1-1 By: Bivins S.B. No. 1876
1-2 (In the Senate - Filed March 14, 1997; March 24, 1997, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 25, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 8, Nays 0; April 25, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1876 By: Bivins
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the consolidation of the enforcement and emergency
1-11 powers of the Texas Natural Resource Conservation Commission;
1-12 providing criminal, civil, and administrative penalties.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Chapter 5, Water Code, is amended by adding
1-15 Subchapter L to read as follows:
1-16 SUBCHAPTER L. EMERGENCY AND TEMPORARY ORDERS
1-17 Sec. 5.501. EMERGENCY AND TEMPORARY ORDER OR PERMIT;
1-18 TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITION. (a) For
1-19 the purposes and in the manner provided by this subchapter, the
1-20 commission:
1-21 (1) may issue a temporary or emergency mandatory,
1-22 permissive, or prohibitory order; and
1-23 (2) by temporary or emergency order may:
1-24 (A) issue a temporary permit; or
1-25 (B) temporarily suspend or amend a permit
1-26 condition.
1-27 (b) The commission may issue an emergency order under this
1-28 subchapter after providing the notice and opportunity for hearing
1-29 that the commission considers practicable under the circumstances
1-30 or without notice or hearing. Except as provided by Section 5.508,
1-31 notice must be given not later than the 10th day before the date
1-32 set for a hearing if the commission requires notice and hearing
1-33 before issuing the order. The commission shall give notice not
1-34 later than the 20th day before the date set for a hearing on a
1-35 temporary order.
1-36 (c) The commission by order or rule may delegate to the
1-37 executive director the authority to:
1-38 (1) receive applications and issue emergency orders
1-39 under this subchapter; and
1-40 (2) authorize, in writing, a representative or
1-41 representatives to act on the executive director's behalf under
1-42 this subchapter.
1-43 (d) Chapter 2001, Government Code, does not apply to the
1-44 issuance of an emergency order under this subchapter without a
1-45 hearing.
1-46 (e) A law under which the commission acts that requires
1-47 notice of hearing or that sets procedures for the issuance of
1-48 permits does not apply to a hearing on an emergency order issued
1-49 under this subchapter unless the law specifically requires notice
1-50 for an emergency order. The commission shall give the general
1-51 notice of the hearing that the commission considers practicable
1-52 under the circumstances.
1-53 (f) An emergency or temporary order issued under this
1-54 subchapter does not vest in the permit holder or recipient any
1-55 rights and expires in accordance with its terms.
1-56 (g) The commission may prescribe rules and adopt fees
1-57 necessary to carry out and administer this subchapter.
1-58 Sec. 5.502. APPLICATION FOR EMERGENCY OR TEMPORARY ORDER. A
1-59 person other than the executive director or the executive
1-60 director's representative who desires an emergency or temporary
1-61 order under this subchapter must submit a sworn written application
1-62 to the commission. The application must:
1-63 (1) describe the condition of emergency or other
1-64 condition justifying the issuance of the order;
2-1 (2) allege facts to support the findings required
2-2 under this subchapter;
2-3 (3) estimate the dates on which the proposed order
2-4 should begin and end;
2-5 (4) describe the action sought and the activity
2-6 proposed to be allowed, mandated, or prohibited; and
2-7 (5) include any other statement or information
2-8 required by this subchapter or by the commission.
2-9 Sec. 5.503. NOTICE OF ISSUANCE. Notice of the issuance of
2-10 an emergency order shall be provided in accordance with commission
2-11 rules.
2-12 Sec. 5.504. HEARING TO AFFIRM, MODIFY, OR SET ASIDE ORDER.
2-13 (a) If the commission, the executive director, or the executive
2-14 director's representative issues an emergency order under this
2-15 subchapter without a hearing, the order shall set a time and place
2-16 for a hearing to affirm, modify, or set aside the emergency order
2-17 to be held before the commission or its designee as soon as
2-18 practicable after the order is issued.
2-19 (b) At or following the hearing required under Subsection
2-20 (a), the commission shall affirm, modify, or set aside the
2-21 emergency order.
2-22 (c) A hearing to affirm, modify, or set aside an emergency
2-23 order shall be conducted in accordance with Chapter 2001,
2-24 Government Code, and commission rules. Commission rules concerning
2-25 a hearing to affirm, modify, or set aside an emergency order must
2-26 provide for presentation of evidence by the applicant under oath,
2-27 presentation of rebuttal evidence, and cross-examination of
2-28 witnesses.
2-29 Sec. 5.505. TERM OF ORDER. An emergency or temporary order
2-30 issued under this subchapter must be limited to a reasonable time
2-31 specified by the order. Except as otherwise provided by this
2-32 subchapter, the term of an emergency order may not exceed 180 days.
2-33 An emergency order may be renewed once for a period not to exceed
2-34 180 days.
2-35 Sec. 5.506. EMERGENCY PERMIT TO DIVERT AND USE WATER;
2-36 AMENDMENT TO WATER RIGHT. (a) Except as provided by Section 5.508
2-37 and after notification to the governor, the commission by emergency
2-38 order may issue a permit to divert and use water or amend an
2-39 existing permit, certified filing, or certificate of adjudication
2-40 for an initial period not to exceed 120 days if the commission
2-41 finds that:
2-42 (1) emergency conditions exist that present an
2-43 imminent threat to the public health, safety, and welfare or the
2-44 environment and that override the necessity to comply with
2-45 established statutory procedures; and
2-46 (2) there is no feasible practicable alternative to
2-47 the emergency authorization. The emergency authorization may be
2-48 renewed once for a period not to exceed 60 days.
2-49 (b) The executive director may issue an emergency order if
2-50 an imminent threat to the public health, safety, and welfare or the
2-51 environment exists that requires emergency action before the
2-52 commission can take action under Subsection (a) and there is no
2-53 feasible alternative. If the executive director issues an
2-54 emergency order under this subsection, the commission shall hold a
2-55 hearing as provided for in Section 5.504 as soon as practicable but
2-56 not later than 10 days after issuance of the order to affirm,
2-57 modify, or set aside the order. The person desiring the emergency
2-58 order must comply with Section 5.504 before the executive director
2-59 may act on the request for emergency action.
2-60 (c) The notice requirements of Section 11.132 relating to
2-61 the time for notice, newspaper notice, and method of giving a
2-62 person notice do not apply to a hearing held on an application for
2-63 an emergency order under this section. The commission shall give
2-64 the general notice of the hearing that the commission considers
2-65 practicable under the circumstances.
2-66 Sec. 5.507. EMERGENCY ORDER FOR TEMPORARY TRANSFER OF USE OF
2-67 WATER RIGHT. (a) The commission by emergency order may grant the
2-68 temporary transfer and use of all or part of a water right permit,
2-69 certified filing, or certificate of adjudication for other than
3-1 domestic or municipal use to a retail or wholesale water supplier
3-2 for public health and safety purposes.
3-3 (b) The commission may direct the applicant to timely pay
3-4 the amounts for which the applicant may be potentially liable under
3-5 this section and to fully indemnify and hold harmless the state,
3-6 the executive director, and the commission from any and all
3-7 liability for the order sought. The commission may order bond or
3-8 other surety in a form acceptable to the commission as a condition
3-9 for an emergency order under this section. The commission may not
3-10 grant an emergency authorization under this section that would
3-11 cause a violation of a federal regulation.
3-12 (c) A person granted an emergency order under this section
3-13 is liable to the owner from whom the use is transferred for the
3-14 fair market value of the water transferred and for any damages
3-15 proximately caused by the transfer of use. If, within 60 days of
3-16 the termination of the order, the parties do not agree on the
3-17 amount due, or if full payment is not made, either party may file a
3-18 complaint with the commission to determine the amount due.
3-19 (d) The commission may use dispute resolution procedures for
3-20 a complaint filed under this section. After exhausting all
3-21 administrative remedies under this section, an owner from whom the
3-22 use is transferred may file suit to recover or determine the amount
3-23 due in a district court in the county where the owner resides or
3-24 has its headquarters. The prevailing party in a suit filed under
3-25 this subsection is entitled to recover court costs and reasonable
3-26 attorney's fees.
3-27 Sec. 5.508. EMERGENCY SUSPENSION OF PERMIT CONDITION
3-28 RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND
3-29 INSTREAM USES. (a) The commission by emergency or temporary order
3-30 may suspend a permit condition relating to beneficial inflows to
3-31 affected bays and estuaries and instream uses if the commission
3-32 finds that an emergency exists that cannot practicably be resolved
3-33 in another way.
3-34 (b) The commission must give written notice of the proposed
3-35 suspension to the Parks and Wildlife Department before the
3-36 commission suspends a permit condition under this section. The
3-37 commission shall give the Parks and Wildlife Department an
3-38 opportunity to submit comments on the proposed suspension for a
3-39 period of 72 hours from receipt of the notice and must consider
3-40 those comments before issuing an order imposing the suspension.
3-41 (c) The commission may suspend a permit condition under this
3-42 section without notice except as required by Subsection (b).
3-43 (d) The commission shall notify all affected persons
3-44 immediately by publication.
3-45 Sec. 5.509. EMERGENCY WORKS SAFETY ORDER. The commission
3-46 may issue a mandatory or prohibitory emergency order directing the
3-47 owner of a dam, levee, or other water-storage or flood-control work
3-48 to repair, modify, maintain, dewater, or remove a work if the
3-49 commission finds that:
3-50 (1) the existing condition of the work is causing or
3-51 will cause extensive or severe property damage or economic loss to
3-52 others or is posing an immediate and serious threat to human life
3-53 or health; and
3-54 (2) other procedures available to the commission to
3-55 remedy or prevent the occurrence will result in unreasonable delay.
3-56 Sec. 5.510. EMERGENCY ORDER TO COMPEL WATER OR SEWER
3-57 SERVICE. The commission may issue an emergency order to:
3-58 (1) compel a water or sewer service provider that has
3-59 obtained or is required to obtain a certificate of public
3-60 convenience and necessity to provide continuous and adequate water
3-61 or sewer service, or both, if the commission finds that
3-62 discontinuance of service is imminent or has occurred because of
3-63 the service provider's actions or failure to act;
3-64 (2) compel a retail public utility to provide an
3-65 emergency interconnection with a neighboring retail public utility
3-66 to provide temporary water or sewer service, or both, if the
3-67 commission finds that discontinuance of or serious impairment to
3-68 service is imminent or has occurred; and
3-69 (3) establish reasonable compensation for temporary
4-1 service required under Subdivision (2) and allow the retail public
4-2 utility receiving the service to make a temporary adjustment to its
4-3 rate structure to ensure proper payment.
4-4 Sec. 5.511. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
4-5 DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF RECEIVER.
4-6 The commission may issue an emergency order appointing a willing
4-7 person to temporarily manage and operate a utility under Section
4-8 7.354. Notice of the action is adequate if the notice is mailed or
4-9 hand delivered to the last known address of the utility's
4-10 headquarters.
4-11 Sec. 5.512. EMERGENCY ORDER FOR RATE INCREASE IN CERTAIN
4-12 SITUATIONS. (a) Notwithstanding the requirements of Section
4-13 13.187, the commission may authorize an emergency rate increase for
4-14 a utility for which a person has been appointed under Section 5.511
4-15 or 7.354 or for which a receiver has been appointed under Section
4-16 7.351 if the increase is necessary to ensure the provision of
4-17 continuous and adequate services to the utility's customers.
4-18 (b) A utility that receives an emergency rate increase under
4-19 this section shall provide to each ratepayer notice of the increase
4-20 as soon as possible, but not later than the first utility bill
4-21 issued at the new rate.
4-22 (c) Notwithstanding Section 5.505, an order may be issued
4-23 under this section for a term not to exceed 15 months. The
4-24 commission shall schedule a hearing to establish a final rate
4-25 within 15 months after the date on which an emergency rate increase
4-26 takes effect. The additional revenues collected under an emergency
4-27 rate increase are subject to refund if the commission finds that
4-28 the rate increase was larger than necessary to ensure continuous
4-29 and adequate service.
4-30 Sec. 5.513. TEMPORARY OR EMERGENCY ORDER RELATING TO
4-31 DISCHARGE OF WASTE OR POLLUTANTS. (a) The commission may issue an
4-32 emergency or temporary order relating to the discharge of waste or
4-33 pollutants into or adjacent to water in the state if:
4-34 (1) the order is necessary to enable action to be
4-35 taken more expeditiously than is otherwise provided by Chapter 26
4-36 to effectuate the policy and purposes of that chapter; and
4-37 (2) the commission finds that:
4-38 (A) the discharge is unavoidable to:
4-39 (i) prevent loss of life, serious injury,
4-40 or severe property damage;
4-41 (ii) prevent severe economic loss or
4-42 ameliorate serious drought conditions, to the extent consistent
4-43 with the requirements for United States Environmental Protection
4-44 Agency authorization of a state permit program; or
4-45 (iii) make necessary and unforeseen
4-46 repairs to a facility;
4-47 (B) there is no feasible alternative to the
4-48 proposed discharge;
4-49 (C) the discharge will not cause significant
4-50 hazard to human life and health, unreasonable damage to the
4-51 property of persons other than the applicant, or unreasonable
4-52 economic loss to persons other than the applicant; and
4-53 (D) the discharge will not present a significant
4-54 hazard to the uses that will be made of the receiving water after
4-55 the discharge.
4-56 (b) A person desiring a temporary or emergency order under
4-57 this section must submit an application under Section 5.502 that,
4-58 in addition to complying with that section:
4-59 (1) states the volume and quality of the proposed
4-60 discharge;
4-61 (2) explains the measures proposed to minimize the
4-62 volume and duration of the discharge; and
4-63 (3) explains the measures proposed to maximize the
4-64 waste treatment efficiency of units not taken out of service or
4-65 facilities provided for interim use.
4-66 Sec. 5.514. EMERGENCY ORDER CONCERNING UNDERGROUND OR
4-67 ABOVEGROUND STORAGE TANKS. (a) The commission may issue an
4-68 emergency order to the owner or operator of an underground or
4-69 aboveground storage tank regulated under Chapter 26 prohibiting the
5-1 owner or operator from allowing or continuing a release or
5-2 threatened release and requiring the owner or operator to take the
5-3 actions necessary to eliminate the release or threatened release,
5-4 if the commission finds that:
5-5 (1) there is an actual or threatened release of a
5-6 regulated substance; and
5-7 (2) more expeditious action than is otherwise provided
5-8 under Chapter 26 is necessary to protect the public health or
5-9 safety or the environment from harm.
5-10 (b) An emergency order issued under this section must be:
5-11 (1) mailed by certified mail, return receipt
5-12 requested, to each person identified in the order;
5-13 (2) hand delivered to each person identified in the
5-14 order; or
5-15 (3) on failure of service by certified mail or hand
5-16 delivery, served by publication one time in the Texas Register and
5-17 one time in a newspaper with general circulation in each county in
5-18 which any of the persons identified in the order has a last known
5-19 address.
5-20 Sec. 5.515. EMERGENCY ADMINISTRATIVE ORDER CONCERNING
5-21 IMMINENT AND SUBSTANTIAL ENDANGERMENT. The commission or the
5-22 executive director may issue an emergency administrative order
5-23 under Section 361.272, Health and Safety Code, in the manner
5-24 provided by this subchapter.
5-25 Sec. 5.516. EMERGENCY ORDER CONCERNING ACTIVITY OF SOLID
5-26 WASTE MANAGEMENT. The commission may issue an emergency order
5-27 concerning an activity of solid waste management under the
5-28 commission's jurisdiction, even if that activity is not covered by
5-29 a permit, if the commission finds that an emergency requiring
5-30 immediate action to protect the public health and safety exists.
5-31 Sec. 5.517. EMERGENCY ORDER CONCERNING ON-SITE SEWAGE
5-32 DISPOSAL SYSTEM. (a) The commission may issue an emergency order
5-33 suspending the registration of the installer of an on-site sewage
5-34 disposal system, regulating an on-site sewage disposal system, or
5-35 both, if the commission finds that an emergency exists and that the
5-36 public health and safety is endangered because of the operation of
5-37 an on-site sewage disposal system that does not comply with Chapter
5-38 366, Health and Safety Code, or a rule adopted under that chapter.
5-39 (b) If an order issued under this section is adopted without
5-40 notice or hearing, the order must set a time, not more than 30 days
5-41 after the order is issued, for a hearing to affirm, modify, or set
5-42 aside the order.
5-43 Sec. 5.518. ORDER ISSUED UNDER AIR EMERGENCY. (a) If the
5-44 commission finds that a generalized condition of air pollution
5-45 exists that creates an emergency requiring immediate action to
5-46 protect human health or safety, the commission, with the
5-47 concurrence of the governor, may issue an emergency order requiring
5-48 a person causing or contributing to the air pollution to
5-49 immediately reduce or discontinue the emission of air contaminants.
5-50 (b) If the commission finds that emissions from one or more
5-51 sources are causing imminent danger to human health or safety but
5-52 that there is not a generalized condition of air pollution under
5-53 Subsection (a), the commission may issue an emergency order
5-54 requiring the persons responsible for the emissions to immediately
5-55 reduce or discontinue the emissions.
5-56 (c) Notwithstanding Section 5.504, the commission shall
5-57 affirm, modify, or set aside an order issued under this section not
5-58 later than 24 hours after the hearing under that section begins and
5-59 without adjournment of the hearing.
5-60 (d) This section does not limit any power that the governor
5-61 or another officer may have to declare an emergency and to act on
5-62 that declaration if the power is conferred by law or inheres in the
5-63 office.
5-64 Sec. 5.519. EMERGENCY ORDER BECAUSE OF CATASTROPHE.
5-65 (a) The commission may issue an emergency order authorizing
5-66 immediate action for the addition, replacement, or repair of
5-67 facilities or control equipment necessitated by a catastrophe
5-68 occurring in this state and the emission of air contaminants during
5-69 the addition, replacement, or repair of those facilities if the
6-1 actions and emissions are otherwise precluded under Chapter 382,
6-2 Health and Safety Code.
6-3 (b) An order issued under this section:
6-4 (1) may authorize action only on:
6-5 (A) property on which a catastrophe has
6-6 occurred; or
6-7 (B) other property that is owned by the owner or
6-8 operator of the damaged facility and that produces the same
6-9 intermediates, products, or by-products; and
6-10 (2) must contain a schedule for submitting a complete
6-11 application for a permit under Section 382.0518, Health and Safety
6-12 Code.
6-13 (c) The person applying for an emergency order must
6-14 demonstrate that there will be no more than a de minimis increase
6-15 in the predicted concentration of air contaminants at or beyond the
6-16 property line of the other property on which action is authorized
6-17 under Subsection (b)(1)(B). The commission shall review and act on
6-18 an application submitted as provided by Subsection (b)(2) without
6-19 regard to construction activity under an order under this section.
6-20 (d) An applicant desiring an emergency order under this
6-21 section must submit an application under Section 5.502 that, in
6-22 addition to complying with that section:
6-23 (1) describes the catastrophe;
6-24 (2) states that:
6-25 (A) the construction and emissions are essential
6-26 to prevent loss of life, serious injury, severe property damage, or
6-27 severe economic loss not attributable to the applicant's actions
6-28 and are necessary for the addition, replacement, or repair of a
6-29 facility or control equipment necessitated by the catastrophe;
6-30 (B) there is no practicable alternative to the
6-31 proposed construction and emissions; and
6-32 (C) the emissions will not cause or contribute
6-33 to air pollution;
6-34 (3) estimates the dates on which the proposed
6-35 construction or emissions, or both, will begin and end;
6-36 (4) estimates the date on which the facility will
6-37 begin operation; and
6-38 (5) describes the quantity and type of air
6-39 contaminants proposed to be emitted.
6-40 (e) In this section, "catastrophe" means an unforeseen
6-41 event, including an act of God, an act of war, severe weather,
6-42 explosions, fire, or similar occurrences beyond the reasonable
6-43 control of the operator, that makes a facility or its related
6-44 appurtenances inoperable.
6-45 Sec. 5.520. EMERGENCY ORDER UNDER SECTION 401.056, HEALTH
6-46 AND SAFETY CODE. The commission may issue an emergency order under
6-47 Section 401.056, Health and Safety Code, in the manner provided by
6-48 this subchapter.
6-49 Sec. 5.521. EMERGENCY ORDERS FOR CORRECTIVE ACTION AND
6-50 MEASURES. (a) The commission may issue an emergency order under
6-51 Section 401.270, Health and Safety Code, to a person responsible
6-52 for an activity, including a past activity, concerning the recovery
6-53 or processing of source material or the disposal of by-product
6-54 material that requires any action, including a corrective measure
6-55 that is necessary to correct or remove the threat, if it appears
6-56 that there is an actual or threatened release of source material or
6-57 by-product material that presents an imminent and substantial
6-58 danger to the public health and safety or the environment,
6-59 regardless of whether the activity was lawful at the time.
6-60 (b) An emergency order may be issued under this section to:
6-61 (1) restrain the person from allowing or continuing
6-62 the release; and
6-63 (2) require the person to take any action necessary to
6-64 provide and implement an environmentally sound remedial action plan
6-65 designed to eliminate the release or threatened release.
6-66 (c) An emergency order issued under this section must be:
6-67 (1) mailed by certified mail, return receipt
6-68 requested, to each person identified in the order;
6-69 (2) hand delivered to each person identified in the
7-1 order; or
7-2 (3) on failure of service by certified mail or hand
7-3 delivery, served by publication one time in the Texas Register and
7-4 one time in a newspaper with general circulation in each county in
7-5 which any of the persons identified in the order has a last known
7-6 address.
7-7 (d) If an order issued under this section is adopted without
7-8 notice or hearing, the order must set a time, at least 10 but not
7-9 more than 30 days after the date the order is issued, for a hearing
7-10 to affirm, modify, or set aside the order. All provisions of the
7-11 order remain in effect during the pendency of the hearing unless
7-12 otherwise altered by the commission.
7-13 SECTION 2. Subtitle A, Title 2, Water Code, is amended by
7-14 adding Chapter 7 to read as follows:
7-15 CHAPTER 7. ENFORCEMENT
7-16 SUBCHAPTER A. GENERAL PROVISIONS
7-17 Sec. 7.001. DEFINITIONS. In this chapter:
7-18 (1) "Commission" means the Texas Natural Resource
7-19 Conservation Commission.
7-20 (2) "Permit" includes a license, certificate,
7-21 registration, approval, or other form of authorization. This
7-22 definition does not apply to Subchapter G.
7-23 Sec. 7.002. ENFORCEMENT AUTHORITY. The commission may
7-24 initiate an action under this chapter to enforce provisions of this
7-25 code and the Health and Safety Code within the commission's
7-26 jurisdiction as provided by Section 5.013 of this code and rules
7-27 adopted under those provisions. The commission or the executive
7-28 director may institute legal proceedings to compel compliance with
7-29 the relevant provisions of this code and the Health and Safety Code
7-30 and rules, orders, permits, or other decisions of the commission.
7-31 Sec. 7.003. ENFORCEMENT REPORT. (a) The commission shall
7-32 report at least once each month on enforcement actions taken by the
7-33 commission or others and the resolution of those actions.
7-34 (b) The report shall be an item for commission discussion at
7-35 a meeting of the commission for which public notice is given.
7-36 (c) If an enforcement action involves a suit filed for
7-37 injunctive relief or civil penalties, or both, the report shall
7-38 state the actual or projected time for resolution of the suit. A
7-39 copy of the report and of the minutes of the meeting reflecting
7-40 commission action relating to the report shall be filed with the
7-41 governor and the attorney general.
7-42 Sec. 7.004. REMEDIES CUMULATIVE. The remedies under this
7-43 chapter are cumulative of all other remedies. Nothing in this
7-44 chapter affects the right of a private corporation or individual to
7-45 pursue any available common law remedy to abate a condition of
7-46 pollution or other nuisance, to recover damages to enforce a right,
7-47 or to prevent or seek redress or compensation for the violation of
7-48 a right or otherwise redress an injury.
7-49 Sec. 7.005. EFFECT ON OTHER LAW. This chapter does not
7-50 exempt a person from complying with or being subject to other law.
7-51 (Sections 7.006-7.030 reserved for expansion
7-52 SUBCHAPTER B. CORRECTIVE ACTION AND INJUNCTIVE RELIEF
7-53 Sec. 7.031. CORRECTIVE ACTION RELATING TO HAZARDOUS WASTE.
7-54 (a) The commission shall require corrective action for a release
7-55 of hazardous waste or hazardous waste constituents from a solid
7-56 waste management unit at a solid waste processing, storage, or
7-57 disposal facility that is required to obtain a permit for the
7-58 management of hazardous waste and whose permit is issued after
7-59 November 8, 1984, regardless of when the waste is placed in the
7-60 unit.
7-61 (b) The commission shall establish schedules for compliance
7-62 for the corrective action if the corrective action cannot be
7-63 completed before permit issuance and shall require assurances of
7-64 financial responsibility for completing the corrective action.
7-65 (c) If, before the issuance of a permit, the commission
7-66 determines that there is or has been a release of hazardous waste
7-67 into the environment from a facility required to obtain a permit in
7-68 accordance with an approved state program under Section 3006 of the
7-69 federal Solid Waste Disposal Act, as amended by the Resource
8-1 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
8-2 Section 6901 et seq.), the commission may:
8-3 (1) issue an order requiring corrective action or
8-4 other response measures considered necessary to protect human
8-5 health or the environment; or
8-6 (2) institute a civil action under Subchapter D.
8-7 (d) An order issued under this section:
8-8 (1) may include a suspension or revocation of
8-9 authorization to operate;
8-10 (2) must state with reasonable specificity the nature
8-11 of the required corrective action or other response measure; and
8-12 (3) must specify a time for compliance.
8-13 (e) If a person named in the order does not comply with the
8-14 order, the commission may assess an administrative penalty or seek
8-15 a civil penalty in accordance with this chapter.
8-16 Sec. 7.032. INJUNCTIVE RELIEF. (a) The executive director
8-17 may enforce a commission rule or a provision of a permit issued by
8-18 the commission by injunction or other appropriate remedy.
8-19 (b) If it appears that a violation or threat of violation of
8-20 a statute within the commission's jurisdiction or a rule adopted or
8-21 an order or a permit issued under such a statute has occurred or is
8-22 about to occur, the executive director may have a suit instituted
8-23 in district court for injunctive relief to restrain the violation
8-24 or threat of violation.
8-25 (c) The suit may be brought in the county in which the
8-26 defendant resides or in the county in which the violation or threat
8-27 of violation occurs.
8-28 (d) In a suit brought under this section to enjoin a
8-29 violation or threat of violation described by Subsection (b), the
8-30 court may grant the commission, without bond or other undertaking,
8-31 any prohibitory or mandatory injunction the facts may warrant,
8-32 including a temporary restraining order and, after notice and
8-33 hearing, a temporary injunction or permanent injunction.
8-34 (e) On request of the executive director, the attorney
8-35 general or the prosecuting attorney in a county in which the
8-36 violation occurs shall initiate a suit in the name of the state for
8-37 injunctive relief. The suit may be brought independently of or in
8-38 conjunction with a suit under Subchapter D.
8-39 Sec. 7.033. RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH AND
8-40 SAFETY CODE, VIOLATION. The commission shall seek reimbursement,
8-41 either by a commission order or by a suit filed under Subchapter D
8-42 by the attorney general at the commission's request, of security
8-43 from the fund used by the commission to pay for actions, including
8-44 corrective measures, to remedy spills or contamination by
8-45 radioactive material resulting from a violation of Chapter 401,
8-46 Health and Safety Code, or a rule adopted or a license,
8-47 registration, or order issued under that chapter.
8-48 (Sections 7.034-7.050 reserved for expansion
8-49 SUBCHAPTER C. ADMINISTRATIVE PENALTIES
8-50 Sec. 7.051. ADMINISTRATIVE PENALTY. The commission may
8-51 assess an administrative penalty against a person as provided by
8-52 this subchapter if:
8-53 (1) the person violates:
8-54 (A) a provision of this code or of the Health
8-55 and Safety Code that is within the commission's jurisdiction;
8-56 (B) a rule adopted or order issued by the
8-57 commission under a statute within the commission's jurisdiction; or
8-58 (C) a permit issued by the commission under a
8-59 statute within the commission's jurisdiction; and
8-60 (2) a county, political subdivision, or municipality
8-61 has not instituted a lawsuit and is not diligently prosecuting that
8-62 lawsuit under Subchapter I against the same person for the same
8-63 violation.
8-64 Sec. 7.052. MAXIMUM PENALTY. (a) The amount of the penalty
8-65 for a violation of Chapter 13, 18, 32, 33, or 34 of this code or
8-66 Chapter 341, 366, 371, or 372, Health and Safety Code, may not
8-67 exceed $2,500 a day for each violation.
8-68 (b) The amount of the penalty for all other violations
8-69 within the jurisdiction of the commission to enforce may not exceed
9-1 $10,000 a day for each violation.
9-2 (c) Each day that a continuing violation occurs may be
9-3 considered a separate violation. The commission may authorize an
9-4 installment payment schedule for an administrative penalty assessed
9-5 under this subchapter, except for an administrative penalty
9-6 assessed under Section 7.057 or assessed after a hearing under
9-7 Section 7.058.
9-8 Sec. 7.053. FACTORS TO BE CONSIDERED IN DETERMINATION OF
9-9 PENALTY AMOUNT. In determining the amount of an administrative
9-10 penalty, the commission shall consider:
9-11 (1) the nature, circumstances, extent, duration, and
9-12 gravity of the prohibited act, with special emphasis on the
9-13 impairment of existing water rights or the hazard or potential
9-14 hazard created to the health or safety of the public;
9-15 (2) the impact of the violation on:
9-16 (A) air quality in the region;
9-17 (B) a receiving stream or underground water
9-18 reservoir;
9-19 (C) instream uses, water quality, aquatic and
9-20 wildlife habitat, or beneficial freshwater inflows to bays and
9-21 estuaries; or
9-22 (D) affected persons;
9-23 (3) with respect to the alleged violator:
9-24 (A) the history and extent of previous
9-25 violations;
9-26 (B) the degree of culpability, including whether
9-27 the violation was attributable to mechanical or electrical failures
9-28 and whether the violation could have been reasonably anticipated
9-29 and avoided;
9-30 (C) the demonstrated good faith, including
9-31 actions taken by the alleged violator to rectify the cause of the
9-32 violation and to compensate affected persons;
9-33 (D) economic benefit gained through the
9-34 violation; and
9-35 (E) the amount necessary to deter future
9-36 violations; and
9-37 (4) any other matters that justice may require.
9-38 Sec. 7.054. REPORT OF VIOLATION. If, after examination of a
9-39 possible violation and the facts surrounding that possible
9-40 violation, the executive director concludes that a violation has
9-41 occurred, the executive director may issue a preliminary report in
9-42 accordance with commission rules that includes recommendations
9-43 regarding any penalty or corrective action.
9-44 Sec. 7.055. NOTICE OF REPORT. Not later than the 10th day
9-45 after the date on which the report of a violation is issued, the
9-46 executive director shall give written notice of the report, in
9-47 accordance with commission rules, to the person charged with the
9-48 violation.
9-49 Sec. 7.056. CONSENT. Not later than the 20th day after the
9-50 date on which notice is received, the person charged may give to
9-51 the commission written consent to the executive director's report,
9-52 including the recommended penalty, or make a written request for a
9-53 hearing.
9-54 Sec. 7.057. DEFAULT. If the person charged with the
9-55 violation consents to the penalty recommended by the executive
9-56 director or does not timely respond to the notice, the commission
9-57 by order shall assess the penalty or order a hearing to be held on
9-58 the recommendations in the executive director's report. If the
9-59 commission assesses the penalty, the commission shall give written
9-60 notice of its decision to the person charged.
9-61 Sec. 7.058. HEARING. If the person charged requests or the
9-62 commission orders a hearing, the commission shall order and shall
9-63 give notice of the hearing. The commission by order may find that
9-64 a violation has occurred and may assess a penalty, may find that a
9-65 violation has occurred but that a penalty should not be assessed,
9-66 or may find that a violation has not occurred. In making a penalty
9-67 decision, the commission shall analyze each factor prescribed by
9-68 Section 7.053. All proceedings under this section are subject to
9-69 Chapter 2001, Government Code.
10-1 Sec. 7.059. NOTICE OF DECISION. The commission shall give
10-2 notice of its decision to the person charged. If the commission
10-3 finds that a violation has occurred and assesses a penalty, the
10-4 commission shall give written notice to the person charged of:
10-5 (1) the commission's findings;
10-6 (2) the amount of the penalty;
10-7 (3) the right to judicial review of the commission's
10-8 order; and
10-9 (4) other information required by law.
10-10 Sec. 7.060. NOTICE OF PENALTY. If the commission is
10-11 required to give notice of a penalty under Section 7.057 or 7.059,
10-12 the commission shall publish notice of its decision in the Texas
10-13 Register not later than the 10th day after the date on which the
10-14 decision is adopted.
10-15 Sec. 7.061. PAYMENT OF PENALTY; PETITION FOR REVIEW. Within
10-16 the 30-day period immediately following the date on which the
10-17 commission's order is final, as provided by Section 2001.144,
10-18 Government Code, the person charged with the penalty shall:
10-19 (1) pay the penalty in full;
10-20 (2) pay the first installment penalty payment in full;
10-21 (3) pay the penalty and file a petition for judicial
10-22 review, contesting either the amount of the penalty or the fact of
10-23 the violation or contesting both the fact of the violation and the
10-24 amount of the penalty; or
10-25 (4) without paying the penalty, file a petition for
10-26 judicial review contesting the occurrence of the violation and the
10-27 amount of the penalty.
10-28 Sec. 7.062. STAYS. Within the 30-day period described by
10-29 Section 7.061, a person who acts under Section 7.061(3) may:
10-30 (1) stay enforcement of the penalty by:
10-31 (A) paying the amount of the penalty to the
10-32 court for placement in an escrow account; or
10-33 (B) giving to the court a supersedeas bond that
10-34 is approved by the court for the amount of the penalty and that is
10-35 effective until all judicial review of the commission's order is
10-36 final; or
10-37 (2) request the court to stay enforcement of the
10-38 penalty by:
10-39 (A) filing with the court a sworn affidavit of
10-40 the person stating that the person is financially unable to give
10-41 the supersedeas bond; and
10-42 (B) sending a copy of the affidavit to the
10-43 executive director by certified mail.
10-44 Sec. 7.063. CONSENT TO AFFIDAVIT. If the executive director
10-45 receives a copy of an affidavit under Section 7.062(2), the
10-46 executive director may file with the court, within five days after
10-47 the date the copy is received, a contest to the affidavit. The
10-48 court shall hold a hearing on the facts alleged in the affidavit as
10-49 soon as practicable and shall stay the enforcement of the penalty
10-50 on finding that the alleged facts are true. The person who files
10-51 an affidavit has the burden of proving that the person is
10-52 financially unable to pay the penalty or give the supersedeas bond.
10-53 Sec. 7.064. JUDICIAL REVIEW. Judicial review of the order
10-54 or decision of the commission assessing the penalty is under
10-55 Subchapter G, Chapter 2001, Government Code.
10-56 Sec. 7.065. PENALTY REDUCED OR NOT ASSESSED. (a) If the
10-57 person paid the penalty and if the penalty is reduced or not
10-58 assessed by the court, the executive director shall remit to the
10-59 person charged the appropriate amount plus accrued interest if the
10-60 penalty has been paid or shall execute a release of the bond if a
10-61 supersedeas bond has been posted.
10-62 (b) The accrued interest on amounts remitted by the
10-63 executive director under this section shall be paid at a rate equal
10-64 to the rate charged on loans to depository institutions by the New
10-65 York Federal Reserve Bank and shall be paid for the period
10-66 beginning on the date the penalty is paid to the executive director
10-67 under Section 7.061 and ending on the day the penalty is remitted.
10-68 Sec. 7.066. REFERRAL TO ATTORNEY GENERAL. A person who does
10-69 not comply with Section 7.061 waives the right to judicial review,
11-1 and the commission or the executive director may refer the matter
11-2 to the attorney general for enforcement.
11-3 Sec. 7.067. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) The
11-4 commission may compromise, modify, or remit, with or without
11-5 conditions, an administrative penalty imposed under this
11-6 subchapter. In determining the appropriate amount of a penalty for
11-7 settlement of an administrative enforcement matter, the commission
11-8 may consider a respondent's willingness to contribute to
11-9 supplemental environmental projects that are approved by the
11-10 commission, giving preference to projects that benefit the
11-11 community in which the alleged violation occurred.
11-12 (b) In this section, "supplemental environmental project"
11-13 means a project that prevents pollution, reduces the amount of
11-14 pollutants reaching the environment, enhances the quality of the
11-15 environment, or contributes to public awareness of environmental
11-16 matters. The term does not include projects that are necessary to
11-17 bring the respondent into compliance with environmental laws or
11-18 that are necessary to remediate the environmental harm caused by
11-19 the alleged violation.
11-20 Sec. 7.068. FULL AND COMPLETE SATISFACTION. Payment of an
11-21 administrative penalty under this subchapter is full and complete
11-22 satisfaction of the violation for which the penalty is assessed and
11-23 precludes any other civil or criminal penalty for the same
11-24 violation.
11-25 Sec. 7.069. DISPOSITION OF PENALTY. A penalty collected
11-26 under this subchapter shall be deposited to the credit of the
11-27 general revenue fund.
11-28 Sec. 7.070. FINDINGS OF FACT NOT REQUIRED; RESERVATIONS.
11-29 Notwithstanding any other provision to the contrary, the commission
11-30 is not required to make findings of fact or conclusions of law
11-31 other than an uncontested finding that the commission has
11-32 jurisdiction in an agreed order compromising or settling an alleged
11-33 violation of a statute within the commission's jurisdiction or of a
11-34 rule adopted or an order or a permit issued under such a statute.
11-35 An agreed administrative order may include a reservation that:
11-36 (1) the order is not an admission of a violation of a
11-37 statute within the commission's jurisdiction or of a rule adopted
11-38 or an order or a permit issued under such a statute;
11-39 (2) the occurrence of a violation is in dispute; or
11-40 (3) the order is not intended to become a part of a
11-41 party's or a facility's compliance history.
11-42 Sec. 7.071. INADMISSIBILITY. An agreed administrative
11-43 order issued by the commission under this subchapter is not
11-44 admissible against a party to that order in a civil proceeding
11-45 unless the proceeding is brought by the attorney general's office
11-46 to:
11-47 (1) enforce the terms of that order; or
11-48 (2) pursue a violation of a statute within the
11-49 commission's jurisdiction or of a rule adopted or an order or a
11-50 permit issued under such a statute.
11-51 Sec. 7.072. RECOVERY OF PENALTY. An administrative penalty
11-52 owed under this subchapter may be recovered in a civil action
11-53 brought by the attorney general at the request of the commission.
11-54 Sec. 7.073. CORRECTIVE ACTION. If a person violates any
11-55 statute or rule within the commission's jurisdiction, the
11-56 commission may:
11-57 (1) assess against the person an administrative
11-58 penalty under this subchapter; and
11-59 (2) order the person to take corrective action.
11-60 Sec. 7.074. HEARING POWERS. The commission may exercise
11-61 under this subchapter the hearing powers authorized by Section
11-62 26.020.
11-63 Sec. 7.075. PUBLIC COMMENT. (a) Before the commission
11-64 approves an administrative order or proposed agreement to settle an
11-65 administrative enforcement action initiated under this subchapter
11-66 to which the commission is a party, the commission shall allow the
11-67 public to comment in writing on the proposed order or agreement.
11-68 Notice of the opportunity to comment shall be published in the
11-69 Texas Register not later than the 30th day before the date on which
12-1 the public comment period closes.
12-2 (b) The commission shall promptly consider any written
12-3 comments and may withdraw or withhold consent to the proposed order
12-4 or agreement if the comments disclose facts or considerations that
12-5 indicate that the consent is inappropriate, improper, inadequate,
12-6 or inconsistent with the requirements of this subchapter, another
12-7 statute within the commission's jurisdiction, or a rule adopted or
12-8 an order or a permit issued under such a statute. Further notice
12-9 of changes to the proposed order or agreement is not required to be
12-10 published if those changes arise from comments submitted in
12-11 response to a previous notice.
12-12 (c) This section does not apply to:
12-13 (1) a criminal enforcement proceeding; or
12-14 (2) an emergency order or other emergency relief that
12-15 is not a final order of the commission.
12-16 (d) Chapter 2001, Government Code, does not apply to public
12-17 comment under this section.
12-18 (Sections 7.076-7.100 reserved for expansion
12-19 SUBCHAPTER D. CIVIL PENALTIES
12-20 Sec. 7.101. VIOLATION. A person may not cause, suffer,
12-21 allow, or permit a violation of a statute within the commission's
12-22 jurisdiction or a rule adopted or an order or permit issued under
12-23 such a statute.
12-24 Sec. 7.102. MAXIMUM PENALTY. A person who causes, suffers,
12-25 allows, or permits a violation of a statute, rule, order, or permit
12-26 relating to Chapter 13, 18, 32, 33, or 34 of this code or Chapter
12-27 341, 366, 371, or 372, Health and Safety Code, shall be assessed
12-28 for each violation a civil penalty not greater than $5,000 for each
12-29 day of each violation as the court or jury considers proper. A
12-30 person who causes, suffers, allows, or permits a violation of a
12-31 statute, rule, order, or permit relating to any other matter within
12-32 the commission's jurisdiction to enforce shall be assessed for each
12-33 violation a civil penalty not to exceed $25,000 for each day of
12-34 each violation as the court or jury considers proper. Each day of
12-35 a continuing violation is a separate violation.
12-36 Sec. 7.103. CONTINUING VIOLATIONS. If it is shown on a
12-37 trial of a defendant that the defendant has previously been
12-38 assessed a civil penalty for a violation of a statute within the
12-39 commission's jurisdiction or a rule adopted or an order or a permit
12-40 issued under such a statute within the year before the date on
12-41 which the violation being tried occurred, the defendant shall be
12-42 assessed a civil penalty not to exceed $25,000 for each subsequent
12-43 day and for each subsequent violation. Each day of a continuing
12-44 violation is a separate violation.
12-45 Sec. 7.104. NO PENALTY FOR FAILURE TO PAY CERTAIN FEES. A
12-46 civil penalty may not be assessed for failure to:
12-47 (1) pay a fee under Section 371.062, Health and Safety
12-48 Code; or
12-49 (2) file a report under Section 371.024, Health and
12-50 Safety Code.
12-51 Sec. 7.105. CIVIL SUIT. (a) On the request of the
12-52 executive director or the commission, the attorney general shall
12-53 institute a suit in the name of the state for injunctive relief
12-54 under Section 7.032, to recover a civil penalty, or for both
12-55 injunctive relief and a civil penalty.
12-56 (b) The commission, through the executive director, shall
12-57 refer a matter to the attorney general's office for enforcement
12-58 through civil suit if a person:
12-59 (1) is alleged to be making or to have made an
12-60 unauthorized discharge of waste into or adjacent to the waters in
12-61 the state at a new point of discharge without a permit in violation
12-62 of state law;
12-63 (2) has been the subject of two or more finally issued
12-64 administrative penalty orders for violations of Chapter 26
12-65 occurring at the same wastewater management system or other point
12-66 of discharge within the two years immediately preceding the date of
12-67 the first alleged violation currently under investigation at that
12-68 site;
12-69 (3) is alleged to be operating a new solid waste
13-1 facility, as defined in Section 361.003, Health and Safety Code,
13-2 without a permit in violation of state law;
13-3 (4) has been the subject of two or more finally issued
13-4 administrative penalty orders for violations of Chapter 361, Health
13-5 and Safety Code, occurring at the same facility within the two
13-6 years immediately preceding the date of the first alleged violation
13-7 currently under investigation at that site;
13-8 (5) is alleged to be constructing or operating a
13-9 facility at a new plant site without a permit required by Chapter
13-10 382, Health and Safety Code, in violation of state law; or
13-11 (6) has been the subject of two or more finally issued
13-12 administrative penalty orders for violations of Chapter 382, Health
13-13 and Safety Code, for violations occurring at the same plant site
13-14 within the two years immediately preceding the date of the first
13-15 alleged violation currently under investigation at that site.
13-16 (c) The suit may be brought in Travis County, in the county
13-17 in which the defendant resides, or in the county in which the
13-18 violation or threat of violation occurs.
13-19 Sec. 7.106. RESOLUTION THROUGH ADMINISTRATIVE ORDER. The
13-20 attorney general's office and the executive director may agree to
13-21 resolve any violation, before or after referral, by an
13-22 administrative order issued under Subchapter C by the commission
13-23 with the approval of the attorney general.
13-24 Sec. 7.107. DIVISION OF CIVIL PENALTY. Except in a suit
13-25 brought for a violation of Chapter 28 of this code or of Chapter
13-26 401, Health and Safety Code, a civil penalty recovered in a suit
13-27 brought under this subchapter by a local government shall be
13-28 equally divided between:
13-29 (1) the state; and
13-30 (2) the local government that brought the suit.
13-31 Sec. 7.108. ATTORNEY'S FEES. If the state prevails in a
13-32 suit under this subchapter it may recover reasonable attorney's
13-33 fees, court costs, and reasonable investigative costs incurred in
13-34 relation to the proceeding.
13-35 Sec. 7.109. PARKS AND WILDLIFE DEPARTMENT JURISDICTION.
13-36 (a) If it appears that a violation or a threat of violation of
13-37 Section 26.121 or a rule, permit, or order of the commission has
13-38 occurred or is occurring that affects aquatic life or wildlife, the
13-39 Parks and Wildlife Department, in the same manner as the commission
13-40 under this subchapter, may have a suit instituted in a district
13-41 court for injunctive relief or civil penalties, or both, as
13-42 authorized by this subchapter, against the person who committed or
13-43 is committing or threatening to commit the violation.
13-44 (b) In a suit brought under this section for a violation
13-45 that is the proximate cause of injury to aquatic life or wildlife
13-46 normally taken for commercial or sport purposes or to species on
13-47 which this life is directly dependent for food, the Parks and
13-48 Wildlife Department is entitled to recover damages for the injury.
13-49 In determining damages, the court may consider the valuation of the
13-50 injured resources established in rules adopted by the Parks and
13-51 Wildlife Department under Subchapter D, Chapter 12, Parks and
13-52 Wildlife Code, or the replacement cost of the injured resources.
13-53 Any recovery of damages for injury to aquatic life or wildlife
13-54 shall be deposited to the credit of the game, fish, and water
13-55 safety account under Section 11.032, Parks and Wildlife Code, and
13-56 the Parks and Wildlife Department shall use money recovered in a
13-57 suit brought under this section to replenish or enhance the injured
13-58 resources.
13-59 (c) The actual cost of investigation, reasonable attorney's
13-60 fees, and reasonable expert witness fees may also be recovered, and
13-61 those recovered amounts shall be credited to the same operating
13-62 accounts from which expenditures occurred.
13-63 (d) This section does not limit recovery for damages
13-64 available under other laws.
13-65 Sec. 7.110. COMMENTS. (a) Before the commission approves
13-66 an agreed final judgment, consent order, voluntary settlement
13-67 agreement, or other voluntary settlement agreement, or other
13-68 voluntary agreement that would finally settle a civil enforcement
13-69 action initiated under this chapter to which the State of Texas is
14-1 a party or before the court signs a judgment or other agreement
14-2 settling a judicial enforcement action other than an enforcement
14-3 action under Section 113 or 120 or Title II of the federal Clean
14-4 Air Act (42 U.S.C. Section 7401 et seq.), the attorney general
14-5 shall permit the public to comment in writing on the proposed
14-6 order, judgment, or other agreement.
14-7 (b) Notice of the opportunity to comment shall be published
14-8 in the Texas Register not later than the 30th day before the date
14-9 on which the public comment period closes.
14-10 (c) The attorney general shall promptly consider any written
14-11 comments and may withdraw or withhold consent to the proposed
14-12 order, judgment, or other agreement if the comments disclose facts
14-13 or considerations that indicate that the consent is inappropriate,
14-14 improper, inadequate, or inconsistent with the requirements of this
14-15 chapter, the statutes within the commission's jurisdiction, or a
14-16 rule adopted or an order or a permit issued under such a statute.
14-17 Further notice of changes to the proposed order, judgment, or other
14-18 agreement is not required to be published if those changes arise
14-19 from comments submitted in response to a previous notice.
14-20 (d) The attorney general may not oppose intervention by a
14-21 person who has standing to intervene as provided by Rule 60, Texas
14-22 Rules of Civil Procedure.
14-23 (e) This section does not apply to:
14-24 (1) criminal enforcement proceedings; or
14-25 (2) proposed temporary restraining orders, temporary
14-26 injunctions, emergency orders, or other emergency relief that is
14-27 not a final judgment or final order of the court or commission.
14-28 (f) Chapter 2001, Government Code, does not apply to public
14-29 comment under this section.
14-30 Sec. 7.111. RECOVERY OF SECURITY FOR CHAPTER 401, HEALTH AND
14-31 SAFETY CODE, VIOLATION. On request by the commission, the attorney
14-32 general shall file suit to recover security under Section 7.033.
14-33 (Sections 7.112-7.140 reserved for expansion
14-34 SUBCHAPTER E. CRIMINAL OFFENSES AND PENALTIES
14-35 Sec. 7.141. DEFINITIONS. In this subchapter:
14-36 (1) "Appropriate regulatory agency" means the
14-37 commission, the Texas Department of Health, or any other agency
14-38 authorized to regulate the handling and disposal of medical waste.
14-39 (2) "Corporation" and "association" have the meanings
14-40 assigned by Section 1.07, Penal Code, except that the terms do not
14-41 include a government.
14-42 (3) "Large quantity generator" means a person who
14-43 generates more than 50 pounds of medical waste each month.
14-44 (4) "Medical waste" includes animal waste, bulk blood
14-45 and blood products, microbiological waste, pathological waste,
14-46 sharps, and special waste from health care-related facilities as
14-47 those terms are defined in 25 T.A.C., Section 1.132 (Texas
14-48 Department of Health, Definition, Treatment, and Disposition of
14-49 Special Waste from Health Care-Related Facilities). The term does
14-50 not include medical waste produced on farmland and ranchland as
14-51 defined by Section 252.001(6), Agriculture Code.
14-52 (5) "Serious bodily injury" has the meaning assigned
14-53 by Section 1.07, Penal Code.
14-54 (6) "Small quantity generator" means a person who
14-55 generates 50 pounds or less of medical waste each month.
14-56 Sec. 7.142. VIOLATIONS RELATING TO UNLAWFUL USE OF STATE
14-57 WATER. (a) A person commits an offense if the person violates:
14-58 (1) Section 11.081;
14-59 (2) Section 11.083;
14-60 (3) Section 11.084;
14-61 (4) Section 11.085;
14-62 (5) Section 11.087;
14-63 (6) Section 11.088;
14-64 (7) Section 11.089;
14-65 (8) Section 11.090;
14-66 (9) Section 11.091;
14-67 (10) Section 11.092;
14-68 (11) Section 11.093;
14-69 (12) Section 11.094;
15-1 (13) Section 11.096;
15-2 (14) Section 11.203; or
15-3 (15) Section 11.205.
15-4 (b) An offense under Subsection (a)(10), (a)(11), or (a)(15)
15-5 is punishable under Section 7.190(1)(A) or Section 7.190(2)(B) or
15-6 both.
15-7 (c) An offense under Subsection (a)(1), (a)(2), (a)(4),
15-8 (a)(5), (a)(7), (a)(8), or (a)(9) is punishable under Section
15-9 7.190(1)(A) or Section 7.190(2)(C) or both.
15-10 (d) An offense under Subsection (a)(3) or (a)(12) is
15-11 punishable under Section 7.190(1)(A) or Section 7.190(2)(D) or
15-12 both.
15-13 (e) An offense under Subsection (a)(6) is punishable under
15-14 Section 7.190(1)(A) or Section 7.190(2)(E) or both.
15-15 (f) Possession of state water when the right to its use has
15-16 not been acquired according to Chapter 11 is prima facie evidence
15-17 of a violation of Section 11.081.
15-18 (g) Possession or use of water on a person's land by a
15-19 person not entitled to the water under this code is prima facie
15-20 evidence of a violation of Section 11.083.
15-21 Sec. 7.143. VIOLATION OF CHAPTER 13. (a) A person commits
15-22 an offense if the person wilfully and knowingly violates Chapter
15-23 13.
15-24 (b) An offense under this section is a felony of the third
15-25 degree.
15-26 Sec. 7.144. VIOLATION RELATING TO LEVEE CONSTRUCTION OR
15-27 REPAIR. (a) A person commits an offense if the person violates
15-28 Section 16.236.
15-29 (b) An offense under this section is a misdemeanor and is
15-30 punishable under Section 7.190(1)(A).
15-31 Sec. 7.145. VIOLATION OF MINIMUM STATE STANDARDS OR MODEL
15-32 POLITICAL SUBDIVISION RULES. (a) A person commits an offense if
15-33 the person knowingly or intentionally violates a rule adopted under
15-34 Subchapter J, Chapter 16.
15-35 (b) An offense under this section is a Class A misdemeanor.
15-36 Sec. 7.146. VIOLATION RELATING TO WEATHER MODIFICATION.
15-37 (a) A person commits an offense if the person violates Chapter 18
15-38 or any rule adopted or order or permit issued under Chapter 18.
15-39 (b) An offense under this section is a misdemeanor and is
15-40 punishable under Section 7.190(1)(A) or Section 7.190(2)(A) or
15-41 both.
15-42 Sec. 7.147. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE.
15-43 (a) A person commits an offense if the person, acting
15-44 intentionally or knowingly with respect to the person's conduct,
15-45 discharges or allows the discharge of a waste or pollutant into or
15-46 adjacent to water in the state that causes or threatens to cause
15-47 water pollution unless the waste or pollutant is discharged in
15-48 strict compliance with all required permits or with an order issued
15-49 or a rule adopted by the appropriate regulatory agency.
15-50 (b) An offense under this section is punishable for an
15-51 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
15-52 both.
15-53 (c) An offense under this section is punishable for a person
15-54 other than an individual under Section 7.190(1)(D).
15-55 Sec. 7.148. DISCHARGE FROM POINT SOURCE. (a) A person
15-56 commits an offense if the person, acting intentionally or knowingly
15-57 with respect to the person's conduct, discharges or allows the
15-58 discharge of a waste or pollutant from a point source in violation
15-59 of Chapter 26 or of a rule, permit, or order of the appropriate
15-60 regulatory agency.
15-61 (b) An offense under this section is punishable for an
15-62 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
15-63 both.
15-64 (c) An offense under this section is punishable for a person
15-65 other than an individual under Section 7.190(1)(D).
15-66 Sec. 7.149. UNAUTHORIZED DISCHARGE. (a) A person commits
15-67 an offense if the person discharges or allows the discharge of any
15-68 waste or pollutant into any water in the state that causes or
15-69 threatens to cause water pollution unless the waste or pollutant is
16-1 discharged in strict compliance with all required permits or with a
16-2 valid and currently effective order issued or rule adopted by the
16-3 appropriate regulatory agency.
16-4 (b) An offense under this section may be prosecuted without
16-5 alleging or proving any culpable mental state.
16-6 (c) An offense under this section is punishable for an
16-7 individual under Section 7.190(1)(B) or Section 7.190(2)(D) or
16-8 both.
16-9 (d) An offense under this section is punishable for a person
16-10 other than an individual under Section 7.190(1)(C).
16-11 Sec. 7.150. FAILURE TO PROPERLY USE POLLUTION CONTROL
16-12 MEASURES. (a) A person commits an offense if the person
16-13 intentionally or knowingly tampers with, modifies, disables, or
16-14 fails to use pollution control or monitoring devices, systems,
16-15 methods, or practices required by Chapter 26 or a rule adopted or a
16-16 permit or an order issued under Chapter 26 by the commission or one
16-17 of its predecessor agencies unless done in strict compliance with
16-18 the rule, permit, or order.
16-19 (b) An offense under this section is punishable for an
16-20 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
16-21 both.
16-22 (c) An offense under this section is punishable for a person
16-23 other than an individual under Section 7.190(1)(D).
16-24 Sec. 7.151. FALSE STATEMENT. (a) A person commits an
16-25 offense if the person intentionally or knowingly makes or causes to
16-26 be made a false material statement, representation, or
16-27 certification in, or omits or causes to be omitted material
16-28 information from, an application, notice, record, report, plan, or
16-29 other document, including monitoring device data, filed or required
16-30 to be maintained by Chapter 26 or by a rule adopted or a permit or
16-31 an order issued by the appropriate regulatory agency under Chapter
16-32 26.
16-33 (b) An offense under this section is punishable for an
16-34 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
16-35 both.
16-36 (c) An offense under this section is punishable for a person
16-37 other than an individual under Section 7.190(1)(D).
16-38 Sec. 7.152. FAILURE TO NOTIFY OR REPORT. (a) A person
16-39 commits an offense if the person intentionally or knowingly fails
16-40 to notify or report to the commission as required under Chapter 26
16-41 or by a rule adopted or a permit or an order issued by the
16-42 appropriate regulatory agency under Chapter 26.
16-43 (b) An offense under this section is punishable for an
16-44 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
16-45 both.
16-46 (c) An offense under this section is punishable for a person
16-47 other than an individual under Section 7.190(1)(D).
16-48 Sec. 7.153. FAILURE TO PAY FEE. (a) A person commits an
16-49 offense if the person intentionally or knowingly fails to pay a fee
16-50 required by Chapter 26 or by a rule adopted or a permit or an order
16-51 issued by the appropriate regulatory agency under Chapter 26.
16-52 (b) An offense under this section is punishable for an
16-53 individual under Section 7.190(1)(H) or Section 7.190(2)(B) or
16-54 both.
16-55 (c) An offense under this section is punishable for a person
16-56 other than an individual under Section 7.190(1)(H).
16-57 Sec. 7.154. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE
16-58 AND KNOWING ENDANGERMENT. (a) A person commits an offense if the
16-59 person, acting intentionally or knowingly, discharges or allows the
16-60 discharge of a waste or pollutant into or adjacent to water in the
16-61 state and by that action knowingly places another person in
16-62 imminent danger of death or serious bodily injury, unless the
16-63 discharge is made in strict compliance with all required permits or
16-64 with an order issued or rule adopted by the appropriate regulatory
16-65 agency.
16-66 (b) For purposes of Subsection (a), in determining whether a
16-67 defendant who is an individual knew that the violation placed
16-68 another person in imminent danger of death or serious bodily
16-69 injury, the defendant is responsible only for the defendant's
17-1 actual awareness or actual belief possessed. Knowledge possessed
17-2 by a person other than the defendant may not be attributed to the
17-3 defendant. To prove a defendant's actual knowledge, circumstantial
17-4 evidence may be used, including evidence that the defendant took
17-5 affirmative steps to be shielded from relevant information.
17-6 (c) An offense under this section is punishable for an
17-7 individual under Section 7.190(1)(D) or Section 7.190(2)(G) or
17-8 both. If an offense committed by an individual under this section
17-9 results in death or serious bodily injury to another person, the
17-10 individual may be punished under Section 7.190(1)(E) or Section
17-11 7.190(2)(I) or both.
17-12 (d) An offense under this section is punishable for a person
17-13 other than an individual under Section 7.190(1)(E). If an offense
17-14 committed by a person other than an individual under this section
17-15 results in death or serious bodily injury to another person, the
17-16 person may be punished under Section 7.190(1)(F).
17-17 Sec. 7.155. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE
17-18 AND ENDANGERMENT. (a) A person commits an offense if the person,
17-19 acting intentionally or knowingly with respect to the person's
17-20 conduct, discharges or allows the discharge of a waste or pollutant
17-21 into or adjacent to water in the state and by that action places
17-22 another person in imminent danger of death or serious bodily
17-23 injury, unless the discharge is made in strict compliance with all
17-24 required permits or with a valid and currently effective order
17-25 issued or rule adopted by the appropriate regulatory agency.
17-26 (b) An offense under this section is punishable for an
17-27 individual under Section 7.190(1)(D) or Section 7.190(2)(F) or
17-28 both. If an offense committed by an individual under this section
17-29 results in death or serious bodily injury to another person, the
17-30 individual may be punished under Section 7.190(1)(E) or Section
17-31 7.190(2)(G) or both.
17-32 (c) An offense under this section is punishable for a person
17-33 other than an individual under Section 7.190(1)(E). If an offense
17-34 committed by a person other than an individual under this section
17-35 results in death or serious bodily injury to another person, the
17-36 person may be punished under Section 7.190(1)(F).
17-37 Sec. 7.156. RECKLESS UNAUTHORIZED DISCHARGE AND
17-38 ENDANGERMENT. (a) A person commits an offense if the person,
17-39 acting recklessly with respect to the person's conduct, discharges
17-40 or allows the discharge of a waste or pollutant into or adjacent to
17-41 water in the state and by that action places another person in
17-42 imminent danger of death or serious bodily injury, unless the
17-43 discharge is made in strict compliance with all required permits or
17-44 with a valid and currently effective order issued or rule adopted
17-45 by the appropriate regulatory agency.
17-46 (b) An offense under this section is punishable for an
17-47 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
17-48 both. If an offense committed by an individual under this section
17-49 results in death or serious bodily injury to another person, the
17-50 individual may be punished under Section 7.190(1)(D) or Section
17-51 7.190(2)(F) or both.
17-52 (c) An offense under this section is punishable for a person
17-53 other than an individual under Section 7.190(1)(D). If an offense
17-54 committed by a person other than an individual under this section
17-55 results in death or serious bodily injury to another person, the
17-56 person may be punished under Section 7.190(1)(E).
17-57 Sec. 7.157. VIOLATION RELATING TO DISCHARGE OR SPILL.
17-58 (a) A person commits an offense if the person:
17-59 (1) operates, is in charge of, or is responsible for a
17-60 facility or vessel that causes a discharge or spill as defined by
17-61 Section 26.263 and does not report the spill or discharge on
17-62 discovery; or
17-63 (2) knowingly falsifies a record or report concerning
17-64 the prevention or cleanup of a discharge or spill.
17-65 (b) An offense under Subsection (a)(1) is a Class A
17-66 misdemeanor.
17-67 (c) An offense under Subsection (a)(2) is a felony of the
17-68 third degree.
17-69 Sec. 7.158. VIOLATION RELATING TO UNDERGROUND STORAGE TANK.
18-1 (a) A person or business entity commits an offense if:
18-2 (1) the person or business entity engages in the
18-3 installation, repair, or removal of an underground storage tank and
18-4 the person or business entity:
18-5 (A) does not hold a certificate of registration
18-6 issued under Section 26.452; and
18-7 (B) is not under the substantial control of a
18-8 person or business entity who holds a certificate of registration
18-9 issued under Section 26.452;
18-10 (2) the person or business entity:
18-11 (A) authorizes or allows the installation,
18-12 repair, or removal of an underground storage tank to be conducted
18-13 by a person or business entity who does not hold a certificate of
18-14 registration issued under Section 26.452; or
18-15 (B) authorizes or allows the installation,
18-16 repair, or removal of an underground storage tank to be performed
18-17 or supervised by a person or business entity who does not hold a
18-18 license issued under Section 26.456; or
18-19 (3) the conduct of the person or business entity makes
18-20 the person or business entity responsible for a violation of
18-21 Subchapter K, Chapter 26, or of a rule adopted or order issued
18-22 under that subchapter.
18-23 (b) A person commits an offense if the person performs or
18-24 supervises the installation, repair, or removal of an underground
18-25 storage tank unless:
18-26 (1) the person holds a license issued under Section
18-27 26.456; or
18-28 (2) another person who holds a license issued under
18-29 Section 26.456 is substantially responsible for the performance or
18-30 supervision of the installation, repair, or removal.
18-31 (c) An offense under this section is a Class A misdemeanor.
18-32 Sec. 7.159. VIOLATION RELATING TO INJECTION WELLS. (a) A
18-33 person commits an offense if the person knowingly or intentionally
18-34 violates Chapter 27 or a rule adopted or an order or a permit
18-35 issued under Chapter 27.
18-36 (b) An offense under this section is punishable under
18-37 Section 7.190(1)(B).
18-38 Sec. 7.160. VIOLATION RELATING TO PLUGGING WELLS. (a) A
18-39 person commits an offense if the person is the owner of a well that
18-40 is required to be cased or plugged by Chapter 28 and the person:
18-41 (1) fails or refuses to case or plug the well within
18-42 the 30-day period following the date of the commission's order to
18-43 do so; or
18-44 (2) fails to comply with any other order issued by the
18-45 commission under Chapter 28 within the 30-day period following the
18-46 date of the order.
18-47 (b) An offense under this section is a misdemeanor and is
18-48 punishable under Section 7.190(1)(A).
18-49 Sec. 7.161. VIOLATION RELATING TO WATER WELLS OR DRILLED OR
18-50 MINED SHAFTS. (a) A person commits an offense if the person
18-51 knowingly or intentionally violates Chapter 28 or a commission rule
18-52 adopted or an order or a permit issued under that chapter.
18-53 (b) An offense under this section is punishable under
18-54 Section 7.190(1)(B).
18-55 Sec. 7.162. VIOLATION RELATING TO CERTAIN SUBSURFACE
18-56 EXCAVATIONS. (a) A person commits an offense if the person
18-57 knowingly or intentionally violates Chapter 31 or a commission rule
18-58 adopted or an order or a permit issued under that chapter.
18-59 (b) An offense under this section is punishable under
18-60 Section 7.190(1)(B).
18-61 Sec. 7.163. VIOLATIONS RELATING TO PUBLIC DRINKING WATER AND
18-62 WATER SUPPLIES. (a) A person commits an offense if the person:
18-63 (1) violates Section 341.031, Health and Safety Code;
18-64 (2) violates Section 341.032(a) or (b), Health and
18-65 Safety Code;
18-66 (3) violates Section 341.033(a), (b), (c), (d), (e),
18-67 or (f), Health and Safety Code;
18-68 (4) constructs a drinking water supply system without
18-69 submitting completed plans and specifications as required by
19-1 Section 341.035(a), Health and Safety Code;
19-2 (5) establishes a drinking water supply system without
19-3 the commission's approval as required by Section 341.035(a), Health
19-4 and Safety Code;
19-5 (6) violates Section 341.035(b) or (c), Health and
19-6 Safety Code;
19-7 (7) does not remove a sign as required by Section
19-8 341.035(e), Health and Safety Code; or
19-9 (8) violates Section 341.036, Health and Safety Code.
19-10 (b) An offense under this section is punishable under
19-11 Section 7.190(1)(D).
19-12 (c) If it is shown on the trial of the defendant that the
19-13 defendant has been convicted of an offense under this section
19-14 within a year before the date on which the offense being tried
19-15 occurred, the subsequent offense under this section is a Class B
19-16 misdemeanor.
19-17 Sec. 7.164. VIOLATION RELATING TO SOLID WASTE IN ENCLOSED
19-18 CONTAINERS OR VEHICLES. (a) An operator of a solid waste facility
19-19 or a solid waste hauler commits an offense if the operator or
19-20 hauler disposes of solid waste in a completely enclosed container
19-21 or vehicle at a solid waste site or operation permitted as a Type
19-22 IV landfill:
19-23 (1) without having in possession the special permit
19-24 required by Section 361.091, Health and Safety Code;
19-25 (2) on a date or time not authorized by the
19-26 commission; or
19-27 (3) without a commission inspector present to verify
19-28 that the solid waste is free of putrescible, hazardous, and
19-29 infectious waste.
19-30 (b) An offense under this section is a Class B misdemeanor.
19-31 (c) This section does not apply to:
19-32 (1) a stationary compactor that is at a specific
19-33 location and that has an annual permit under Section 361.091,
19-34 Health and Safety Code, issued by the commission, on certification
19-35 to the commission by the generator that the contents of the
19-36 compactor are free of putrescible, hazardous, or infectious waste;
19-37 or
19-38 (2) an enclosed vehicle of a municipality if the
19-39 vehicle has a permit issued by the commission to transport brush or
19-40 construction-demolition waste and rubbish on designated dates, on
19-41 certification by the municipality to the commission that the
19-42 contents of the vehicle are free of putrescible, hazardous, or
19-43 infectious waste.
19-44 (d) In this section, "putrescible waste" means organic
19-45 waste, such as garbage, wastewater treatment plant sludge, and
19-46 grease trap waste, that may:
19-47 (1) be decomposed by microorganisms with sufficient
19-48 rapidity as to cause odors or gases; or
19-49 (2) provide food for or attract birds, animals, or
19-50 disease vectors.
19-51 Sec. 7.165. VIOLATIONS RELATING TO HAZARDOUS WASTE. (a) A
19-52 person commits an offense if the person, acting intentionally or
19-53 knowingly with respect to the person's conduct:
19-54 (1) transports, or causes or allows to be transported,
19-55 for storage, processing, or disposal, any hazardous waste to any
19-56 location that does not have all required permits;
19-57 (2) stores, processes, exports, or disposes of, or
19-58 causes to be stored, processed, exported, or disposed of, any
19-59 hazardous waste without all permits required by the appropriate
19-60 regulatory agency or in knowing violation of any material condition
19-61 or requirement of a permit or of an applicable interim status rule
19-62 or standard;
19-63 (3) omits or causes to be omitted material information
19-64 or makes or causes to be made any false material statement or
19-65 representation in any application, label, manifest, record, report,
19-66 permit, plan, or other document filed, maintained, or used to
19-67 comply with any requirement of Chapter 361, Health and Safety Code,
19-68 applicable to hazardous waste;
19-69 (4) generates, transports, stores, processes, or
20-1 disposes of, or otherwise handles, or causes to be generated,
20-2 transported, stored, processed, disposed of, or otherwise handled,
20-3 hazardous waste, whether the activity took place before or after
20-4 September 1, 1981, and who knowingly destroys, alters, conceals, or
20-5 does not file, or causes to be destroyed, altered, concealed, or
20-6 not filed, any record, application, manifest, report, or other
20-7 document required to be maintained or filed to comply with the
20-8 rules of the appropriate regulatory agency adopted under Chapter
20-9 361, Health and Safety Code;
20-10 (5) transports without a manifest, or causes or allows
20-11 to be transported without a manifest, any hazardous waste required
20-12 by rules adopted under Chapter 361, Health and Safety Code, to be
20-13 accompanied by a manifest;
20-14 (6) tampers with, modifies, disables, or fails to use
20-15 required pollution control or monitoring devices, systems, methods,
20-16 or practices, unless done in strict compliance with Chapter 361,
20-17 Health and Safety Code, or with an order, rule, or permit of the
20-18 appropriate regulatory agency;
20-19 (7) releases, causes, or allows the release of a
20-20 hazardous waste that causes or threatens to cause pollution, unless
20-21 the release is made in strict compliance with all required permits
20-22 or an order, rule, or permit of the appropriate regulatory agency;
20-23 or
20-24 (8) does not notify or report to the appropriate
20-25 regulatory agency as required by Chapter 361, Health and Safety
20-26 Code, or by a rule adopted or an order or a permit issued by the
20-27 appropriate regulatory agency under that chapter.
20-28 (b) An offense under Subsection (a)(1) or (a)(2) is
20-29 punishable for an individual under Section 7.190(1)(B) or Section
20-30 7.190(2)(G) or both. An offense under Subsection (a)(3), (a)(4),
20-31 or (a)(5) is punishable for an individual under Section 7.190(1)(B)
20-32 or Section 7.190(2)(E) or both. An offense under Subsection
20-33 (a)(6), (a)(7), or (a)(8) is punishable for an individual under
20-34 Section 7.190(1)(C) or Section 7.190(2)(D) or both.
20-35 (c) If it is shown on the trial of an individual that the
20-36 individual has been previously convicted of an offense under this
20-37 section, an offense under Subsection (a)(1) or (a)(2) is punishable
20-38 for an individual under Section 7.190(1)(C) or Section 7.190(2)(G)
20-39 or both, and an offense under Subsection (a)(3), (a)(4), or (a)(5)
20-40 is punishable for an individual under Section 7.190(1)(C) or
20-41 Section 7.190(2)(F) or both.
20-42 (d) An offense under Subsection (a)(1), (a)(2), (a)(3),
20-43 (a)(4), or (a)(5) is punishable for a person other than an
20-44 individual under Section 7.190(1)(D). If it is shown on the trial
20-45 of a person other than an individual that the person previously has
20-46 been convicted of an offense under Subsection (a)(1), (a)(2),
20-47 (a)(3), (a)(4), or (a)(5), the offense is punishable under Section
20-48 7.190(1)(E). An offense under Subsection (a)(6), (a)(7), or (a)(8)
20-49 is punishable for a person other than an individual under Section
20-50 7.190(1)(D).
20-51 Sec. 7.166. VIOLATIONS RELATING TO HAZARDOUS WASTE AND
20-52 ENDANGERMENT. (a) A person commits an offense if:
20-53 (1) acting intentionally or knowingly, the person
20-54 transports, processes, stores, exports, or disposes of, or causes
20-55 to be transported, processed, stored, exported, or disposed of,
20-56 hazardous waste in violation of Chapter 361, Health and Safety
20-57 Code, and by that action knowingly places another person in
20-58 imminent danger of death or serious bodily injury;
20-59 (2) acting intentionally or knowingly with respect to
20-60 the person's conduct, transports, processes, stores, exports, or
20-61 disposes of, or causes to be transported, processed, stored,
20-62 exported, or disposed of, hazardous waste in violation of Chapter
20-63 361, Health and Safety Code, and by that action places another
20-64 person in imminent danger of death or serious bodily injury, unless
20-65 the conduct charged is done in strict compliance with all required
20-66 permits or with an order issued or a rule adopted by the
20-67 appropriate regulatory agency;
20-68 (3) acting intentionally or knowingly with respect to
20-69 the person's conduct, releases or causes or allows the release of a
21-1 hazardous waste into the environment and by that action places
21-2 another person in imminent danger of death or serious bodily
21-3 injury, unless the release is made in strict compliance with all
21-4 required permits or an order issued or a rule adopted by the
21-5 appropriate regulatory agency; or
21-6 (4) acting recklessly with respect to the person's
21-7 conduct, releases or causes or allows the release of a hazardous
21-8 waste into the environment and by that action places another person
21-9 in imminent danger of death or serious bodily injury, unless the
21-10 release is made in strict compliance with all required permits or
21-11 an order issued or a rule adopted by the appropriate regulatory
21-12 agency.
21-13 (b) An offense under Subsection (a)(1) is punishable for an
21-14 individual under Section 7.190(1)(E) or Section 7.190(2)(H) or
21-15 both. An offense under Subsection (a)(1) is punishable for a
21-16 person other than an individual under Section 7.190(1)(F). If an
21-17 offense committed by an individual under Subsection (a)(1) results
21-18 in death or serious bodily injury to another person, the individual
21-19 may be punished under Section 7.190(1)(F) or Section 7.190(2)(J) or
21-20 both. If an offense committed by a person other than an individual
21-21 under Subsection (a)(1) results in death or serious bodily injury
21-22 to another person, the person may be punished under Section
21-23 7.190(1)(G). For purposes of Subsection (a)(1), in determining
21-24 whether a defendant who is an individual knew that the violation
21-25 placed another person in imminent danger of death or serious bodily
21-26 injury, the defendant is responsible only for the defendant's
21-27 actual awareness or actual belief possessed. Knowledge possessed
21-28 by a person other than the defendant may not be attributed to the
21-29 defendant. To prove a defendant's actual knowledge, circumstantial
21-30 evidence may be used, including evidence that the defendant took
21-31 affirmative steps to be shielded from relevant information.
21-32 (c) An offense under Subsection (a)(2) is punishable for an
21-33 individual under Section 7.190(1)(D) or Section 7.190(2)(F) or
21-34 both. An offense under Subsection (a)(2) is punishable for a
21-35 person other than an individual under Section 7.190(1)(E). If an
21-36 offense committed under Subsection (a)(2) results in death or
21-37 serious bodily injury to another person, an individual may be
21-38 punished under Section 7.190(1)(E) or Section 7.190(2)(G) or both.
21-39 If an offense committed by a person other than an individual under
21-40 Subsection (a)(2) results in death or serious bodily injury to
21-41 another person, the person may be punished under Section
21-42 7.190(1)(F).
21-43 (d) An offense under Subsection (a)(3) is punishable for an
21-44 individual under Section 7.190(1)(D) or Section 7.190(2)(F) or
21-45 both. An offense under Subsection (a)(3) is punishable for a
21-46 person other than an individual under Section 7.190(1)(E). If an
21-47 offense committed by an individual under Subsection (a)(3) results
21-48 in death or serious bodily injury to another person, the individual
21-49 may be punished under Section 7.190(1)(E) or Section 7.190(2)(G) or
21-50 both. If an offense committed by a person other than an individual
21-51 under Subsection (a)(3) results in death or serious bodily injury
21-52 to another person, the person may be punished under Section
21-53 7.190(1)(F).
21-54 (e) An offense under Subsection (a)(4) is punishable for an
21-55 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
21-56 both. An offense under Subsection (a)(4) is punishable for a
21-57 person other than an individual under Section 7.190(1)(E). If an
21-58 offense committed by an individual under Subsection (a)(4) results
21-59 in death or serious bodily injury to another person, the individual
21-60 may be punished under Section 7.190(1)(E) or Section 7.190(2)(E) or
21-61 both. If an offense committed by a person other than an individual
21-62 under Subsection (a)(4) results in death or serious bodily injury
21-63 to another person, the person may be punished under Section
21-64 7.190(1)(F).
21-65 Sec. 7.167. VIOLATIONS RELATING TO MEDICAL WASTE: LARGE
21-66 GENERATOR. (a) A person commits an offense if the person is a
21-67 large quantity generator and the person, acting intentionally or
21-68 knowingly with respect to the person's conduct:
21-69 (1) generates, collects, stores, processes, exports,
22-1 or disposes of, or causes or allows to be generated, collected,
22-2 stored, processed, exported, or disposed of, any medical waste
22-3 without all permits required by the appropriate regulatory agency
22-4 or in knowing violation of a material condition or requirement of a
22-5 permit or of an applicable interim status rule or standard; or
22-6 (2) generates, collects, stores, treats, transports,
22-7 or disposes of, or causes or allows to be generated, collected,
22-8 stored, treated, transported, or disposed of, or otherwise handles
22-9 any medical waste, and knowingly destroys, alters, conceals, or
22-10 does not file a record, report, manifest, or other document
22-11 required to be maintained or filed under rules adopted by the
22-12 appropriate regulatory agency.
22-13 (b) An offense under this section is punishable for an
22-14 individual under Section 7.190(1)(B) or Section 7.190(2)(G) or
22-15 both. If it is shown on the trial of an individual that the
22-16 individual has been previously convicted of an offense under this
22-17 section, the offense is punishable for an individual under Section
22-18 7.190(1)(C) or Section 7.190(2)(I) or both.
22-19 (c) An offense under this section is punishable for a person
22-20 other than an individual under Section 7.190(1)(B). If it is shown
22-21 on the trial of a person other than an individual that the person
22-22 has been previously convicted of an offense under this section, the
22-23 offense is punishable by Section 7.190(1)(C).
22-24 Sec. 7.168. VIOLATIONS RELATING TO MEDICAL WASTE: SMALL
22-25 GENERATOR. (a) A person commits an offense if the person is a
22-26 small quantity generator and the person, acting intentionally or
22-27 knowingly with respect to the person's conduct:
22-28 (1) generates, collects, stores, processes, exports,
22-29 or disposes of, or causes or allows to be generated, collected,
22-30 stored, processed, exported, or disposed of, any medical waste
22-31 without all permits required by the appropriate regulatory agency
22-32 or in knowing violation of any material condition or requirement of
22-33 a permit or of an applicable interim status rule or standard; or
22-34 (2) generates, collects, stores, treats, transports,
22-35 or disposes of, or causes or allows to be generated, collected,
22-36 stored, treated, transported, or disposed of, or otherwise handles
22-37 any medical waste, and knowingly destroys, alters, conceals, or
22-38 does not file a record, report, manifest, or other document
22-39 required to be maintained or filed under rules adopted by the
22-40 appropriate regulatory agency.
22-41 (b) An offense under this section is punishable for an
22-42 individual under Section 7.190(1)(A). If it is shown on the trial
22-43 of an individual that the individual has been previously convicted
22-44 of an offense under this section, the offense is punishable for an
22-45 individual under Section 7.190(1)(B) or Section 7.190(2)(C) or
22-46 both.
22-47 (c) An offense under this section is punishable for a person
22-48 other than an individual under Section 7.190(1)(B). If it is shown
22-49 on the trial of a person other than an individual that the person
22-50 has been previously convicted of an offense under this section, the
22-51 offense is punishable under Section 7.190(1)(C).
22-52 Sec. 7.169. VIOLATIONS RELATING TO TRANSPORTATION OF MEDICAL
22-53 WASTE. (a) A person commits an offense if the person, acting
22-54 intentionally or knowingly with respect to the person's conduct:
22-55 (1) transports, or causes or allows to be transported,
22-56 for storage, processing, or disposal, any medical waste to a
22-57 location that does not have all required permits;
22-58 (2) transports without a manifest, or causes or allows
22-59 to be transported without a manifest, any medical waste required to
22-60 be accompanied by a manifest under rules adopted by the appropriate
22-61 regulatory agency; or
22-62 (3) operates a vehicle that is transporting medical
22-63 waste, or that is authorized to transport medical waste, in
22-64 violation of a rule adopted by the appropriate regulatory agency,
22-65 including cleaning and safety regulations, that specifically
22-66 relates to the transportation of medical waste.
22-67 (b) An offense under this section is punishable for an
22-68 individual under Section 7.190(1)(B) or Section 7.190(2)(D) or
22-69 both. If it is shown on the trial of an individual that the
23-1 individual has been previously convicted of an offense under this
23-2 section, the offense is punishable for an individual under Section
23-3 7.190(1)(C) or Section 7.190(2)(E) or both.
23-4 (c) An offense under this section is punishable for a person
23-5 other than an individual under Section 7.190(1)(E). If it is shown
23-6 on the trial of a person other than an individual that the person
23-7 has been previously convicted of an offense under this section, the
23-8 offense is punishable under Section 7.190(1)(F).
23-9 Sec. 7.170. FALSE STATEMENTS RELATING TO MEDICAL WASTE.
23-10 (a) A person commits an offense if the person knowingly:
23-11 (1) makes a false material statement, or knowingly
23-12 causes or knowingly allows to be made a false material statement,
23-13 to a person who prepares a regulated medical waste label, manifest,
23-14 application, permit, plan, registration, record, report, or other
23-15 document required by an order or a rule of the appropriate
23-16 regulatory agency; or
23-17 (2) omits material information, or causes or allows
23-18 material information to be omitted, from a regulated medical waste
23-19 label, manifest, application, permit, plan, registration, record,
23-20 report, or other document required by an order or a rule of the
23-21 appropriate regulatory agency.
23-22 (b) An offense under this section is punishable for an
23-23 individual under Section 7.190(1)(B) or Section 7.190(2)(D) or
23-24 both. If it is shown on the trial of an individual that the
23-25 individual has been previously convicted of an offense under this
23-26 section, the offense is punishable for an individual under Section
23-27 7.190(1)(C) or Section 7.190(2)(E) or both.
23-28 (c) An offense under this section is punishable for a person
23-29 other than an individual under Section 7.190(1)(B). If it is shown
23-30 on the trial of a person other than an individual that the person
23-31 has been previously convicted of an offense under this section, the
23-32 offense is punishable under Section 7.190(1)(C).
23-33 Sec. 7.171. INTENTIONAL OR KNOWING VIOLATION RELATING TO
23-34 MEDICAL WASTE AND KNOWING ENDANGERMENT. (a) A person commits an
23-35 offense if the person, acting intentionally or knowingly,
23-36 transports, processes, stores, exports, or disposes of, or causes
23-37 to be transported, processed, stored, exported, or disposed of,
23-38 medical waste in violation of Chapter 361, Health and Safety Code,
23-39 and by that action knowingly places another person in imminent
23-40 danger of death or serious bodily injury.
23-41 (b) An offense under this section is punishable for an
23-42 individual under Section 7.190(1)(E) or Section 7.190(2)(H) or
23-43 both. If an offense committed by an individual under this section
23-44 results in death or serious bodily injury to another person, the
23-45 offense is punishable for an individual under Section 7.190(1)(F)
23-46 or Section 7.190(2)(J) or both.
23-47 (c) An offense under this section is punishable for a person
23-48 other than an individual under Section 7.190(1)(F). If an offense
23-49 committed by a person other than an individual under this section
23-50 results in death or serious bodily injury to another person, the
23-51 offense is punishable under Section 7.190(1)(G).
23-52 Sec. 7.172. INTENTIONAL OR KNOWING VIOLATION RELATING TO
23-53 MEDICAL WASTE AND ENDANGERMENT. (a) A person commits an offense
23-54 if the person, acting intentionally or knowingly with respect to
23-55 the person's conduct, transports, processes, stores, exports, or
23-56 disposes of medical waste in violation of Chapter 361, Health and
23-57 Safety Code, and by that action places another person in imminent
23-58 danger of death or serious bodily injury, unless the conduct
23-59 charged is done in strict compliance with all required permits or
23-60 with an order issued or rule adopted by the appropriate regulatory
23-61 agency.
23-62 (b) An offense under this section is punishable for an
23-63 individual under Section 7.190(1)(D) or Section 7.190(2)(F) or
23-64 both. If an offense committed by an individual under this section
23-65 results in death or serious bodily injury to another person, the
23-66 offense is punishable for an individual under Section 7.190(1)(E)
23-67 or Section 7.190(2)(G) or both.
23-68 (c) An offense under this section is punishable for a person
23-69 other than an individual under Section 7.190(1)(E). If an offense
24-1 committed by a person other than an individual under this section
24-2 results in death or serious bodily injury to another person, the
24-3 offense is punishable under Section 7.190(1)(F).
24-4 Sec. 7.173. INTENTIONAL OR KNOWING RELEASE OF MEDICAL WASTE
24-5 INTO ENVIRONMENT AND ENDANGERMENT. (a) A person commits an
24-6 offense if the person, acting intentionally or knowingly with
24-7 respect to the person's conduct, releases or causes or allows the
24-8 release of a medical waste into the environment and by that action
24-9 places another person in imminent danger of death or serious bodily
24-10 injury, unless the release is done in strict compliance with all
24-11 required permits or an order issued or rule adopted by the
24-12 appropriate regulatory agency.
24-13 (b) An offense under this section is punishable for an
24-14 individual under Section 7.190(1)(D) or Section 7.190(2)(G) or
24-15 both. If an offense committed by an individual under this section
24-16 results in death or serious bodily injury to another person, the
24-17 offense is punishable for an individual under Section 7.190(1)(E)
24-18 or Section 7.190(2)(G) or both.
24-19 (c) An offense under this section is punishable for a person
24-20 other than an individual under Section 7.190(1)(E). If an offense
24-21 committed by a person other than an individual under this section
24-22 results in death or serious bodily injury to another person, the
24-23 offense is punishable under Section 7.190(1)(F).
24-24 Sec. 7.174. RECKLESS RELEASE OF MEDICAL WASTE INTO
24-25 ENVIRONMENT AND ENDANGERMENT. (a) A person commits an offense if
24-26 the person, acting recklessly with respect to a person's conduct,
24-27 releases or causes or allows the release of a medical waste into
24-28 the environment and by that action places another person in
24-29 imminent danger of death or serious bodily injury, unless the
24-30 release is made in strict compliance with all required permits or
24-31 an order issued or rule adopted by the appropriate regulatory
24-32 agency.
24-33 (b) An offense under this section is punishable for an
24-34 individual under Section 7.190(1)(D) or Section 7.190(2)(D) or
24-35 both. If an offense committed by an individual under this section
24-36 results in death or serious bodily injury to another person, the
24-37 offense is punishable for an individual under Section 7.190(1)(E)
24-38 or Section 7.190(2)(E) or both.
24-39 (c) An offense under this section is punishable for a person
24-40 other than an individual under Section 7.190(1)(E). If an offense
24-41 committed by a person other than an individual under this section
24-42 results in death or serious bodily injury to another person, the
24-43 offense is punishable under Section 7.190(1)(F).
24-44 Sec. 7.175. FAILURE OF SEWAGE SYSTEM INSTALLER TO REGISTER.
24-45 (a) A person commits an offense if the person violates Section
24-46 366.071, Health and Safety Code.
24-47 (b) Except as provided by this subsection, an offense under
24-48 this section is a Class C misdemeanor. If it is shown on the trial
24-49 of the defendant that the defendant has been previously convicted
24-50 of an offense under this section, the offense is punishable under
24-51 Section 7.190(1)(A) or Section 7.190(2)(A) or both.
24-52 Sec. 7.176. VIOLATION RELATING TO SEWAGE DISPOSAL NEAR
24-53 INTERNATIONAL BORDER. (a) A person commits an offense if the
24-54 person violates a rule adopted by the commission under Chapter 366,
24-55 Health and Safety Code, or an order or resolution adopted by an
24-56 authorized agent under Subchapter C, Chapter 366, Health and Safety
24-57 Code, in a county that is contiguous to an international border.
24-58 (b) Except as provided by this subsection, an offense under
24-59 this section is a Class C misdemeanor. If it is shown on the trial
24-60 of the defendant that the defendant has been previously convicted
24-61 of an offense under this section, the offense is punishable under
24-62 Section 7.190(1)(A) or Section 7.190(2)(A) or both.
24-63 Sec. 7.177. VIOLATION OF SEWAGE DISPOSAL SYSTEM PERMIT
24-64 PROVISION. (a) A person commits an offense if the person begins
24-65 to construct, alter, repair, or extend an on-site sewage disposal
24-66 system owned by another person before the owner of the system
24-67 obtains a permit to construct, alter, repair, or extend the on-site
24-68 sewage disposal system as required by Subchapter D, Chapter 366,
24-69 Health and Safety Code.
25-1 (b) Except as provided by this subsection, an offense under
25-2 this section is a Class C misdemeanor. If it is shown on the trial
25-3 of the defendant that the defendant has previously been convicted
25-4 of an offense under this section, the offense is punishable under
25-5 Section 7.190(1)(A) or Section 7.190(2)(A) or both.
25-6 Sec. 7.178. EMERGENCY REPAIR NOT AN OFFENSE. An emergency
25-7 repair to an on-site sewage disposal system without a permit in
25-8 accordance with the rules adopted under Section 366.012(a)(1)(C),
25-9 Health and Safety Code, is not an offense under Section 7.175,
25-10 7.176, or 7.177 if a written statement describing the need for the
25-11 repair is provided to the commission or its authorized agent not
25-12 later than 72 hours after the repair is begun.
25-13 Sec. 7.179. VIOLATIONS RELATING TO HANDLING OF USED OIL.
25-14 (a) A person commits an offense if the person:
25-15 (1) intentionally discharges used oil into a sewer,
25-16 drainage system, septic tank, surface water or groundwater,
25-17 watercourse, or marine water;
25-18 (2) knowingly mixes or commingles used oil with solid
25-19 waste that is to be disposed of in landfills or directly disposes
25-20 of used oil on land or in landfills, unless the mixing or
25-21 commingling of used oil with solid waste that is to be disposed of
25-22 in landfills is incident to and the unavoidable result of the
25-23 mechanical shredding of motor vehicles, appliances, or other items
25-24 of scrap, used, or obsolete metals;
25-25 (3) knowingly transports, treats, stores, disposes of,
25-26 recycles, causes to be transported, or otherwise handles any used
25-27 oil within the state:
25-28 (A) in violation of standards or rules for the
25-29 management of used oil; or
25-30 (B) without first complying with the
25-31 registration requirements of Chapter 371, Health and Safety Code,
25-32 and rules adopted under that chapter;
25-33 (4) intentionally applies used oil to roads or land
25-34 for dust suppression, weed abatement, or other similar uses that
25-35 introduce used oil into the environment;
25-36 (5) violates an order of the commission to cease and
25-37 desist an activity prohibited by this section or a rule applicable
25-38 to a prohibited activity; or
25-39 (6) intentionally makes a false statement or
25-40 representation in an application, label, manifest, record, report,
25-41 permit, or other document filed, maintained, or used for purposes
25-42 of program compliance.
25-43 (b) It is an exception to the application of this section
25-44 that a person unknowingly disposes into the environment any used
25-45 oil that has not been properly segregated or separated by the
25-46 generator from other solid wastes.
25-47 (c) It is an exception to the application of Subsection
25-48 (a)(2) that the mixing or commingling of used oil with solid waste
25-49 that is to be disposed of in landfills is incident to and the
25-50 unavoidable result of the mechanical shredding of motor vehicles,
25-51 appliances, or other items of scrap, used, or obsolete metals.
25-52 (d) Except as provided by this subsection, an offense under
25-53 this section is punishable under Section 7.190(1)(B) or Section
25-54 7.190(2)(F), or both. If it is shown on the trial of the defendant
25-55 that the defendant has been previously convicted of an offense
25-56 under this section, the offense is punishable under Section
25-57 7.190(1)(C) or Section 7.190(2)(H) or both.
25-58 Sec. 7.180. VIOLATIONS OF CLEAN AIR ACT. (a) A person
25-59 commits an offense if the person intentionally or knowingly, with
25-60 respect to the person's conduct, violates:
25-61 (1) Section 382.0518(a), Health and Safety Code;
25-62 (2) Section 382.054, Health and Safety Code;
25-63 (3) Section 382.056(a), Health and Safety Code;
25-64 (4) Section 382.058(a), Health and Safety Code; or
25-65 (5) an order, permit, or exemption issued or a rule
25-66 adopted under Chapter 382, Health and Safety Code.
25-67 (b) An offense under this section is punishable for an
25-68 individual under Section 7.190(1)(B) or Section 7.190(2)(C) or
25-69 both.
26-1 (c) An offense under this section is punishable for a person
26-2 other than an individual under Section 7.190(1)(C).
26-3 Sec. 7.181. FAILURE TO PAY FEES UNDER CLEAN AIR ACT. (a) A
26-4 person commits an offense if the person intentionally or knowingly
26-5 does not pay a fee required by Chapter 382, Health and Safety Code,
26-6 or by a rule adopted or an order issued under that chapter.
26-7 (b) An offense under this section is punishable for an
26-8 individual under Section 7.190(1)(H) or Section 7.190(2)(B) or
26-9 both.
26-10 (c) An offense under this section is punishable for a person
26-11 other than an individual under Section 7.190(1)(H).
26-12 Sec. 7.182. FALSE REPRESENTATIONS UNDER CLEAN AIR ACT.
26-13 (a) A person commits an offense if the person intentionally or
26-14 knowingly makes or causes to be made a false material statement,
26-15 representation, or certification in, or omits material information
26-16 from, or knowingly alters, conceals, or does not file or maintain a
26-17 notice, application, record, report, plan, or other document
26-18 required to be filed or maintained by Chapter 382, Health and
26-19 Safety Code, or by a rule adopted or a permit or order issued under
26-20 that chapter.
26-21 (b) An offense under this section is punishable for an
26-22 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
26-23 both.
26-24 (c) An offense under this section is punishable for a person
26-25 other than an individual under Section 7.190(1)(D).
26-26 Sec. 7.183. FAILURE TO NOTIFY UNDER CLEAN AIR ACT. (a) A
26-27 person commits an offense if the person intentionally or knowingly
26-28 does not notify or report to the commission as required by Chapter
26-29 382, Health and Safety Code, or by a rule adopted or a permit or
26-30 order issued under that chapter.
26-31 (b) An offense under this section is punishable for an
26-32 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
26-33 both.
26-34 (c) An offense under this section is punishable for a person
26-35 other than an individual under Section 7.190(1)(D).
26-36 Sec. 7.184. IMPROPER USE OF MONITORING DEVICE. (a) A
26-37 person commits an offense if the person intentionally or knowingly
26-38 tampers with, modifies, disables, or fails to use a required
26-39 monitoring device; tampers with, modifies, or disables a monitoring
26-40 device; or falsifies, fabricates, or omits data from a monitoring
26-41 device, unless the act is done in strict compliance with Chapter
26-42 382, Health and Safety Code, or a permit, variance, or order issued
26-43 or a rule adopted by the commission.
26-44 (b) An offense under this section is punishable for an
26-45 individual under Section 7.190(1)(C) or Section 7.190(2)(D) or
26-46 both.
26-47 (c) An offense under this section is punishable for a person
26-48 other than an individual under Section 7.190(1)(D).
26-49 Sec. 7.185. RECKLESS EMISSION OF AIR CONTAMINANT AND
26-50 ENDANGERMENT. (a) A person commits an offense if the person
26-51 recklessly, with respect to the person's conduct, emits an air
26-52 contaminant that places another person in imminent danger of death
26-53 or serious bodily injury, unless the emission is made in strict
26-54 compliance with Chapter 382, Health and Safety Code, or a permit,
26-55 variance, or order issued or a rule adopted by the commission.
26-56 (b) An offense under this section is punishable for an
26-57 individual under Section 7.190(1)(D) or Section 7.190(2)(F) or
26-58 both.
26-59 (c) An offense under this section is punishable for a person
26-60 other than an individual under Section 7.190(1)(E).
26-61 Sec. 7.186. INTENTIONAL OR KNOWING EMISSION OF AIR
26-62 CONTAMINANT AND KNOWING ENDANGERMENT. (a) A person commits an
26-63 offense if the person intentionally or knowingly, with respect to
26-64 the person's conduct, emits an air contaminant with the knowledge
26-65 that the person is placing another person in imminent danger of
26-66 death or serious bodily injury unless the emission is made in
26-67 strict compliance with Chapter 382, Health and Safety Code, or a
26-68 permit, variance, or order issued or a rule adopted by the
26-69 commission.
27-1 (b) An offense under this section is punishable for an
27-2 individual under Section 7.190(1)(E) or Section 7.190(2)(F) or
27-3 both.
27-4 (c) An offense under this section is punishable for a person
27-5 other than an individual under Section 7.190(1)(F).
27-6 Sec. 7.187. VIOLATIONS RELATING TO RADIOACTIVE WASTE.
27-7 (a) A person commits an offense if the person:
27-8 (1) intentionally or knowingly violates a provision of
27-9 Chapter 401, Health and Safety Code, other than the offense
27-10 described by Subdivision (2); or
27-11 (2) intentionally or knowingly receives, processes,
27-12 concentrates, stores, transports, or disposes of radioactive waste
27-13 without a license issued under Chapter 401, Health and Safety Code.
27-14 (b) Except as provided by this subsection, an offense under
27-15 Subsection (a)(1) is a Class B misdemeanor. If it is shown on the
27-16 trial of the person that the person has previously been convicted
27-17 of an offense under Subsection (a)(1), the offense is a Class A
27-18 misdemeanor.
27-19 (c) Except as provided by this subsection, an offense under
27-20 Subsection (a)(2) is a Class A misdemeanor. If it is shown on the
27-21 trial of the person that the person has previously been convicted
27-22 of an offense under Subsection (a)(2), the offense is punishable
27-23 under Section 7.190(1)(D) or Section 7.190(2)(D) or both.
27-24 Sec. 7.188. KNOWING OR INTENTIONAL UNAUTHORIZED DISPOSAL OF
27-25 LEAD-ACID BATTERIES. (a) A person commits an offense if the
27-26 person knowingly or intentionally disposes of a lead-acid battery
27-27 other than as provided by Section 361.451, Health and Safety Code.
27-28 (b) An offense under this section is a Class A misdemeanor.
27-29 Sec. 7.189. SEPARATE OFFENSES. Each day a person engages in
27-30 conduct proscribed by this subchapter constitutes a separate
27-31 offense.
27-32 Sec. 7.190. PENALTIES. A person convicted of an offense
27-33 under this subchapter is punishable by:
27-34 (1) a fine, as imposed under the section creating the
27-35 offense, of:
27-36 (A) not more than $1,000;
27-37 (B) not less than $1,000 or more than $50,000;
27-38 (C) not less than $1,000 or more than $100,000;
27-39 (D) not less than $1,000 or more than $250,000;
27-40 (E) not less than $2,000 or more than $500,000;
27-41 (F) not less than $5,000 or more than
27-42 $1,000,000;
27-43 (G) not less than $10,000 or more than
27-44 $1,500,000; or
27-45 (H) not more than twice the amount of the
27-46 required fee;
27-47 (2) confinement for a period, as imposed by the
27-48 section creating the offense, not to exceed:
27-49 (A) 30 days;
27-50 (B) 90 days;
27-51 (C) 180 days;
27-52 (D) one year;
27-53 (E) two years;
27-54 (F) five years;
27-55 (G) 10 years;
27-56 (H) 15 years;
27-57 (I) 20 years; or
27-58 (J) 30 years; or
27-59 (3) both fine and confinement, as imposed by the
27-60 section creating the offense.
27-61 Sec. 7.191. REPEAT OFFENSES. If it is shown at the trial of
27-62 the defendant that the defendant has previously been convicted of
27-63 the same offense under this subchapter, the maximum punishment is
27-64 doubled with respect to both the fine and confinement, unless the
27-65 section creating the offense specifies otherwise.
27-66 Sec. 7.192. VENUE. Venue for prosecution of an alleged
27-67 violation under this subchapter is in:
27-68 (1) the county in which the violation is alleged to
27-69 have occurred;
28-1 (2) the county where the defendant resides;
28-2 (3) if the alleged violation involves the
28-3 transportation of a discharge, waste, or pollutant, any county to
28-4 which or through which the discharge, waste, or pollutant was
28-5 transported; or
28-6 (4) Travis County.
28-7 Sec. 7.193. DISPOSITION OF FINES. A fine recovered through
28-8 a prosecution brought under this subchapter shall be divided
28-9 equally between the state and any local government significantly
28-10 involved in prosecuting the case, except that if the court
28-11 determines that the state or the local government bore
28-12 significantly more of the burden of prosecuting the case, the court
28-13 may apportion up to 75 percent of the fine to the government that
28-14 predominantly prosecuted the case.
28-15 Sec. 7.194. NOTICE OF CONVICTION. In addition to a sentence
28-16 that may be imposed under this subchapter, a person other than an
28-17 individual that has been adjudged guilty of an offense may be
28-18 ordered by the court to give notice of the conviction to any person
28-19 the court considers appropriate.
28-20 Sec. 7.195. JUDGMENT OF CONVICTION. On conviction under
28-21 this subchapter, the clerk of the court in which the conviction is
28-22 returned shall send a copy of the judgment to the commission.
28-23 Sec. 7.196. PEACE OFFICERS. For purposes of this
28-24 subchapter, the authorized agents and employees of the Parks and
28-25 Wildlife Department are peace officers. Those agents and employees
28-26 are empowered to enforce this subchapter the same as any other
28-27 peace officer and for that purpose have the powers and duties of
28-28 peace officers assigned by Chapter 2, Code of Criminal Procedure.
28-29 Sec. 7.197. ALLEGATIONS. In alleging the name of a
28-30 defendant private corporation, it is sufficient to state in the
28-31 complaint, indictment, or information the corporate name or to
28-32 state any name or designation by which the corporation is known or
28-33 may be identified. It is not necessary to allege that the
28-34 defendant was lawfully incorporated.
28-35 Sec. 7.198. SUMMONS AND ARREST. (a) After a complaint is
28-36 filed or an indictment or information presented against a private
28-37 corporation under this subchapter, the court or clerk shall issue a
28-38 summons to the corporation. The summons shall be in the same form
28-39 as a capias except that:
28-40 (1) it shall summon the corporation to appear before
28-41 the court named at the place stated in the summons;
28-42 (2) it shall be accompanied by a certified copy of the
28-43 complaint, indictment, or information; and
28-44 (3) it shall provide that the corporation appear
28-45 before the court named at or before 10 a.m. of the Monday next
28-46 after the expiration of 20 days after it is served with summons,
28-47 except when service is made on the secretary of state, in which
28-48 instance the summons shall provide that the corporation appear
28-49 before the court named at or before 10 a.m. of the Monday next
28-50 after the expiration of 30 days after the secretary of state is
28-51 served with summons.
28-52 (b) No individual may be arrested upon a complaint,
28-53 indictment, or information against a private corporation.
28-54 Sec. 7.199. SERVICE OF SUMMONS. (a) A peace officer shall
28-55 serve a summons on a private corporation by personally delivering a
28-56 copy of it to the corporation's registered agent for service. If a
28-57 registered agent has not been designated or cannot with reasonable
28-58 diligence be found at the registered office, the peace officer
28-59 shall serve the summons by personally delivering a copy of it to
28-60 the president or a vice president of the corporation.
28-61 (b) If the peace officer certifies on the return that the
28-62 peace officer diligently but unsuccessfully attempted to effect
28-63 service under Subsection (a) or if the corporation is a foreign
28-64 corporation that has no certificate of authority, the peace officer
28-65 shall serve the summons on the secretary of state. On receipt of
28-66 the summons copy, the secretary of state shall immediately forward
28-67 it by certified or registered mail, return receipt requested,
28-68 addressed to the defendant corporation at its registered office or,
28-69 if it is a foreign corporation, at its principal office in the
29-1 state or country under whose law it was incorporated.
29-2 (c) The secretary of state shall keep a permanent record of
29-3 the date and time of receipt and the disposition of each summons
29-4 served under Subsection (b) together with the return receipt.
29-5 Sec. 7.200. ARRAIGNMENT AND PLEADINGS. In any criminal
29-6 action instituted against a private corporation under this
29-7 subchapter:
29-8 (1) appearance is for the purpose of arraignment; and
29-9 (2) the corporation has 10 full days after the day the
29-10 arraignment takes place and before the day the trial begins to file
29-11 written pleadings.
29-12 Sec. 7.201. APPEARANCE. (a) A defendant private
29-13 corporation appears through counsel or its representative.
29-14 (b) If a private corporation does not appear in response to
29-15 summons or appears but does not plead, the corporation is
29-16 considered to be present in person for all purposes, and the court
29-17 shall enter a plea of not guilty on the corporation's behalf and
29-18 may proceed with trial, judgment, and sentencing.
29-19 (c) After appearing and entering a plea in response to
29-20 summons, if a private corporation is absent without good cause at
29-21 any time during later proceedings, the corporation is considered to
29-22 be present in person for all purposes, and the court may proceed
29-23 with trial, judgment, or sentencing.
29-24 Sec. 7.202. FINE TREATED AS JUDGMENT IN CIVIL ACTION. If a
29-25 person other than an individual is found guilty of a violation of
29-26 this subchapter and a fine is imposed, the fine shall be entered
29-27 and docketed by the clerk of the court as a judgment against the
29-28 person, and the fine shall be of the same force and effect and be
29-29 enforced against the person in the same manner as if the judgment
29-30 were recovered in a civil action.
29-31 Sec. 7.203. EFFECT ON CERTAIN OTHER LAWS. Conduct
29-32 punishable as an offense under this subchapter that is also
29-33 punishable under another law may be prosecuted under either law.
29-34 Sec. 7.204. DEFENSE EXCLUDED. It is not a defense to
29-35 prosecution under this subchapter that the person did not know of
29-36 or was not aware of a rule, order, or statute.
29-37 Sec. 7.205. PROOF OF KNOWLEDGE. In determining whether a
29-38 defendant who is an individual knew that the violation placed
29-39 another person in imminent danger of death or serious bodily injury
29-40 under Section 7.171, 7.172, 7.173, or 7.174, the defendant is
29-41 responsible only for the defendant's actual awareness or actual
29-42 belief possessed. Knowledge possessed by a person other than the
29-43 defendant may not be attributed to the defendant. To prove a
29-44 defendant's actual knowledge, however, circumstantial evidence may
29-45 be used, including evidence that the defendant took affirmative
29-46 steps to be shielded from relevant information.
29-47 (Sections 7.206-7.250 reserved for expansion
29-48 SUBCHAPTER F. DEFENSES
29-49 Sec. 7.251. ACT OF GOD. If a person can establish that an
29-50 event that would otherwise be a violation of a statute within the
29-51 commission's jurisdiction or a rule adopted or an order or a permit
29-52 issued under such a statute was caused solely by an act of God,
29-53 war, strike, riot, or other catastrophe, the event is not a
29-54 violation of that statute, rule, order, or permit.
29-55 Sec. 7.252. DEFENSES TO ENDANGERMENT OFFENSES. It is an
29-56 affirmative defense to prosecution under Section 7.154, 7.155,
29-57 7.156, 7.166, 7.171, 7.172, 7.173, 7.174, 7.185, or 7.186 that:
29-58 (1) the conduct charged was freely consented to by the
29-59 person endangered and that the danger and conduct charged were
29-60 reasonably foreseeable hazards of the person's occupation,
29-61 business, or profession or a medical treatment or medical or
29-62 scientific experimentation conducted by professionally approved
29-63 methods and the person endangered had been made aware of the risks
29-64 involved before giving consent; or
29-65 (2) the person charged was an employee who was
29-66 carrying out the person's normal activities and was acting under
29-67 orders from the person's employer, unless the person charged
29-68 engaged in knowing and wilful violations.
29-69 Sec. 7.253. DEFENSES AVAILABLE TO PERSON RESPONSIBLE FOR
30-1 SOLID WASTE VIOLATIONS. (a) For purposes of an enforcement action
30-2 initiated under this chapter, a person responsible for solid waste
30-3 under Section 361.271, Health and Safety Code, is liable for a
30-4 violation of a statutory or regulatory prohibition against
30-5 releasing or creating an imminent threat of releasing solid waste
30-6 unless the person can establish by a preponderance of the evidence
30-7 that the release or threatened release was caused solely by an act
30-8 or omission of a third person and that the defendant:
30-9 (1) exercised due care concerning the solid waste,
30-10 considering the characteristics of the solid waste, in light of all
30-11 relevant facts and circumstances; and
30-12 (2) took precautions against foreseeable acts or
30-13 omissions of the third person and the consequences that could
30-14 foreseeably result from those acts or omissions.
30-15 (b) The defense under Subsection (a) does not apply if the
30-16 third person:
30-17 (1) is an employee or agent of the defendant; or
30-18 (2) has a direct or indirect contractual relationship
30-19 with the defendant and the act or omission of the third person
30-20 occurred in connection with the contractual relationship. The term
30-21 "contractual relationship" includes land contracts, deeds, or other
30-22 instruments transferring title or possession of real property.
30-23 (c) A defendant who enters into a contractual relationship
30-24 as provided by Subsection (b)(2) is not liable under a statute or
30-25 rule within the commission's jurisdiction if:
30-26 (1) the sole contractual relationship is acceptance
30-27 for rail carriage by a common carrier under a published tariff; or
30-28 (2) the defendant acquired the real property on which
30-29 the facility requiring the remedial action is located after the
30-30 disposal or placement of the hazardous substance on, in, or at the
30-31 facility, and the defendant establishes by a preponderance of the
30-32 evidence that:
30-33 (A) the defendant exercised due care concerning
30-34 the solid waste, considering the characteristics of the solid
30-35 waste, in light of all relevant facts and circumstances; and
30-36 (B) the defendant took precautions against
30-37 foreseeable acts or omissions of the third person and the
30-38 consequences that could foreseeably result from those acts or
30-39 omissions; or
30-40 (C) at the time the defendant acquired the
30-41 facility the defendant did not know and had no reason to know that
30-42 a hazardous substance that is the subject of the release or
30-43 threatened release was disposed of on, in, or at the facility;
30-44 (D) the defendant is a governmental entity that
30-45 acquired the facility by escheat, by other involuntary transfer or
30-46 acquisition, or by the exercise of the power of eminent domain; or
30-47 (E) the defendant acquired the facility by
30-48 inheritance or bequest.
30-49 (d) To demonstrate the condition under Subsection (c)(2)(C),
30-50 the defendant must have made, at the time of acquisition,
30-51 appropriate inquiry into the previous ownership and uses of the
30-52 property consistent with good commercial or customary practice in
30-53 an effort to minimize liability. In deciding whether the defendant
30-54 meets this condition, the court shall consider:
30-55 (1) any specialized knowledge or experience of the
30-56 defendant;
30-57 (2) the relationship of the purchase price to the
30-58 value of the property if the property were uncontaminated;
30-59 (3) commonly known or reasonably ascertainable
30-60 information about the property;
30-61 (4) the obvious presence or likely presence of
30-62 contamination of the property; and
30-63 (5) the defendant's ability to detect the
30-64 contamination by appropriate inspection.
30-65 (e) This section does not decrease the liability of a
30-66 previous owner or operator of a facility who is liable under a
30-67 statute or rule within the commission's jurisdiction. If the
30-68 defendant obtained actual knowledge of the release or threatened
30-69 release of a hazardous substance at a facility at the time the
31-1 defendant owned the real property on which the facility is located
31-2 and subsequently transferred ownership of the property to another
31-3 person without disclosing that knowledge, the defendant is liable
31-4 and a defense under this section is not available to the defendant.
31-5 (f) Subsections (c), (d), and (e) do not affect the
31-6 liability, under a statute or rule within the commission's
31-7 jurisdiction, of a defendant who, by an act or omission, caused or
31-8 contributed to the release or threatened release of a hazardous
31-9 substance that is the subject of the action concerning the
31-10 facility.
31-11 Sec. 7.254. DEFENSE TO USED OIL OFFENSES. It is an
31-12 affirmative defense to prosecution under Section 7.179 that the
31-13 person unknowingly disposed of used oil into the environment
31-14 because the used oil had not been properly segregated or separated
31-15 by the generator from other solid wastes.
31-16 Sec. 7.255. DEFENSE TO HAZARDOUS WASTE ENDANGERMENT. It is
31-17 an affirmative defense to prosecution under Section 7.166 that the
31-18 conduct charged was freely consented to by the person endangered
31-19 and that the danger and conduct charged were reasonably foreseeable
31-20 hazards of the person's occupation, business, or profession or a
31-21 medical treatment or medical or scientific experimentation
31-22 conducted by professionally approved methods and the person
31-23 endangered had been made aware of the risks involved before giving
31-24 consent.
31-25 Sec. 7.256. DEFENSE EXCLUDED. Unless otherwise provided by
31-26 this chapter, the fact that a person holds a permit issued by the
31-27 commission does not relieve that person from liability for the
31-28 violation of a statute within the commission's jurisdiction or a
31-29 rule adopted or an order or a permit issued under such a statute.
31-30 (Sections 7.257-7.300 reserved for expansion
31-31 SUBCHAPTER G. REVOCATION AND SUSPENSION OF PERMITS,
31-32 LICENSES, CERTIFICATES, AND REGISTRATIONS
31-33 Sec. 7.301. DEFINITION. In this subchapter:
31-34 (1) "License," "certificate," "registration," and
31-35 "exemption" have the meanings assigned by commission rule.
31-36 (2) "Permit holder" or "holder of a permit" includes
31-37 each member of a partnership or association and, with respect to a
31-38 corporation, each officer and the owner or owners of a majority of
31-39 the corporate stock, provided such partner or owner controls at
31-40 least 20 percent of the permit holder.
31-41 Sec. 7.302. GROUNDS FOR REVOCATION OR SUSPENSION OF PERMIT.
31-42 (a) This section applies to a permit or exemption issued by the
31-43 commission under:
31-44 (1) Chapter 11, 18, 26, 27, 28, or 31 of this code;
31-45 (2) Subchapter C or R, Chapter 361, Health and Safety
31-46 Code;
31-47 (3) Subchapter D, Chapter 366, Health and Safety Code;
31-48 (4) Chapter 382, Health and Safety Code; or
31-49 (5) a rule adopted under any of those provisions.
31-50 (b) After notice and hearing, the commission may revoke,
31-51 suspend, or revoke and reissue a permit or exemption on any of the
31-52 following grounds:
31-53 (1) violating any term or condition of the permit, and
31-54 revocation, suspension, or revocation and reissuance is necessary
31-55 in order to maintain the quality of water or the quality of air in
31-56 the state, or to otherwise protect human health and the environment
31-57 consistent with the objectives of the statutes or rules within the
31-58 commission's jurisdiction;
31-59 (2) having a record of environmental violations in the
31-60 preceding five years at the permitted or exempted site;
31-61 (3) a discharge, release, or emission contravening a
31-62 pollution control standard set by the commission or contravening
31-63 the intent of a statute or rule described in Subsection (a);
31-64 (4) including a material mistake in a federal
31-65 operating permit issued under Chapter 382, Health and Safety Code,
31-66 or making an inaccurate statement in establishing an emissions
31-67 standard or other term or condition of a federal operating permit;
31-68 (5) misrepresenting or failing to disclose fully all
31-69 relevant facts in obtaining the permit or misrepresenting to the
32-1 commission any relevant fact at any time;
32-2 (6) a permit holder being indebted to the state for
32-3 fees, payment of penalties, or taxes imposed by the statutes or
32-4 rules within the commission's jurisdiction;
32-5 (7) a permit holder failing to ensure that the
32-6 management of the permitted facility conforms or will conform to
32-7 the statutes and rules within the commission's jurisdiction;
32-8 (8) the permit is subject to cancellation or
32-9 suspension under Section 26.084;
32-10 (9) abandoning the permit or operations under the
32-11 permit;
32-12 (10) the commission finds that a change in conditions
32-13 requires elimination of the discharge authorized by the permit; or
32-14 (11) with respect to a permit issued under Chapter 18,
32-15 failing to continue to possess qualifications necessary for the
32-16 issuance of an original permit.
32-17 Sec. 7.303. GROUNDS FOR REVOCATION OR SUSPENSION OF LICENSE,
32-18 CERTIFICATE, OR REGISTRATION. (a) This section applies to a
32-19 license, certificate, or registration issued:
32-20 (1) by the commission under:
32-21 (A) Subchapter G, Chapter 13, of this code;
32-22 (B) Section 26.0301 or 26.459 of this code;
32-23 (C) Chapter 18, 32, 33, or 34 of this code;
32-24 (D) Section 361.0861, 361.092, or 361.112,
32-25 Health and Safety Code; or
32-26 (E) Chapter 366, 371, or 401, Health and Safety
32-27 Code;
32-28 (2) by a county under Subchapter E, Chapter 361,
32-29 Health and Safety Code; or
32-30 (3) under a rule adopted under any of those
32-31 provisions.
32-32 (b) After notice and hearing, the commission may suspend or
32-33 revoke a license, certificate, or registration the commission or a
32-34 county has issued, place on probation a person whose license,
32-35 certificate, or registration has been suspended, reprimand the
32-36 holder of a license, certificate, or registration, or refuse to
32-37 renew or reissue a license, certificate, or registration on any of
32-38 the following grounds:
32-39 (1) having a record of environmental violations in the
32-40 preceding five years at the licensed, certified, or registered
32-41 site;
32-42 (2) committing fraud or deceit in obtaining the
32-43 license, certificate, or registration;
32-44 (3) demonstrating gross negligence, incompetency, or
32-45 misconduct while acting as holder of a license, certificate, or
32-46 registration;
32-47 (4) making an intentional misstatement or
32-48 misrepresentation of fact in information required to be maintained
32-49 or submitted to the commission by the holder of the license,
32-50 certificate, or registration;
32-51 (5) failing to keep and transmit records as required
32-52 by a statute within the commission's jurisdiction or a rule adopted
32-53 under such a statute;
32-54 (6) being indebted to the state for a fee, payment of
32-55 a penalty, or a tax imposed by a statute within the commission's
32-56 jurisdiction or a rule adopted under such a statute;
32-57 (7) with respect to a certificate of public
32-58 convenience and necessity, failing to provide continuous and
32-59 adequate service in the area, or part of the area, covered by the
32-60 certificate;
32-61 (8) with respect to a license issued under Chapter 18,
32-62 failing to continue to possess qualifications necessary for the
32-63 issuance of an original license;
32-64 (9) with respect to a certificate of competency issued
32-65 under Section 26.0301, violating a discharge permit of a sewage
32-66 treatment plant, unless:
32-67 (A) the holder of the certificate is unable to
32-68 properly operate the sewage treatment facility due to the refusal
32-69 of the permit holder to authorize necessary expenditures to operate
33-1 the sewage treatment facility properly; or
33-2 (B) failure of the sewage treatment facility to
33-3 comply with its discharge permit results from faulty design of the
33-4 sewage treatment facility;
33-5 (10) with respect to a license issued under Chapter
33-6 32, failing to advise a person for whom a well is being drilled
33-7 that injurious water has been encountered, is a pollution hazard,
33-8 and must be immediately plugged in an acceptable manner;
33-9 (11) with respect to a registration issued under
33-10 Chapter 366, Health and Safety Code, violating that chapter or a
33-11 rule adopted under that chapter; or
33-12 (12) with respect to a license issued under Subchapter
33-13 E, Chapter 361, Health and Safety Code, violating that chapter or
33-14 another applicable law or a commission rule governing the
33-15 processing, storage, or disposal of solid waste.
33-16 Sec. 7.304. SUSPENSION OF REGISTRATION OR REIMBURSEMENT
33-17 PAYMENT ISSUED UNDER WASTE TIRE RECYCLING PROGRAM. Notwithstanding
33-18 Sections 7.303, 7.305, and 7.306, the commission may suspend a
33-19 registration of or reimbursement payment to a waste tire processor,
33-20 waste tire transporter, waste tire generator, waste tire recycling
33-21 facility, or waste tire energy recovery facility, without notice or
33-22 hearing, on the initiation of an enforcement proceeding under this
33-23 chapter and while the proceeding is pending for a violation of
33-24 Subchapter P, Chapter 361, Health and Safety Code, or a rule
33-25 adopted or order issued under that subchapter.
33-26 Sec. 7.305. PROCEDURES. The commission by rule shall
33-27 establish procedures for public notice and any public hearing under
33-28 this subchapter. The procedures shall provide for notice to a
33-29 county that issued a license, certificate, or registration that is
33-30 the subject of the hearing.
33-31 Sec. 7.306. HEARINGS. A hearing under this subchapter shall
33-32 be conducted in accordance with the hearing rules adopted by the
33-33 commission and the applicable provisions of Chapter 2001,
33-34 Government Code.
33-35 Sec. 7.307. CONSENT. If the holder of a permit, license,
33-36 certificate, or registration requests or consents to the revocation
33-37 or suspension of the permit, license, certificate, or
33-38 registration, the executive director may revoke or suspend the
33-39 permit, license, exemption, certificate, or registration without a
33-40 hearing.
33-41 Sec. 7.308. OTHER RELIEF. A proceeding brought by the
33-42 commission under this subchapter does not affect the commission's
33-43 authority to bring suit for injunctive relief or penalty or both
33-44 under this chapter.
33-45 Sec. 7.309. PROBATION REQUIREMENTS. If a license,
33-46 certificate, or registration suspension is probated, the commission
33-47 may require the holder of the license, certificate, or
33-48 registration:
33-49 (1) to report regularly to the commission on matters
33-50 that are the basis of the probation;
33-51 (2) to limit activities to the areas prescribed by the
33-52 commission; or
33-53 (3) to continue or renew professional education until
33-54 the registrant attains a degree of skill satisfactory to the
33-55 commission in those areas that are the basis of the probation.
33-56 Sec. 7.310. REVOCATION OR SUSPENSION BY COUNTY. With
33-57 respect to a license, certificate, or registration issued by a
33-58 county under a statute or rule within the commission's
33-59 jurisdiction, the issuing county may suspend or revoke the license,
33-60 certificate, or registration on the grounds provided under Section
33-61 7.303.
33-62 (Sections 7.311-7.350 reserved for expansion
33-63 SUBCHAPTER H. RECEIVERSHIP; SUPERVISION
33-64 OF CERTAIN UTILITIES
33-65 Sec. 7.351. RECEIVERSHIP. (a) At the request of the
33-66 commission, the attorney general shall bring suit for the
33-67 appointment of a receiver to collect the assets and carry on the
33-68 business of a water or sewer utility that has abandoned operation
33-69 of its facilities or violates a final order of the commission or
34-1 allows any property owned or controlled by the utility to be used
34-2 in violation of a final order of the commission.
34-3 (b) The court shall appoint a receiver if an appointment is
34-4 necessary:
34-5 (1) to guarantee the collection of assessments, fees,
34-6 penalties, or interest;
34-7 (2) to guarantee continued service to the customers of
34-8 the utility; or
34-9 (3) to prevent continued or repeated violation of the
34-10 final order.
34-11 (c) The receiver shall execute a bond to assure the proper
34-12 performance of the receiver's duties in an amount to be set by the
34-13 court.
34-14 (d) After appointment and execution of bond, the receiver
34-15 shall take possession of the assets of the utility specified by the
34-16 court. Until discharged by the court, the receiver shall perform
34-17 the duties that the court directs to preserve the assets and carry
34-18 on the business of the utility and shall strictly observe the final
34-19 order involved.
34-20 (e) On a showing of good cause by the utility, the court may
34-21 dissolve the receivership and order the assets and control of the
34-22 business returned to the utility.
34-23 Sec. 7.352. PAYMENT OF COSTS OF RECEIVERSHIP. The receiver
34-24 may, subject to the approval of the court and after giving notice
34-25 to all interested parties, sell or otherwise dispose of all or part
34-26 of the real or personal property of a water or sewer utility
34-27 against which a proceeding has been brought under Section 7.351 to
34-28 pay the costs incurred in the operation of the receivership. The
34-29 costs include:
34-30 (1) payment of fees to the receiver for the receiver's
34-31 services;
34-32 (2) payment of fees to attorneys, accountants,
34-33 engineers, or any other person or entity that provides goods or
34-34 services necessary to the operation of the receivership; and
34-35 (3) payment of costs incurred in ensuring that any
34-36 property owned or controlled by a water or sewer utility is not
34-37 used in violation of a final order of the commission.
34-38 Sec. 7.353. SUPERVISION OF CERTAIN UTILITIES. (a) The
34-39 commission, after giving the utility notice and an opportunity for
34-40 a hearing, may place a utility under supervision for gross or
34-41 continuing mismanagement, gross or continuing noncompliance with
34-42 Chapter 13 or commission rules, or noncompliance with commission
34-43 orders.
34-44 (b) While supervising a utility, the commission may require
34-45 the utility to:
34-46 (1) meet conditions and requirements prescribed by the
34-47 commission, including:
34-48 (A) management requirements;
34-49 (B) additional reporting requirements;
34-50 (C) restrictions on hiring, salary or benefit
34-51 increases, capital investment, borrowing, stock issuance or
34-52 dividend declarations, or liquidation of assets; and
34-53 (D) a requirement that the utility place the
34-54 utility's funds into an account in a financial institution approved
34-55 by the commission and that use of those funds be restricted to
34-56 reasonable and necessary utility expenses; or
34-57 (2) obtain commission approval before taking an action
34-58 restricted under Subdivision (1).
34-59 (c) An action or transaction for which commission approval
34-60 is required by this section that occurs without commission approval
34-61 may be voided by the commission.
34-62 Sec. 7.354. OPERATION OF UTILITY THAT DISCONTINUES OPERATION
34-63 OR IS REFERRED FOR APPOINTMENT OF RECEIVER. (a) The commission,
34-64 after giving the utility notice and an opportunity for a hearing,
34-65 may authorize a willing person to temporarily manage and operate a
34-66 utility that has discontinued or abandoned operations or the
34-67 provision of services or is being referred to the attorney general
34-68 for the appointment of a receiver under Section 7.351.
34-69 (b) The commission may appoint a person under this section
35-1 by emergency order under Section 5.511 and may authorize an
35-2 emergency rate increase by emergency order under Section 5.512.
35-3 (c) A person appointed under Subsection (a) or Subsection
35-4 (b) has the powers and duties necessary to ensure the continued
35-5 operation of the utility and the provision of continuous and
35-6 adequate services to customers, including the power and duty to:
35-7 (1) read meters;
35-8 (2) bill for utility services;
35-9 (3) collect revenues;
35-10 (4) disburse funds; and
35-11 (5) request rate increases.
35-12 (d) This section does not affect the commission's authority
35-13 to pursue an enforcement claim against a utility or an affiliated
35-14 interest.
35-15 (Sections 7.355-7.400 reserved for expansion
35-16 SUBCHAPTER I. SUIT BY OTHERS
35-17 Sec. 7.401. CIVIL SUITS. If it appears that a violation or
35-18 threat of violation of Chapter 16, 26, 28, or 34 of this code or
35-19 Chapter 341, 361, 371, 372, or 382, Health and Safety Code, or a
35-20 provision of Chapter 401, Health and Safety Code, under the
35-21 commission's jurisdiction or a rule adopted or an order or a permit
35-22 issued under those chapters or provisions has occurred or is
35-23 occurring in the jurisdiction of a local government, the local
35-24 government or, in the case of a violation of Chapter 401, Health
35-25 and Safety Code, a person affected as defined in that chapter, may
35-26 institute a civil suit under Subchapter D in the same manner as the
35-27 commission in a district court by its own attorney for the
35-28 injunctive relief or civil penalty, or both, as authorized by this
35-29 chapter against the person who committed, is committing, or is
35-30 threatening to commit the violation.
35-31 Sec. 7.402. RESOLUTION REQUIRED. In the case of a violation
35-32 of Chapter 26 of this code or Chapter 382, Health and Safety Code,
35-33 a local government may not exercise the enforcement power
35-34 authorized by this subchapter unless its governing body adopts a
35-35 resolution authorizing the exercise of the power.
35-36 Sec. 7.403. COMMISSION NECESSARY PARTY. In a suit brought
35-37 by a local government under this subchapter, the commission is a
35-38 necessary and indispensable party.
35-39 Sec. 7.404. COSTS AND FEES. A penalty collected in a suit
35-40 under this subchapter for a violation of Chapter 28 of this code or
35-41 Chapter 401, Health and Safety Code, shall be paid to the state.
35-42 If the suit is brought by a local government or, in the case of a
35-43 violation of Chapter 401, Health and Safety Code, a person affected
35-44 as defined in that chapter, the court shall include in any final
35-45 judgment in favor of the local government or affected person an
35-46 award to cover reasonable costs and attorney's fees.
35-47 Sec. 7.405. COMPLAINTS. In the case of a violation of
35-48 Chapter 401, Health and Safety Code, a local government or person
35-49 affected may file with the commission a written complaint and may
35-50 request an investigation of an alleged violation by a person who
35-51 holds a permit subject to the commission's jurisdiction.
35-52 Sec. 7.406. COMMISSION REPLY. The commission shall reply to
35-53 the local government or person affected who filed a complaint under
35-54 Section 7.405 in writing not later than the 60th day after the
35-55 complaint is received and shall provide a copy of any investigation
35-56 report relevant to the complaint together with a determination of
35-57 whether the alleged violation was committed.
35-58 Sec. 7.407. PROSECUTION. A local government or, in the case
35-59 of a violation of Chapter 401, Health and Safety Code, a person
35-60 affected as defined in that chapter may bring suit in the county in
35-61 which the alleged violation occurred or is about to occur, if the
35-62 commission does not have a suit filed before the 121st day after
35-63 the date on which the written complaint is filed under Section
35-64 7.405.
35-65 Sec. 7.408. OTHER REQUIREMENTS. In the case of a violation
35-66 of Chapter 34, the regulatory authority of any local government may
35-67 require compliance with any reasonable inspection requirements or
35-68 ordinances or regulations designed to protect the public water
35-69 supply and pay any reasonable fees imposed by the local government
36-1 relating to work performed within its jurisdiction.
36-2 SECTION 3. Section 11.081, Water Code, is amended to read as
36-3 follows:
36-4 Sec. 11.081. UNLAWFUL USE OF STATE WATER. [(a)] No person
36-5 may wilfully take, divert, or appropriate any state water for any
36-6 purpose without first complying with all applicable requirements of
36-7 this chapter.
36-8 [(b) A person who violates any provision of this section is
36-9 guilty of a misdemeanor and upon conviction is punishable by a fine
36-10 of not more than $100 or by confinement in the county jail for not
36-11 more than six months or by both.]
36-12 [(c) A person commits a separate offense each day he
36-13 continues to take, divert, or appropriate water in violation of
36-14 this section.]
36-15 [(d) Possession of state water when the right to its use has
36-16 not been acquired according to the provisions of this chapter is
36-17 prima facie evidence of a violation of this section.]
36-18 SECTION 4. Section 11.083, Water Code, is amended to read as
36-19 follows:
36-20 Sec. 11.083. OTHER UNLAWFUL TAKING. (a) No person may
36-21 wilfully open, close, change, or interfere with any headgate or
36-22 water box without lawful authority.
36-23 (b) No person may wilfully use water or conduct water
36-24 through his ditch or upon his land unless he is entitled to do so.
36-25 [(c) A person who violates any provision of this section is
36-26 guilty of a misdemeanor and upon conviction is punishable by a fine
36-27 of not less than $10 nor more than $1,000 or by confinement in the
36-28 county jail for not more than six months.]
36-29 [(d) The possession or use of water on his land by a person
36-30 not entitled to the water by the provisions of this code is prima
36-31 facie evidence of a violation of this section.]
36-32 SECTION 5. Section 11.084, Water Code, is amended to read as
36-33 follows:
36-34 Sec. 11.084. SALE OF PERMANENT WATER RIGHT WITHOUT A PERMIT.
36-35 [(a)] No person may sell or offer to sell a permanent water right
36-36 unless he has perfected a right to appropriate state water by a
36-37 certified filing, or unless he has obtained a permit from the
36-38 commission, authorizing the use of the water for the purposes for
36-39 which the permanent water right is conveyed.
36-40 [(b) A person who violates Subsection (a) of this section is
36-41 guilty of a misdemeanor and upon conviction is punishable by a fine
36-42 of not less than $100 nor more than $1,000 or by confinement in the
36-43 county jail for not more than one year or by both.]
36-44 SECTION 6. Section 11.085, Water Code, is amended to read as
36-45 follows:
36-46 Sec. 11.085. INTERWATERSHED TRANSFERS. (a) No person may
36-47 take or divert any of the water of the ordinary flow, underflow, or
36-48 storm flow of any stream, watercourse, or watershed in this state
36-49 into any other natural stream, watercourse, or watershed to the
36-50 prejudice of any person or property situated within the watershed
36-51 from which the water is proposed to be taken or diverted.
36-52 (b) No person may transfer water from one watershed to
36-53 another without first applying for and receiving a permit from the
36-54 commission to do so. Before issuing such a permit, the commission
36-55 shall hold a hearing to determine the rights that might be affected
36-56 by the transfer. The commission shall give notice and hold the
36-57 hearing in the manner prescribed by its procedural rules.
36-58 [(c) A person who takes or diverts water in violation of
36-59 this section is guilty of a misdemeanor and upon conviction is
36-60 punishable by a fine of not less than $100 nor more than $500 or by
36-61 confinement in the county jail for not more than six months.]
36-62 [(d) A person commits a separate offense each day he
36-63 continues to take or divert water in violation of this section.]
36-64 SECTION 7. Subsection (c), Section 11.087, Water Code, is
36-65 amended to read as follows:
36-66 (c) Orders made by the commission to effectuate its rules
36-67 under this section shall be mailed [need not be published, but the
36-68 commission shall transmit a copy of every such order] by certified
36-69 mail to each diverter of water and to each reservoir owner on the
37-1 stream between the point of release and the point of destination of
37-2 the released water as shown by the records of the commission.
37-3 SECTION 8. Section 11.088, Water Code, is amended to read as
37-4 follows:
37-5 Sec. 11.088. DESTRUCTION OF WATERWORKS. [(a)] No person
37-6 may wilfully cut, dig, break down, destroy, or injure or open a
37-7 gate, bank, embankment, or side of any ditch, canal, reservoir,
37-8 flume, tunnel or feeder, pump or machinery, building, structure, or
37-9 other work which is the property of another, or in which another
37-10 owns an interest, or which is lawfully possessed or being used by
37-11 another, and which is used for irrigation, milling, mining,
37-12 manufacturing, the development of power, domestic purposes, or
37-13 stock raising, with intent to:
37-14 (1) maliciously injure a person, association,
37-15 corporation, water improvement or irrigation district;
37-16 (2) gain advantage for himself; or
37-17 (3) take or steal water or cause water to run out or
37-18 waste out of the ditch, canal, or reservoir, feeder, or flume for
37-19 his own advantage or to the injury of a person lawfully entitled to
37-20 the use of the water or the use or management of the ditch, canal,
37-21 tunnel, reservoir, feeder, flume, machine, structure, or other
37-22 irrigation work.
37-23 [(b) A person who violates any provision of this section is
37-24 guilty of a misdemeanor and upon conviction is punishable by a fine
37-25 of not less than $10 nor more than $1,000 or by confinement in the
37-26 county jail for not more than two years or by both.]
37-27 SECTION 9. Section 11.089, Water Code, is amended to read as
37-28 follows:
37-29 Sec. 11.089. JOHNSON GRASS OR RUSSIAN THISTLE. (a) No
37-30 person who owns, leases, or operates a ditch, canal, or reservoir
37-31 or who cultivates land abutting a reservoir, ditch, flume, canal,
37-32 wasteway, or lateral may permit Johnson grass or Russian thistle to
37-33 go to seed on the waterway within 10 feet of the high-water line if
37-34 the waterway crosses or lies on the land owned or controlled by
37-35 him.
37-36 (b) [A person who violates any provision of this section is
37-37 guilty of a misdemeanor and upon conviction is punishable by a fine
37-38 of not less than $25 nor more than $500 or by confinement in the
37-39 county jail for not less than 30 days nor more than six months or
37-40 by both.]
37-41 [(c)] The provisions of this section are not applicable in
37-42 Tom Green, Sterling, Irion, Schleicher, McCullough, Brewster,
37-43 Menard, Maverick, Kinney, Val Verde, and San Saba counties.
37-44 SECTION 10. Section 11.090, Water Code, is amended to read
37-45 as follows:
37-46 Sec. 11.090. POLLUTING AND LITTERING. [(a)] No person may
37-47 deposit in any canal, lateral, reservoir, or lake, used for a
37-48 purpose named in this chapter, the carcass of any dead animal, tin
37-49 cans, discarded buckets or pails, garbage, ashes, bailing or barbed
37-50 wire, earth, offal, or refuse of any character or any other article
37-51 which might pollute the water or obstruct the flow of a canal or
37-52 similar structure.
37-53 [(b) A person who violates any provision of this section is
37-54 guilty of a misdemeanor and upon conviction is punishable by a fine
37-55 of not less than $10 nor more than $100 or by confinement in the
37-56 county jail for not more than six months or by both.]
37-57 SECTION 11. Section 11.091, Water Code, is amended to read
37-58 as follows:
37-59 Sec. 11.091. INTERFERENCE WITH DELIVERY OF WATER UNDER
37-60 CONTRACT. [(a)] No person may wilfully take, divert, appropriate,
37-61 or interfere with the delivery of conserved or stored water under
37-62 Section 11.042 of this code.
37-63 [(b) A person who violates any provision of this section is
37-64 guilty of a misdemeanor and upon conviction is punishable by a fine
37-65 of not more than $100 or by confinement in the county jail for not
37-66 more than six months or by both.]
37-67 [(c) A person commits a separate offense each day he
37-68 continues to violate this section.]
37-69 [(d) On the petition of any interested party, the district
38-1 court of any county through which the water may pass shall enjoin
38-2 any actual or threatened act prohibited by this section.]
38-3 SECTION 12. Section 11.094, Water Code, is amended to read
38-4 as follows:
38-5 Sec. 11.094. PENALTY FOR USE OF WORKS DECLARED PUBLIC
38-6 NUISANCE. [(a)] No person may operate or attempt to operate any
38-7 waterworks or irrigation system or use any water under contract
38-8 with any waterworks or irrigation system that has been previously
38-9 declared to be a public nuisance.
38-10 [(b) A person who violates any provision of this section is
38-11 guilty of a misdemeanor and on conviction is punishable by a fine
38-12 of not more than $1,000 or by confinement in the county jail for
38-13 not more than one year or by both.]
38-14 SECTION 13. Section 11.096, Water Code, is amended to read
38-15 as follows:
38-16 Sec. 11.096. OBSTRUCTION OF NAVIGABLE STREAMS. [(a)] No
38-17 person may obstruct the navigation of any stream which can be
38-18 navigated by steamboats, keelboats, or flatboats by cutting and
38-19 felling trees or by building on or across the stream any dike,
38-20 milldam, bridge, or other obstruction.
38-21 [(b) A person who violates any provision of this section is
38-22 guilty of a misdemeanor and upon conviction is punishable by a fine
38-23 of not less than $50 nor more than $500.]
38-24 SECTION 14. Section 11.203, Water Code, is amended to read
38-25 as follows:
38-26 Sec. 11.203. ARTESIAN WELL: DRILLING RECORD. [(a)] A
38-27 person who drills an artesian well or has one drilled shall keep a
38-28 complete and accurate record of the depth, thickness, and character
38-29 of the different strata penetrated and when the well is completed
38-30 shall transmit a copy of the record to the commission by registered
38-31 mail.
38-32 [(b) A person who violates any provision of this section is
38-33 guilty of a misdemeanor and on conviction is punishable by a fine
38-34 of not less than $10 nor more than $100.]
38-35 SECTION 15. Section 11.205, Water Code, is amended to read
38-36 as follows:
38-37 Sec. 11.205. WASTING WATER FROM ARTESIAN WELL.
38-38 [(a)] Unless the water from an artesian well is used for a purpose
38-39 and in a manner in which it may be lawfully used on the owner's
38-40 land, it is waste and unlawful to wilfully cause or knowingly
38-41 permit the water to run off the owner's land or to percolate
38-42 through the stratum above which the water is found.
38-43 [(b) A person who commits waste as defined in this section
38-44 is guilty of a misdemeanor and on conviction is punishable by a
38-45 fine of not more than $500 or by confinement in the county jail for
38-46 not more than 90 days or by both.]
38-47 SECTION 16. Subsections (c) through (f), Section 12.052,
38-48 Water Code, are amended to read as follows:
38-49 (c) The [If the] owner of a dam that is required to be
38-50 constructed, reconstructed, repaired, or removed in order to comply
38-51 with the rules and orders promulgated under Subsection (a) of this
38-52 section may not wilfully fail [fails] or refuse [refuses] to comply
38-53 within the 30-day period following the date of the commission's
38-54 order to do so and may not [or if a person] wilfully fail [fails]
38-55 to comply with any rule or other order issued by the commission
38-56 under this section within the 30-day period following the effective
38-57 date of the order[, he is liable to a penalty of not more than
38-58 $1,000 a day for each day he continues to violate this section.
38-59 The state may recover the penalty by suit brought for that purpose
38-60 in the district court of Travis County].
38-61 (d) The commission may issue an emergency works safety order
38-62 under Section 5.509. [If the commission determines that the
38-63 existing condition of the dam is creating or will cause extensive
38-64 or severe property damage or economic loss to others or is posing
38-65 an immediate and serious threat to human life or health and that
38-66 other procedures available to the commission to remedy or prevent
38-67 the occurrence of the situation will result in unreasonable delay,
38-68 the commission may issue an emergency order, either mandatory or
38-69 prohibitory in nature, directing the owner of a dam to repair,
39-1 modify, maintain, dewater, or remove the dam which the commission
39-2 determines is unsafe. The emergency order may be issued without
39-3 notice to the dam owner or with notice the commission considers
39-4 practicable under the circumstances. The notice does not have to
39-5 comply with Chapter 2001, Government Code.]
39-6 (e) [If the commission issues an emergency order under
39-7 authority of this section without notice to the dam owner, the
39-8 commission shall fix a time and place for a hearing which shall be
39-9 held as soon as practicable to affirm, modify, or set aside the
39-10 emergency order. The notice does not have to comply with Chapter
39-11 2001, Government Code. If the nature of the commission's action
39-12 requires further proceedings, those proceedings shall be conducted
39-13 as appropriate under the Administrative Procedure and Texas
39-14 Register Act, as amended (Article 6252-13a, Vernon's Texas Civil
39-15 Statutes).]
39-16 [(f)] Nothing in this section or in rules or orders made by
39-17 the commission shall be construed to relieve an owner or operator
39-18 of a dam or reservoir of the legal duties, obligations, or
39-19 liabilities incident to ownership or operation.
39-20 SECTION 17. Subsection (d), Section 13.041, Water Code, is
39-21 amended to read as follows:
39-22 (d) The commission may issue an emergency order to compel
39-23 water or sewer service under Section 5.510 [orders, with or without
39-24 a hearing:]
39-25 [(1) to compel a water or sewer service provider that
39-26 has obtained or is required to obtain a certificate of public
39-27 convenience and necessity to provide continuous and adequate water
39-28 service, sewer service, or both, if the discontinuance of the
39-29 service is imminent or has occurred because of the service
39-30 provider's actions or failure to act; and]
39-31 [(2) to compel a retail public utility to provide an
39-32 emergency interconnection with a neighboring retail public utility
39-33 for the provision of temporary water or sewer service, or both, for
39-34 not more than 90 days if service discontinuance or serious
39-35 impairment in service is imminent or has occurred].
39-36 SECTION 18. Section 13.253, Water Code, is amended to read
39-37 as follows:
39-38 Sec. 13.253. Improvements in Service; Interconnecting
39-39 Service. After notice and hearing, the commission may:
39-40 (1) order any retail public utility that is required
39-41 by law to possess a certificate of public convenience and necessity
39-42 to provide specified improvements in its service in a defined area
39-43 if service in that area is inadequate or is substantially inferior
39-44 to service in a comparable area and it is reasonable to require the
39-45 retail public utility to provide the improved service;
39-46 (2) order two or more public utilities or water supply
39-47 or sewer service corporations to establish specified facilities for
39-48 the interconnecting service; or
39-49 (3) issue an emergency order to compel water or sewer
39-50 service, with or without a hearing, under Section 5.510 [13.041 of
39-51 this code].
39-52 SECTION 19. Section 13.254, Water Code, is amended to read
39-53 as follows:
39-54 Sec. 13.254. [REVOCATION OR] AMENDMENT OF CERTIFICATE.
39-55 (a) The commission at any time after notice and hearing may
39-56 [revoke or] amend any certificate of public convenience and
39-57 necessity with the written consent of the certificate holder or if
39-58 it finds that the certificate holder has never provided, is no
39-59 longer providing, or has failed to provide continuous and adequate
39-60 service in the area, or part of the area, covered by the
39-61 certificate.
39-62 (b) Upon written request from the certificate holder, the
39-63 executive director may cancel the certificate of a utility or water
39-64 supply corporation authorized by rule to operate without a
39-65 certificate of public convenience and necessity under Section
39-66 13.242(c).
39-67 (c) If the certificate of any public utility is [revoked or]
39-68 amended, the commission may require one or more public utilities to
39-69 provide service in the area in question.
40-1 SECTION 20. Section 16.236, Water Code, is amended to read
40-2 as follows:
40-3 Sec. 16.236. CONSTRUCTION OF LEVEE WITHOUT APPROVAL OF
40-4 PLANS; LEVEE SAFETY. (a) No person may construct, attempt to
40-5 construct, cause to be constructed, maintain, or cause to be
40-6 maintained any levee or other such improvement on, along, or near
40-7 any stream of this state that is subject to floods, freshets, or
40-8 overflows so as to control, regulate, or otherwise change the
40-9 floodwater of the stream without first obtaining approval of the
40-10 plans by the commission.
40-11 (b) The commission shall make and enforce rules and orders
40-12 and shall perform any other act necessary to provide for the safe
40-13 construction, maintenance, repair, or removal of a levee located in
40-14 this state.
40-15 (c) If the owner of a levee that is required to be
40-16 constructed, reconstructed, repaired, or removed in order to comply
40-17 with the rules adopted and orders issued under Subsection (b)
40-18 wilfully fails or refuses to comply within the 30-day period
40-19 following the date of the commission's order to do so or if a
40-20 person wilfully fails to comply with any rule or other order issued
40-21 by the commission under this section within the 30-day period
40-22 following the effective date of the order, the person is liable for
40-23 a penalty of not more than $25,000 a day for each day the person
40-24 continues to violate this section. The state may bring suit to
40-25 recover the penalty in the district court of Travis County.
40-26 (d) The commission may issue an emergency works safety order
40-27 under Section 5.509.
40-28 (e) Nothing in this section or in rules adopted or orders
40-29 issued by the commission under this section relieves an owner or
40-30 operator of a levee of a legal duty, obligation, or liability
40-31 incident to ownership or operation. [Any person who violates any
40-32 provision of this section is guilty of a misdemeanor and upon
40-33 conviction is punishable by a fine of not more than $100. A
40-34 separate offense is committed each day a structure constructed in
40-35 violation of this section is maintained.]
40-36 [(c) At the request of the executive director, the attorney
40-37 general shall file suit in a district court of Travis County to
40-38 enjoin any violation or threatened violation of this section. In
40-39 the suit, the attorney general may seek to have the illegal levee
40-40 or other improvement removed and the preexisting conditions
40-41 restored and may also collect civil penalties of up to $100 a day
40-42 for each day a violation occurs.]
40-43 [(d) This section does not apply to:]
40-44 [(1) dams permitted by the commission or recognized as
40-45 valid by final decree in any proceeding begun under Subchapter G,
40-46 Chapter 11, of this code;]
40-47 [(2) dams authorized by Section 11.142 of this code;]
40-48 [(3) a levee or other improvement within the corporate
40-49 limits of a city or town provided: (a) plans for the construction
40-50 or maintenance or both must be approved by the city or town as a
40-51 condition precedent to starting the project and (b) the city or
40-52 town requires that such plans be in substantial compliance with
40-53 rules and standards adopted by the commission; or]
40-54 [(4) a levee or other improvement within the
40-55 boundaries of any political subdivision which has qualified for the
40-56 National Flood Insurance Program as authorized by the National
40-57 Flood Insurance Act of 1968 (Title 42, U.S.C., Sections 4001-4127)
40-58 provided: (a) plans for the construction or maintenance or both
40-59 must be approved by the political subdivision which is
40-60 participating in the national flood insurance program as a
40-61 condition precedent to starting the project and (b) the political
40-62 subdivision requires that such plans be in substantial compliance
40-63 with rules and standards adopted by the commission;]
40-64 [(5) projects implementing soil and water conservation
40-65 practices set forth in a conservation plan with a landowner or
40-66 operator and approved by the governing board of a soil and water
40-67 conservation district organized under the State Soil Conservation
40-68 Law, as amended (Article 165a-4, Vernon's Texas Civil Statutes),
40-69 provided that the governing board finds the practices do not
41-1 significantly affect stream flooding conditions on, along, or near
41-2 a state stream.]
41-3 [(e) On projects located within the corporate limits of a
41-4 city or town or within the boundaries of any political subdivision
41-5 which are exempt from the provisions of this section by Subdivision
41-6 (3) or (4) of Subsection (d) above, any person whose property is
41-7 located outside of the corporate limits of such city or town or of
41-8 the boundaries of such a political subdivision and whose property
41-9 is affected or potentially affected by the effect of the project on
41-10 the floodwaters of the stream may appeal the decision of such
41-11 political subdivision. The appeal shall be in writing and shall
41-12 specify the grounds therefor and a copy shall be sent by certified
41-13 mail to the project applicant and to the city or town or such
41-14 political subdivision. The timely filing of such an appeal with
41-15 the executive director suspends the decision of the city or town or
41-16 political subdivision until a final decision is rendered by the
41-17 commission. The executive director shall review the complaint and
41-18 investigate the facts surrounding the nature of the complaint. If
41-19 the executive director finds that the complaint is frivolous or
41-20 nonmeritorious or made solely for purposes of harassment or delay,
41-21 then he shall dismiss the appeal. Otherwise, the executive
41-22 director shall refer the appeal to the commission which shall after
41-23 due notice hold a hearing to determine whether the project should
41-24 be approved using the standards established by the commission and
41-25 shall hear such appeal de novo under the procedural rules
41-26 established by the commission for other reclamation projects.]
41-27 SECTION 21. Section 26.019, Water Code, is amended to read
41-28 as follows:
41-29 Sec. 26.019. ORDERS. [(a)] The commission is authorized to
41-30 issue orders and make determinations necessary to effectuate the
41-31 purposes of this chapter.
41-32 [(b) The commission shall set forth the findings on which it
41-33 bases any order granting or denying special relief requested of the
41-34 commission or involving a determination following a hearing on an
41-35 alleged violation of Section 26.121 of this code or directing a
41-36 person to perform or refrain from performing a certain act or
41-37 activity.]
41-38 SECTION 22. Section 26.0191, Water Code, is amended to read
41-39 as follows:
41-40 Sec. 26.0191. TEMPORARY OR [AND] EMERGENCY ORDER RELATING
41-41 [ORDERS AND AUTHORIZATIONS] TO DISCHARGE OF WASTE OR POLLUTANTS
41-42 [UNTREATED OR PARTIALLY TREATED WASTEWATER]. [(a)] The commission
41-43 may issue a temporary or emergency order [orders] relating to the
41-44 discharge of waste or pollutants under Section 5.513 [when this is
41-45 necessary to enable action to be taken more expeditiously than is
41-46 otherwise provided by this chapter to effectuate the policy and
41-47 purposes of this chapter].
41-48 [(b) A person desiring to obtain a temporary or emergency
41-49 order to discharge waste or pollutants, including untreated or
41-50 partially treated wastewater, into or adjacent to water in this
41-51 state shall submit a sworn application to the commission containing
41-52 the following information and any other information the commission
41-53 requires:]
41-54 [(1) a statement that the discharge is unavoidable to
41-55 prevent loss of life, serious injury, severe property damage, or
41-56 severe economic loss, or to make necessary and unforeseen repairs
41-57 to a facility, that there are no feasible alternatives to the
41-58 proposed discharge, and that the discharge will not cause
41-59 significant hazard to human life and health, unreasonable damage to
41-60 property of persons other than the applicant, or unreasonable
41-61 economic loss to persons other than the applicant;]
41-62 [(2) a statement that the proposed discharge will not
41-63 present a significant hazard to the uses that may be made of the
41-64 receiving water after the discharge;]
41-65 [(3) an estimate of the dates on which the proposed
41-66 discharge will begin and end;]
41-67 [(4) a statement of the volume and quality of the
41-68 proposed discharge;]
41-69 [(5) an explanation of measures proposed to minimize
42-1 the volume and duration of the discharge; and]
42-2 [(6) an explanation of measures proposed to maximize
42-3 the waste treatment efficiency of units not taken out of service or
42-4 facilities provided for interim use.]
42-5 [(c) The commission may issue emergency orders relating to
42-6 the discharge of waste or pollutants without notice and hearing, or
42-7 with such notice and hearing as the commission considers
42-8 practicable under the circumstances, only if the commission finds
42-9 the applicant's statement made under Subsection (b)(1) of this
42-10 section to be correct.]
42-11 [(d) If the commission issues an emergency order under this
42-12 authority without a hearing, the order shall fix a time and place
42-13 for a hearing to be held before the commission, which shall be held
42-14 as soon after the emergency order is issued as is practicable.]
42-15 [(e) At the hearing, the commission shall affirm, modify, or
42-16 set aside the emergency order. Any hearing on an emergency order
42-17 shall be conducted in accordance with Chapter 2001, Government
42-18 Code, or the rules of the commission. Any set of commission rules
42-19 concerning a hearing on an emergency order must include provisions
42-20 for presentation of evidence by the applicant under oath,
42-21 presentation of rebuttal evidence, and cross-examination of
42-22 witnesses.]
42-23 [(f) If emergency conditions exist which make it necessary
42-24 to take action more expeditiously than is otherwise provided by
42-25 this section, the executive director may authorize the discharge of
42-26 untreated or partially treated wastewater from a permitted facility
42-27 into or adjacent to water in the state if he determines that the
42-28 discharge is unavoidable to prevent loss of life, serious injury,
42-29 severe property damage, or severe economic loss, or to make
42-30 necessary and unforeseen repairs to the facility, that there are no
42-31 feasible alternatives to the discharge, and that the discharge will
42-32 not cause significant hazard to human life and health, unreasonable
42-33 damage to property of persons other than the applicant, or
42-34 unreasonable economic loss to persons other than the applicant. If
42-35 the executive director issues an authorization to discharge under
42-36 this authority, the commission shall hold a hearing as provided for
42-37 in Subsection (d) of this section as soon as practicable but in no
42-38 event later than 10 days after issuance of the authorization to
42-39 affirm, modify or set aside the authorization. The requirements of
42-40 Subsection (b) of this section shall be satisfied by the applicant
42-41 on or before such hearing date.]
42-42 [(g) The requirements of Section 26.022 of this code
42-43 relating to the time for notice, newspaper notice, and method of
42-44 giving a person notice do not apply to a hearing held on an
42-45 emergency permit under this section, but such general notice of the
42-46 hearing shall be given as the commission, under Subsections (c) and
42-47 (e) of this section, considers practicable under the circumstances.]
42-48 [(h) Temporary orders other than emergency orders require a
42-49 hearing before issuance of the order. The commission shall give
42-50 notice not less than 20 days before the date set for the hearing.]
42-51 SECTION 23. Subsection (a), Section 26.021, Water Code, is
42-52 amended to read as follows:
42-53 (a) The [Except for those hearings required to be held
42-54 before the commission under Section 26.0191(b) of this code, the]
42-55 commission may authorize the chief administrative law judge of the
42-56 State Office of Administrative Hearings to call and hold hearings
42-57 on any subject on which the commission may hold a hearing.
42-58 SECTION 24. Subsection (a), Section 26.022, Water Code, is
42-59 amended to read as follows:
42-60 (a) Except as otherwise provided in Sections 5.501, 5.504,
42-61 5.513, [26.0191] and 26.176 [of this code], the provisions of this
42-62 section apply to all hearings conducted in compliance with this
42-63 chapter.
42-64 SECTION 25. Section 26.029, Water Code (effective until
42-65 delegation of NPDES permit authority), is amended to read as
42-66 follows:
42-67 Sec. 26.029. CONDITIONS OF PERMIT; AMENDMENT[; REVOCATION
42-68 AND SUSPENSION]. (a) In each permit, the commission shall
42-69 prescribe the conditions on which it is issued, including:
43-1 (1) the duration of the permit;
43-2 (2) the location of the point of discharge of the
43-3 waste;
43-4 (3) the maximum quantity of waste that may be
43-5 discharged under the permit at any time and from time to time;
43-6 (4) the character and quality of waste that may be
43-7 discharged under the permit; and
43-8 (5) any monitoring and reporting requirements
43-9 prescribed by the commission for the permittee.
43-10 (b) After a public hearing, notice of which shall be given
43-11 to the permittee, the commission may require the permittee, from
43-12 time to time, for good cause, to conform to new or additional
43-13 conditions. The commission shall allow the permittee a reasonable
43-14 time to conform to the new or additional conditions, and on
43-15 application of the permittee, the commission may grant additional
43-16 time.
43-17 (c) A permit does not become a vested right in the
43-18 permittee. [After a public hearing, notice of which shall be given
43-19 to the permittee, the commission may revoke or suspend a permit for
43-20 good cause on any of the following grounds:]
43-21 [(1) the permittee has failed or is failing to comply
43-22 with the conditions of the permit;]
43-23 [(2) the permit is subject to cancellation or
43-24 suspension under Section 26.084 of this code;]
43-25 [(3) the permit or operations under the permit have
43-26 been abandoned; or]
43-27 [(4) the permit is no longer needed by the permittee.]
43-28 (d) The notice required by Subsection [Subsections] (b) [and
43-29 (c)] of this section shall be sent to the permittee at his last
43-30 known address as shown by the records of the commission.
43-31 [(e) If the permittee requests or consents to the revocation
43-32 or suspension of the permit, the executive director may revoke or
43-33 suspend the permit.]
43-34 SECTION 26. Section 26.029, Water Code (effective upon
43-35 delegation of NPDES permit authority), is amended to read as
43-36 follows:
43-37 Sec. 26.029. CONDITIONS OF PERMIT; AMENDMENT[; REVOCATION
43-38 AND SUSPENSION]. (a) In each permit, the commission shall
43-39 prescribe the conditions on which it is issued, including:
43-40 (1) the duration of the permit;
43-41 (2) the location of the point of discharge of the
43-42 waste;
43-43 (3) the maximum quantity of waste that may be
43-44 discharged under the permit at any time and from time to time;
43-45 (4) the character and quality of waste that may be
43-46 discharged under the permit; and
43-47 (5) any monitoring and reporting requirements
43-48 prescribed by the commission for the permittee.
43-49 (b) After a public hearing, notice of which shall be given
43-50 to the permittee, the commission may require the permittee, from
43-51 time to time, for good cause, in conformance with applicable laws,
43-52 to conform to new or additional conditions.
43-53 (c) A permit does not become a vested right in the
43-54 permittee. [After a public hearing in conformance with applicable
43-55 laws, notice of which shall be given to the permittee, the
43-56 commission may revoke or suspend a permit for good cause on any of
43-57 the following grounds:]
43-58 [(1) the permittee has failed or is failing to comply
43-59 with the conditions of the permit;]
43-60 [(2) the permit is subject to cancellation or
43-61 suspension under Section 26.084 of this code;]
43-62 [(3) the permit or operations under the permit have
43-63 been abandoned;]
43-64 [(4) the permit is no longer needed by the permittee;]
43-65 [(5) the commission finds that a change in conditions
43-66 requires elimination of the discharge;]
43-67 [(6) revocation or suspension is necessary in order to
43-68 maintain the quality of water in the state consistent with the
43-69 objectives of this chapter; or]
44-1 [(7) the permit was obtained by misrepresentation or
44-2 failure to disclose fully all relevant facts.]
44-3 (d) The notice required by Subsection [Subsections] (b) [and
44-4 (c)] of this section shall be sent to the permittee at his last
44-5 known address as shown by the records of the commission.
44-6 [(e) If the permittee requests or consents to the revocation
44-7 or suspension of the permit, the executive director may revoke or
44-8 suspend the permit.]
44-9 SECTION 27. Subsections (c), (d), and (e), Section 26.0301,
44-10 Water Code, are amended to read as follows:
44-11 (c) [The commission may suspend or revoke the certificate of
44-12 competency for sewage treatment facility operation of an individual
44-13 treatment facility operator or a sewage treatment facility
44-14 operations company, after notice and hearing before the commission,
44-15 if the holder of a certificate of competency is responsible for
44-16 violating a discharge permit of a sewage treatment plant.]
44-17 [(d) The holder of a certificate of competency is not
44-18 subject to the revocation or suspension of the certificate of
44-19 competency under Subsection (c) of this section if:]
44-20 [(1) the holder of a certificate is unable to properly
44-21 operate the sewage treatment facility due to the refusal of the
44-22 permittee to authorize necessary expenditures to operate the sewage
44-23 treatment facility properly; or]
44-24 [(2) failure of the sewage treatment facility to
44-25 comply with its discharge permit results from faulty design of the
44-26 sewage treatment facility.]
44-27 [(e)] The commission by rule shall set a fee to be paid by
44-28 each applicant or licensee on the issuance or renewal of a
44-29 certificate of competency under this section. The amount of the
44-30 fee is determined according to the costs of the commission in
44-31 administering this section, but may not exceed $25 annually for an
44-32 individual wastewater treatment plant operator and $500 annually
44-33 for a person, company, corporation, firm, or partnership that is in
44-34 the business as a wastewater treatment facility operations company.
44-35 The commission shall deposit any fees collected under this
44-36 subsection in the state treasury to the credit of the water quality
44-37 fund.
44-38 SECTION 28. Section 26.354, Water Code, is amended to read
44-39 as follows:
44-40 Sec. 26.354. Emergency Orders. The commission
44-41 [(a) Notwithstanding any other provision of this chapter, the
44-42 executive director] may issue an emergency order [orders] to an
44-43 owner or operator of [the persons identified in Subsection (e) of
44-44 this section if it appears that:]
44-45 [(1) there is an actual or threatened release of a
44-46 regulated substance from] an underground or aboveground storage
44-47 tank under Section 5.514[; and]
44-48 [(2) the executive director determines that more
44-49 expeditious corrective action than is otherwise provided for under
44-50 this chapter is necessary to protect the public health and safety
44-51 or the environment from harm].
44-52 [(b) An order issued under Subsection (a) of this section
44-53 may prohibit a person from allowing or continuing the release or
44-54 threatened release and require the person to take the actions
44-55 necessary to eliminate the release or threatened release.]
44-56 [(c) An emergency order issued under this section shall be:]
44-57 [(1) mailed by certified mail, return receipt
44-58 requested, to each person identified in the order;]
44-59 [(2) hand delivered to each person identified in the
44-60 order; or]
44-61 [(3) on failure of service by certified mail or hand
44-62 delivery, served by publication one time in the Texas Register and
44-63 one time in a newspaper with general circulation in each county in
44-64 which any of the persons had a last known address.]
44-65 [(d) An emergency order issued under this section does not
44-66 require notice or an adjudicative hearing before its issuance. If
44-67 the executive director issues an order under this section, the
44-68 commission shall fix a time and place for a hearing to affirm,
44-69 modify, or set aside the emergency order issued by the executive
45-1 director. The hearing before the commission shall be held as soon
45-2 as practicable after the issuance of the emergency order.]
45-3 [(e) The executive director may issue orders under this
45-4 section to the following persons:]
45-5 [(1) the owner of an underground or aboveground
45-6 storage tank; or]
45-7 [(2) the operator of an underground or aboveground
45-8 storage tank.]
45-9 SECTION 29. Section 26.459, Water Code, is amended to read
45-10 as follows:
45-11 Sec. 26.459. REINSTATEMENT [DENIAL, SUSPENSION, OR
45-12 REVOCATION] OF LICENSE OR CERTIFICATE OF REGISTRATION[;
45-13 REINSTATEMENT]. (a) The commission may [deny, suspend, revoke,
45-14 or] reinstate a license or certificate of registration.
45-15 (b) [The commission shall adopt rules establishing the
45-16 grounds for denial, suspension, revocation, or reinstatement of a
45-17 license or certificate of registration, and establishing procedures
45-18 for disciplinary actions.]
45-19 [(c) Proceedings relating to the suspension or revocation of
45-20 a license or certificate of registration issued under this
45-21 subchapter are subject to Chapter 2001, Government Code.]
45-22 [(d)] A person or business entity whose license or
45-23 certificate of registration has been revoked may apply for a new
45-24 license or certificate of registration after the expiration of one
45-25 year from the date of the revocation.
45-26 SECTION 30. Section 27.101, Water Code, is amended to read
45-27 as follows:
45-28 Sec. 27.101. CIVIL PENALTY. (a) A person who violates any
45-29 provision of this chapter under the jurisdiction of the railroad
45-30 commission, any rule of [the commission or] the railroad commission
45-31 made under this chapter, or any term, condition, or provision of a
45-32 permit issued by the railroad commission under this chapter shall
45-33 be subject to a civil penalty in any sum not exceeding $5,000 for
45-34 each day of noncompliance and for each act of noncompliance. A
45-35 violation under the jurisdiction of the commission is enforceable
45-36 as provided by Chapter 7.
45-37 (b) The action may be brought by the [executive director or
45-38 the] railroad commission in any court of competent jurisdiction in
45-39 the county where the offending activity is occurring or where the
45-40 defendant resides.
45-41 SECTION 31. Section 27.102, Water Code, is amended to read
45-42 as follows:
45-43 Sec. 27.102. INJUNCTION, ETC. (a) The [executive director
45-44 or the] railroad commission may enforce a provision of this chapter
45-45 under the jurisdiction of the railroad commission, any valid rule
45-46 made by the railroad commission under this chapter, or any term,
45-47 condition, or provision of a permit issued by the [commission or]
45-48 railroad commission under this chapter by injunction or other
45-49 appropriate remedy. The suit shall be brought in a court of
45-50 competent jurisdiction in the county where the offending activity
45-51 is occurring.
45-52 (b) The executive director may enforce a provision of this
45-53 chapter under the jurisdiction of the commission, a commission rule
45-54 adopted under this chapter, or a term, condition, or provision of a
45-55 permit issued by the commission under this chapter as provided by
45-56 Subchapter B, Chapter 7.
45-57 SECTION 32. Subsection (a), Section 27.103, Water Code, is
45-58 amended to read as follows:
45-59 (a) At the request of the [executive director or the]
45-60 railroad commission, the attorney general shall institute and
45-61 conduct a suit in the name of the State of Texas for injunctive
45-62 relief or to recover the civil penalty, or for both the injunctive
45-63 relief and civil penalty, authorized in Sections 27.101 and 27.102
45-64 of this chapter.
45-65 SECTION 33. Subsection (a), Section 27.105, Water Code, is
45-66 amended to read as follows:
45-67 (a) A person who knowingly or intentionally violates a
45-68 provision of this chapter under the jurisdiction of the railroad
45-69 commission, a rule of the [commission or] railroad commission, or a
46-1 term, condition, or provision of a permit issued by the railroad
46-2 commission under this chapter is subject to a fine of not more than
46-3 $5,000 for each violation and for each day of violation. A
46-4 violation under the jurisdiction of the commission is enforceable
46-5 under Section 7.159.
46-6 SECTION 34. Subsection (d), Section 361.011, Health and
46-7 Safety Code, is amended to read as follows:
46-8 (d) In matters relating to municipal solid waste management,
46-9 excluding management of hazardous municipal waste, the commission
46-10 shall[:]
46-11 [(1)] consider water pollution control and water
46-12 quality aspects and air pollution control and ambient air quality
46-13 aspects[; and]
46-14 [(2) consult with the attorney general's office for
46-15 assistance in determining whether referral to the attorney general
46-16 for enforcement is mandatory under Section 361.224 or whether
46-17 referral is appropriate, in the commission's discretion, for the
46-18 disposition of enforcement matters under this chapter].
46-19 SECTION 35. Section 361.035, Health and Safety Code, is
46-20 amended by adding Subsection (c) to read as follows:
46-21 (c) A penalty collected under Subchapter C or D, Chapter 7,
46-22 Water Code, for the late filing of a report required by this
46-23 section shall be deposited to the credit of the hazardous and solid
46-24 waste remediation fee fund.
46-25 SECTION 36. Section 361.089, Health and Safety Code, is
46-26 amended to read as follows:
46-27 Sec. 361.089. PERMIT DENIAL OR[,] AMENDMENT[, SUSPENSION OR
46-28 REVOCATION]; NOTICE AND HEARING. (a) The commission may, for good
46-29 cause, deny or[,] amend[, or revoke] a permit it issues or has
46-30 authority to issue for reasons pertaining to public health, air or
46-31 water pollution, or land use, or for a violation of this chapter or
46-32 other applicable laws or rules controlling the management of solid
46-33 waste.
46-34 (b) Except as provided by Section 361.110, the commission
46-35 shall notify each governmental entity listed under Section 361.067
46-36 and provide an opportunity for a hearing to the permit holder or
46-37 applicant and persons affected. The commission may also hold a
46-38 hearing on its own motion.
46-39 (c) The commission by rule shall establish procedures for
46-40 public notice and any public hearing under this section.
46-41 (d) Hearings under this section shall be conducted in
46-42 accordance with the hearing rules adopted by the commission and the
46-43 applicable provisions of Chapter 2001, Government Code.
46-44 (e) The commission may deny[, suspend for not more than 90
46-45 days, or revoke] an original or renewal permit if it is found,
46-46 after notice and hearing, that:
46-47 (1) the permit holder has a record of environmental
46-48 violations in the preceding five years at the permitted site;
46-49 (2) the applicant has a record of environmental
46-50 violations in the preceding five years at any site owned, operated,
46-51 or controlled by the applicant;
46-52 (3) the permit holder or applicant made a false or
46-53 misleading statement in connection with an original or renewal
46-54 application, either in the formal application or in any other
46-55 written instrument relating to the application submitted to the
46-56 commission, its officers, or its employees;
46-57 (4) the permit holder or applicant is indebted to the
46-58 state for fees, payment of penalties, or taxes imposed by this
46-59 title or by a rule of the commission; or
46-60 (5) the permit holder or applicant is unable to ensure
46-61 that the management of the hazardous waste management facility
46-62 conforms or will conform to this title and the rules of the
46-63 commission.
46-64 (f) Before denying[, suspending, or revoking] a permit under
46-65 this section, the commission must find:
46-66 (1) that a violation or violations are significant and
46-67 that the permit holder or applicant has not made a substantial
46-68 attempt to correct the violations; or
46-69 (2) that the permit holder or applicant is indebted to
47-1 the state for fees, payment of penalties, or taxes imposed by this
47-2 title or by a rule of the commission.
47-3 (g) For purposes of this section, the terms "permit holder"
47-4 and "applicant" include each member of a partnership or association
47-5 and, with respect to a corporation, each officer and the owner or
47-6 owners of a majority of the corporate stock, provided such partner
47-7 or owner controls at least 20 percent of the permit holder or
47-8 applicant and at least 20 percent of another business which
47-9 operates a solid waste management facility.
47-10 SECTION 37. Section 361.091, Health and Safety Code, is
47-11 amended by amending the heading and Subsections (i) through (m) to
47-12 read as follows:
47-13 Sec. 361.091. ENCLOSED CONTAINERS OR VEHICLES; PERMITS;
47-14 INSPECTIONS[; CRIMINAL PENALTY].
47-15 (i) [An operator of a solid waste facility or a solid waste
47-16 hauler commits an offense if the operator or hauler disposes of
47-17 solid waste in a completely enclosed container or vehicle at a
47-18 solid waste site or operation permitted as a Type IV landfill:]
47-19 [(1) without having in possession the special permit
47-20 required by this section;]
47-21 [(2) on a date or time not authorized by the
47-22 commission; or]
47-23 [(3) without a commission inspector present to verify
47-24 that the solid waste is free of putrescible, hazardous, and
47-25 infectious waste.]
47-26 [(j) An offense under this section is a Class B misdemeanor.]
47-27 [(k) Penalties under this section are in addition to any
47-28 other penalty applicable under this chapter.]
47-29 [(l)] This section does not apply to:
47-30 (1) a stationary compactor that is at a specific
47-31 location and that has an annual permit under this section issued by
47-32 the commission, on certification to the commission by the generator
47-33 that the contents of the compactor are free of putrescible,
47-34 hazardous, or infectious waste; or
47-35 (2) an enclosed vehicle of a municipality if the
47-36 vehicle has a permit issued by the commission to transport brush or
47-37 construction-demolition waste and rubbish on designated dates, on
47-38 certification by the municipality to the commission that the
47-39 contents of the vehicle are free of putrescible, hazardous, or
47-40 infectious waste.
47-41 (j) [(m)] In this section, "putrescible waste" means organic
47-42 waste, such as garbage, wastewater treatment plant sludge, and
47-43 grease trap waste, that may:
47-44 (1) be decomposed by microorganisms with sufficient
47-45 rapidity as to cause odors or gases; or
47-46 (2) provide food for or attract birds, animals, or
47-47 disease vectors.
47-48 SECTION 38. Section 361.140, Health and Safety Code, is
47-49 amended to read as follows:
47-50 Sec. 361.140. Interest and Penalties. (a) The commission
47-51 by rule shall establish requirements for the assessment of
47-52 penalties and interest for late payment of fees owed the state
47-53 under Sections 361.134 through 361.137. Penalties and interest
47-54 established under this section shall not exceed rates established
47-55 for delinquent taxes under Sections 111.060 and 111.061, Tax Code.
47-56 (b) [A person is subject to a civil penalty of up to $100
47-57 for each day the violation continues for failure to timely submit a
47-58 properly completed report as required by commission rule under
47-59 Section 361.035.]
47-60 [(c)] Interest collected under this section for late payment
47-61 of a fee shall be deposited in the state treasury to the credit of
47-62 the respective fund to which the late fee is credited.
47-63 [(d) Any penalty collected under this section for late
47-64 filing of reports shall be deposited in the state treasury to the
47-65 credit of the hazardous and solid waste remediation fee fund.]
47-66 SECTION 39. Section 361.160, Health and Safety Code, is
47-67 amended to read as follows:
47-68 Sec. 361.160. LICENSE AMENDMENT [AND REVOCATION]. (a) A
47-69 county may, for good cause, after hearing with notice to the
48-1 license holder and to the commission, [revoke or] amend a license
48-2 it issues for reasons concerning:
48-3 (1) public health;
48-4 (2) air or water pollution;
48-5 (3) land use; or
48-6 (4) a violation of this chapter or of other applicable
48-7 laws or rules controlling the processing, storage, or disposal of
48-8 solid waste.
48-9 (b) For similar reasons, the commission may for good cause
48-10 amend [or revoke] a license issued by a county, after hearing with
48-11 notice to:
48-12 (1) the license holder; and
48-13 (2) the county that issued the license.
48-14 SECTION 40. Subsection (a), Section 361.271, Health and
48-15 Safety Code, is amended to read as follows:
48-16 (a) Unless otherwise defined in applicable statutes and
48-17 rules [For the purpose of this subchapter], a person is responsible
48-18 for solid waste if the person:
48-19 (1) is any owner or operator of a solid waste
48-20 facility;
48-21 (2) owned or operated a solid waste facility at the
48-22 time of processing, storage, or disposal of any solid waste;
48-23 (3) by contract, agreement, or otherwise, arranged to
48-24 process, store, or dispose of, or arranged with a transporter for
48-25 transport to process, store, or dispose of, solid waste owned or
48-26 possessed by the person, by any other person or entity at:
48-27 (A) the solid waste facility owned or operated
48-28 by another person or entity that contains the solid waste; or
48-29 (B) the site to which the solid waste was
48-30 transported that contains the solid waste; or
48-31 (4) accepts or accepted any solid waste for transport
48-32 to a solid waste facility or site selected by the person.
48-33 SECTION 41. Section 361.274, Health and Safety Code, is
48-34 amended to read as follows:
48-35 Sec. 361.274. No Prior Notice Concerning Administrative
48-36 Order. An administrative order under Section 361.272 does not
48-37 require prior notice or an adjudicative hearing before the
48-38 commission. An emergency administrative order may be issued under
48-39 Subchapter L, Chapter 5, Water Code.
48-40 SECTION 42. Section 361.301, Health and Safety Code, is
48-41 amended to read as follows:
48-42 Sec. 361.301. Emergency Order. [(a)] The commission may
48-43 issue an emergency mandatory, permissive, or prohibitory order
48-44 concerning an activity of solid waste management under its
48-45 jurisdiction under Section 5.516, Water Code, even if the activity
48-46 is not covered by a permit[, if the commission determines that an
48-47 emergency requiring immediate action to protect the public health
48-48 and safety or the environment exists].
48-49 [(b) The order may be issued without notice and hearing or
48-50 with notice and hearing the commission considers practicable under
48-51 the circumstances.]
48-52 [(c) If an emergency order is issued under this section
48-53 without a hearing, the commission shall set a time and place for a
48-54 hearing to be held in accordance with the rules of the commission
48-55 to affirm, modify, or set aside the emergency order.]
48-56 [(d) The requirements of Section 361.088 concerning public
48-57 notice do not apply to the hearing, but general notice of the
48-58 hearing shall be given in accordance with the rules of the
48-59 commission.]
48-60 SECTION 43. Section 361.453, Health and Safety Code, is
48-61 amended to read as follows:
48-62 Sec. 361.453. INSPECTION OF BATTERY RETAILERS. The
48-63 commission shall produce, print, and distribute the notices
48-64 required by Section 361.452 to all places where lead-acid batteries
48-65 are offered for sale at retail. In performing its duties under
48-66 this section the commission may inspect any place, building, or
48-67 premises governed by Section 361.452. [Authorized employees of the
48-68 commission may issue warnings and citations to persons who fail to
48-69 comply with the requirements of Section 361.452.] Failure to post
49-1 the required notice within three days following warning shall
49-2 subject the establishment to an administrative or a civil penalty
49-3 under Chapter 7, Water Code [a fine of $100 per day].
49-4 SECTION 44. Section 366.016, Health and Safety Code, is
49-5 amended to read as follows:
49-6 Sec. 366.016. Emergency Orders. The [(a) If the]
49-7 commission or authorized agent may issue an emergency order
49-8 concerning an on-site sewage disposal system under Section 5.517,
49-9 Water Code [determines that an emergency exists and that the public
49-10 health or safety is endangered because of the operation of an
49-11 on-site sewage disposal system that does not comply with this
49-12 chapter or a rule adopted under this chapter, the commission or
49-13 authorized agent by order may:]
49-14 [(1) suspend the registration of the installer;]
49-15 [(2) regulate the on-site sewage disposal system; or]
49-16 [(3) both suspend the registration and regulate the
49-17 system].
49-18 [(b) The order may be issued without notice and hearing.]
49-19 [(c) If the emergency order is issued without a hearing, the
49-20 commission or authorized agent shall set a time and place for a
49-21 hearing to affirm, modify, or set aside the emergency order to be
49-22 held not later than the 30th day after the date on which the
49-23 emergency order is issued.]
49-24 [(d) General notice of the hearing shall be given in
49-25 accordance with the laws of this state and rules adopted by the
49-26 commission or authorized agent.]
49-27 [(e) The hearing shall be conducted in accordance with the
49-28 commission's rules or laws and rules governing the authorized
49-29 agent.]
49-30 SECTION 45. Subsection (c), Section 366.017, Health and
49-31 Safety Code, is amended to read as follows:
49-32 (c) The property owner may be assessed an administrative or
49-33 a civil penalty under Chapter 7, Water Code, [341] for each day
49-34 that the on-site sewage disposal system remains unrepaired.
49-35 SECTION 46. Section 371.041, Health and Safety Code, is
49-36 amended to read as follows:
49-37 Sec. 371.041. ACTIONS PROHIBITED. [(a)] A person may not
49-38 collect, transport, store, recycle, use, discharge, or dispose of
49-39 used oil in any manner that endangers the public health or welfare
49-40 or endangers or damages the environment.
49-41 [(b) A person commits an offense if the person:]
49-42 [(1) intentionally discharges used oil into a sewer,
49-43 drainage system, septic tank, surface water or groundwater,
49-44 watercourse, or marine water;]
49-45 [(2) knowingly mixes or commingles used oil with waste
49-46 that is to be disposed of in landfills or directly disposes of used
49-47 oil on land;]
49-48 [(3) knowingly transports, treats, stores, disposes
49-49 of, recycles, causes to be transported, or otherwise handles any
49-50 used oil within the state:]
49-51 [(A) in violation of standards or rules for the
49-52 management of used oil; or]
49-53 [(B) without first complying with the
49-54 registration requirements of Section 371.026 and rules adopted
49-55 under that section;]
49-56 [(4) intentionally applies used oil to roads or land
49-57 for dust suppression, weed abatement, or other similar uses that
49-58 introduce used oil into the environment;]
49-59 [(5) violates an order of the commission to cease and
49-60 desist any activity prohibited by this section or any rule
49-61 applicable to a prohibited activity; or]
49-62 [(6) intentionally makes a false statement or
49-63 representation in an application, label, manifest, record, report,
49-64 permit, or other document filed, maintained, or used for purposes
49-65 of program compliance.]
49-66 [(c) It is an exception to the application of Subsection (b)
49-67 if a person unknowingly disposes into the environment any used oil
49-68 that has not been properly segregated or separated by the generator
49-69 from other solid wastes.]
50-1 [(d) It is an exception to the application of Subsection
50-2 (b)(2) if the mixing or commingling of used oil with waste that is
50-3 to be disposed of in landfills is incident to and the unavoidable
50-4 result of the mechanical shredding of motor vehicles, appliances,
50-5 or other items of scrap, used, or obsolete metals.]
50-6 SECTION 47. Section 382.026, Health and Safety Code, is
50-7 amended to read as follows:
50-8 Sec. 382.026. Orders Issued Under Emergencies. The
50-9 commission may issue an order under an air emergency under Section
50-10 5.518, Water Code. [(a) When it appears to the commission or the
50-11 executive director that there exists a generalized condition of air
50-12 pollution that creates an emergency requiring immediate action to
50-13 protect human health or safety, the commission or the executive
50-14 director shall, with the governor's concurrence, order any person
50-15 causing or contributing to the air pollution immediately to reduce
50-16 or discontinue the emission of air contaminants.]
50-17 [(b) If the commission or the executive director finds that
50-18 emissions from one or more sources are causing imminent danger to
50-19 human health or safety, but that there is not a generalized
50-20 condition of air pollution under Subsection (a), the commission or
50-21 the executive director may order the persons responsible for the
50-22 emissions immediately to reduce or discontinue the emissions.]
50-23 [(c) An order issued under this section must set a time and
50-24 place of a hearing to be held before the commission as soon after
50-25 the order is issued as practicable.]
50-26 [(d) Section 382.031, relating to notice of a hearing, does
50-27 not apply to a hearing under this section, but a general notice of
50-28 the hearing shall be given that is, in the judgment of the
50-29 commission or the executive director, practicable under the
50-30 circumstances. The commission shall affirm, modify, or set aside
50-31 the order not later than 24 hours after the hearing begins and
50-32 without adjournment of the hearing.]
50-33 [(e) This section does not limit any power that the governor
50-34 or other officer may have to declare an emergency and to act on the
50-35 basis of that declaration if the power is conferred by law or
50-36 inheres in the office.]
50-37 SECTION 48. Subsection (b), Section 382.030, Health and
50-38 Safety Code, is amended to read as follows:
50-39 (b) Except for hearings required to be held before the
50-40 commission under Section 5.504, Water Code [382.026], the
50-41 commission may authorize the executive director to:
50-42 (1) call and hold a hearing on any subject on which
50-43 the commission may hold a hearing; and
50-44 (2) delegate the authority to hold any hearing called
50-45 by the executive director to one or more commission employees.
50-46 SECTION 49. Subsection (e), Section 382.031, Health and
50-47 Safety Code, is amended to read as follows:
50-48 (e) This section applies to all hearings held under this
50-49 chapter except as otherwise specified by Section 382.017[, 382.026,
50-50 or 382.063].
50-51 SECTION 50. Section 382.063, Health and Safety Code, is
50-52 amended to read as follows:
50-53 Sec. 382.063. Issuance of Emergency Order Because of
50-54 Catastrophe. (a) The commission may issue an emergency order
50-55 because of catastrophe under Section 5.519, Water Code [or the
50-56 executive director, on delegation of authority from the commission,
50-57 by emergency order may authorize immediate action for the addition,
50-58 replacement, or repair of facilities or control equipment
50-59 necessitated by a catastrophe occurring in this state, and the
50-60 emission of air contaminants during the addition, replacement, or
50-61 repair of those facilities, if the actions and emissions are
50-62 otherwise precluded under this chapter].
50-63 (b) [An order issued under this section must:]
50-64 [(1) be limited to a reasonable time specified by the
50-65 order;]
50-66 [(2) authorize action only on:]
50-67 [(A) property on which the catastrophe occurred;
50-68 or]
50-69 [(B) other property that is owned by the owner
51-1 or operator of the damaged facility and that produces the same
51-2 intermediates, products, or by-products; and]
51-3 [(3) contain a schedule for submission of a complete
51-4 application under Section 382.051.]
51-5 [(c) Under Subsection (b)(2)(B), the person applying for an
51-6 emergency order must demonstrate that there will be no more than a
51-7 de minimis increase in the predicted concentration of the air
51-8 contaminants at or beyond the property line of the other property.
51-9 The commission shall review and act on an application submitted as
51-10 provided by Subsection (b)(3) without regard to construction
51-11 activity under an order under this section.]
51-12 [(d) To receive an emergency order under this section, a
51-13 person must submit a sworn application to the commission or
51-14 executive director. The application must contain any information
51-15 the commission requires and:]
51-16 [(1) a description of the catastrophe;]
51-17 [(2) a statement that:]
51-18 [(A) the construction and emissions are
51-19 essential to prevent loss of life, serious injury, severe property
51-20 damage, or severe economic loss not attributable to the applicant's
51-21 actions and are necessary for the addition, replacement, or repair
51-22 of a facility or control equipment necessitated by the catastrophe;]
51-23 [(B) there are no practicable alternatives to
51-24 the proposed construction and emissions; and]
51-25 [(C) the emissions will not cause or contribute
51-26 to air pollution;]
51-27 [(3) an estimate of the dates on which the proposed
51-28 construction or emissions, or both, will begin and end;]
51-29 [(4) an estimate of the date on which the facility
51-30 will begin operation; and]
51-31 [(5) a description of the quantity and type of air
51-32 contaminants proposed to be emitted.]
51-33 [(e) The commission or executive director may issue an
51-34 emergency order under this section after providing the notice and
51-35 opportunity for hearing that the commission or executive director
51-36 considers practicable under the circumstances. If the commission
51-37 requires notice and hearing before issuing the order, it shall give
51-38 notice not later than the 10th day before the date set for the
51-39 hearing.]
51-40 [(f) Notice of the issuance of an emergency order shall be
51-41 provided in accordance with commission rules.]
51-42 [(g) If the commission or executive director issues an
51-43 emergency order under this section without a hearing, the order
51-44 shall set a time and place for a hearing to be held before the
51-45 commission or its designee as soon after the emergency order is
51-46 issued as practicable.]
51-47 [(h) Section 382.031, relating to notice of a hearing, does
51-48 not apply to a hearing on an emergency order, but such general
51-49 notice of the hearing shall be given that in the judgment of the
51-50 commission or the executive director is practicable under the
51-51 circumstances.]
51-52 [(i) At or following the hearing, the commission shall
51-53 affirm, modify, or set aside the emergency order. A hearing on an
51-54 emergency order shall be conducted in accordance with Chapter 2001,
51-55 Government Code and commission rules.]
51-56 [(j)] In this section, "catastrophe" means an unforeseen
51-57 event, including an act of God, an act of war, severe weather,
51-58 explosions, fire, or similar occurrences beyond the reasonable
51-59 control of the operator that makes a facility or its functionally
51-60 related appurtenances inoperable.
51-61 SECTION 51. Section 382.085, Health and Safety Code, is
51-62 amended to read as follows:
51-63 Sec. 382.085. UNAUTHORIZED EMISSIONS PROHIBITED[; CIVIL
51-64 PENALTY]. (a) Except as authorized by a commission rule or order,
51-65 a person may not cause, suffer, allow, or permit the emission of
51-66 any air contaminant or the performance of any activity that causes
51-67 or contributes to, or that will cause or contribute to, air
51-68 pollution.
51-69 (b) A person may not cause, suffer, allow, or permit the
52-1 emission of any air contaminant or the performance of any activity
52-2 in violation of this chapter or of any commission rule or order.
52-3 [(c) A person who violates any provision of this chapter or
52-4 any commission rule or order is subject to a civil penalty of not
52-5 less than $50 or more than $25,000 for each day of violation and
52-6 for each act of violation, as the court or jury considers proper.]
52-7 [(d) The state is entitled to half of a civil penalty
52-8 recovered in a suit brought under this chapter by one or more local
52-9 governments. The remainder shall be equally divided among the
52-10 local governments that first brought the suit.]
52-11 SECTION 52. Subsection (a), Section 401.054, Health and
52-12 Safety Code, is amended to read as follows:
52-13 (a) The department [or commission] shall provide notice and
52-14 an opportunity for a hearing on a matter under its jurisdiction as
52-15 provided by its formal hearing procedures and Chapter 2001,
52-16 Government Code, on written request of a person affected by any of
52-17 the following procedures:
52-18 (1) the denial, suspension, or revocation by the
52-19 department [agency] of a license or registration;
52-20 (2) the determination by the department [agency] of
52-21 compliance with or the grant of exemptions from a department [an
52-22 agency] rule or order; or
52-23 (3) the grant or amendment by the department [agency]
52-24 of a specific license.
52-25 SECTION 53. Section 401.270, Health and Safety Code, is
52-26 amended to read as follows:
52-27 Sec. 401.270. Corrective Action and Measures. (a) If the
52-28 commission finds that by-product material or the operation by which
52-29 that by-product material is derived threatens the public health and
52-30 safety or the environment, the commission by order may require any
52-31 action, including a corrective measure, that is necessary to
52-32 correct or remove the threat.
52-33 (b) [The commission may issue an emergency order to a person
52-34 responsible for an activity, including a past activity, concerning
52-35 the recovery or processing of source material or the disposal of
52-36 by-product material if it appears that there is an actual or
52-37 threatened release of source material or by-product material that
52-38 presents an imminent and substantial danger to the public health
52-39 and safety or the environment, regardless of whether the activity
52-40 was lawful at the time. The emergency order may be issued without
52-41 notice or hearing.]
52-42 [(c) An emergency order may be issued under Subsection (b)
52-43 to:]
52-44 [(1) restrain the person from allowing or continuing
52-45 the release or threatened release; and]
52-46 [(2) require the person to take any action necessary
52-47 to provide and implement an environmentally sound remedial action
52-48 plan designed to eliminate the release or threatened release.]
52-49 [(d) An emergency order issued under Subsection (b) shall:]
52-50 [(1) be delivered to the person identified by the
52-51 order by certified mail, return receipt requested;]
52-52 [(2) be delivered by hand delivery to the person
52-53 identified by the order; or]
52-54 [(3) on failure of delivery of the order by certified
52-55 mail or hand delivery, be served on the person by publication:]
52-56 [(A) once in the Texas Register; and]
52-57 [(B) once in a newspaper of general circulation
52-58 in each county in which was located the last known address of a
52-59 person identified by the order.]
52-60 [(e)] The commission shall use the security provided by the
52-61 license holder to pay the costs of actions that are taken or that
52-62 are to be taken under this section. The commission shall send to
52-63 the comptroller a copy of its order together with necessary written
52-64 requests authorizing the comptroller to:
52-65 (1) enforce security supplied by the licensee;
52-66 (2) convert an amount of security into cash, as
52-67 necessary; and
52-68 (3) disburse from the security in the fund the amount
52-69 necessary to pay the costs.
53-1 (c) The commission may issue an emergency order under this
53-2 section as provided by Section 5.521, Water Code.
53-3 [(f) If the order issued by the commission pursuant to this
53-4 section is adopted without notice or hearing, the order shall set a
53-5 time, at least 10 but not more than 30 days following the date of
53-6 issuance of the emergency order, and a place for a hearing to be
53-7 held in accordance with the rules of the commission. As a result
53-8 of this hearing, the commission shall decide whether to affirm,
53-9 modify, or set aside the emergency order. All provisions of the
53-10 emergency order shall remain in force and effect during the
53-11 pendency of the hearing, unless otherwise altered by the
53-12 commission.]
53-13 SECTION 54. Section 401.341, Health and Safety Code, is
53-14 amended to read as follows:
53-15 Sec. 401.341. JUDICIAL REVIEW. A person who is affected by
53-16 a final decision of the department [or commission] and who has
53-17 exhausted all administrative remedies available in the appropriate
53-18 agency is entitled to judicial review under Chapter 2001,
53-19 Government Code.
53-20 SECTION 55. Section 401.342, Health and Safety Code, is
53-21 amended to read as follows:
53-22 Sec. 401.342. SUIT BY ATTORNEY GENERAL. (a) The attorney
53-23 general, at the request of the department [or commission] regarding
53-24 an activity under its jurisdiction, shall institute an action in a
53-25 district court in Travis County or in any county in which a
53-26 violation occurs or is about to occur if in the department's
53-27 [requesting agency's] judgment a person has engaged in or is about
53-28 to engage in an act or practice that violates or will violate this
53-29 chapter or a rule, license, registration, or order adopted or
53-30 issued by the department [requesting agency] under this chapter.
53-31 The attorney general may determine the court in which suit will be
53-32 instituted.
53-33 (b) The attorney general may petition the court for:
53-34 (1) an order enjoining the act or practice or an order
53-35 directing compliance and reimbursement of the fund, if applicable;
53-36 (2) civil penalties as provided by Section 401.381; or
53-37 (3) a permanent or temporary injunction, restraining
53-38 order, or other appropriate order if the department [requesting
53-39 agency] shows that the person engaged in or is about to engage in
53-40 any of the acts or practices.
53-41 SECTION 56. Section 401.343, Health and Safety Code, is
53-42 amended to read as follows:
53-43 Sec. 401.343. RECOVERY OF SECURITY. (a) The department [or
53-44 commission] shall seek reimbursement, either by an order of the
53-45 department [agency] or a suit filed by the attorney general at the
53-46 department's [agency's] request, of security from the fund used by
53-47 the department [agency] to pay for actions, including corrective
53-48 measures, to remedy spills or contamination by radioactive material
53-49 resulting from a violation of this chapter relating to an activity
53-50 under the department's [agency's] jurisdiction or a rule, license,
53-51 registration, or order adopted or issued by the department [agency]
53-52 under this chapter.
53-53 (b) On request by the department [agency], the attorney
53-54 general shall file suit to recover security under this section.
53-55 SECTION 57. Subsection (a), Section 401.381, Health and
53-56 Safety Code, is amended to read as follows:
53-57 (a) A person who violates this chapter, a department [or
53-58 commission] rule or order, or a license or registration condition
53-59 is subject to a civil penalty of not less than $100 or more than
53-60 $25,000 for each violation and for each day that a continuing
53-61 violation occurs.
53-62 SECTION 58. Subsections (a) and (c), Section 401.384, Health
53-63 and Safety Code, are amended to read as follows:
53-64 (a) The department [or commission] may assess a civil
53-65 penalty as provided by this section and Sections 401.385-401.391
53-66 against a person who violates a provision of this chapter relating
53-67 to an activity under the department's [agency's] jurisdiction, a
53-68 rule or order adopted by the department [agency] under this
53-69 chapter, or a condition of a license or registration issued by the
54-1 department [agency] under this chapter.
54-2 (c) In determining the amount of the penalty, the department
54-3 [agency] shall consider:
54-4 (1) the seriousness of the violation, including the
54-5 nature, circumstances, extent, and gravity of the prohibited acts
54-6 and the hazard or potential hazard created to the public health or
54-7 safety;
54-8 (2) the history of previous violations;
54-9 (3) the amount necessary to deter future violations;
54-10 (4) efforts to correct the violation; and
54-11 (5) any other matters that justice requires.
54-12 SECTION 59. Section 401.385, Health and Safety Code, is
54-13 amended to read as follows:
54-14 Sec. 401.385. PRELIMINARY REPORT OF VIOLATION. If the
54-15 department [or commission], after an investigation, concludes that
54-16 a violation relating to an activity under its jurisdiction has
54-17 occurred, the department [agency] may issue a preliminary report:
54-18 (1) stating the facts that support the conclusion;
54-19 (2) recommending that a civil penalty under Section
54-20 401.384 be imposed; and
54-21 (3) recommending the amount of the penalty, which
54-22 shall be based on the seriousness of the violation as determined
54-23 from the facts surrounding the violation.
54-24 SECTION 60. Subsection (a), Section 401.386, Health and
54-25 Safety Code, is amended to read as follows:
54-26 (a) The department [or commission] shall give written notice
54-27 of its preliminary report to the person charged with the violation
54-28 not later than the 10th day after the date on which the report is
54-29 issued.
54-30 SECTION 61. Section 401.387, Health and Safety Code, is
54-31 amended to read as follows:
54-32 Sec. 401.387. CONSENT TO PENALTY. (a) If the person
54-33 charged with the violation consents to the penalty recommended by
54-34 the department [or commission] or does not respond to the notice on
54-35 time, the commissioner or the commissioner's designee, [or the
54-36 commission, as appropriate,] by order shall assess that penalty or
54-37 order a hearing to be held on the findings and recommendations in
54-38 the report.
54-39 (b) If the commissioner or the commissioner's designee [or
54-40 the commission] assesses the recommended penalty, the department
54-41 [or the commission, as appropriate,] shall give written notice to
54-42 the person charged of the decision and that person must pay the
54-43 penalty.
54-44 SECTION 62. Section 401.388, Health and Safety Code, is
54-45 amended to read as follows:
54-46 Sec. 401.388. HEARING AND DECISION. (a) If the person
54-47 charged requests a hearing, the commissioner [or the commission, as
54-48 appropriate,] shall order a hearing and shall give notice of that
54-49 hearing.
54-50 (b) The hearing shall be held by a hearing examiner
54-51 designated by the commissioner [or the commission, as appropriate].
54-52 (c) The hearing examiner shall make findings of fact and
54-53 promptly issue to the commissioner [or the commission, as
54-54 appropriate,] a written decision as to the occurrence of the
54-55 violation and a recommendation of the amount of the proposed
54-56 penalty if a penalty is warranted.
54-57 (d) Based on the findings of fact and the recommendations of
54-58 the hearing examiner, the commissioner [or the commission, as
54-59 appropriate,] by order may find that a violation has occurred and
54-60 assess a civil penalty or may find that no violation occurred.
54-61 (e) All proceedings under Subsections (a)-(d) are subject to
54-62 Chapter 2001, Government Code.
54-63 (f) The commissioner [or the commission, as appropriate,]
54-64 shall give notice to the person charged of the commissioner's [or
54-65 the commission's] decision, and if the commissioner [or the
54-66 commission, as appropriate,] finds that a violation has occurred
54-67 and a civil penalty has been assessed, the commissioner [or the
54-68 commission, as appropriate,] shall give to the person charged
54-69 written notice of:
55-1 (1) the commissioner's [or the commission's] findings;
55-2 (2) the amount of the penalty; and
55-3 (3) the person's right to judicial review of the
55-4 commissioner's [or the commission's] order.
55-5 SECTION 63. Section 401.389, Health and Safety Code, is
55-6 amended to read as follows:
55-7 Sec. 401.389. DISPOSITION OF PENALTY; JUDICIAL REVIEW.
55-8 (a) Not later than the 30th day after the date on which the
55-9 commissioner's [or the commission's] order is final, the person
55-10 charged with the penalty shall pay the full amount of the penalty
55-11 or file a petition for judicial review.
55-12 (b) If the person seeks judicial review of the violation,
55-13 the amount of the penalty, or both, the person, within the time
55-14 provided by Subsection (a), shall:
55-15 (1) send the amount of the penalty to the commissioner
55-16 [or the commission, as appropriate,] for placement in an escrow
55-17 account; or
55-18 (2) post with the commissioner [or the commission, as
55-19 appropriate,] a supersedeas bond in a form approved by the
55-20 commissioner [or the commission, as appropriate,] for the amount of
55-21 the penalty, the bond to be effective until judicial review of the
55-22 order or decision is final.
55-23 (c) The commissioner [or the commission, as appropriate,]
55-24 may request enforcement by the attorney general if the person
55-25 charged fails to comply with this section.
55-26 (d) Judicial review of the order or decision of the
55-27 commissioner [or the commission] assessing the penalty shall be
55-28 under Subchapter G, Chapter 2001, Government Code.
55-29 SECTION 64. Section 401.390, Health and Safety Code, is
55-30 amended to read as follows:
55-31 Sec. 401.390. REMITTING PENALTY PAYMENTS; RELEASING BONDS.
55-32 (a) If a penalty is reduced or not assessed, the commissioner [or
55-33 the commission, as appropriate,] shall:
55-34 (1) remit to the person charged the appropriate amount
55-35 of any penalty payment plus accrued interest; or
55-36 (2) execute a release of the bond if a supersedeas
55-37 bond has been posted.
55-38 (b) Accrued interest on amounts remitted by the commissioner
55-39 [or the commission] shall be paid:
55-40 (1) at a rate equal to the rate charged on loans to
55-41 depository institutions by the New York Federal Reserve Bank; and
55-42 (2) for the period beginning on the date the penalty
55-43 is paid to the commissioner under Section 401.389(a) and ending on
55-44 the date the penalty is remitted.
55-45 SECTION 65. Subchapter J, Chapter 401, Health and Safety
55-46 Code, is amended by adding Section 401.393 to read as follows:
55-47 Sec. 401.393. COMMISSION ENFORCEMENT. The commission may
55-48 enforce the provisions of this chapter under the commission's
55-49 jurisdiction as provided by Chapter 7, Water Code.
55-50 SECTION 66. (a) The following provisions of the Water Code
55-51 are repealed:
55-52 (1) Sections 11.082, 11.087(d), 11.095, 11.139,
55-53 11.148, and 12.141;
55-54 (2) Subchapter K, Chapter 13;
55-55 (3) Sections 13.505, 16.352 through 16.354, 16.356,
55-56 18.121 through 18.123, 18.171, 18.172, 26.016, 26.122 through
55-57 26.126, 26.132 through 26.134, 26.136, 26.174, 26.211 through
55-58 26.214, 26.216, 26.218 through 26.227, 26.268, 26.353, and 26.460;
55-59 (4) Section 27.1015;
55-60 (5) Section 28.013;
55-61 (6) Subchapter E, Chapter 28; and
55-62 (7) Sections 31.019, 32.010 through 32.012, 32.015,
55-63 33.008 through 33.010, 33.013, and 34.010 through 34.014.
55-64 (b) The following provisions of the Health and Safety Code
55-65 are repealed:
55-66 (1) Sections 341.047 through 341.050, 361.011(e),
55-67 361.164, and 361.198;
55-68 (2) Subchapters G and H, Chapter 361;
55-69 (3) Sections 361.280, 361.302, 361.303, 361.451(c),
56-1 361.455, 361.456, 361.483 through 361.4832, 361.489, 361.491,
56-2 361.540, 361.560, 361.562 through 361.567, 366.015, and 366.077;
56-3 (4) Subchapter F, Chapter 366; and
56-4 (5) Sections 370.009, 371.042 through 371.045,
56-5 372.004, 372.005, 382.004, 382.005, 382.059, 382.081 through
56-6 382.084, 382.086 through 382.096, 382.114, 401.391, and 401.392.
56-7 SECTION 67. This Act takes effect September 1, 1997.
56-8 SECTION 68. (a) A change in law made by this Act that
56-9 relates to an offense or penalty applies only to an offense
56-10 committed on or after September 1, 1997. For purposes of this
56-11 section, an offense is committed before September 1, 1997, if any
56-12 element of the offense occurs before that date. An offense
56-13 committed before September 1, 1997, is covered by the law in effect
56-14 when the offense was committed, and the former law is continued in
56-15 effect for that purpose.
56-16 (b) A change in law made by this Act that relates to an
56-17 administrative or civil penalty or the revocation of a permit,
56-18 license, certificate, registration, or other form of authorization
56-19 issued by the Texas Natural Resource Conservation Commission
56-20 applies only to a violation that occurred on or after September 1,
56-21 1997. A violation that occurs before September 1, 1997, is covered
56-22 by the law in effect when the violation occurred, and the former
56-23 law is continued in effect for that purpose.
56-24 SECTION 69. The importance of this legislation and the
56-25 crowded condition of the calendars in both houses create an
56-26 emergency and an imperative public necessity that the
56-27 constitutional rule requiring bills to be read on three several
56-28 days in each house be suspended, and this rule is hereby suspended.
56-29 * * * * *