By: King of Zavala (Senate Sponsor - Hegar) H.B. No. 3550
(In the Senate - Received from the House May 18, 2009;
May 19, 2009, read first time and referred to Committee on Natural
Resources; May 25, 2009, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
May 25, 2009, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 3550 By: Hegar
A BILL TO BE ENTITLED
AN ACT
relating to the powers and duties of the Texas Commission on
Environmental Quality and related entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 5.1175, Water Code, is amended to read as
follows:
Sec. 5.1175. PAYMENT OF PENALTY BY INSTALLMENT. (a) The
commission by rule may [shall] allow a person who [small business
that] owes a monetary civil or administrative penalty imposed for a
violation of law within the commission's jurisdiction or for a
violation of a license, permit, or order issued or rule adopted by
the commission to pay the penalty in periodic installments. The
rule must provide a procedure for a person [qualified small
business] to apply for permission to pay the penalty over time.
(b) [The rule must classify small businesses by their net
annual receipts and number of employees. A business that is a
wholly owned subsidiary of a corporation may not qualify as a small
business under this section.
[(c)] The rule may vary the period over which the penalty
may be paid or the amount of the periodic installments according to
the amount of the penalty owed and the size of the business that
owes the penalty. The period over which the penalty may be paid may
not exceed 36 [12] months.
SECTION 2. Section 7.002, Water Code, is amended to read as
follows:
Sec. 7.002. ENFORCEMENT AUTHORITY. The commission may
initiate an action under this chapter to enforce provisions of this
code and the Health and Safety Code within the commission's
jurisdiction as provided by Section 5.013 of this code and rules
adopted under those provisions. The commission or the executive
director may institute legal proceedings to compel compliance with
the relevant provisions of this code and the Health and Safety Code
and rules, orders, permits, or other decisions of the commission.
The commission may delegate to the executive director the authority
to issue an administrative order, including an administrative order
that assesses penalties or orders corrective measures, to ensure
compliance with the provisions of this code and the Health and
Safety Code within the commission's jurisdiction as provided by
Section 5.013 of this code and rules adopted under those
provisions.
SECTION 3. 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 4. 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 5. Section 13.043(h), Water Code, is amended to
read as follows:
(h) The commission or executive director may [, on a motion
by the executive director or by the appellant under Subsection (a),
(b), or (f) of this section,] establish interim rates to be in
effect until a final decision is made in an appeal filed under
Subsection (a), (b), or (f).
SECTION 6. Sections 13.187(f), (i), (j), (k), (l), (n), and
(o), Water Code, are amended to read as follows:
(f) The regulatory authority may set the matter for hearing
on its own motion at any time within 120 days after the effective
date of the rate change. [If more than half of the ratepayers of the
utility receive service in a county with a population of more than
2.5 million, the hearing must be held at a location in that county.]
(i) The regulatory authority or the executive director,
pending final action in a rate proceeding, may order the utility to
deposit all or part of the rate increase received or to be received
into an escrow account with a financial institution approved by the
regulatory authority. Unless otherwise agreed to by the parties to
the rate proceeding, the utility shall refund or credit against
future bills all sums collected during the pendency of the rate
proceeding in excess of the rate finally ordered plus interest as
determined by the regulatory authority.
(j) For good cause shown, the regulatory authority or the
executive director may authorize the release of funds to the
utility from the escrow account during the pendency of the
proceeding.
(k) If the regulatory authority receives at least the number
of complaints from ratepayers required for the regulatory authority
to set a hearing under Subsection (e), the regulatory authority or
the executive director may, pending the hearing and a decision,
suspend the date the rate change would otherwise be effective.
Except as provided by Subsection (d-1), the proposed rate may not be
suspended for longer than:
(1) 90 days by a local regulatory authority; or
(2) 250 [150] days by the commission or executive
director.
(l) At any time during the pendency of the rate proceeding
the regulatory authority or the executive director may fix interim
rates to remain in effect until a final determination is made on the
proposed rate.
(n) For good cause shown, the regulatory authority or the
executive director may at any time during the proceeding require
the utility to refund money collected under a proposed rate before
the rate was suspended or an interim rate was established to the
extent the proposed rate exceeds the existing rate or the interim
rate.
(o) If a regulatory authority other than the commission or
the executive director establishes interim rates or an escrow
account, the regulatory authority must make a final determination
on the rates not later than the first anniversary of the effective
date of the interim rates or escrowed rates or the rates are
automatically approved as requested by the utility.
SECTION 7. Section 13.242(c), Water Code, is amended to
read as follows:
(c) The commission may by rule allow a municipality or
utility or water supply corporation to render retail water or sewer
service without a certificate of public convenience and necessity
if the municipality has given notice under Section 13.255 [of this
code] that it intends to provide retail water or sewer service to an
area or if the utility or water supply corporation has less than 15
potential connections and is not within the certificated area of
another retail public utility.
SECTION 8. Section 13.248, Water Code, is amended to read as
follows:
Sec. 13.248. CONTRACTS VALID AND ENFORCEABLE. Contracts
between retail public utilities designating areas to be served and
customers to be served by those retail public utilities, when
approved by the commission or the executive director after public
notice [and hearing], are valid and enforceable and are
incorporated into the appropriate areas of public convenience and
necessity.
SECTION 9. Section 26.0135(h), Water Code, is amended to
read as follows:
(h) The commission shall apportion, assess, and recover the
reasonable costs of administering the water quality management
programs under this section [from users of water and wastewater
permit holders in the watershed according to the records of the
commission generally in proportion to their right, through permit
or contract, to use water from and discharge wastewater in the
watershed]. Irrigation water rights, non-priority hydroelectric
rights of a water right holder that owns or operates privately owned
facilities that collectively have a capacity of less than two
megawatts, and water rights held in the Texas Water Trust for terms
of at least 20 years will not be subject to this assessment. The
cost to river authorities and others to conduct water quality
monitoring and assessment shall be subject to prior review and
approval by the commission as to methods of allocation and total
amount to be recovered. The commission shall adopt rules to
supervise and implement the water quality monitoring, assessment,
and associated costs. The rules shall ensure that water users and
wastewater dischargers do not pay excessive amounts, [that program
funds are equitably apportioned among basins,] that a river
authority may recover no more than the actual costs of
administering the water quality management programs called for in
this section, and that no municipality shall be assessed cost for
any efforts that duplicate water quality management activities
described in Section 26.177. [The rules concerning the
apportionment and assessment of reasonable costs shall provide for
a recovery of not more than $5,000,000 annually. Costs recovered by
the commission are to be deposited to the credit of the water
resource management account and may be used only to accomplish the
purposes of this section. The commission may apply not more than 10
percent of the costs recovered annually toward the commission's
overhead costs for the administration of this section and the
implementation of regional water quality assessments. The
commission, with the assistance and input of each river authority,
shall file a written report accounting for the costs recovered
under this section with the governor, the lieutenant governor, and
the speaker of the house of representatives on or before December 1
of each even-numbered year.]
SECTION 10. Sections 37.006(f) and (g), Water Code, are
amended to read as follows:
(f) A person whose license or registration has been expired
for 60 [30] days or less may apply for renewal of the license or
registration by paying to the commission a renewal fee in an amount
prescribed by commission rule not to exceed 1-1/2 times the
normally required renewal fee.
(g) A person whose license or registration has been expired
for more than 60 [30] days may not renew the license or
registration. The person may obtain a new license or registration
by complying with the requirements and procedures, including the
examination requirements, for obtaining an original license or
registration.
SECTION 11. Section 49.321, Water Code, is amended to read
as follows:
Sec. 49.321. DISSOLUTION AUTHORITY. After notice [and
hearing], the commission or executive director may dissolve any
district that is inactive for a period of five consecutive years and
has no outstanding bonded indebtedness.
SECTION 12. Section 49.324, Water Code, is amended to read
as follows:
Sec. 49.324. ORDER OF DISSOLUTION. The commission or the
executive director may enter an order dissolving the district [at
the conclusion of the hearing] if the commission or executive
director [it] finds that the district has performed none of the
functions for which it was created for a period of five consecutive
years [before the day of the proceeding] and that the district has
no outstanding bonded indebtedness.
SECTION 13. Section 49.326(a), Water Code, is amended to
read as follows:
(a) Appeals from an [a commission] order dissolving a
district shall be filed and heard in the district court of any of
the counties in which the land is located.
SECTION 14. Section 54.030(b), Water Code, is amended to
read as follows:
(b) The governing body of a district which desires to
convert into a district operating under this chapter shall adopt
and enter in the minutes of the governing body a resolution
declaring that in its judgment, conversion into a municipal utility
district operating under this chapter and under Article XVI,
Section 59, of the Texas Constitution, would serve the best
interest of the district and would be a benefit to the land and
property included in the district. The resolution shall also
request that the commission approve [to hold a hearing on the
question of] the conversion of the district.
SECTION 15. Section 54.032, Water Code, is amended to read
as follows:
Sec. 54.032. CONVERSION OF DISTRICT: NOTICE. (a) Notice
of the conversion [hearing] shall be given by publishing notice in a
newspaper with general circulation in the county or counties in
which the district is located.
(b) The notice shall be published once a week for two
consecutive weeks [with the first publication to be made not less
than 14 full days before the time set for the hearing].
(c) The notice shall:
(1) [state the time and place of the hearing;
[(2)] set out the resolution adopted by the district
in full; and
(2) [(3)] notify all interested persons how they may
offer comments [to appear and offer testimony] for or against the
proposal contained in the resolution.
SECTION 16. Section 54.033, Water Code, is amended to read
as follows:
Sec. 54.033. CONVERSION OF DISTRICT; FINDINGS. (a) If
[After a hearing, if] the commission or the executive director
finds that conversion of the district into one operating under this
chapter would serve the best interest of the district and would be a
benefit to the land and property included in the district, the
commission or executive director [it] shall enter an order making
this finding and the district shall become a district operating
under this chapter and no confirmation election shall be required.
(b) If the commission or the executive director finds that
the conversion of the district would not serve the best interest of
the district and would not be a benefit to the land and property
included in the district, the commission or executive director [it]
shall enter an order against conversion of the district into one
operating under this chapter.
(c) The findings of the commission or the executive director
entered under this section shall be subject to appeal or review
within 30 days after entry of the order [of the commission] granting
or denying the conversion.
(d) A copy of the [commission] order converting a district
shall be filed in the deed records of the county or counties in
which the district is located.
SECTION 17. Sections 49.322 and 54.031, Water Code, are
repealed.
SECTION 18. (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 19. The changes in law made by Section 13.187, Water
Code, as amended by this Act, apply only to a rate application or
appeal filed with the Texas Commission on Environmental Quality on
or after the effective date of this Act. A rate application or
appeal filed with the commission before the effective date of this
Act is governed by the law as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 20. The change in law made by this Act to Sections
37.006(f) and (g), Water Code, applies to the renewal of a license
or registration that expires on or after the effective date of this
Act. A license or registration that expires before the effective
date of this Act is governed by the law in effect on the date the
license or registration was issued, and the former law is continued
in effect for that purpose.
SECTION 21. This Act takes effect September 1, 2009.
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