Sec. 26.556. UNAUTHORIZED DISCHARGES OF CERTAIN WASTES WITHIN WATER QUALITY PROTECTION AREA; ENFORCEMENT. (a) The commission shall enforce this subchapter and impose administrative and civil penalties for discharges from a quarry in violation of this subchapter. Subject to Subsection (d), the commission shall assess an administrative penalty against a responsible party of a quarry responsible for a discharge in violation of this subchapter or of a permit, rule, or order adopted or issued under this subchapter in an amount of not less than $2,500 and not more than $25,000 for each violation of this subchapter or of the permit, rule, or order adopted or issued under this subchapter. Subject to Subsection (d), the commission shall assess an administrative penalty against a person for any other violation of this subchapter or of a permit, rule, or order adopted or issued under this subchapter in an amount of not less than $100 for each violation of this subchapter or of the permit, rule, or order adopted or issued under this subchapter. Each day a violation continues may be considered a separate violation for purposes of penalty assessment.

(b) In determining the amount of the penalty, the commission shall consider:

(1) the nature, circumstances, extent, duration, and gravity of the prohibited acts, and the hazard or potential hazard the violation presents to the health, safety, or welfare of the public;

(2) the effects of the violation on instream uses, water quality, and fish and wildlife habitats;

(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) demonstrated good faith, including actions taken by the alleged violator to rectify the cause of the violation and to compensate affected persons;

(D) whether the violator is engaged in a for-profit operation;

(E) any economic benefit gained through the violation; and

(F) the amount necessary to deter future violations; and

(4) any other matters that justice may require.

(c) In addition to the administrative penalties and other available remedies or causes of action, the commission may seek injunctive relief in the district courts of Travis County to:

(1) force the temporary or permanent closure of a quarry operated without authorization required under this subchapter;

(2) force the temporary or permanent closure of a permitted quarry under this subchapter for which acceptable evidence of financial responsibility is not maintained;

(3) force the temporary or permanent closure of any quarry responsible for an unauthorized discharge; or

(4) force corrective action by the responsible party of a quarry responsible for an unauthorized discharge.

(d) The commission may compromise, modify, or remit, with or without conditions, an administrative penalty imposed under this subchapter. In determining the appropriate amount of a penalty for settlement of an administrative enforcement matter, the commission may consider a respondent's willingness to contribute to supplemental environmental projects that are approved by the commission, giving preference to projects that benefit the community in which the alleged violation occurred and address the remediation, reclamation, or restoration of the water quality and the beds, bottoms, and banks of water bodies in the water quality area adversely affected by unauthorized discharges from quarries or abandoned quarries that threaten water quality and the beds, bottoms, and banks of water bodies in the water quality area. The commission may encourage the cleanup of contaminated property through the use of supplemental environmental projects. The commission may not approve a project that is necessary to bring a respondent into compliance with environmental laws, that is necessary to remediate environmental harm caused by the respondent's alleged violation, or that the respondent has already agreed to perform under a preexisting agreement with a governmental agency.

(e) A violation of this subchapter also constitutes an offense that may be prosecuted and punished under Section 7.147.

(f) Nothing in this subchapter affects the right of any person that has a justiciable interest to pursue an available common law or statutory remedy to enforce a right, to prevent or seek redress or compensation for the violation of a right, or otherwise to redress an injury.

Added by Acts 2005, 79th Leg., Ch. 374 (S.B. 1354), Sec. 2, eff. June 17, 2005.