By: Brown S.B. No. 1309
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the clarification of issues involved in consolidation
1-2 of the enforcement authority of the Texas Natural Resource
1-3 Conservation Commission; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 7.002, Water Code, is amended to read as
1-6 follows:
1-7 Sec. 7.002. ENFORCEMENT AUTHORITY. (a) The commission may
1-8 initiate an action under this chapter to enforce provisions of this
1-9 code and the Health and Safety Code within the commission's
1-10 jurisdiction as provided by Section 5.013 of this code and rules,
1-11 orders, permits, or other decisions adopted under those provisions.
1-12 The commission or the executive director may institute legal
1-13 proceedings to compel compliance with the relevant provisions of
1-14 this code and the Health and Safety Code and rules, orders,
1-15 permits, or other decisions of the commission.
1-16 (b) The commission may call and hold a public hearing and
1-17 issue orders on an alleged violation under this code or the Health
1-18 and Safety Code within the commission's jurisdiction or under a
1-19 rule, order, permit, or other decision of the commission or take
1-20 any other action authorized by this chapter as the facts may
1-21 warrant.
1-22 (c) The commission may administer oaths, receive evidence
1-23 at the hearing, issue subpoenas to compel the attendance of
1-24 witnesses and the production of papers and documents related to the
2-1 hearing, and make findings of fact and decisions with respect to
2-2 administering the provisions of this code and the Health and Safety
2-3 Code within the commission's jurisdiction or the rules, orders, or
2-4 other decisions of the commission.
2-5 SECTION 2. Section 7.068, Water Code, is amended to read as
2-6 follows:
2-7 Sec. 7.068. FULL AND COMPLETE SATISFACTION. Payment of an
2-8 administrative penalty under this subchapter [is full and complete
2-9 satisfaction of the violation for which the penalty is assessed
2-10 and] precludes any other civil [or criminal] penalty for the same
2-11 violation and precludes any criminal penalty for the same violation
2-12 unless the commission, before the payment of the administrative
2-13 penalty, has provided notice to the alleged violator of the
2-14 agency's intent to prosecute criminally.
2-15 SECTION 3. Section 7.107, Water Code, is amended to read as
2-16 follows:
2-17 Sec. 7.107. DIVISION OF CIVIL PENALTY. (a) Except in a
2-18 suit brought for a violation of Chapter 28 of this code or of
2-19 Chapter 401, Health and Safety Code, a civil penalty recovered in a
2-20 suit brought under this subchapter by a local government shall be
2-21 equally divided between:
2-22 (1) the state; and
2-23 (2) the local government that brought the suit.
2-24 (b) The state shall deposit its part of a penalty recovered
2-25 in a suit brought by a local government for a violation of Chapter
2-26 371, Health and Safety Code, or a rule or order adopted under that
3-1 chapter to the credit of the used oil recycling account.
3-2 SECTION 4. Section 7.141, Water Code, is amended to read as
3-3 follows:
3-4 Sec. 7.141. DEFINITIONS. In this subchapter:
3-5 (1) "Air contaminant" has the meaning assigned by
3-6 Section 382.003, Health and Safety Code.
3-7 (2) "Appropriate regulatory agency" means the
3-8 commission, the Texas Department of Health, or any other agency
3-9 authorized to regulate the handling and disposal of medical waste.
3-10 (3) "Class I industrial solid waste" has the meaning
3-11 assigned by Section 361.003, Health and Safety Code.
3-12 (4) "Class I nonhazardous industrial solid waste" has
3-13 the meaning assigned by Section 361.003, Health and Safety Code.
3-14 (5) [(2)] "Corporation" and "association" have the
3-15 meanings assigned by Section 1.07, Penal Code, except that the
3-16 terms do not include a government.
3-17 (6) "Discharge" has the meaning assigned by Section
3-18 26.001 to the term "to discharge."
3-19 (7) "Hazardous waste" has the meaning assigned by
3-20 Section 361.003, Health and Safety Code.
3-21 (8) "Industrial solid waste" has the meaning assigned
3-22 by Section 361.003, Health and Safety Code.
3-23 (9) [(3)] "Large quantity generator" means a person
3-24 who generates more than 50 pounds of medical waste each month.
3-25 (10) [(4)] "Medical waste" includes animal waste, bulk
3-26 blood and blood products, microbiological waste, pathological
4-1 waste, sharps, and special waste from health care-related
4-2 facilities as those terms are defined in 25 T.A.C. Section 1.132
4-3 (Texas Department of Health, Definition, Treatment, and Disposition
4-4 of Special Waste from Health Care-Related Facilities). The term
4-5 does not include medical waste produced on farmland and ranchland
4-6 as defined by Section 252.001(6), Agriculture Code.
4-7 (11) "Municipal solid waste" has the meaning assigned
4-8 by Section 361.003, Health and Safety Code.
4-9 (12) "On-site sewage disposal system" has the meaning
4-10 assigned by Section 366.002, Health and Safety Code.
4-11 (13) "Point source" has the meaning assigned by
4-12 Section 26.001.
4-13 (14) "Pollutant" has the meaning assigned by Section
4-14 26.001.
4-15 (15) "Pollution" has the meaning assigned by:
4-16 (A) Section 26.001 of this code with regard to
4-17 water; and
4-18 (B) Section 361.003, Health and Safety Code,
4-19 with regard to solid waste.
4-20 (16) "Processing" has the meaning assigned by:
4-21 (A) Section 361.003, Health and Safety Code,
4-22 with regard to solid waste;
4-23 (B) Section 371.003, Health and Safety Code,
4-24 with regard to used oil; or
4-25 (C) Section 401.003, Health and Safety Code,
4-26 with regard to radioactive waste.
5-1 (17) "Release" has the meaning assigned by Section
5-2 361.003, Health and Safety Code.
5-3 (18) [(5)] "Serious bodily injury" has the meaning
5-4 assigned by Section 1.07, Penal Code.
5-5 (19) [(6)] "Small quantity generator" means a person
5-6 who generates 50 pounds or less of medical waste each month.
5-7 (20) "Solid waste" has the meaning assigned by Section
5-8 361.003, Health and Safety Code.
5-9 (21) "Solid waste facility" has the meaning assigned
5-10 by Section 361.003, Health and Safety Code.
5-11 (22) "Underground storage tank" has the meaning
5-12 assigned by Section 26.342.
5-13 (23) "Used oil" has the meaning assigned by Section
5-14 371.003, Health and Safety Code.
5-15 (24) "Waste" has the meaning assigned by Section
5-16 26.001.
5-17 (25) "Water" has the meaning assigned by Section
5-18 26.001.
5-19 SECTION 5. Section 7.173, Water Code, is amended to read as
5-20 follows:
5-21 Sec. 7.173. VIOLATION RELATING TO SEWAGE DISPOSAL [NEAR
5-22 INTERNATIONAL BORDER]. (a) A person commits an offense if the
5-23 person violates a rule adopted by the commission under Chapter 366,
5-24 Health and Safety Code, or an order or resolution adopted by an
5-25 authorized agent under Subchapter C, Chapter 366, Health and Safety
5-26 Code[, in a county that is contiguous to an international border].
6-1 (b) Except as provided by this subsection, an offense under
6-2 this section is a Class C misdemeanor. If it is shown on the trial
6-3 of the defendant that the defendant has been previously convicted
6-4 of an offense under this section, the offense is punishable under
6-5 Section 7.187(1)(A) or Section 7.187(2)(A) or both.
6-6 SECTION 6. Section 7.187, Water Code, is amended to read as
6-7 follows:
6-8 Sec. 7.187. PENALTIES. (a) A person convicted of an
6-9 offense under this subchapter is punishable by:
6-10 (1) a fine, as imposed under the section creating the
6-11 offense, of:
6-12 (A) not more than $1,000;
6-13 (B) not less than $1,000 or more than $50,000;
6-14 (C) not less than $1,000 or more than $100,000;
6-15 (D) not less than $1,000 or more than $250,000;
6-16 (E) not less than $2,000 or more than $500,000;
6-17 (F) not less than $5,000 or more than
6-18 $1,000,000;
6-19 (G) not less than $10,000 or more than
6-20 $1,500,000; or
6-21 (H) not more than twice the amount of the
6-22 required fee;
6-23 (2) confinement or imprisonment for a period, as
6-24 imposed by the section creating the offense, of [not to exceed]:
6-25 (A) not more than 30 days in jail;
6-26 (B) not more than 90 days in jail;
7-1 (C) not more than 180 days in jail;
7-2 (D) not more than one year or less than 180 days
7-3 in a state jail;
7-4 (E) not more than two years or less than 180
7-5 days in a state jail or in the institutional division;
7-6 (F) not more than five years or less than two
7-7 years in the institutional division;
7-8 (G) not more than 10 years or less than two
7-9 years in the institutional division;
7-10 (H) not more than 15 years or less than two
7-11 years in the institutional division;
7-12 (I) not more than 20 years or less than two
7-13 years in the institutional division; or
7-14 (J) not more than 30 years or less than two
7-15 years in the institutional division; or
7-16 (3) both fine and confinement or imprisonment, as
7-17 imposed by the section creating the offense.
7-18 (b) In this section, "institutional division" has the
7-19 meaning assigned by Section 1.07, Penal Code.
7-20 SECTION 7. Section 7.351, Water Code, is amended to read as
7-21 follows:
7-22 Sec. 7.351. CIVIL SUITS. (a) If it appears that a
7-23 violation or threat of violation of Chapter 16, 26, 28, or 34 of
7-24 this code or Chapter 361, 371, 372, or 382, Health and Safety Code,
7-25 or a provision of Chapter 401, Health and Safety Code, under the
7-26 commission's jurisdiction, or a rule adopted or an order or a
8-1 permit issued under those chapters or provisions has occurred or is
8-2 occurring in the jurisdiction of a local government, the local
8-3 government or, in the case of a violation of Chapter 401, Health
8-4 and Safety Code, a person affected as defined in that chapter, may
8-5 institute a civil suit under Subchapter D in the same manner as the
8-6 commission [in a district court] by its own attorney for the
8-7 injunctive relief or civil penalty, or both, as authorized by this
8-8 chapter against the person who committed, is committing, or is
8-9 threatening to commit the violation.
8-10 (b) If it appears that a violation or threat of violation of
8-11 Chapter 366, Health and Safety Code, under the commission's
8-12 jurisdiction or a rule adopted or an order or a permit issued under
8-13 that chapter has occurred or is occurring in the jurisdiction of a
8-14 local government, an authorized agent as defined in that chapter
8-15 may institute a civil suit under Subchapter D in the same manner as
8-16 the commission by its own attorney for the injunctive relief or
8-17 civil penalty, or both, as authorized by this chapter against the
8-18 person who committed, is committing, or is threatening to commit
8-19 the violation.
8-20 SECTION 8. Subsections (d) and (e), Section 361.017, Health
8-21 and Safety Code, are amended to read as follows:
8-22 (d) In matters relating to industrial solid waste and
8-23 hazardous municipal waste, the commission shall[:]
8-24 [(1)] consider the public health aspects and the air
8-25 pollution control and ambient air quality aspects[; and]
8-26 [(2) consult with the attorney general's office for
9-1 assistance in determining whether referral to the attorney general
9-2 for enforcement is mandatory under Section 361.224 or whether
9-3 referral is appropriate, in the commission's discretion, for the
9-4 disposition of enforcement matters under this chapter.]
9-5 [(e) If referral is determined to be mandatory or
9-6 appropriate, the commission shall consult with the attorney
9-7 general's office for assistance in determining whether criminal or
9-8 civil enforcement action should be taken. The commission shall use
9-9 all available enforcement options].
9-10 SECTION 9. Section 366.016, Health and Safety Code, is
9-11 amended to read as follows:
9-12 Sec. 366.016. EMERGENCY ORDERS. The commission or
9-13 authorized agent may issue an emergency order concerning an on-site
9-14 sewage disposal system under Section 5.513 [5.517], Water Code.
9-15 SECTION 10. Subsection (d), Section 382.015, Health and
9-16 Safety Code, is amended to read as follows:
9-17 (d) The commission is entitled to the remedies provided by
9-18 Subchapter L, Chapter 5, Water Code, and Subchapters B, C, and D,
9-19 Chapter 7, Water Code, [Sections 382.082-382.085] if a member,
9-20 employee, or agent is refused the right to enter public or private
9-21 property as provided by this section.
9-22 SECTION 11. Subsection (b), Section 382.023, Health and
9-23 Safety Code, is amended to read as follows:
9-24 (b) If it appears that this chapter or a commission rule,
9-25 order, or determination is being violated, the commission, or the
9-26 executive director if authorized by the commission or this chapter,
10-1 may proceed under Subchapter B, C, or D, Chapter 7, Water Code
10-2 [Sections 382.082-382.084], or hold a public hearing and issue
10-3 orders on the alleged violation, or take any other action
10-4 authorized by this chapter as the facts may warrant.
10-5 SECTION 12. Sections 5.117 and 26.2171, Water Code, and
10-6 Section 371.043, Health and Safety Code, are repealed.
10-7 SECTION 13. This Act takes effect September 1, 1999.
10-8 SECTION 14. (a) The changes in law made by this Act apply
10-9 only to an offense or violation committed or an action commenced on
10-10 or after the effective date of this Act. For purposes of this
10-11 section an offense or violation is committed before the effective
10-12 date of this Act if any element of the offense or violation occurs
10-13 before that date.
10-14 (b) An offense or violation committed or an action commenced
10-15 before the effective date of this Act is covered by the law in
10-16 effect when the offense or violation was committed or the action
10-17 commenced, and the former law is continued in effect for that
10-18 purpose.
10-19 (c) The change in law relating to court jurisdiction made by
10-20 Section 7.351, Water Code, as amended by this Act, prevails over an
10-21 amendment to that section by any other Act of the 76th Legislature,
10-22 Regular Session, 1999, regardless of the relative dates of
10-23 enactment.
10-24 SECTION 15. The importance of this legislation and the
10-25 crowded condition of the calendars in both houses create an
10-26 emergency and an imperative public necessity that the
11-1 constitutional rule requiring bills to be read on three several
11-2 days in each house be suspended, and this rule is hereby suspended.