Texas 2009 - 81st Regular

Texas House Bill HB3550 Compare Versions

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1	1	By: King of Zavala (Senate Sponsor - Hegar) H.B. No. 3550
2	2	(In the Senate - Received from the House May 18, 2009;
3	3	May 19, 2009, read first time and referred to Committee on Natural
4	4	Resources; May 25, 2009, reported adversely, with favorable
5	5	Committee Substitute by the following vote: Yeas 9, Nays 0;
6	6	May 25, 2009, sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR H.B. No. 3550 By: Hegar
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the powers and duties of the Texas Commission on
13	13	Environmental Quality and related entities.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Section 5.1175, Water Code, is amended to read as
16	16	follows:
17	17	Sec. 5.1175. PAYMENT OF PENALTY BY INSTALLMENT. (a) The
18	18	commission by rule may [shall] allow a person who [small business
19	19	that] owes a monetary civil or administrative penalty imposed for a
20	20	violation of law within the commission's jurisdiction or for a
21	21	violation of a license, permit, or order issued or rule adopted by
22	22	the commission to pay the penalty in periodic installments. The
23	23	rule must provide a procedure for a person [qualified small
24	24	business] to apply for permission to pay the penalty over time.
25	25	(b) [The rule must classify small businesses by their net
26	26	annual receipts and number of employees. A business that is a
27	27	wholly owned subsidiary of a corporation may not qualify as a small
28	28	business under this section.
29	29	[(c)] The rule may vary the period over which the penalty
30	30	may be paid or the amount of the periodic installments according to
31	31	the amount of the penalty owed and the size of the business that
32	32	owes the penalty. The period over which the penalty may be paid may
33	33	not exceed 36 [12] months.
34	34	SECTION 2. Section 7.002, Water Code, is amended to read as
35	35	follows:
36	36	Sec. 7.002. ENFORCEMENT AUTHORITY. The commission may
37	37	initiate an action under this chapter to enforce provisions of this
38	38	code and the Health and Safety Code within the commission's
39	39	jurisdiction as provided by Section 5.013 of this code and rules
40	40	adopted under those provisions. The commission or the executive
41	41	director may institute legal proceedings to compel compliance with
42	42	the relevant provisions of this code and the Health and Safety Code
43	43	and rules, orders, permits, or other decisions of the commission.
44	44	The commission may delegate to the executive director the authority
45	45	to issue an administrative order, including an administrative order
46	46	that assesses penalties or orders corrective measures, to ensure
47	47	compliance with the provisions of this code and the Health and
48	48	Safety Code within the commission's jurisdiction as provided by
49	49	Section 5.013 of this code and rules adopted under those
50	50	provisions.
51	51	SECTION 3. Sections 11.0842(a) and (b), Water Code, are
52	52	amended to read as follows:
53	53	(a) If a person violates this chapter, a rule or order
54	54	adopted under this chapter, Section 12.052, or Section 16.236, or a
55	55	permit, certified filing, or certificate of adjudication issued
56	56	under this chapter, the commission may assess an administrative
57	57	penalty against that person as provided by this section. The
58	58	commission may assess an administrative penalty for a violation
59	59	relating to a water division or a river basin or segment of a river
60	60	basin regardless of whether a watermaster has been appointed for
61	61	the water division or river basin or segment of the river basin.
62	62	(b) The penalty may be in an amount not to exceed $5,000 for
63	63	each day the person is in violation of this chapter, a [the] rule or
64	64	order adopted under this chapter, or a [the] permit, certified
65	65	filing, or certificate of adjudication issued under this chapter.
66	66	The penalty may be in an amount not to exceed $10,000 for each day
67	67	the person is in violation of a rule or order adopted under Section
68	68	12.052. The penalty may be in an amount not to exceed $1,000 for
69	69	each day the person is in violation of a [the] rule or order adopted
70	70	under Section 16.236 [of this code]. Each day a violation continues
71	71	may be considered a separate violation for purposes of penalty
72	72	assessment.
73	73	SECTION 4. Section 12.052, Water Code, is amended by
74	74	amending Subsections (a), (c), and (e) and adding Subsections (g)
75	75	and (h) to read as follows:
76	76	(a) The commission shall make and enforce rules and orders
77	77	and shall perform all other acts necessary to provide for the safe
78	78	construction, maintenance, operation, repair, and removal of dams
79	79	located in this state. In determining the frequency that dams
80	80	located in this state are inspected, the commission shall give
81	81	preference to inspecting dams that are classified as posing a high
82	82	or significant hazard as defined by commission rule.
83	83	(c) If the owner of a dam that is required to be constructed,
84	84	reconstructed, maintained, operated, repaired, or removed in order
85	85	to comply with the rules and orders promulgated under [Subsection
86	86	(a) of] this section wilfully fails or refuses to comply within the
87	87	30-day period following the date of the commission's final,
88	88	nonappealable order to do so or if a person wilfully fails to comply
89	89	with any rule or other order issued by the commission under this
90	90	section within the 30-day period following the effective date of
91	91	the order, the person [he] is liable for [to] a penalty of not more
92	92	than $10,000 [$5,000] a day for each day the person [he] continues
93	93	to violate this section. The state may recover the penalty by suit
94	94	brought for that purpose in the district court of Travis County.
95	95	(e) If the commission issues an emergency order under
96	96	authority of this section without notice to the dam owner, the
97	97	commission shall fix a time and place for a hearing which shall be
98	98	held as soon as practicable to affirm, modify, or set aside the
99	99	emergency order. The notice does not have to comply with Chapter
100	100	2001, Government Code. If the nature of the commission's action
101	101	requires further proceedings, those proceedings shall be conducted
102	102	as appropriate under Chapter 2001, Government Code [the
103	103	Administrative Procedure and Texas Register Act, as amended
104	104	(Article 6252-13a, Vernon's Texas Civil Statutes)].
105	105	(g) The commission may assess an administrative penalty as
106	106	provided by Section 11.0842 against a person who violates a rule or
107	107	order adopted under this section.
108	108	(h) This section does not affect the right of any private
109	109	corporation, individual, or political subdivision that has a
110	110	justiciable interest in pursuing any available common law remedy to
111	111	enforce a right or to prevent or seek redress or compensation for
112	112	the violation of a right or otherwise redress an injury.
113	113	SECTION 5. Section 13.043(h), Water Code, is amended to
114	114	read as follows:
115	115	(h) The commission or executive director may [, on a motion
116	116	by the executive director or by the appellant under Subsection (a),
117	117	(b), or (f) of this section,] establish interim rates to be in
118	118	effect until a final decision is made in an appeal filed under
119	119	Subsection (a), (b), or (f).
120	120	SECTION 6. Sections 13.187(f), (i), (j), (k), (l), (n), and
121	121	(o), Water Code, are amended to read as follows:
122	122	(f) The regulatory authority may set the matter for hearing
123	123	on its own motion at any time within 120 days after the effective
124	124	date of the rate change. [If more than half of the ratepayers of the
125	125	utility receive service in a county with a population of more than
126	126	2.5 million, the hearing must be held at a location in that county.]
127	127	(i) The regulatory authority or the executive director,
128	128	pending final action in a rate proceeding, may order the utility to
129	129	deposit all or part of the rate increase received or to be received
130	130	into an escrow account with a financial institution approved by the
131	131	regulatory authority. Unless otherwise agreed to by the parties to
132	132	the rate proceeding, the utility shall refund or credit against
133	133	future bills all sums collected during the pendency of the rate
134	134	proceeding in excess of the rate finally ordered plus interest as
135	135	determined by the regulatory authority.
136	136	(j) For good cause shown, the regulatory authority or the
137	137	executive director may authorize the release of funds to the
138	138	utility from the escrow account during the pendency of the
139	139	proceeding.
140	140	(k) If the regulatory authority receives at least the number
141	141	of complaints from ratepayers required for the regulatory authority
142	142	to set a hearing under Subsection (e), the regulatory authority or
143	143	the executive director may, pending the hearing and a decision,
144	144	suspend the date the rate change would otherwise be effective.
145	145	Except as provided by Subsection (d-1), the proposed rate may not be
146	146	suspended for longer than:
147	147	(1) 90 days by a local regulatory authority; or
148	148	(2) 250 [150] days by the commission or executive
149	149	director.
150	150	(l) At any time during the pendency of the rate proceeding
151	151	the regulatory authority or the executive director may fix interim
152	152	rates to remain in effect until a final determination is made on the
153	153	proposed rate.
154	154	(n) For good cause shown, the regulatory authority or the
155	155	executive director may at any time during the proceeding require
156	156	the utility to refund money collected under a proposed rate before
157	157	the rate was suspended or an interim rate was established to the
158	158	extent the proposed rate exceeds the existing rate or the interim
159	159	rate.
160	160	(o) If a regulatory authority other than the commission or
161	161	the executive director establishes interim rates or an escrow
162	162	account, the regulatory authority must make a final determination
163	163	on the rates not later than the first anniversary of the effective
164	164	date of the interim rates or escrowed rates or the rates are
165	165	automatically approved as requested by the utility.
166	166	SECTION 7. Section 13.242(c), Water Code, is amended to
167	167	read as follows:
168	168	(c) The commission may by rule allow a municipality or
169	169	utility or water supply corporation to render retail water or sewer
170	170	service without a certificate of public convenience and necessity
171	171	if the municipality has given notice under Section 13.255 [of this
172	172	code] that it intends to provide retail water or sewer service to an
173	173	area or if the utility or water supply corporation has less than 15
174	174	potential connections and is not within the certificated area of
175	175	another retail public utility.
176	176	SECTION 8. Section 13.248, Water Code, is amended to read as
177	177	follows:
178	178	Sec. 13.248. CONTRACTS VALID AND ENFORCEABLE. Contracts
179	179	between retail public utilities designating areas to be served and
180	180	customers to be served by those retail public utilities, when
181	181	approved by the commission or the executive director after public
182	182	notice [and hearing], are valid and enforceable and are
183	183	incorporated into the appropriate areas of public convenience and
184	184	necessity.
185	185	SECTION 9. Section 26.0135(h), Water Code, is amended to
186	186	read as follows:
187	187	(h) The commission shall apportion, assess, and recover the
188	188	reasonable costs of administering the water quality management
189	189	programs under this section [from users of water and wastewater
190	190	permit holders in the watershed according to the records of the
191	191	commission generally in proportion to their right, through permit
192	192	or contract, to use water from and discharge wastewater in the
193	193	watershed]. Irrigation water rights, non-priority hydroelectric
194	194	rights of a water right holder that owns or operates privately owned
195	195	facilities that collectively have a capacity of less than two
196	196	megawatts, and water rights held in the Texas Water Trust for terms
197	197	of at least 20 years will not be subject to this assessment. The
198	198	cost to river authorities and others to conduct water quality
199	199	monitoring and assessment shall be subject to prior review and
200	200	approval by the commission as to methods of allocation and total
201	201	amount to be recovered. The commission shall adopt rules to
202	202	supervise and implement the water quality monitoring, assessment,
203	203	and associated costs. The rules shall ensure that water users and
204	204	wastewater dischargers do not pay excessive amounts, [that program
205	205	funds are equitably apportioned among basins,] that a river
206	206	authority may recover no more than the actual costs of
207	207	administering the water quality management programs called for in
208	208	this section, and that no municipality shall be assessed cost for
209	209	any efforts that duplicate water quality management activities
210	210	described in Section 26.177. [The rules concerning the
211	211	apportionment and assessment of reasonable costs shall provide for
212	212	a recovery of not more than $5,000,000 annually. Costs recovered by
213	213	the commission are to be deposited to the credit of the water
214	214	resource management account and may be used only to accomplish the
215	215	purposes of this section. The commission may apply not more than 10
216	216	percent of the costs recovered annually toward the commission's
217	217	overhead costs for the administration of this section and the
218	218	implementation of regional water quality assessments. The
219	219	commission, with the assistance and input of each river authority,
220	220	shall file a written report accounting for the costs recovered
221	221	under this section with the governor, the lieutenant governor, and
222	222	the speaker of the house of representatives on or before December 1
223	223	of each even-numbered year.]
224	224	SECTION 10. Sections 37.006(f) and (g), Water Code, are
225	225	amended to read as follows:
226	226	(f) A person whose license or registration has been expired
227	227	for 60 [30] days or less may apply for renewal of the license or
228	228	registration by paying to the commission a renewal fee in an amount
229	229	prescribed by commission rule not to exceed 1-1/2 times the
230	230	normally required renewal fee.
231	231	(g) A person whose license or registration has been expired
232	232	for more than 60 [30] days may not renew the license or
233	233	registration. The person may obtain a new license or registration
234	234	by complying with the requirements and procedures, including the
235	235	examination requirements, for obtaining an original license or
236	236	registration.
237	237	SECTION 11. Section 49.321, Water Code, is amended to read
238	238	as follows:
239	239	Sec. 49.321. DISSOLUTION AUTHORITY. After notice [and
240	240	hearing], the commission or executive director may dissolve any
241	241	district that is inactive for a period of five consecutive years and
242	242	has no outstanding bonded indebtedness.
243	243	SECTION 12. Section 49.324, Water Code, is amended to read
244	244	as follows:
245	245	Sec. 49.324. ORDER OF DISSOLUTION. The commission or the
246	246	executive director may enter an order dissolving the district [at
247	247	the conclusion of the hearing] if the commission or executive
248	248	director [it] finds that the district has performed none of the
249	249	functions for which it was created for a period of five consecutive
250	250	years [before the day of the proceeding] and that the district has
251	251	no outstanding bonded indebtedness.
252	252	SECTION 13. Section 49.326(a), Water Code, is amended to
253	253	read as follows:
254	254	(a) Appeals from an [a commission] order dissolving a
255	255	district shall be filed and heard in the district court of any of
256	256	the counties in which the land is located.
257	257	SECTION 14. Section 54.030(b), Water Code, is amended to
258	258	read as follows:
259	259	(b) The governing body of a district which desires to
260	260	convert into a district operating under this chapter shall adopt
261	261	and enter in the minutes of the governing body a resolution
262	262	declaring that in its judgment, conversion into a municipal utility
263	263	district operating under this chapter and under Article XVI,
264	264	Section 59, of the Texas Constitution, would serve the best
265	265	interest of the district and would be a benefit to the land and
266	266	property included in the district. The resolution shall also
267	267	request that the commission approve [to hold a hearing on the
268	268	question of] the conversion of the district.
269	269	SECTION 15. Section 54.032, Water Code, is amended to read
270	270	as follows:
271	271	Sec. 54.032. CONVERSION OF DISTRICT: NOTICE. (a) Notice
272	272	of the conversion [hearing] shall be given by publishing notice in a
273	273	newspaper with general circulation in the county or counties in
274	274	which the district is located.
275	275	(b) The notice shall be published once a week for two
276	276	consecutive weeks [with the first publication to be made not less
277	277	than 14 full days before the time set for the hearing].
278	278	(c) The notice shall:
279	279	(1) [state the time and place of the hearing;
280	280	[(2)] set out the resolution adopted by the district
281	281	in full; and
282	282	(2) [(3)] notify all interested persons how they may
283	283	offer comments [to appear and offer testimony] for or against the
284	284	proposal contained in the resolution.
285	285	SECTION 16. Section 54.033, Water Code, is amended to read
286	286	as follows:
287	287	Sec. 54.033. CONVERSION OF DISTRICT; FINDINGS. (a) If
288	288	[After a hearing, if] the commission or the executive director
289	289	finds that conversion of the district into one operating under this
290	290	chapter would serve the best interest of the district and would be a
291	291	benefit to the land and property included in the district, the
292	292	commission or executive director [it] shall enter an order making
293	293	this finding and the district shall become a district operating
294	294	under this chapter and no confirmation election shall be required.
295	295	(b) If the commission or the executive director finds that
296	296	the conversion of the district would not serve the best interest of
297	297	the district and would not be a benefit to the land and property
298	298	included in the district, the commission or executive director [it]
299	299	shall enter an order against conversion of the district into one
300	300	operating under this chapter.
301	301	(c) The findings of the commission or the executive director
302	302	entered under this section shall be subject to appeal or review
303	303	within 30 days after entry of the order [of the commission] granting
304	304	or denying the conversion.
305	305	(d) A copy of the [commission] order converting a district
306	306	shall be filed in the deed records of the county or counties in
307	307	which the district is located.
308	308	SECTION 17. Sections 49.322 and 54.031, Water Code, are
309	309	repealed.
310	310	SECTION 18. (a) The changes in law made by this Act to
311	311	Sections 11.0842 and 12.052, Water Code, apply only to a violation
312	312	that occurs on or after the effective date of this Act. For
313	313	purposes of this section, a violation occurs before the effective
314	314	date of this Act if any element of the violation occurs before that
315	315	date.
316	316	(b) A violation that occurs before the effective date of
317	317	this Act is governed by the law in effect on the date of the
318	318	violation, and the former law is continued in effect for that
319	319	purpose.
320	320	SECTION 19. The changes in law made by Section 13.187, Water
321	321	Code, as amended by this Act, apply only to a rate application or
322	322	appeal filed with the Texas Commission on Environmental Quality on
323	323	or after the effective date of this Act. A rate application or
324	324	appeal filed with the commission before the effective date of this
325	325	Act is governed by the law as it existed immediately before the
326	326	effective date of this Act, and that law is continued in effect for
327	327	that purpose.
328	328	SECTION 20. The change in law made by this Act to Sections
329	329	37.006(f) and (g), Water Code, applies to the renewal of a license
330	330	or registration that expires on or after the effective date of this
331	331	Act. A license or registration that expires before the effective
332	332	date of this Act is governed by the law in effect on the date the
333	333	license or registration was issued, and the former law is continued
334	334	in effect for that purpose.
335	335	SECTION 21. This Act takes effect September 1, 2009.
336	336	* * * * *