HBA-MPM S.B. 1309 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1309 By: Brown Environmental Regulation 5/4/1999 Engrossed BACKGROUND AND PURPOSE Current law consolidates the emergency order and enforcement authority of the Texas Natural Resource Conservation Commission (commission) into the Water Code. The Senate Interim Committee on Natural Resources received an interim charge to monitor the implementation of this order. S.B. 1309 authorizes technical corrections necessary to complete the consolidation of the commission's emergency order and enforcement authority. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 7.002, Water Code, as follows: (a) Includes orders, permits, and other decisions adopted under provisions of this code along with the rules that the Texas Natural Resource Conservation Commission (TNRCC) is authorized to initiate an action to enforce. (b) Authorizes TNRCC to call and hold a public hearing and issue orders on an alleged violation under this code or the Health and Safety Code within its jurisdiction or under a rule, order, permit, or other TNRCC decision, or to take any other action authorized by this chapter as warranted. (c) Authorizes TNRCC to administer oaths, receive evidence at the hearing, issue subpoenas to compel the attendance of witnesses and the production of papers and documents related to the hearing, and to make findings of fact and decisions with respect to administering the provisions of this code and the Health and Safety Code within TNRCC's jurisdiction or the rules, orders, or other decisions of TNRCC. SECTION 2. Amends Section 7.068, Water Code, to provide that payment of an administrative penalty under Subchapter C (Administrative Penalties) precludes any criminal penalty for the same violation unless TNRCC, before payment of the administrative penalty, has provided notice to the alleged violator of its intent to prosecute criminally. SECTION 3. Amends Section 7.107, Water Code, to require the state to deposit its part of a penalty recovered in a suit brought by a local government for a violation of Chapter 371 (Used Oil Collection, Management, and Recycling), Health and Safety Code, or a rule or order adopted under that chapter to the credit of the used oil recycling account. Makes conforming changes. SECTION 4. Amends Section 7.141, Water Code, to define the following terms for the purposes of this subchapter: "air contaminant," "Class I industrial solid waste," "Class I nonhazardous industrial solid waste," "discharge," "hazardous waste," "industrial solid waste," "municipal solid waste," "on-site sewage disposal system," "point source," "pollutant," "pollution," "processing," "release," "solid waste," "solid waste facility," "underground storage tank," "used oil," "waste," and "water." SECTION 5. Amends Section 7.173, Water Code, as follows: Sec. 7.173. New title: VIOLATION RELATING TO SEWAGE DISPOSAL. (a) Removes the provision that a person commits an offense if violating a TNRCC-adopted rule under Chapter 366 (On-Site Sewage Disposal Systems), Health and Safety Code, or an order or resolution adopted by an authorized agent under Subchapter C (Designation of Local Governmental Entity as Authorized Agent), Chapter 366, Health and Safety Code, if the offense is committed only in a county that is contiguous to an international border. SECTION 6. Amends Section 7.187, Water Code, to provide that a person convicted of an offense under Chapter 7 (Enforcement) is punishable by imprisonment, in addition to confinement, for a period as imposed by the section creating the offense of no more than a certain amount of days in jail. Defines "institutional division" for purposes of this section. SECTION 7. Amends Section 7.351, Water Code, to authorize an authorized agent as defined in Chapter 366, Health and Safety Code, to institute a civil suit under Subchapter D (Permits; Fees) in the same manner as TNRCC by its own attorney for the injunctive relief or civil penalty, or both, as authorized by this chapter against the person who committed, is committing, or is threatening to commit the violation, if it appears that a violation or threat of violation of Chapter 366, Health and Safety Code, under TNRCC's jurisdiction or a rule adopted or an order or a permit issued under that chapter has occurred or is occurring in the jurisdiction of a local government. SECTION 8. Amends Subsections (d) and (e), Section 361.017, Health and Safety Code, to delete text requiring TNRCC to consult with the attorney general's office for assistance in certain referral issues, as well as text requiring TNRCC to consult with the attorney general's office in determining whether criminal or civil action should be taken, if appropriate. Deletes text requiring TNRCC to use all available enforcement options. SECTION 9. Amends Section 366.016, Health and Safety Code, to authorize TNRCC or an authorized agent to issue an emergency order concerning an on-site sewage disposal system under Section 5.513 (Emergency Order Concerning On-Site Sewage Disposal System), rather than 5.517, Water Code. SECTION 10. Amends Subsection (d), Section 382.015, Health and Safety Code, to entitle TNRCC to the remedies provided by Subchapter L (Emergency and Temporary Orders), Chapter 5 (Texas Natural Resource Conservation Commission), and Subchapters B (Corrective Action and Injunctive Relief), C (Administrative Penalties), and D (Civil Penalties), Chapter 7 (Enforcement), Water Code, rather than Sections 382.082-283.085, Water Code, if a member, employee, or agent is refused the right to enter public or private property as provided by this section. SECTION 11. Amends Subsection (b), Section 382.023, Health and Safety Code, to authorize TNRCC, if it appears that Chapter 11 (Clean Air Act) or a TNRCC rule, order or determination is being violated, or the executive director if authorized by TNRCC or this chapter, to proceed under Subchapter B, Water Code, rather than Sections 382.082-382.084, Water Code. SECTION 12. Repealer: Sections 5.117 (Mandatory Enforcement Hearing) and 26.2171 (Venue), Water Code, and Section 371.043 (Civil Penalty), Health and Safety Code. SECTION 13. Effective date: September 1, 1999. SECTION 14. (a) Makes changes in law made by this Act prospective to an offense or violation committed or an action commenced on or after the effective date of this Act. Provides that the change in law relating to court jurisdiction made by Section 7.351, Water Code, as amended by this Act, prevails over an amendment to that section by any other Act of the 76th Legislature, Regular Session, 1999, regardless of the relative dates of enactment. SECTION 15. Emergency clause.