81R4979 JTS-D
By: Gattis H.B. No. 826
A BILL TO BE ENTITLED
AN ACT
relating to the relationship between the amount of an
administrative penalty imposed by the Texas Commission on
Environmental Quality and the economic benefit of the violation to
the alleged violator.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 7.053, Water Code, is amended to read as
follows:
Sec. 7.053. FACTORS TO BE CONSIDERED IN DETERMINATION OF
PENALTY AMOUNT. (a) In determining the amount of an
administrative penalty, the commission shall consider:
(1) the nature, circumstances, extent, duration, and
gravity of the prohibited act, with special emphasis on the
impairment of existing water rights or the hazard or potential
hazard created to the health or safety of the public;
(2) the impact of the violation on:
(A) air quality in the region;
(B) a receiving stream or underground water
reservoir;
(C) instream uses, water quality, aquatic and
wildlife habitat, or beneficial freshwater inflows to bays and
estuaries; or
(D) affected persons;
(3) with respect to the alleged violator:
(A) the history and extent of previous
violations;
(B) the degree of culpability, including whether
the violation was attributable to mechanical or electrical failures
and whether the violation could have been reasonably anticipated
and avoided;
(C) the demonstrated good faith, including
actions taken by the alleged violator to rectify the cause of the
violation and to compensate affected persons;
(D) the economic benefit gained through the
violation; and
(E) the amount necessary to deter future
violations; and
(4) any other matters that justice may require.
(b) Except as otherwise provided by Subsections (c) and (d)
and notwithstanding Subsection (a), in determining the amount of an
administrative penalty, the commission shall, to the extent
practicable, ensure that the amount of the penalty is at least equal
to the value of any economic benefit gained by the alleged violator
through the violation.
(c) In determining the economic benefit of noncompliance,
the commission shall provide the alleged violator, on the
violator's request, an opportunity to:
(1) review the information on which the economic
benefit calculation is based; and
(2) demonstrate that the calculation does not reflect
the actual circumstances.
(d) The consideration of an economic benefit as provided by
Subsection (b) may not result in the imposition of an
administrative penalty in an amount that exceeds a limitation on
the amount of the penalty provided by statute, including the
maximum amount provided by Section 7.052.
(e) The commission shall allow a governmental entity or
nonprofit organization to defer payment on any portion of the
penalty attributable to the consideration of economic benefit on
the condition that the entity or organization complies with the
schedule and terms of the enforcement order associated with the
violation for which the penalty is imposed.
SECTION 2. (a) The change in law made by this Act applies
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 covered by the law in effect on the date the violation
occurred, and the former law is continued in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2009.