1-1 By: Brown S.B. No. 1309
1-2 (In the Senate - Filed March 11, 1999; March 15, 1999, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 6, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 6, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1309 By: Brown
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the clarification of issues involved in consolidation
1-11 of the enforcement authority of the Texas Natural Resource
1-12 Conservation Commission; providing penalties.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Section 7.002, Water Code, is amended to read as
1-15 follows:
1-16 Sec. 7.002. ENFORCEMENT AUTHORITY. (a) The commission may
1-17 initiate an action under this chapter to enforce provisions of this
1-18 code and the Health and Safety Code within the commission's
1-19 jurisdiction as provided by Section 5.013 of this code and rules,
1-20 orders, permits, or other decisions adopted under those provisions.
1-21 The commission or the executive director may institute legal
1-22 proceedings to compel compliance with the relevant provisions of
1-23 this code and the Health and Safety Code and rules, orders,
1-24 permits, or other decisions of the commission.
1-25 (b) The commission may call and hold a public hearing and
1-26 issue orders on an alleged violation under this code or the Health
1-27 and Safety Code within the commission's jurisdiction or under a
1-28 rule, order, permit, or other decision of the commission or take
1-29 any other action authorized by this chapter as the facts may
1-30 warrant.
1-31 (c) The commission may administer oaths, receive evidence
1-32 at the hearing, issue subpoenas to compel the attendance of
1-33 witnesses and the production of papers and documents related to the
1-34 hearing, and make findings of fact and decisions with respect to
1-35 administering the provisions of this code and the Health and Safety
1-36 Code within the commission's jurisdiction or the rules, orders, or
1-37 other decisions of the commission.
1-38 SECTION 2. Section 7.068, Water Code, is amended to read as
1-39 follows:
1-40 Sec. 7.068. FULL AND COMPLETE SATISFACTION. Payment of an
1-41 administrative penalty under this subchapter [is full and complete
1-42 satisfaction of the violation for which the penalty is assessed
1-43 and] precludes any other civil [or criminal] penalty for the same
1-44 violation and precludes any criminal penalty for the same violation
1-45 unless the commission, before the payment of the administrative
1-46 penalty, has provided notice to the alleged violator of the
1-47 agency's intent to prosecute criminally.
1-48 SECTION 3. Section 7.107, Water Code, is amended to read as
1-49 follows:
1-50 Sec. 7.107. DIVISION OF CIVIL PENALTY. (a) Except in a
1-51 suit brought for a violation of Chapter 28 of this code or of
1-52 Chapter 401, Health and Safety Code, a civil penalty recovered in a
1-53 suit brought under this subchapter by a local government shall be
1-54 equally divided between:
1-55 (1) the state; and
1-56 (2) the local government that brought the suit.
1-57 (b) The state shall deposit its part of a penalty recovered
1-58 in a suit brought by a local government for a violation of Chapter
1-59 371, Health and Safety Code, or a rule or order adopted under that
1-60 chapter to the credit of the used oil recycling account.
1-61 SECTION 4. Section 7.141, Water Code, is amended to read as
1-62 follows:
1-63 Sec. 7.141. DEFINITIONS. In this subchapter:
1-64 (1) "Air contaminant" has the meaning assigned by
2-1 Section 382.003, Health and Safety Code.
2-2 (2) "Appropriate regulatory agency" means the
2-3 commission, the Texas Department of Health, or any other agency
2-4 authorized to regulate the handling and disposal of medical waste.
2-5 (3) "Class I industrial solid waste" has the meaning
2-6 assigned by Section 361.003, Health and Safety Code.
2-7 (4) "Class I nonhazardous industrial solid waste" has
2-8 the meaning assigned by Section 361.003, Health and Safety Code.
2-9 (5) [(2)] "Corporation" and "association" have the
2-10 meanings assigned by Section 1.07, Penal Code, except that the
2-11 terms do not include a government.
2-12 (6) "Discharge" has the meaning assigned by Section
2-13 26.001 to the term "to discharge."
2-14 (7) "Hazardous waste" has the meaning assigned by
2-15 Section 361.003, Health and Safety Code.
2-16 (8) "Industrial solid waste" has the meaning assigned
2-17 by Section 361.003, Health and Safety Code.
2-18 (9) [(3)] "Large quantity generator" means a person
2-19 who generates more than 50 pounds of medical waste each month.
2-20 (10) [(4)] "Medical waste" includes animal waste, bulk
2-21 blood and blood products, microbiological waste, pathological
2-22 waste, sharps, and special waste from health care-related
2-23 facilities as those terms are defined in 25 T.A.C. Section 1.132
2-24 (Texas Department of Health, Definition, Treatment, and Disposition
2-25 of Special Waste from Health Care-Related Facilities). The term
2-26 does not include medical waste produced on farmland and ranchland
2-27 as defined by Section 252.001(6), Agriculture Code.
2-28 (11) "Municipal solid waste" has the meaning assigned
2-29 by Section 361.003, Health and Safety Code.
2-30 (12) "On-site sewage disposal system" has the meaning
2-31 assigned by Section 366.002, Health and Safety Code.
2-32 (13) "Point source" has the meaning assigned by
2-33 Section 26.001.
2-34 (14) "Pollutant" has the meaning assigned by Section
2-35 26.001.
2-36 (15) "Pollution" has the meaning assigned by:
2-37 (A) Section 26.001 of this code with regard to
2-38 water; and
2-39 (B) Section 361.003, Health and Safety Code,
2-40 with regard to solid waste.
2-41 (16) "Processing" has the meaning assigned by:
2-42 (A) Section 361.003, Health and Safety Code,
2-43 with regard to solid waste;
2-44 (B) Section 371.003, Health and Safety Code,
2-45 with regard to used oil; or
2-46 (C) Section 401.003, Health and Safety Code,
2-47 with regard to radioactive waste.
2-48 (17) "Release" has the meaning assigned by Section
2-49 361.003, Health and Safety Code.
2-50 (18) [(5)] "Serious bodily injury" has the meaning
2-51 assigned by Section 1.07, Penal Code.
2-52 (19) [(6)] "Small quantity generator" means a person
2-53 who generates 50 pounds or less of medical waste each month.
2-54 (20) "Solid waste" has the meaning assigned by Section
2-55 361.003, Health and Safety Code.
2-56 (21) "Solid waste facility" has the meaning assigned
2-57 by Section 361.003, Health and Safety Code.
2-58 (22) "Underground storage tank" has the meaning
2-59 assigned by Section 26.342.
2-60 (23) "Used oil" has the meaning assigned by Section
2-61 371.003, Health and Safety Code.
2-62 (24) "Waste" has the meaning assigned by Section
2-63 26.001.
2-64 (25) "Water" has the meaning assigned by Section
2-65 26.001.
2-66 SECTION 5. Section 7.173, Water Code, is amended to read as
2-67 follows:
2-68 Sec. 7.173. VIOLATION RELATING TO SEWAGE DISPOSAL [NEAR
2-69 INTERNATIONAL BORDER]. (a) A person commits an offense if the
3-1 person violates a rule adopted by the commission under Chapter 366,
3-2 Health and Safety Code, or an order or resolution adopted by an
3-3 authorized agent under Subchapter C, Chapter 366, Health and Safety
3-4 Code[, in a county that is contiguous to an international border].
3-5 (b) Except as provided by this subsection, an offense under
3-6 this section is a Class C misdemeanor. If it is shown on the trial
3-7 of the defendant that the defendant has been previously convicted
3-8 of an offense under this section, the offense is punishable under
3-9 Section 7.187(1)(A) or Section 7.187(2)(A) or both.
3-10 SECTION 6. Section 7.187, Water Code, is amended to read as
3-11 follows:
3-12 Sec. 7.187. PENALTIES. (a) A person convicted of an
3-13 offense under this subchapter is punishable by:
3-14 (1) a fine, as imposed under the section creating the
3-15 offense, of:
3-16 (A) not more than $1,000;
3-17 (B) not less than $1,000 or more than $50,000;
3-18 (C) not less than $1,000 or more than $100,000;
3-19 (D) not less than $1,000 or more than $250,000;
3-20 (E) not less than $2,000 or more than $500,000;
3-21 (F) not less than $5,000 or more than
3-22 $1,000,000;
3-23 (G) not less than $10,000 or more than
3-24 $1,500,000; or
3-25 (H) not more than twice the amount of the
3-26 required fee;
3-27 (2) confinement or imprisonment for a period, as
3-28 imposed by the section creating the offense, of [not to exceed]:
3-29 (A) not more than 30 days in jail;
3-30 (B) not more than 90 days in jail;
3-31 (C) not more than 180 days in jail;
3-32 (D) not more than one year or less than 180 days
3-33 in a state jail;
3-34 (E) not more than two years or less than 180
3-35 days in a state jail or in the institutional division;
3-36 (F) not more than five years or less than two
3-37 years in the institutional division;
3-38 (G) not more than 10 years or less than two
3-39 years in the institutional division;
3-40 (H) not more than 15 years or less than two
3-41 years in the institutional division;
3-42 (I) not more than 20 years or less than two
3-43 years in the institutional division; or
3-44 (J) not more than 30 years or less than two
3-45 years in the institutional division; or
3-46 (3) both fine and confinement or imprisonment, as
3-47 imposed by the section creating the offense.
3-48 (b) In this section, "institutional division" has the
3-49 meaning assigned by Section 1.07, Penal Code.
3-50 SECTION 7. Section 7.351, Water Code, is amended to read as
3-51 follows:
3-52 Sec. 7.351. CIVIL SUITS. (a) If it appears that a
3-53 violation or threat of violation of Chapter 16, 26, 28, or 34 of
3-54 this code or Chapter 361, 371, 372, or 382, Health and Safety Code,
3-55 or a provision of Chapter 401, Health and Safety Code, under the
3-56 commission's jurisdiction, or a rule adopted or an order or a
3-57 permit issued under those chapters or provisions has occurred or is
3-58 occurring in the jurisdiction of a local government, the local
3-59 government or, in the case of a violation of Chapter 401, Health
3-60 and Safety Code, a person affected as defined in that chapter, may
3-61 institute a civil suit under Subchapter D in the same manner as the
3-62 commission [in a district court] by its own attorney for the
3-63 injunctive relief or civil penalty, or both, as authorized by this
3-64 chapter against the person who committed, is committing, or is
3-65 threatening to commit the violation.
3-66 (b) If it appears that a violation or threat of violation of
3-67 Chapter 366, Health and Safety Code, under the commission's
3-68 jurisdiction or a rule adopted or an order or a permit issued under
3-69 that chapter has occurred or is occurring in the jurisdiction of a
4-1 local government, an authorized agent as defined in that chapter
4-2 may institute a civil suit under Subchapter D in the same manner as
4-3 the commission by its own attorney for the injunctive relief or
4-4 civil penalty, or both, as authorized by this chapter against the
4-5 person who committed, is committing, or is threatening to commit
4-6 the violation.
4-7 SECTION 8. Subsections (d) and (e), Section 361.017, Health
4-8 and Safety Code, are amended to read as follows:
4-9 (d) In matters relating to industrial solid waste and
4-10 hazardous municipal waste, the commission shall[:]
4-11 [(1)] consider the public health aspects and the air
4-12 pollution control and ambient air quality aspects[; and]
4-13 [(2) consult with the attorney general's office for
4-14 assistance in determining whether referral to the attorney general
4-15 for enforcement is mandatory under Section 361.224 or whether
4-16 referral is appropriate, in the commission's discretion, for the
4-17 disposition of enforcement matters under this chapter.]
4-18 [(e) If referral is determined to be mandatory or
4-19 appropriate, the commission shall consult with the attorney
4-20 general's office for assistance in determining whether criminal or
4-21 civil enforcement action should be taken. The commission shall use
4-22 all available enforcement options].
4-23 SECTION 9. Section 366.016, Health and Safety Code, is
4-24 amended to read as follows:
4-25 Sec. 366.016. EMERGENCY ORDERS. The commission or
4-26 authorized agent may issue an emergency order concerning an on-site
4-27 sewage disposal system under Section 5.513 [5.517], Water Code.
4-28 SECTION 10. Subsection (d), Section 382.015, Health and
4-29 Safety Code, is amended to read as follows:
4-30 (d) The commission is entitled to the remedies provided by
4-31 Subchapter L, Chapter 5, Water Code, and Subchapters B, C, and D,
4-32 Chapter 7, Water Code, [Sections 382.082-382.085] if a member,
4-33 employee, or agent is refused the right to enter public or private
4-34 property as provided by this section.
4-35 SECTION 11. Subsection (b), Section 382.023, Health and
4-36 Safety Code, is amended to read as follows:
4-37 (b) If it appears that this chapter or a commission rule,
4-38 order, or determination is being violated, the commission, or the
4-39 executive director if authorized by the commission or this chapter,
4-40 may proceed under Subchapter B, C, or D, Chapter 7, Water Code
4-41 [Sections 382.082-382.084], or hold a public hearing and issue
4-42 orders on the alleged violation, or take any other action
4-43 authorized by this chapter as the facts may warrant.
4-44 SECTION 12. Sections 5.117 and 26.2171, Water Code, and
4-45 Section 371.043, Health and Safety Code, are repealed.
4-46 SECTION 13. This Act takes effect September 1, 1999.
4-47 SECTION 14. (a) The changes in law made by this Act apply
4-48 only to an offense or violation committed or an action commenced on
4-49 or after the effective date of this Act. For purposes of this
4-50 section an offense or violation is committed before the effective
4-51 date of this Act if any element of the offense or violation occurs
4-52 before that date.
4-53 (b) An offense or violation committed or an action commenced
4-54 before the effective date of this Act is covered by the law in
4-55 effect when the offense or violation was committed or the action
4-56 commenced, and the former law is continued in effect for that
4-57 purpose.
4-58 (c) The change in law relating to court jurisdiction made by
4-59 Section 7.351, Water Code, as amended by this Act, prevails over an
4-60 amendment to that section by any other Act of the 76th Legislature,
4-61 Regular Session, 1999, regardless of the relative dates of
4-62 enactment.
4-63 SECTION 15. The importance of this legislation and the
4-64 crowded condition of the calendars in both houses create an
4-65 emergency and an imperative public necessity that the
4-66 constitutional rule requiring bills to be read on three several
4-67 days in each house be suspended, and this rule is hereby suspended.
4-68 * * * * *