81R25489 ACP-F
By: Creighton H.B. No. 2535
Substitute the following for H.B. No. 2535:
By: Corte C.S.H.B. No. 2535
A BILL TO BE ENTITLED
AN ACT
relating to the regulation and enforcement of dam safety by the
Texas Commission on Environmental Quality; providing civil and
administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 11.0842(a) and (b), Water Code, are
amended to read as follows:
(a) If a person violates this chapter, a rule or order
adopted under this chapter, Section 12.052, or Section 16.236, or a
permit, certified filing, or certificate of adjudication issued
under this chapter, the commission may assess an administrative
penalty against that person as provided by this section. The
commission may assess an administrative penalty for a violation
relating to a water division or a river basin or segment of a river
basin regardless of whether a watermaster has been appointed for
the water division or river basin or segment of the river basin.
(b) The penalty may be in an amount not to exceed $5,000 for
each day the person is in violation of this chapter, a [the] rule or
order adopted under this chapter, or a [the] permit, certified
filing, or certificate of adjudication issued under this chapter.
The penalty may be in an amount not to exceed $10,000 for each day
the person is in violation of a rule or order adopted under Section
12.052. The penalty may be in an amount not to exceed $1,000 for
each day the person is in violation of a [the] rule or order adopted
under Section 16.236 [of this code]. Each day a violation continues
may be considered a separate violation for purposes of penalty
assessment.
SECTION 2. Section 12.052, Water Code, is amended by
amending Subsections (a), (c), and (e) and adding Subsections (g)
and (h) to read as follows:
(a) The commission shall make and enforce rules and orders
and shall perform all other acts necessary to provide for the safe
construction, maintenance, operation, repair, and removal of dams
located in this state. In determining the frequency that dams
located in this state are inspected, the commission shall give
preference to inspecting dams that are classified as posing a high
or significant hazard as defined by commission rule.
(c) If the owner of a dam that is required to be constructed,
reconstructed, maintained, operated, repaired, or removed in order
to comply with the rules and orders promulgated under [Subsection
(a) of] this section wilfully fails or refuses to comply within the
30-day period following the date of the commission's final,
nonappealable order to do so or if a person wilfully fails to comply
with any rule or other order issued by the commission under this
section within the 30-day period following the effective date of
the order, the person [he] is liable for [to] a penalty of not more
than $10,000 [$5,000] a day for each day the person [he] continues
to violate this section. The state may recover the penalty by suit
brought for that purpose in the district court of Travis County.
(e) If the commission issues an emergency order under
authority of this section without notice to the dam owner, the
commission shall fix a time and place for a hearing which shall be
held as soon as practicable to affirm, modify, or set aside the
emergency order. The notice does not have to comply with Chapter
2001, Government Code. If the nature of the commission's action
requires further proceedings, those proceedings shall be conducted
as appropriate under Chapter 2001, Government Code [the
Administrative Procedure and Texas Register Act, as amended
(Article 6252-13a, Vernon's Texas Civil Statutes)].
(g) The commission may assess an administrative penalty as
provided by Section 11.0842 against a person who violates a rule or
order adopted under this section.
(h) This section does not affect the right of any private
corporation, individual, or political subdivision that has a
justiciable interest in pursuing any available common law remedy to
enforce a right or to prevent or seek redress or compensation for
the violation of a right or otherwise redress an injury.
SECTION 3. (a) The changes in law made by this Act to
Sections 11.0842 and 12.052, Water Code, apply only to a violation
that occurs on or after the effective date of this Act. For
purposes of this section, a violation occurs before the effective
date of this Act if any element of the violation occurs before that
date.
(b) A violation that occurs before the effective date of
this Act is governed by the law in effect on the date of the
violation, and the former law is continued in effect for that
purpose.
SECTION 4. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2009.