30 TAC §§70.201 - 70.206
The Texas Commission on Environmental Quality (commission)
proposes new §§70.201 - 70.206.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
The purpose of the proposed rules is to implement Senate Bill 1265, 78th
Legislature, 2003. Senate Bill 1265 amends Texas Water Code (TWC), §7.203,
Criminal Enforcement Review. Senate Bill 1265 applies to criminal prosecution
of alleged environmental violations committed by a person holding a permit
or a person employed by a person holding such a permit, and the alleged criminal
violation is for an activity for which the permit was issued by the commission
or executive director (ED). A permit includes a license, certificate, registration,
approval, or any other form of authorization granted by the commission or
executive director. Senate Bill 1265 requires the agency to establish procedures
for Texas peace officers to use when referring alleged environmental violations
for criminal enforcement review.
SECTION BY SECTION DISCUSSION
The commission proposes to create a new Subchapter D, Criminal Enforcement
Review, to establish procedures for Texas peace officers to use when referring
alleged environmental violations for criminal enforcement review.
Proposed new §70.201, Scope and Purpose, sets forth the purpose of
proposed new Subchapter D by establishing the procedure and mechanism for
Texas peace officers to submit to the ED a request for criminal enforcement
review of alleged criminal environmental violations, as required under TWC, §7.203.
Proposed new §70.202, Applicability, sets forth the criteria for submitting
a formal request for review of an alleged criminal environmental violation
to be submitted to the ED prior to referring to a prosecuting attorney for
criminal prosecution. The individual submitting the request must be a peace
officer; the alleged criminal offense must be a violation of the TWC or the
Texas Health and Safety Code; the person alleged of committing the criminal
violation must be the holder of a permit issued by the commission or ED or
an employee of a person holding such a permit; and the alleged criminal environmental
violation is related to an activity for which the permit was issued by the
commission or ED.
Proposed new §70.203, Definitions, adds the definitions of related
to and activity for which a permit was issued. Related to is defined as having
an established relationship or connection. Activity for which a permit was
issued is defined as a specific activity authorized by the commission or executive
director, under any provision, prohibition, or requirement of a permit, license,
certificate, registration, approval, or other form of authorization granted
by the commission or executive director.
Proposed new §70.204, Procedure of Requesting Criminal Enforcement
Review, sets forth the procedures for requesting a criminal enforcement review.
The peace officer requesting criminal enforcement review must submit to the
ED a written request for review with a report that is marked "For Law Enforcement
Use Only," and describes the facts and circumstances of the alleged criminal
environmental violation. The report must also include the legal name(s) of
the person(s) alleged to have committed the offense and an explanation as
to the reason criminal enforcement of the violation is the most appropriate
action, rather than administrative or civil enforcement. The report may include
any other information that the requesting officer determines to be relevant.
Proposed new §70.205, Criminal Enforcement Review Schedule, sets forth
the schedule for criminal enforcement reviews. The ED shall, within 45 days
of receiving a criminal enforcement review, determine whether an alleged environmental
violation exists, whether administrative or civil remedies would adequately
address the alleged violation, or whether the alleged violations would be
more appropriately addressed by criminal enforcement. Within 45 days after
a criminal enforcement review determination is made, the ED shall notify the
referring peace officer in writing. The notification must include the reasons
why civil and administrative remedies are or are not adequate to address the
alleged environmental violation. If the executive director does not make a
determination within 45 days of receiving the request, an appropriate prosecuting
attorney may bring an action for criminal prosecution, and the state is not
entitled to receive any part of the amount recovered through a prosecution
brought by that prosecuting attorney.
Proposed new §70.206, Factors Considered in the Criminal Enforcement
Review Process, sets forth the factors the ED shall consider in the process
of conducting a criminal enforcement review. The ED shall consider: 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; the result of the violation
on air quality in the region; a receiving stream or underground water reservoir;
instream uses, water quality, aquatic and wildlife habitat, or beneficial
freshwater inflows to bays and estuaries; or affected persons. With respect
to the alleged violator, the executive director shall consider: the history
and extent of previous violations; 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; the demonstrated
good faith, including actions taken by the alleged violator to rectify the
cause of the violation and to compensate affected persons; economic benefit
gained through the violation; the necessity to deter future violations; and
any other matters that justice may require. Additionally, proposed §70.206(b)
states that the criminal environmental enforcement review team will be comprised
of representatives with expertise in criminal investigations, civil and administrative
enforcement, and any other relevant specialists.
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Jeffrey Horvath, Analyst, Strategic Planning and Appropriations Section,
determined that, for the first five-year period the proposed rules are in
effect, there will not be significant fiscal implications for the agency or
other units of state and local government as a result of administration or
enforcement of the proposed rules.
The proposed rules implement Senate Bill 1265. The specific purpose of
the proposed rules is to establish procedures for Texas peace officers to
use when referring alleged environmental violations for criminal enforcement
review.
The proposed rules set forth criteria for submitting a request to the ED
for review of an alleged criminal environmental violation. The request is
to be submitted to the ED prior to referring to a prosecuting attorney. The
request and report must include a description of the facts and circumstances
of the alleged criminal environmental violation. The report must also include
the legal name(s) of the person(s) alleged to have committed the offense and
an explanation as to the reason criminal enforcement of the violation is the
most appropriate action, rather than administrative or civil enforcement.
The report may include any other information that the requesting officer determines
to be relevant. The proposed rules also set forth factors that the ED shall
consider in the process of conducting a criminal enforcement review. The ED
is required to notify the peace officer in writing, setting forth the reasons
why administrative or civil remedies are inadequate or inappropriate and recommending
criminal prosecution; or that the alleged environmental violation is to be
resolved through administrative or civil means by the appropriate authorities.
This determination must be issued within 45 days after receiving the request.
Fiscal implications for the agency to implement the procedure for criminal
enforcement reviews are not expected to be significant. Local law enforcement
officials may be affected by the additional staff hours needed to compile
the needed information and submit the request for review to the ED. However,
according to agency staff, the information local officials would have to compile
would not differ significantly from the information that would need to be
developed to prosecute a case. In addition, local law enforcement officials
may also have access to the ED staff's technical expertise to assist in an
investigation, if it is determined that the case is appropriate for criminal
prosecution. Therefore, no significant fiscal implications are anticipated
for local governments.
Though not a part of this rulemaking, Senate Bill 1265 also requires that
any fine, penalty, or settlement recovered through a prosecution by a local
law enforcement authority be apportioned 70% to the state and 30% to any local
government significantly involved in prosecuting the case. Because of the
cost associated with prosecuting these types of cases, such as the need for
lab analysis and expert witnesses, the split provided could result in a local
unit of government not being able to recover the total cost of the prosecution.
PUBLIC BENEFITS AND COSTS
Mr. Horvath also determined that for each year of the first five years
the proposed rules are in effect, the public benefit anticipated from the
enforcement of and compliance with the proposed rules will be compliance with
state law and the establishment of a uniform statewide procedure to evaluate
whether alleged environmental violations exist and whether administrative
or civil remedies would adequately and appropriately redress the alleged violation.
Fiscal implications are not anticipated for businesses or individuals as
a result of the implementation or enforcement of the proposed rules.
Individuals or businesses that have permits issued by the commission or
ED will have an additional level of review by the ED prior to local law enforcement
presenting alleged criminal violations of permit conditions to local prosecutors.
This is expected to provide statewide consistency in the criminal enforcement
of environmental violations related to an activity for which the permit was
issued.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated as a result of implementation
of the proposed rules for small or micro-businesses. Small or micro-businesses
that have permits issued by the commission or ED will have an additional level
of review by the ED prior to local law enforcement presenting alleged criminal
violations of permit conditions to local prosecutors. This is expected to
provide statewide consistency in the criminal enforcement of environmental
violations related to an activity for which the permit was issued.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rules
do not adversely affect a local economy in a material way for the first five
years that the proposed rules are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the rulemaking in light of the regulatory analysis
requirements of Texas Government Code, §2001.0225, and determined that
the rulemaking is not subject to §2001.0225 because it does not meet
the definition of a "major environmental rule" as defined in that statute.
The proposed rulemaking does not meet any of the four applicability requirements
listed in §2001.0225(a).
A major environmental rule means a rule the specific intent of which is
to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. These proposed rules
do not satisfy the definition of a major environmental rule. This rulemaking
proposes to establish agency procedures in conformance with the Senate Bill
1265. The proposed rules provide a procedure for Texas peace officers to follow,
prior to referring an alleged criminal environmental violation to a prosecuting
attorney. These procedures would require the ED to conduct a criminal enforcement
review to determine whether the alleged environmental violation exists and
whether administrative or civil remedies would adequately address the alleged
violation. These procedures would apply only if the person alleged of committing
the violation is a holder of a permit or an employee of a person holding such
a permit, and the alleged violation is related to an activity for which the
permit was issued by the commission or ED. The proposed rules are not a major
environmental rule because they are not expected to adversely affect in a
material way the economy, a sector of the economy, productivity, competition,
jobs, the environment, or the public health and safety of the state or a sector
of the state. This rulemaking does not qualify as a major environmental rule
because it does not have as its specific intent the protection of the environment
or the reduction of risk to human health from environmental exposure.
Furthermore, even if the proposed rulemaking did meet the definition of
a major environmental rule, the proposed rules are not subject to Texas Government
Code, §2001.0225, because they do not accomplish any of the four results
specified in §2001.0225(a). Section 2001.0225(a) applies to a rule adopted
by an agency, the result of which is to: 1) exceed a standard set by federal
law, unless the rule is specifically required by state law; 2) exceed an express
requirement of state law, unless the rule is specifically required by federal
law; 3) exceed a requirement of a delegation agreement or contract between
the state and an agency or representative of the federal government to implement
a state and federal program; or 4) adopt a rule solely under the general powers
of the agency instead of under a specific state law. In this case, the proposed
addition of Subchapter D to Chapter 70 does not meet any of these requirements.
First, there are no federal standards that these proposed rules would exceed.
Second, the proposed rules do not exceed an express requirement of state law.
Third, there is no delegation agreement that would be exceeded by these proposed
rules. Fourth, the commission proposes these rules to establish procedures
for conducting a criminal enforcement review in conformance with Senate Bill
1265. Therefore, the commission does not propose the adoption of these rules
solely under the commission's general powers.
TAKINGS IMPACT ASSESSMENT
The commission evaluated these proposed rules and performed an assessment
of whether these proposed rules constitute a takings under Texas Government
Code, Chapter 2007. The specific intent of the proposed rules is to establish
agency procedures in conformance with Senate Bill 1265 and to help ensure
statewide consistency in the criminal enforcement of environmental violations
based on a violation related to an activity for which the permit was issued
by the commission or ED. The proposed rules provide a procedure for Texas
peace officers to follow prior to referring an alleged criminal environmental
violation to a prosecuting attorney. These procedures would require the ED
to conduct a criminal enforcement review to determine whether the alleged
environmental violation exists and whether administrative or civil remedies
would adequately and appropriately address the alleged violation. These procedures
would apply only if the person alleged of committing the violation is a holder
of a permit issued by the commission or ED or an employee of a person holding
such a permit, and the alleged violation is related to an activity for which
the permit was issued by the commission or ED.
Promulgation and enforcement of these proposed rules would be neither a
statutory nor a constitutional taking of private real property. Specifically,
the proposed rules do not affect a landowner's rights in private real property
by burdening private real property, nor restricting or limiting a landowner's
right to property, or reducing the value of property by 25% or more beyond
that which would otherwise exist in the absence of the proposed rulemaking.
These proposed rules simply provide an additional level of review by the ED
of an alleged criminal environmental violation, prior to the alleged violation
being referred by a prosecuting attorney. These proposed rules do not affect
any private real property.
There are no burdens imposed on private real property, and a benefit to
society results from ensuring statewide consistency in the criminal enforcement
of environmental violations based on a violation of a permit issued by the
commission or ED. Therefore, the proposed rulemaking will not constitute a
takings under Texas Government Code, Chapter 2007.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed these proposed rules for consistency with the Texas
Coastal Management Program (CMP) goals and policies in accordance with the
regulations of the Coastal Coordination Council and determined that these
proposed rules will not have direct or significant adverse effect on any coastal
natural resources areas, nor will they have a substantive effect on commission
actions subject to the CMP.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on
March 11, 2004 at 2:00 p.m. in Building F, Room 2210, at the commission's
central office located at 12100 Park 35 Circle. The hearing is structured
for the receipt of oral or written comments by interested persons. Individuals
may present oral statements when called upon in order of registration. Open
discussion will not be permitted during the hearing; however, commission staff
members will be available to discuss the proposal 30 minutes before the hearing
and will answer questions before and after the hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact the Office of
Environmental Policy, Analysis, and Assessment at (512) 239-4900. Requests
should be made as far in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Lola Brown, Office of Environmental Policy,
Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087
or faxed to (512) 239-4808. Comments must be received by 5:00 p.m., March
15, 2004, and should reference Rule Project Number 2003-061-070-AD. For further
information, please contact Michael Bame, Policy and Regulations Division,
at (512) 239-5658.
STATUTORY AUTHORITY
The new sections are proposed under the authority granted to the commission
by the Texas Legislature in TWC, Chapter 7. The new sections are also proposed
under the general authority granted in TWC, §5.013, which establishes
the general jurisdiction of the commission over other areas of responsibility
as assigned to the commission under the TWC and other laws of the state; §5.103
and §5.105, which authorize the commission to adopt rules and policies
necessary to carry out its responsibilities and duties under TWC, §5.013(14)(b); §7.002,
which authorizes the commission to enforce provisions of the TWC; and Senate
Bill 1265, 78th Texas Legislature, 2003, which authorizes the commission to
adopt rules to establish procedures for Texas peace officers to follow when
referring alleged environmental violations for criminal enforcement review.
The proposed new sections implement TWC, §§5.103, 5.105, and
7.203.
§70.201.Scope and Purpose.
The purpose of this subchapter is to establish the procedure and mechanism
for Texas peace officers to submit to the executive director a request for
criminal enforcement review of an alleged criminal environmental violation
related to an activity for which a permit was issued by the commission or
executive director, as required under Texas Water Code, §7.203. A permit,
as defined under Texas Water Code, §7.001, includes a license, certificate,
registration, approval, or any other form of authorization granted by the
commission or executive director.
§70.202.Applicability.
(a)
As required under Texas Water Code, §7.203, a written
request for review of an alleged criminal environmental violation must be
submitted to the executive director prior to referring to a prosecuting attorney
for criminal prosecution if all the following criteria are met:
(1)
the individual submitting the request is a peace officer,
as that term is defined in Texas Water Code, §7.193 and Texas Code of
Criminal Procedure, Chapter 2;
(2)
the alleged criminal offense is a violation of the Texas
Water Code or the Texas Health and Safety Code;
(3)
the person alleged to have committed the criminal violation
is the holder of a permit issued by the commission or executive director or
an employee of a person holding such a permit; and
(4)
the alleged criminal violation is related to an activity
for which the permit was issued by the commission or executive director.
(b)
A written request for review is not required to be submitted
to the executive director under Texas Water Code, §7.203, if the alleged
violation constitutes imminent danger of death or bodily injury under an endangerment
offense specified in Texas Water Code, §7.252.
(c)
This subchapter does not apply to:
(1)
enforcement by a local government of statutory provisions
within the jurisdiction of the local government, and not within the jurisdiction
of the commission, or to enforcement of the local government's own codes,
ordinances, rules, orders, permits, or other decisions; and
(2)
criminal offenses that will be prosecuted only as a Class
C misdemeanor.
§70.203.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise.
(1)
Related to--Having an established relationship or connection.
(2)
Activity for which a permit was issued--A specific activity
authorized by the commission or executive director under any provision, prohibition,
or requirement of a permit, license, certificate, registration, approval,
or other form of authorization granted by the commission or executive director.
§70.204.Procedure for Requesting Criminal Enforcement Review.
(a)
The peace officer requesting criminal enforcement review
under this section shall submit to the executive director a written request
for review that is clearly marked "For Law Enforcement Use Only." The request
must include the legal name of the alleged violator and a report describing
the facts and circumstances of the alleged criminal environmental violation
and an explanation as to the reason criminal enforcement of the violation
is the most appropriate action, rather than administrative or civil enforcement.
(b)
The requesting officer may also include any additional
information that the requesting officer determines is relevant to the request
for conducting the criminal enforcement review, in accordance with §70.206
of this title (relating to Factors Considered in the Criminal Enforcement
Review Process).
(c)
Any criminal enforcement review documentation that is submitted
under this section will remain the property of the submitting law enforcement
agency and the records will be returned upon completion of the criminal violation
review.
§70.205.Criminal Enforcement Review Schedule.
Following submission of the information required by §70.204 of
this title (relating to Procedure for Requesting Criminal Enforcement Review),
the executive director shall determine whether the request contains the required
information necessary to conduct a criminal enforcement review.
(1)
If the executive director determines that the request is
administratively complete by meeting the requirements in §70.204 of this
title, the executive director shall, based on the information provided by
the requesting peace officer, within 45 days of receiving the request:
(A)
determine whether an alleged environmental violation exists;
(B)
determine whether administrative or civil remedies would
adequately and appropriately address the alleged violation or whether the
alleged violation would be more appropriately addressed by criminal enforcement;
and
(C)
notify the referring peace officer in writing, as to whether
a criminal violation exists and whether civil or administrative remedies are
adequate to address the alleged environmental violation.
(2)
If the executive director determines that the criminal
enforcement review request is not administratively complete, the executive
director shall notify the requesting peace officer in writing within ten days
of receipt of the request. The notification will specify the deficiencies
and identify the information necessary for the executive director to make
the required determination.
(3)
If the executive director does not make a determination
within 45 days of receiving the request, an appropriate prosecuting attorney
may bring an action for criminal prosecution, and the state is not entitled
to receive any part of the amount recovered through a prosecution brought
by that prosecuting attorney.
§70.206.Factors Considered in the Criminal Enforcement Review Process.
(a)
The executive director shall consider the following factors
in the process of conducting a criminal enforcement review:
(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 result 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)
economic benefit gained through the violation; and
(E)
the necessity to deter future violations; and
(4)
any other matters that justice may require.
(b)
The criminal environmental enforcement review team will
be comprised of representatives with expertise in criminal investigations,
civil and administrative enforcement, and any other relevant specialists.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 28, 2004.
TRD-200400539
Paul Sarahan
Director, Litigation Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: March 14, 2004
For further information, please call: (512) 239-0348