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A BILL TO BE ENTITLED
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AN ACT
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relating to the relationship between the amount of an |
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administrative penalty imposed by the Texas Commission on |
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Environmental Quality and the economic benefit of the violation to |
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the alleged violator. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 7.053, Water Code, is amended to read as |
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follows: |
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Sec. 7.053. FACTORS TO BE CONSIDERED IN DETERMINATION OF |
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PENALTY AMOUNT. (a) In determining the amount of an administrative |
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penalty, the commission shall consider: |
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(1) the nature, circumstances, extent, duration, and |
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gravity of the prohibited act, with special emphasis on the |
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impairment of existing water rights or the hazard or potential |
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hazard created to the health or safety of the public; |
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(2) the impact of the violation on: |
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(A) air quality in the region; |
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(B) a receiving stream or underground water |
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reservoir; |
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(C) instream uses, water quality, aquatic and |
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wildlife habitat, or beneficial freshwater inflows to bays and |
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estuaries; or |
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(D) affected persons; |
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(3) with respect to the alleged violator: |
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(A) the history and extent of previous |
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violations; |
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(B) the degree of culpability, including whether |
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the violation was attributable to mechanical or electrical failures |
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and whether the violation could have been reasonably anticipated |
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and avoided; |
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(C) the demonstrated good faith, including |
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actions taken by the alleged violator to rectify the cause of the |
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violation and to compensate affected persons; |
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(D) the economic benefit gained through the |
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violation; and |
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(E) the amount necessary to deter future |
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violations; and |
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(4) any other matters that justice may require. |
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(b) Except as otherwise provided by Subsections (c) and (d) |
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and notwithstanding Subsection (a), in determining the amount of an |
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administrative penalty, the commission shall, to the extent |
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practicable, ensure that the amount of the penalty is at least equal |
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to the value of any economic benefit gained by the alleged violator |
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through the violation. |
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(c) In determining the economic benefit of noncompliance, |
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the commission shall provide the alleged violator, on the |
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violator's request, an opportunity to: |
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(1) review the information on which the economic |
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benefit calculation is based; and |
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(2) demonstrate that the calculation does not reflect |
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the actual circumstances. |
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(d) The consideration of an economic benefit as provided by |
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Subsection (b) may not result in the imposition of an |
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administrative penalty in an amount that exceeds a limitation on |
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the amount of the penalty provided by statute, including the |
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maximum amount provided by Section 7.052. |
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(e) The commission shall allow a governmental entity or |
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nonprofit organization to defer payment on any portion of the |
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penalty attributable to the consideration of economic benefit on |
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the condition that the entity or organization complies with the |
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schedule and terms of the enforcement order associated with the |
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violation for which the penalty is imposed. |
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SECTION 2. (a) The change in law made by this Act applies |
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only to a violation that occurs on or after the effective date of |
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this Act. For purposes of this section, a violation occurs before |
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the effective date of this Act if any element of the violation |
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occurs before that date. |
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(b) A violation that occurs before the effective date of |
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this Act is covered by the law in effect on the date the violation |
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occurred, and the former law is continued in effect for that |
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purpose. |
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SECTION 3. This Act takes effect September 1, 2007. |