificate holder or registrant;
66-5 (e) Failing to keep and transmit records as required by the
66-6 statutes or rules within the commission's jurisdiction;
66-7 (f) Being indebted to the state for fees, payment of
66-8 penalties, or taxes imposed by the statutes or rules within the
66-9 commission's jurisdiction;
66-10 (g) With respect to certificates of public convenience and
66-11 necessity, failing to provide continuous and adequate service in
66-12 the area, or part of the area, covered by the certificate;
66-13 (h) With respect to licenses issued pursuant to Chapter 18,
66-14 failing to continue to possess qualifications necessary for the
66-15 issuance of an original license;
66-16 (i) With respect to certificates of competency issued
66-17 pursuant to Section 26.0301, violating a discharge permit of a
66-18 sewage treatment plant, unless:
66-19 (1) The holder of a certificate is unable to properly
66-20 operate the sewage treatment facility due to the refusal of the
66-21 permittee to authorize necessary expenditures to operate the sewage
66-22 treatment facility properly; or
66-23 (2) Failure of the sewage treatment facility to comply
66-24 with its discharge permit results from faulty design of the sewage
66-25 treatment facility;
66-26 (j) With respect to licenses issued pursuant to Chapter 32,
66-27 failing to advise a person for whom a well is being drilled that
67-1 injurious water has been encountered, is a pollution hazard, and
67-2 must be immediately plugged in an acceptable manner;
67-3 (k) With respect to registrations issued pursuant to Chapter
67-4 366, Health and Safety Code, violating Chapter 366, Health and
67-5 Safety Code or a rule adopted under that Chapter.
67-6 Sec. 7.203. PROCEDURES. The commission by rule shall
67-7 establish procedures for public notice and any public hearing under
67-8 this subchapter.
67-9 Sec. 7.204. HEARINGS. Hearings under this subchapter shall
67-10 be conducted in accordance with the hearing rules adopted by the
67-11 commission and the applicable provisions of Chapter 2001,
67-12 Government Code.
67-13 Sec. 7.205. CONSENT. If the permittee requests or consents
67-14 to the revocation or suspension of the permit, license or
67-15 certification of registration, the executive director may revoke or
67-16 suspend the permit, license, exemption, certification or
67-17 registration without a hearing.
67-18 Sec. 7.206. OTHER RELIEF. A proceeding brought by the
67-19 commission under this subchapter shall not affect the commission's
67-20 authority to bring suit for injunctive relief or penalty or both
67-21 under Section 7.014.
67-22 Sec. 7.207. REQUIREMENTS OF LICENSEES AND REGISTRANTS. If a
67-23 licensee's, certificate holder's, or registrant's suspension is
67-24 probated, the commission may require the licensee, certificate
67-25 holder or registrant:
67-26 (a) to report regularly to the commission on matters that
67-27 are the basis of the probation;
68-1 (b) to limit activities to the areas prescribed by the
68-2 commission; and
68-3 (c) to continue or renew professional education until the
68-4 registrant attains a degree of skill satisfactory to the commission
68-5 in those areas that are the basis of the probation.
68-6 Sec. 7.208. PERMIT HOLDER. For purposes of this section,
68-7 the term "permit holder" includes each member of a partnership or
68-8 association and, with respect to a corporation, each officer and
68-9 the owner or owners of a majority of the corporate stock, provided
68-10 such partner or owner controls at least 20 percent of the permit
68-11 holder.
68-12 Sec. 7.209. RECEIVERSHIP. (a) At the request of the
68-13 commission, the attorney general shall bring suit for the
68-14 appointment of a receiver to collect the assets and carry on the
68-15 business of a water or sewer utility that has abandoned operation
68-16 of its facilities or violates a final order of the commission or
68-17 allows any property owned or controlled by it to be used in
68-18 violation of a final order of the commission.
68-19 (b) The court shall appoint a receiver if an appointment is
68-20 necessary:
68-21 (1) to guarantee the collection of assessments, fees,
68-22 penalties, or interest;
68-23 (2) to guarantee continued service to the customers of
68-24 the utility; or
68-25 (3) to prevent continued or repeated violation of the
68-26 final order.
68-27 (c) The receiver shall execute a bond to assure the proper
69-1 performance of the receiver's duties in an amount to be set by the
69-2 court.
69-3 (d) After appointment and execution of bond, the receiver
69-4 shall take possession of the assets of the utility specified by the
69-5 court. Until discharged by the court, the receiver shall perform
69-6 the duties that the court directs to preserve the assets and carry
69-7 on the business of the utility and shall strictly observe the final
69-8 order involved.
69-9 (e) On a showing of good cause by the utility, the court may
69-10 dissolve the receivership and order the assets and control of the
69-11 business returned to the utility.
69-12 (f) The receiver may, subject to the approval of the court
69-13 and after giving notice to all interested parties, sell or
69-14 otherwise dispose of all or part of the real or personal property
69-15 of a water or sewer utility against which a proceeding has been
69-16 brought under this subchapter to pay the costs incurred in the
69-17 operation of the receivership. The costs include:
69-18 (1) payment of fees to the receiver for his services;
69-19 (2) payment of fees to attorneys, accountants,
69-20 engineers, or any other person or entity that provides goods or
69-21 services necessary to the operation of the receivership; and
69-22 (3) payment of costs incurred in ensuring that any
69-23 property owned or controlled by a water or sewer utility is not
69-24 used in violation of a final order of the commission.
69-25 (g) The commission, after providing to the utility notice
69-26 and an opportunity for a hearing, may place a utility under
69-27 supervision for gross or continuing mismanagement, gross or
70-1 continuing noncompliance with this chapter or commission rules, or
70-2 noncompliance with commission orders.
70-3 (h) While supervising a utility, the commission may require
70-4 the utility to abide by conditions and requirements prescribed by
70-5 the commission, including:
70-6 (1) management requirements;
70-7 (2) additional reporting requirements;
70-8 (3) restrictions on hiring, salary or benefit
70-9 increases, capital investment, borrowing, stock issuance or
70-10 dividend declarations, and liquidation of assets; and
70-11 (4) a requirement that the utility place the utility's
70-12 funds into an account in a financial institution approved by the
70-13 commission and use of those funds shall be restricted to reasonable
70-14 and necessary utility expenses.
70-15 (i) While supervising a utility, the commission may require
70-16 that the utility obtain commission approval before taking any
70-17 action that may be restricted under Subsection (h). Any action or
70-18 transaction which occurs without commission approval may be voided
70-19 by the commission.
70-20 (j) The commission, after providing to the utility notice
70-21 and an opportunity for a hearing, may authorize a willing person to
70-22 temporarily manage and operate a utility that has discontinued or
70-23 abandoned operations or the provision of services or is being
70-24 referred to the attorney general for the appointment of a receiver
70-25 under this section.
70-26 (k) The commission may appoint a person under this section
70-27 by emergency order, and notice of the action is adequate if the
71-1 notice is mailed or hand-delivered to the last known address of the
71-2 utility's headquarters.
71-3 (l) A person appointed under Subsection (j) or Subsection
71-4 (k) has the powers and duties necessary to ensure the continued
71-5 operation of the utility and the provision of continuous and
71-6 adequate services to customers, including the power and duty to:
71-7 (1) read meters;
71-8 (2) bill for utility services;
71-9 (3) collect revenues;
71-10 (4) disburse funds; and
71-11 (5) request rate increases.
71-12 (m) Subsections (j), (k) and (l) do not affect the authority
71-13 of the commission to pursue an enforcement claim against a utility
71-14 or an affiliated interest.
71-15 (n) Notwithstanding the requirements of Section 13.187, the
71-16 commission may authorize an emergency rate increase for a utility
71-17 for which a person has been appointed under Subsection (j) or
71-18 Subsection (k) or for which a receiver has been appointed under
71-19 this section if the increase is necessary to ensure the provision
71-20 of continuous and adequate services to the utility's customers.
71-21 (o) A utility that receives an emergency rate increase under
71-22 this section shall provide to each ratepayer notice of the increase
71-23 as soon as possible, but not later than the first utility bill
71-24 issued at the new rate.
71-25 (p) The commission shall schedule a hearing to establish a
71-26 final rate within 15 months after the date on which an emergency
71-27 rate increase takes effect. The commission shall require the
72-1 utility to provide notice of the hearing to each customer. The
72-2 additional revenues collected under an emergency rate increase are
72-3 subject to refund if the commission finds that the rate increase
72-4 was larger than necessary to ensure continuous and adequate
72-5 service.
72-6 SUBCHAPTER H. REMEDIES
72-7 Sec. 7.221. REMEDIES CUMULATIVE. The remedies under this
72-8 chapter are cumulative of all other remedies. Nothing in this
72-9 chapter affects the right of any private corporation or individual
72-10 to pursue any available common-law remedy to abate a condition of
72-11 pollution or other nuisance, to recover damages, to enforce a right
72-12 or to prevent or seek redress or compensation for the violation of
72-13 a right or otherwise redress an injury.
72-14 Sec. 7.222. OTHER LAW. This chapter does not exempt a
72-15 person from complying with or being subject to other law.
72-16 SUBCHAPTER I. SUIT BY OTHERS
72-17 Sec. 7.231. CIVIL SUITS. If it appears that a violation or
72-18 threat of violation of any provision of a statute or any rule,
72-19 permit, order, license, or certificate within the commission's
72-20 jurisdiction has occurred or is occurring in the jurisdiction of a
72-21 local government, the local government or affected person may
72-22 institute a civil suit in the same manner as the commission in a
72-23 district court by its own attorney for the injunctive relief or
72-24 civil penalty, or both, as authorized by this chapter against the
72-25 person who committed, is committing, or is threatening to commit
72-26 the violation.
72-27 Sec. 7.232. RESOLUTION. A local government may not exercise
73-1 the enforcement power provided under this subchapter unless its
73-2 governing body adopts a resolution authorizing the exercise of the
73-3 power.
73-4 Sec. 7.233. COMMISSION NECESSARY PARTY. In a suit brought
73-5 by a local government under this subchapter, the commission is a
73-6 necessary and indispensable party.
73-7 Sec. 7.234. COSTS AND FEES. A penalty collected in a suit
73-8 under this subchapter shall be paid to the state. If the suit is
73-9 brought by a local government or affected person, the court shall
73-10 include in any final judgment in favor of the local government or
73-11 affected person an award to cover reasonable costs and attorney's
73-12 fees.
73-13 Sec. 7.235. COMPLAINTS. A local government or affected
73-14 person may file with the commission a written complaint and may
73-15 request an investigation of an alleged violation by a person who
73-16 holds a permit, federal operating permit, exemption, certificate of
73-17 registration or license subject to the commission's jurisdiction.
73-18 Sec. 7.236. COMMISSION REPLY. The commission shall reply to
73-19 the complainant in writing not later than the 60th day after the
73-20 complaint is received and shall provide a copy of any investigation
73-21 report relevant to the complaint together with a determination of
73-22 whether the alleged violation was committed.
73-23 Sec. 7.237. PROSECUTION. A local government or affected
73-24 person may bring suit in a court of competent jurisdiction in the
73-25 county in which the alleged violation occurred or is about to
73-26 occur, if the commission does not have a suit filed before the
73-27 121st day after the date on which the written complaint is filed
74-1 under Section 7.235.
74-2 Sec. 7.238. OTHER REQUIREMENTS. The regulatory authority of
74-3 any local government may require compliance with any reasonable
74-4 inspection requirements or ordinances or regulations designed to
74-5 protect the public water supply and pay any reasonable fees imposed
74-6 by the local government relating to work performed within its
74-7 jurisdiction.
74-8 SECTION 3. AMENDMENT. Section 12.052, Water Code, is
74-9 amended to read as follows: DAM SAFETY. (a) The commission shall
74-10 make and enforce rules and orders and shall perform all other acts
74-11 necessary to provide for the safe construction, maintenance,
74-12 repair, and removal of dams located in this state.
74-13 (b) Rules and orders made by the commission shall be made
74-14 after proper notice and hearing as provided in the rules of the
74-15 commission.
74-16 (c) T [If t]he owner of a dam that is required to be
74-17 constructed, reconstructed, repaired, or removed in order to comply
74-18 with the rules and orders promulgated under Subsection (a) of this
74-19 section shall not wilfully fail[s] or refuse[s] to comply within
74-20 the 30-day period following the date of the commission's order to
74-21 do so and shall not [or if a person] wilfully fail[s] to comply
74-22 with any rule or other order issued by the commission under this
74-23 section within the 30-day period following the effective date of
74-24 the order[, he is liable to a penalty of not more than $1,000 a day
74-25 for each day he continues to violate this section. The state may
74-26 recover the penalty by suit brought for that purpose in the
74-27 district court of Travis County].
75-1 (d) [If the commission determines that the existing
75-2 condition of the dam is creating or will cause extensive or severe
75-3 property damage or economic loss to others or is posing an
75-4 immediate and serious threat to human life or health and that other
75-5 procedures available to the commission to remedy or prevent the
75-6 occurrence of the situation will result in unreasonable delay, the
75-7 commission may issue an emergency order, either mandatory or
75-8 prohibitory in nature, directing the owner of a dam to repair,
75-9 modify, maintain, dewater, or remove the dam which the commission
75-10 determines is unsafe. The emergency order may be issued without
75-11 notice to the dam owner or with notice the commission considers
75-12 practicable under the circumstances. The notice does not have to
75-13 comply with Chapter 2001, Government Code.]
75-14 [(e) If the commission issues an emergency order under
75-15 authority of this section without notice to the dam owner, the
75-16 commission shall fix a time and place for a hearing which shall be
75-17 held as soon as practicable to affirm, modify, or set aside the
75-18 emergency order. The notice does not have to comply with Chapter
75-19 2001, Government Code. If the nature of the commission's action
75-20 requires further proceedings, those proceedings shall be conducted
75-21 as appropriate under the Administrative Procedure and Texas
75-22 Register Act, as amended.]
75-23 [(f)] Nothing in this section or in rules or orders made by
75-24 the commission shall be construed to relieve an owner or operator
75-25 of a dam or reservoir of the legal duties, obligations, or
75-26 liabilities incident to ownership or operation.
75-27 SECTION 4. AMENDMENT. Section 13.254, Water Code, is
76-1 amended to read as follows:
76-2 [REVOCATION OR] AMENDMENT OF CERTIFICATE. (a) The commission at
76-3 any time after notice and hearing may [revoke or] amend any
76-4 certificate of public convenience and necessity with the written
76-5 consent of the certificate holder or if it finds that the
76-6 certificate holder has never provided, is no longer providing, or
76-7 has failed to provide continuous and adequate service in the area,
76-8 or part of the area, covered by the certificate.
76-9 (b) Upon written request from the certificate holder, the
76-10 executive director may cancel the certificate of a utility or water
76-11 supply corporation authorized by rule to operate without a
76-12 certificate of public convenience and necessity under Section
76-13 13.242(c).
76-14 (c) If the certificate of any public utility is [revoked or]
76-15 amended, the commission may require one or more public utilities to
76-16 provide service in the area in question.
76-17 SECTION 5. AMENDMENT. Section 16.236, Water Code, is
76-18 amended to read as follows:
76-19 CONSTRUCTION OF LEVEE WITHOUT APPROVAL OF PLANS. (a) No person
76-20 may construct, attempt to construct, cause to be constructed,
76-21 maintain, or cause to be maintained any levee or other such
76-22 improvement on, along, or near any stream of this state that is
76-23 subject to floods, freshets, or overflows so as to control,
76-24 regulate, or otherwise change the floodwater of the stream without
76-25 first obtaining approval of the plans by the commission.
76-26 (b) [Any person who violates any provision of this section
76-27 is guilty of a misdemeanor and upon conviction is punishable by a
77-1 fine of not more than $100. A separate offense is committed each
77-2 day a structure constructed in violation of this section is
77-3 maintained.]
77-4 [(c) At the request of the executive director, the attorney
77-5 general shall file suit in a district court of Travis County to
77-6 enjoin any violation or threatened violation of this section. In
77-7 the suit, the attorney general may seek to have the illegal levee
77-8 or other improvement removed and the preexisting conditions
77-9 restored and may also collect civil penalties of up to $100 a day
77-10 for each day a violation occurs.]
77-11 [(d)] This section does not apply to:
77-12 (1) dams permitted by the commission or recognized as
77-13 valid by final decree in any proceeding begun under Subchapter G,
77-14 Chapter 11, of this code;
77-15 (2) dams authorized by Section 11.142 of this code;
77-16 (3) a levee or other improvement within the corporate
77-17 limits of a city or town provided:
77-18 (A) plans for the construction or maintenance or
77-19 both must be approved by the city or town as a condition precedent
77-20 to starting the project and
77-21 (B) the city or town requires that such plans be
77-22 in substantial compliance with rules and standards adopted by the
77-23 commission; or
77-24 (4) a levee or other improvement within the boundaries
77-25 of any political subdivision which has qualified for the National
77-26 Flood Insurance Program as authorized by the National Flood
77-27 Insurance Act of 1968 (Title 42, U.S.C., Sections 4001-4127)
78-1 provided: (a) plans for the construction or maintenance or both
78-2 must be approved by the political subdivision which is
78-3 participating in the national flood insurance program as a
78-4 condition precedent to starting the project and (b) the political
78-5 subdivision requires that such plans be in substantial compliance
78-6 with rules and standards adopted by the commission;
78-7 (5) projects implementing soil and water conservation
78-8 practices set forth in a conservation plan with a landowner or
78-9 operator and approved by the governing board of a soil and water
78-10 conservation district organized under the State Soil Conservation
78-11 Law, as amended (Article 165a-4, Vernon's Texas Civil Statutes),
78-12 provided that the governing board finds the practices do not
78-13 significantly affect stream flooding conditions on, along, or near
78-14 a state stream.
78-15 (c) [(e)] On projects located within the corporate limits of
78-16 a city or town or within the boundaries of any political
78-17 subdivision which are exempt from the provisions of this section by
78-18 Subdivision (3) or (4) of Subsection (b) [(d)] above, any person
78-19 whose property is located outside of the corporate limits of such
78-20 city or town or of the boundaries of such a political subdivision
78-21 and whose property is affected or potentially affected by the
78-22 effect of the project on the floodwaters of the stream may appeal
78-23 the decision of such political subdivision. The appeal shall be in
78-24 writing and shall specify the grounds therefor and a copy shall be
78-25 sent by certified mail to the project applicant and to the city or
78-26 town or such political subdivision. The timely filing of such an
78-27 appeal with the executive director suspends the decision of the
79-1 city or town or political subdivision until a final decision is
79-2 rendered by the commission. The executive director shall review
79-3 the complaint and investigate the facts surrounding the nature of
79-4 the complaint. If the executive director finds that the complaint
79-5 is frivolous or nonmeritorious or made solely for purposes of
79-6 harassment or delay, then he shall dismiss the appeal. Otherwise,
79-7 the executive director shall refer the appeal to the commission
79-8 which shall after due notice hold a hearing to determine whether
79-9 the project should be approved using the standards established by
79-10 the commission and shall hear such appeal de novo under the
79-11 procedural rules established by the commission for other
79-12 reclamation projects.
79-13 SECTION 6. AMENDMENT. Section 26.029, Water Code, is
79-14 amended to read as follows:
79-15 CONDITIONS OF PERMIT[;] AMENDMENT[; REVOCATION AND
79-16 SUSPENSION]. (a) In each permit, the commission shall prescribe
79-17 the conditions on which it is issued, including:
79-18 (1) the duration of the permit;
79-19 (2) the location of the point of discharge of the
79-20 waste;
79-21 (3) the maximum quantity of waste that may be
79-22 discharged under the permit at any time and from time to time;
79-23 (4) the character and quality of waste that may be
79-24 discharged under the permit; and
79-25 (5) any monitoring and reporting requirements
79-26 prescribed by the commission for the permittee.
79-27 (b) After a public hearing, notice of which shall be given
80-1 to the permittee, the commission may require the permittee, from
80-2 time to time, for good cause, to conform to new or additional
80-3 conditions. The commission shall allow the permittee a reasonable
80-4 time to conform to the new or additional conditions, and on
80-5 application of the permittee, the commission may grant additional
80-6 time.
80-7 (c) A permit does not become a vested right in the
80-8 permittee. [After a public hearing, notice of which shall be given
80-9 to the permittee, the commission may revoke or suspend a permit for
80-10 good cause on any of the following grounds:]
80-11 [(1) the permittee has failed or is failing to comply
80-12 with the conditions of the permit;]
80-13 [(2) the permit is subject to cancellation or
80-14 suspension under Section 26.084 of this code;]
80-15 [(3) the permit or operations under the permit have
80-16 been abandoned; or]
80-17 [(4) the permit is no longer needed by the permittee.]
80-18 (d) The notice required by Subsection[s] (b) [and (c)] of
80-19 this section shall be sent to the permittee at his last known
80-20 address as shown by the records of the commission.
80-21 [(e) If the permittee requests or consents to the revocation
80-22 or suspension of the permit, the executive director may revoke or
80-23 suspend the permit.]
80-24 CONDITIONS OF PERMIT[;] AMENDMENT[; REVOCATION AND
80-25 SUSPENSION]. (a) In each permit, the commission shall prescribe
80-26 the conditions on which it is issued, including:
80-27 (1) the duration of the permit;
81-1 (2) the location of the point of discharge of the
81-2 waste;
81-3 (3) the maximum quantity of waste that may be
81-4 discharged under the permit at any time and from time to time;
81-5 (4) the character and quality of waste that may be
81-6 discharged under the permit; and
81-7 (5) any monitoring and reporting requirements
81-8 prescribed by the commission for the permittee.
81-9 (b) After a public hearing, notice of which shall be given
81-10 to the permittee, the commission may require the permittee, from
81-11 time to time, for good cause, in conformance with applicable laws,
81-12 to conform to new or additional conditions.
81-13 (c) A permit does not become a vested right in the
81-14 permittee. [After a public hearing in conformance with applicable
81-15 laws, notice of which shall be given to the permittee, the
81-16 commission may revoke or suspend a permit for good cause on any of
81-17 the following grounds:]
81-18 [(1) the permittee has failed or is failing to comply
81-19 with the conditions of the permit;]
81-20 [(2) the permit is subject to cancellation or
81-21 suspension under Section 26.084 of this code;]
81-22 [(3) the permit or operations under the permit have
81-23 been abandoned;]
81-24 [(4) the permit is no longer needed by the permittee;]
81-25 [(5) the commission finds that a change in conditions
81-26 requires elimination of the discharge;]
81-27 [(6) revocation or suspension is necessary in order to
82-1 maintain the quality of water in the state consistent with the
82-2 objectives of this chapter; or]
82-3 [(7) the permit was obtained by misrepresentation or
82-4 failure to disclose fully all relevant facts.]
82-5 (d) The notice required by Subsection[s] (b) [and (c)] of
82-6 this section shall be sent to the permittee at his last known
82-7 address as shown by the records of the commission.
82-8 [(e) If the permittee requests or consents to the revocation
82-9 or suspension of the permit, the executive director may revoke or
82-10 suspend the permit.]
82-11 SECTION 7. AMENDMENT. Section 26.0301, Water Code, is
82-12 amended to read as follows:
82-13 CERTIFICATE OF COMPETENCY. (a) The holders of permits to
82-14 discharge wastewater from a sewage treatment facility shall employ
82-15 a treatment plant operator holding a valid certificate of
82-16 competency issued under the direction of the commission.
82-17 (b) Every person, company, corporation, firm, or partnership
82-18 that employs sewage treatment plant operators and is in the
82-19 business of providing as a sewage treatment facility operations
82-20 must hold a valid certificate of competency issued under the
82-21 direction of the commission. Any employee of a person, company,
82-22 corporation, firm, or partnership who will be operating a sewage
82-23 treatment facility must hold a valid certificate of competency
82-24 issued under the direction of the commission.
82-25 (c) [The commission may suspend or revoke the certificate of
82-26 competency for sewage treatment facility operation of an individual
82-27 treatment facility operator or a sewage treatment facility
83-1 operations company, after notice and hearing before the commission,
83-2 if the holder of a certificate of competency is responsible for
83-3 violating a discharge permit of a sewage treatment plant.]
83-4 [(d) The holder of a certificate of competency is not
83-5 subject to the revocation or suspension of the certificate of
83-6 competency under Subsection (c) of this section if:]
83-7 [(1) the holder of a certificate is unable to properly
83-8 operate the sewage treatment facility due to the refusal of the
83-9 permittee to authorize necessary expenditures to operate the sewage
83-10 treatment facility properly; or]
83-11 [(2) failure of the sewage treatment facility to
83-12 comply with its discharge permit results from faulty design of the
83-13 sewage treatment facility.]
83-14 [(e)] The commission by rule shall set a fee to be paid by
83-15 each applicant or licensee on the issuance or renewal of a
83-16 certificate of competency under this section. The amount of the
83-17 fee is determined according to the costs of the commission in
83-18 administering this section, but may not exceed $25 annually for an
83-19 individual wastewater treatment plant operator and $500 annually
83-20 for a person, company, corporation, firm, or partnership that is in
83-21 the business as a wastewater treatment facility operations company.
83-22 The commission shall deposit any fees collected under this
83-23 subsection in the state treasury to the credit of the water quality
83-24 fund.
83-25 SECTION 8. AMENDMENT. Section 361.089, Health and Safety
83-26 Code, is amended to read as follows:
83-27 PERMIT DENIAL OR[,] AMENDMENT[, SUSPENSION OR REVOCATION;]
84-1 NOTICE AND HEARING. (a) The commission may, for good cause, deny
84-2 or[,] amend[, or revoke] a permit it issues or has authority to
84-3 issue for reasons pertaining to public health, air or water
84-4 pollution, or land use, or for a violation of this chapter or other
84-5 applicable laws or rules controlling the management of solid waste.
84-6 (b) Except as provided by Section 361.110, the commission
84-7 shall notify each governmental entity listed under Section 361.067
84-8 and provide an opportunity for a hearing to the permit holder or
84-9 applicant and persons affected. The commission may also hold a
84-10 hearing on its own motion.
84-11 (c) The commission by rule shall establish procedures for
84-12 public notice and any public hearing under this section.
84-13 (d) Hearings under this section shall be conducted in
84-14 accordance with the hearing rules adopted by the commission and the
84-15 applicable provisions of Chapter 2001, Government Code.
84-16 (e) The commission may deny[, suspend for not more than 90
84-17 days, or revoke] an original or renewal permit if it is found,
84-18 after notice and hearing, that:
84-19 (1) the permit holder has a record of environmental
84-20 violations in the preceding five years at the permitted site;
84-21 (2) the applicant has a record of environmental
84-22 violations in the preceding five years at any site owned, operated,
84-23 or controlled by the applicant;
84-24 (3) the permit holder or applicant made a false or
84-25 misleading statement in connection with an original or renewal
84-26 application, either in the formal application or in any other
84-27 written instrument relating to the application submitted to the
85-1 commission, its officers, or its employees;
85-2 (4) the permit holder or applicant is indebted to the
85-3 state for fees, payment of penalties, or taxes imposed by this
85-4 title or by a rule of the commission; or
85-5 (5) the permit holder or applicant is unable to ensure
85-6 that the management of the hazardous waste management facility
85-7 conforms or will conform to this title and the rules of the
85-8 commission.
85-9 (f) Before denying[, suspending, or revoking] a permit under
85-10 this section, the commission must find:
85-11 (1) that a violation or violations are significant and
85-12 that the permit holder or applicant has not made a substantial
85-13 attempt to correct the violations; or
85-14 (2) that the permit holder or applicant is indebted to
85-15 the state for fees, payment of penalties, or taxes imposed by this
85-16 title or by a rule of the commission.
85-17 (g) For purposes of this section, the terms "permit holder"
85-18 and "applicant" include each member of a partnership or association
85-19 and, with respect to a corporation, each officer and the owner or
85-20 owners of a majority of the corporate stock, provided such partner
85-21 or owner controls at least 20 percent of the permit holder or
85-22 applicant and at least 20 percent of another business which
85-23 operates a solid waste management facility.
85-24 SECTION 9. AMENDMENT. Section 401.054, Health and Safety
85-25 Code, is amended to read as follows:
85-26 NOTICE AND HEARING. (a) The department or commission shall
85-27 provide notice and an opportunity for a hearing on a matter under
86-1 its jurisdiction as provided by its formal hearing procedures and
86-2 Chapter 2001, Government Code, on written request of a person
86-3 affected by any of the following procedures:
86-4 (1) the denial[, suspension, or revocation] by the
86-5 agency of a license or registration;
86-6 (2) the determination by the agency of compliance with
86-7 or the grant of exemptions from an agency rule or order; or
86-8 (3) the grant or amendment by the agency of a specific
86-9 license.
86-10 (b) This section does not apply to license or registration
86-11 activities for which other notice and hearing procedures are
86-12 required by this chapter.
86-13 SECTION 10. AMENDMENT. Section 11.081, Water Code, is
86-14 amended to read as follows:
86-15 UNLAWFUL USE OF STATE WATER. [(a)] No person may wilfully
86-16 take, divert, or appropriate any state water for any purpose
86-17 without first complying with all applicable requirements of this
86-18 chapter.
86-19 [(b) A person who violates any provision of this section is
86-20 guilty of a misdemeanor and upon conviction is punishable by a fine
86-21 of not more than $100 or by confinement in the county jail for not
86-22 more than six months or by both.]
86-23 [(c) A person commits a separate offense each day he
86-24 continues to take, divert, or appropriate water in violation of
86-25 this section.]
86-26 [(d) Possession of state water when the right to its use has
86-27 not been acquired according to the provisions of this chapter is
87-1 prima facie evidence of a violation of this section.]
87-2 SECTION 11. AMENDMENT. Section 11.083, Water Code, is
87-3 amended to read as follows:
87-4 OTHER UNLAWFUL TAKING. (a) No person may wilfully open,
87-5 close, change, or interfere with any headgate or water box without
87-6 lawful authority.
87-7 (b) No person may wilfully use water or conduct water
87-8 through his ditch or upon his land unless he is entitled to do so.
87-9 [(c) A person who violates any provision of this section is
87-10 guilty of a misdemeanor and upon conviction is punishable by a fine
87-11 of not less than $10 nor more than $1,000 or by confinement in the
87-12 county jail for not more than six months.]
87-13 [(d) The possession or use of state water on his land by a
87-14 person not entitled to the water by the provisions of this code is
87-15 prima facie evidence of a violation of this section.]
87-16 SECTION 12. AMENDMENT. Section 11.084, Water Code, is
87-17 amended to read as follows:
87-18 SALE OF PERMANENT WATER RIGHT WITHOUT A PERMIT. (a) No
87-19 person may sell or offer to sell a permanent water right unless he
87-20 has perfected a right to appropriate state water by a certified
87-21 filing, or unless he has obtained a permit from the commission,
87-22 authorizing the use of the water for the purposes for which the
87-23 permanent water right is conveyed.
87-24 (b) [A person who violates Subsection (a) of this section
87-25 is guilty of a misdemeanor and upon conviction is punishable by a
87-26 fine of not less than $100 nor more than $1,000 or by confinement
87-27 in the county jail for not more than one year or by both.]
88-1 SECTION 13. AMENDMENT. Section 11.085, Water Code, is
88-2 amended to read as follows:
88-3 INTERWATERSHED TRANSFERS. (a) No person may take or divert
88-4 any of the water of the ordinary flow, underflow, or storm flow of
88-5 any stream, watercourse, or watershed in this state into any other
88-6 natural stream, watercourse, or watershed to the prejudice of any
88-7 person or property situated within the watershed from which the
88-8 water is proposed to be taken or diverted.
88-9 (b) No person may transfer water from one watershed to
88-10 another without first applying for and receiving a permit from the
88-11 commission to do so. Before issuing such a permit, the commission
88-12 shall hold a hearing to determine the rights that might be affected
88-13 by the transfer. The commission shall give notice and hold the
88-14 hearing in the manner prescribed by its procedural rules.
88-15 [(c) A person who takes or diverts water in violation of
88-16 this section is guilty of a misdemeanor and upon conviction is
88-17 punishable by a fine of not less than $100 nor more than $500 or by
88-18 confinement in the county jail for not more than six months.]
88-19 [(d) A person commits a separate offense each day he
88-20 continues to take or divert water in violation of this section.]
88-21 SECTION 14. AMENDMENT. Section 11.087 Water Code, is
88-22 amended to read as follows:
88-23 DIVERSION OF WATER ON INTERNATIONAL STREAM. (a) When storm
88-24 water or floodwater is released from a dam or reservoir on an
88-25 international stream and the water is designated for use or storage
88-26 downstream by a specified user who is legally entitled to receive
88-27 it, no other person may store, divert, appropriate, or use the
89-1 water or interfere with its passage downstream.
89-2 (b) The commission may make and enforce rules and orders to
89-3 implement the provisions of this section, including rules and
89-4 orders designed to:
89-5 (1) establish an orderly system for water releases and
89-6 diversions in order to protect vested rights and to avoid the loss
89-7 of released water;
89-8 (2) prescribe the time that releases of water may
89-9 begin and end;
89-10 (3) determine the proportionate quantities of the
89-11 released water in transit and the water that would have been
89-12 flowing in the stream without the addition of the released water;
89-13 (4) require each owner or operator of a dam or
89-14 reservoir on the stream between the point of release and the point
89-15 of destination to allow free passage of the released water in
89-16 transit; and
89-17 (5) establish other requirements the commission
89-18 considers necessary to effectuate the purposes of this section.
89-19 (c) Orders made by the commission to effectuate its rules
89-20 under this section shall be mailed [need not be published, but the
89-21 commission shall transmit a copy of every such order] by certified
89-22 mail to each diverter of water and to each reservoir owner on the
89-23 stream between the point of release and the point of destination of
89-24 the released water as shown by the records of the commission.
89-25 [(d) A person who violates any provision of this section is
89-26 guilty of a misdemeanor and upon conviction is punishable by a fine
89-27 of not more than $100 or by confinement in the county jail for not
90-1 more than six months or by both. A person commits a separate
90-2 offense each day he continues to violate this section.]
90-3 SECTION 15. AMENDMENT. Section 11.088 Water Code, is
90-4 amended to read as follows:
90-5 DESTRUCTION OF WATERWORKS. [(a)] No person may wilfully
90-6 cut, dig, break down, destroy, or injure or open a gate, bank,
90-7 embankment, or side of any ditch, canal, reservoir, flume, tunnel
90-8 or feeder, pump or machinery, building, structure, or other work
90-9 which is the property of another, or in which another owns an
90-10 interest, or which is lawfully possessed or being used by another,
90-11 and which is used for irrigation, milling, mining, manufacturing,
90-12 the development of power, domestic purposes, or stock raising, with
90-13 intent to:
90-14 (a) [(1)] maliciously injure a person, association,
90-15 corporation, water improvement or irrigation district;
90-16 (b) [(2)] gain advantage for himself; or
90-17 (c) [(3)] take or steal water or cause water to run out or
90-18 waste out of the ditch, canal, or reservoir, feeder, or flume for
90-19 his own advantage or to the injury of a person lawfully entitled to
90-20 the use of the water or the use or management of the ditch, canal,
90-21 tunnel, reservoir, feeder, flume, machine, structure, or other
90-22 irrigation work.
90-23 [(b) A person who violates any provision of this section is
90-24 guilty of a misdemeanor and upon conviction is punishable by a fine
90-25 of not less than $10 nor more than $1,000 or by confinement in the
90-26 county jail for not more than two years or by both.]
90-27 SECTION 16. AMENDMENT. Section 11.089 Water Code, is
91-1 amended to read as follows:
91-2 JOHNSON GRASS OR RUSSIAN THISTLE. (a) No person who owns,
91-3 leases, or operates a ditch, canal, or reservoir or who cultivates
91-4 land abutting a reservoir, ditch, flume, canal, wasteway, or
91-5 lateral may permit Johnson grass or Russian thistle to go to seed
91-6 on the waterway within 10 feet of the high-water line if the
91-7 waterway crosses or lies on the land owned or controlled by him.
91-8 (b) [A person who violates any provision of this section is
91-9 guilty of a misdemeanor and upon conviction is punishable by a fine
91-10 of not less than $25 nor more than $500 or by confinement in the
91-11 county jail for not less than 30 days nor more than six months or
91-12 by both.]
91-13 [(c)] The provisions of this section are not applicable in
91-14 Tom Green, Sterling, Irion, Schleicher, McCullough, Brewster,
91-15 Menard, Maverick, Kinney, Val Verde, and San Saba counties.
91-16 SECTION 17. AMENDMENT. Section 11.090 Water Code, is
91-17 amended to read as follows:
91-18 POLLUTING AND LITTERING. [(a)] No person may deposit in any
91-19 canal, lateral, reservoir, or lake, used for a purpose named in
91-20 this chapter, the carcass of any dead animal, tin cans, discarded
91-21 buckets or pails, garbage, ashes, bailing or barbed wire, earth,
91-22 offal, or refuse of any character or any other article which might
91-23 pollute the water or obstruct the flow of a canal or similar
91-24 structure.
91-25 [(b) A person who violates any provision of this section is
91-26 guilty of a misdemeanor and upon conviction is punishable by a fine
91-27 of not less than $10 nor more than $100 or by confinement in the
92-1 county jail for not more than six months or by both.]
92-2 SECTION 18. AMENDMENT. Section 11.091 Water Code, is
92-3 amended to read as follows:
92-4 INTERFERENCE WITH DELIVERY OF WATER UNDER CONTRACT.
92-5 [(a)] No person may wilfully take, divert, appropriate, or
92-6 interfere with the delivery of conserved or stored water under
92-7 Section 11.042 of this code.
92-8 [(b) A person who violates any provision of this section is
92-9 guilty of a misdemeanor and upon conviction is punishable by a fine
92-10 of not more than $100 or by confinement in the county jail for not
92-11 more than six months or by both.]
92-12 [(c) A person commits a separate offense each day he
92-13 continues to violate this section.]
92-14 [(d) On the petition of any interested party, the district
92-15 court of any county through which the water may pass shall enjoin
92-16 any actual or threatened act prohibited by this section.]
92-17 SECTION 19. AMENDMENT. Section 11.094 Water Code, is
92-18 amended to read as follows:
92-19 PENALTY FOR USE OF WORKS DECLARED PUBLIC NUISANCE. [(a)] No
92-20 person may operate or attempt to operate any waterworks or
92-21 irrigation system or use any water under contract with any
92-22 waterworks or irrigation system that has been previously declared
92-23 to be a public nuisance.
92-24 [(b) A person who violates any provision of this section is
92-25 guilty of a misdemeanor and on conviction is punishable by a fine
92-26 of not more than $1,000 or by confinement in the county jail for
92-27 not more than one year or by both.]
93-1 SECTION 20. AMENDMENT. Section 11.096 Water Code, is
93-2 amended to read as follows:
93-3 OBSTRUCTION OF NAVIGABLE STREAMS. [(a)] No person may
93-4 obstruct the navigation of any stream which can be navigated by
93-5 steamboats, keelboats, or flatboats by cutting and felling trees or
93-6 by building on or across the stream any dike, milldam, bridge, or
93-7 other obstruction.
93-8 [(b) A person who violates any provision of this section is
93-9 guilty of a misdemeanor and upon conviction is punishable by a fine
93-10 of not less than $50 nor more than $500.]
93-11 SECTION 21. AMENDMENT. Section 26.019 Water Code, is
93-12 amended to read as follows:
93-13 ORDERS. [(a)] The commission is authorized to issue orders
93-14 and make determinations necessary to effectuate the purposes of
93-15 this chapter.
93-16 [(b) The commission shall set forth the findings on which it
93-17 bases any order granting or denying special relief requested of the
93-18 commission or involving a determination following a hearing on an
93-19 alleged violation of Section 26.121 of this code or directing a
93-20 person to perform or refrain from performing a certain act or
93-21 activity.]
93-22 SECTION 22. AMENDMENT. Section 361.011 Health and Safety
93-23 Code, is amended to read as follows:
93-24 COMMISSION'S JURISDICTION: MUNICIPAL SOLID WASTE. (a) The
93-25 commission is responsible under this section for the management of
93-26 municipal solid waste, excluding hazardous municipal waste, and
93-27 shall coordinate municipal solid waste activities, excluding
94-1 activities concerning hazardous municipal waste.
94-2 (b) The commission shall accomplish the purposes of this
94-3 chapter by controlling all aspects of the management of municipal
94-4 solid waste, excluding management of hazardous municipal waste, by
94-5 all practical and economically feasible methods consistent with its
94-6 powers and duties under this chapter and other law.
94-7 (c) The commission has the powers and duties specifically
94-8 prescribed by this chapter relating to municipal solid waste
94-9 management, excluding management of hazardous municipal waste, and
94-10 all other powers necessary or convenient to carry out those
94-11 responsibilities under this chapter.
94-12 (d) In matters relating to municipal solid waste management,
94-13 excluding management of hazardous municipal waste, the commission
94-14 shall[:]
94-15 [(1)] consider water pollution control and water
94-16 quality aspects and air pollution control and ambient air quality
94-17 aspects[; and]
94-18 [(2) consult with the attorney general's office for
94-19 assistance in determining whether referral to the attorney general
94-20 for enforcement is mandatory under Section 361.224 or whether
94-21 referral is appropriate, in the commission's discretion, for the
94-22 disposition of enforcement matters under this chapter].
94-23 [(e) If referral is determined to be mandatory or
94-24 appropriate, the commission shall consult with the attorney
94-25 general's office for assistance in determining whether criminal or
94-26 civil enforcement action should be taken. The commission shall use
94-27 all available enforcement options.]
95-1 SECTION 23. AMENDMENT. Section 371.271, Health and Safety
95-2 Code, is amended to read as follows:
95-3 PERSONS RESPONSIBLE FOR SOLID WASTE. (a) A [For the purpose
95-4 of this subchapter, a] person is responsible for solid waste if the
95-5 person:
95-6 (1) is any owner or operator of a solid waste
95-7 facility;
95-8 (2) owned or operated a solid waste facility at the
95-9 time of processing, storage, or disposal of any solid waste;
95-10 (3) by contract, agreement, or otherwise, arranged to
95-11 process, store, or dispose of, or arranged with a transporter for
95-12 transport to process, store, or dispose of, solid waste owned or
95-13 possessed by the person, by any other person or entity at:
95-14 (A) the solid waste facility owned or operated
95-15 by another person or entity that contains the solid waste; or
95-16 (B) the site to which the solid waste was
95-17 transported that contains the solid waste; or
95-18 (4) accepts or accepted any solid waste for transport
95-19 to a solid waste facility or site selected by the person.
95-20 (b) A political subdivision or an officer or employee of the
95-21 political subdivision is not a person responsible for solid waste
95-22 released or threatened to be released from a facility or at a site
95-23 if:
95-24 (1) the political subdivision acquired ownership or
95-25 control of the facility or site through bankruptcy, tax
95-26 delinquency, abandonment, or other circumstances in which the
95-27 subdivision involuntarily acquired title to the facility or site by
96-1 virtue of the subdivision's function as sovereign; and
96-2 (2) the political subdivision, officer, or employee
96-3 did not cause or contribute to the release or threatened release of
96-4 solid waste at the facility or site.
96-5 (c) A political subdivision that is in a county with a
96-6 population of 2.4 million or more or is in a county adjacent to a
96-7 county with a population of 2.4 million or more and that builds or
96-8 installs a drainage project on a site of a solid waste facility is
96-9 not a person responsible for solid waste released or threatened to
96-10 be released from the facility or at a site of the facility if:
96-11 (1) the political subdivision acquired ownership or
96-12 control of the facility or site through bankruptcy, tax
96-13 delinquency, abandonment, or other circumstances in which the
96-14 subdivision involuntarily acquired title to the facility or site by
96-15 virtue of the subdivision's function as sovereign; and
96-16 (2) the plans for the drainage project have been
96-17 submitted to and reviewed by the commission.
96-18 (d) A political subdivision that builds or installs a
96-19 drainage project under Subsection (c) is not subject to civil or
96-20 criminal liability arising from the building or installation of the
96-21 drainage project. This subsection does not apply to an injury or
96-22 property damage claim that results from an act or omission of the
96-23 political subdivision constituting gross negligence, recklessness,
96-24 or intentional misconduct.
96-25 SECTION 24. EMERGENCY. The importance of this legislation
96-26 and the crowded condition of the calendars in both houses create an
96-27 emergency and an imperative public necessity that the
97-1 constitutional rule requiring bills to be read on three several
97-2 days in each house be suspended, and this rule is hereby suspended,
97-3 and that this Act take effect and be in force from and after its
97-4 passage, and it is so enacted.