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Illegal Dumping Enforcement Online Class TIDRC003 Companion website: http://www.tidrc.com/onlinedumping.html Approved by Department of State Health Services Six Continuing Education Units Developed August, 2012 Revised: January 30, 2013 John H. Ockels, Ph.D. Copyright (c) 2012 John H. Ockels No Claim to Original Texas State Government Works All rights reserved.


Illegal Dumping Enforcement 1.

INTRODUCTION

Welcome Welcome to the class Basic and Advanced Illegal Dumping Enforcement. This class seeks to convey basic information about how local governments — cities, counties, and some special districts — can use their code, law enforcement, and environmental suit powers to control illegal dumping wherever it happens. My name is John Ockels, and I’m going to be your instructor for this class. I'm the director of the Texas Illegal Dumping Resource Center, and I’ve been teaching this subject about 15 years. I wrote this document that you’re reading, so if you spot any errors or unbelievable assertions, please direct them to me at my email: ockels@tidrc.com. At TIDRC we’re all about helping Texas cities and counties get better at dealing with illegal dumping and other forms of local pollution. To that end, we present between 35 to 45 day-long in-person classes each year in different parts of Texas. If you haven't attended one, I'd encourage you to do so. They're a lot of fun, you earn CEUs, and you might even learn something useful to you and your city, county, or district. You can find out more about our classes elsewhere on this website, and if you want to host a class in your community, just drop me an email. About the Class This class looks at the various ways that a local government can respond to illegal dumping and the policy issues that arise along the way. Stopping illegal dumping in your community requires forming a “Local + State Enforcement Partnership” that includes various state as well as local agencies. In most places, these partnerships are only partially formed. Along the way we’ll be asking you to look at several civil and criminal laws that we’ll be discussing. They are available at several locations on the Internet, but we’ll generally direct you look at the laws on the TIDRC site at http://www.tidrc.com/laws.html. If you need to refer to general Texas statutes, the place to begin is http://s.coop/sbxm. The contents of this class are provided below. When you see the Study Guide a little

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later, notice that the questions are mostly in the same sequence as this outline. However, please be warned that the final examination questions at the end of the class will not follow any particular order. But don’t worry about that; the test will be easy and you can take it until you pass. You’ll do better on the test and in the class if you read all of the material presented and pay attention to the major points made in the blocks with the red stars. And don’t forget to contact me at ockels@tidrc.com if you have any question at all as you go along. Also, please note that this class aims at conveying accurate information upon which you and other local leaders can build good policies. Texas is a very large state. In fact, we make-up almost 9% of all the land in the United States (less Alaska — mostly ice anyway — and Hawaii — mostly humming birds, hula dancers, and tourists). Texas is not only big; we’re also very diverse. So what’s good policy for Houston or Dallas — both with longstanding illegal dumping problems that have resulted in specialized enforcement police units being formed — is not necessarily good policy for communities in the Valley, east Texas, or west Texas. We can provide you with accurate information on the laws and how they are being applied in various parts of Texas, but you and your colleagues will have to decide what makes sense where you live. I will just mention that, ultimately, the voters will decide how clean they want their communities and will convey their wishes to local elected officials. Officials who find themselves at odds over dealing with pollution with their constituents have a real problem. Class Objectives This class has five formal objectives: 1. Provide an overview of applicable laws used to respond to illegal dumping for Texas officers, elected officials, citizens, media, and industry. 2. Provide detailed information on the Texas Litter Abatement Law for use by local officers. 3. Encourage local enforcement of these waste control laws by informing citizens of their availability and use. 4. Show how multiple laws can be used for same situation, which introduces the policy question of “Which one do we use?” 5. Provide a means for local officers to earn continuing education credits without travel.

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Not Everybody Already Knows Everything As it turns out, there was only one perfect man in all of history — and neither you nor I are that person. We all need help, especially as we move into new areas of enforcement. Consequently, there will be a lot to learn and many decisions to be made moving forward. Our ignorance and occasional arrogance can both be overcome, if our shortcomings are approached with good humor and patience. Very few state administrative officers, local code enforcement officers, peace officers, prosecutors, and local government attorneys, and elected officials have ever had the chance to study the process of applying the available tools to controlling local pollution, so all of us have learning to do. This fact extends to your instructor for this class; I’m constantly learning new things about local anti-pollution enforcement. Sometimes those things are very straight-forward — like the availability of laws designed for local use in controlling oilfield wastes — and at other times the new approaches can be very obscure — such as the complexities faced by local governments wanting to sue environmental violators under Texas Water Code Sec. 7.351. I also want to plug the Texas Environmental Law Enforcement Association. TELEA (www.telea.us) has been functioning since 1998 and is the only professional association of specialized environmental peace officers, code enforcement officers, prosecutors, prosecution-support attorneys, and local government staff in the state. Over the years, TELEA has had outstanding support from the Houston Police Department’s Environmental Crimes Unit (located in the Major Offenders Division) and the Texas Parks and Wildlife Environmental Crime Unit. You’d probably benefit personally and professionally from membership in this organization. Local officers, prosecutors, elected officials and state officers (administrative and criminal) take different approaches to dumping enforcement in different areas of the state. That’s perfectly fine. The important thing is that local elected officials are aware of their enforcement choices and have made the policy decisions that make sense for the people of that part of Texas. As we say, the way the City of Houston responds to illegal dumping will necessarily be different from how a rural county in East Texas or the City of Odessa responds. The only really important thing is that local policy decisions not be made out of stupidity, but with clear understanding of the options available.

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Class Outline 1. Introduction [Page 1] Welcome [1] About the class [1] Class objectives [2] Not everybody already knows everything [3] Class outline [4] About the process [5] Study guide [6] “Local + State Enforcement Partnership� - Brief History [9] Three popular myths [12] There are always several enforcement approaches available [13] Paying for the clean-up [15] Enforcement Summary Chart [16] Who can enforce ... in Texas? [20] 2. Specific Laws Available for Local Use [24] Using municipal codes to stop dumping [24] Using health nuisance laws in illegal dumping enforcement [25] THSC Chapter 341 Minimum Standards of Sanitation and Health Protection Measures [26] THSC Chapter 343 Abatement of Public Nuisances [30] Comparing THSC Chapter 341 and THSC Chapter 343 [34] 3. Using the Texas Litter Abatement Act [35] This is the primary state illegal dumping law [35] Definitions used in this law [35] Venue: Where can these cases be filed? [41] Statute of limitations [42] When the dumping happened too long ago to use THSC Chapter 365 [43] Violations: What Are the Crimes Defined by THSC Chapter 365? [43] "Lighted Litter" [45] What else is important about this law? [47] 4. Water Pollution and Specialized Dumping [50] Introduction to TWC Chapter 7 Enforcement [50] What criminal violations are covered by TWC Chapter 7, Subchapter E? [52] Additional charges to consider [53]

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Comments on water pollution Statutes [54] Useful water-related definitions [56] 5. Oil and Gas Waste [59] Introduction [59] Enforcement Summary [60] 6. Civil Suits by Cities and Counties [63] 7. Conclusion [65] 8. Appendix: James Glendening Decision [66] About the Process This particular online class is easy to complete: 1. Register and pay your fee (you probably already did that). 2. Read this material. 3. Pass the un-timed test (you can take it as many times as necessary). 4. Certify that you did the work yourself. 5. Receive your Certificate of Completion. That’s all there is to it. When you’ve finished all five of these steps, you’ll have your Certificate of Completion, just as the Department of State Health Services has authorized us to do. This certificate will attest to the fact that you have earned six credit hours in Illegal Dumping Enforcement. Your city may want you to give them a copy of your certificate for their files, but its your responsibility to retain a personal copy. If you are selected for training audit by DSHS, this certificate is part of what you’ll have to provide. We maintain training records at this end too, as required by the state. So if you lose your certificate, just contact us for a free replacement. If you are involved in law enforcement and need TCLEOSE hours, ask your Chief or Training Officer to approve your work in this class and to update your training record at the state, like any other online class you may have taken. The TCLEOSE number for this class is 3880 - Environmental Enforcement, which is the number they use for all environmental enforcement classes. Please let me know if your Chief or Training Officer needs additional documentation from us, and we’ll send it along.

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A number of firefighters take our classes too, and retain the Certificate of Completion for this one with the others they earn during the year. This class is particularly good for code enforcement officers, who can’t always get accurate information on this subject, as well as any government staff — including emergency planning personnel and 9-1-1 operators — with responsibilities for working between the public and local government. As you can see, taking this class is an easy process, and it should take you about six hours to complete the reading and take the test. And don’t feel like you have to do all the work at once. Just read along as you have time, and, when you’re finished, take the test. In fact, the slower you go, the more you’ll learn. Don’t forget that you can download this document and read it later, too. The “download” button is down there with the rest of the controls. There is a Study Guide on page 6 for you, and we encourage you to print this part and answer the questions as you go. If you know everything in this study guide, you’ll have no problem passing the test.

When you see something written inside a box like this, be sure to reflect on it and remember it too. This concept probably will be on the test and is important!

And if you’d like to just read the material here without registering, please do so. You just won’t be able to take the test or receive a Certificate of Completion, but we’re happy for you to read the material for personal education. Believe me, I’m also aware that there are many different ways to present material such as this, and this format will eventually appear in the form of a small book. So if you have any suggestions for improvements, please send them along to me when ever you can. Thanks in advance for that contribution. Study Guide This section is a Study Guide that we’ve prepared to help you organize your knowledge. We encourage you to print this part and answer the questions as you go. If you know everything in this study guide, you’ll have no problem passing the test. HOWEVER … if you read the material ONLY to be able to answer these questions, you are doing yourself a great disservice. The material provided by this course will help you

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be more effective in managing the conditions that save lives. Also, note that throughout this class “TWC” will refer to the Texas Water Code; “THSC” will refer to the Texas Health and Safety Code; “LGC will refer to the Texas Local Government Code; and “GC” will refer to the Texas Government Code. 1.

True or false, there are specific Texas criminal laws that your city or county can use to respond to illegal dumping.

2.

True or false, the Texas illegal illegal dumping laws apply to private property as well as public property.

3.

True or false, peace officers and prosecutors generally learn Texas criminal laws against dumping in the police academies and law schools they attend in their basic training.

4.

Which of the following is NOT an objective of this class? A. Give officers an opportunity to earn hours without travel B. Provide detailed information on the laws for local officers C. Encourage local governments to refer all dumping cases to the TCEQ D. Show how multiple laws can be used in any situation

5.

True or false, most routine oil and gas waste violations are felonies.

6.

Which of the following types of enforcement may a city NOT undertake? A. Administrative enforcement of rule violations B. Criminal violations of Texas health nuisance laws C. Criminal violations of Texas Litter Abatement Act D. Criminal violations of Texas Water Code Chapter 7, Subchapter E laws E. Civil suits under TWC Sec. 7.351

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Which enforcement option is NOT available to Texas counties? A. Using local pace officers, such as deputies and constables B. Using specialized Environmental Enforcement Officers C. Using investigators attached to local district and county attorneys D. Using municipal code officers

8.

True or false, if your local prosecutor won't prosecutor illegal dumping cases, it should be treated as a local policy error.

9.

True or false, local peace officers should refer all reports of illegal dumping to the TCEQ or TPWD Environmental Crimes Units for enforcement.

10. True or false, the only officers who can enforce violations of the Texas health and public nuisance laws (THSC Chapters 341 and 343) are officers assigned to local health departments and the officers of the State Department of Health

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Services. 11. Where can THSC Chapter 343 be applied to violations? A. Only inside Texas cities; B. Anywhere in Texas; C. Only in the unincorporated areas of Texas counties D. Only in the unincorporated areas of Texas counties except land carried as "agricultural" by the county tax assessor. 12. Where can THSC Chapter 341 be applied to violations? A. Only inside Texas cities; B. Anywhere in Texas; C. Only in the unincorporated areas of Texas counties D. Only in the unincorporated areas of Texas counties except land carried as "agricultural" by the county tax assessor. 13. True or false, most health nuisance cases can be handled locally by the use of THSC Sec. 341.013(e). 14. True or false, THSC Chapter 343 mostly applies to public property. 15. True or false, neighbors, homeowner associations, and other affected parties can seek an injunction to stop a public nuisance, same as a county, under THSC Chapter 343. 16. Which one of these directs a judge to order an abatement if there is a conviction? A. THSC Chapter 341 B. THSC Chapter 343 C. THSC Chapter 365 D. Texas Water Code Chapter 29 17. Which one of these requires a 30-day waiting period following notice before a violation has actually happened? A. THSC Chapter 341 B. THSC Chapter 343 C. THSC Chapter 365 D. Texas Water Code Chapter 29 18. Which one of these is the primary state criminal law used to stop dumping? A. THSC Chapter 341 B. THSC Chapter 343 C. THSC Chapter 365 D. Texas Water Code Chapter 29 19. Under the Texas Litter Abatement Act, how would you most likely classify an abandoned automobile?

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A. B. C. D.

It’s neither "litter" nor "solid waste" It’s an "inert solid material" and therefore exempt from the law It’s probably "discarded or worn-out manufactured materials and machinery" All waste automobiles are handled only by the Transportation Code

20. True or false, domestic sewage waste is normally handled by THSC Chapter 365. 21. True or false, as long as a waste is "inert," it's perfectly fine to it dump in a field. 22. True or false, you can use THSC Chapter 365 for illegally dumped oil well drilling mud. 23. True or false, although some illegal dumping laws include Travis County as having venue, the smart thing to do is to work toward having your local prosecutors handle these cases. 24. Under the Texas Litter Abatement Act, what is the maximum penalty for a second conviction of dumping 500 pounds of tires commercially? A. Class C misdemeanor B. Class B misdemeanor C. Class A misdemeanor D. State jail felony E. Third degree felony 25. True or false, municipal code enforcement officers should be able to recognize basic environmental crimes. “Local + State Enforcement Partnership” - Brief History Before we start this class, let’s reflect just for a moment on how we arrived where we are now. If it wasn’t for the State Legislature and the Texas Commission on Environmental Quality and its predecessor agencies, there would be no local environmental enforcement in most of Texas today. Major programs such as those at City of Houston and in Harris County would no doubt be present, but I would suggest that many other local enforcement programs would never have come into existence. There is a history of federal and state efforts at waste control that dates back to the 1940s, with a major push at the state (and local) level coming after the passage of the federal Resource Conservation and Recovery Act of 1976. It was the twenty-year outflow from that federal law that resulted in the closure of local landfills in Texas that failed to meet RCRA and state technical requirements (Texas went from around 800 landfills in the late-1980s to around 225 today).

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Local illegal dumping enforcement programs developed over the last 25 years, and the driving force behind the emergence of these local programs has been the state. Consider just a brief history of the last 25 years: 1. The year 1989 was an important one in local illegal dumping enforcement. That was when the State Legislature and Governor created the structure that has resulted in funds flowing to local cities and counties through the twenty-four Councils of Governments to fund environmental enforcement officers. That year the state: (A) Created Texas Health and Safety Code Chapter 361 (Solid Waste Disposal), which created the Texas Natural Resource Conservation Commission; (B) Created THSC Chapter 363 (Municipal Solid Waste), requiring the creation of Regional Solid Waste Management Plans by each of the twenty-four Councils of Governments working with local governments, citizens, and private interests (SB 1519); (c) From1985 the State Legislature authorized the collection of fees at landfills to fund regulatory and enforcement programs, and a basic fee of $0.50 per ton of un-compacted Municipal Solid Waste was established in 1989. This remained in place until 1993, when the current rate of $1.25 per ton was established. The Solid Waste Disposal and Transportation Fee collection and allocation process in THSC Chapter 361 authorized the TNRCC to direct significant amounts of those moneys to fund COGs to create the Regional Solid Waste Management Plans; (D) Authorized interim direct grants to local governments in THSC Chapter 361 to enforce various laws, including THSC Chapter 365, the Litter Abatement Act, which began state funding of local environmental enforcement officers; (E) Authorized in THSC Chapter 361 the funding of projects to implement the Regional Solid Waste Management Plans once they were completed, including using Solid Waste Disposal and Transportation Fee money to continue to fund local enforcement officers, their education, and their equipping. Most local environmental enforcement programs trace their beginning to these grants, which originated at the TNRCC and were directed by the COGs to local governments; and, (F) Authorized the TNRCC to provide technical assistance to the COGs, cities, and counties during the creation, review, and continuing project funding

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phases of the Regional Solid Waste Management Plans (as someone who worked at a COG in the middle of this process I would say that this technical support was absolutely outstanding). 2. In 1991 Governor Richards created the state/federal Texas Environmental Enforcement Task Force and the Texas Water Commission (one of today’s TCEQ predecessor agencies) created its Special Investigations Unit to enforce Texas criminal laws protecting our land, water, and air resources; 3. The first Director of the Special Investigations Unit — now called the Environmental Crimes Unit under the outstanding direction of Dan McReynolds — was Dale Burnett, a truly visionary leader. Under Dale’s direction, Special Investigations began providing training to local peace officers in implementing Texas criminal environmental protection laws at the local level. The concept of enforcement being a partnership was born; 4. As the number of trained local environmental enforcement officers continued to grow, in 1997 investigators from TNRCC Special Investigations, the very sophisticated Houston Police Department Environmental Investigations Unit, and other officers from around the state formed the Texas Environmental Law Enforcement Association, which continues to function today as the only association of such officers in the state (www.telea.us); 5. Regional-based training emerged to where it today has probably replaced TNRCC/TCEQ training as the primary source of knowledge of basic enforcement, freeing the Environmental Crimes Unit to provide occasional higher-level training on special topics and get on with their work; and, 6. Regional enforcement task forces have begun to emerge, most of which are modeled on the outstanding Capital Area Regional Environmental Task Force, which is “a multi-jurisdictional law enforcement effort of 12 government agencies in Central Texas.” So with state-managed funding and state-provided training, local criminal environmental enforcement was jump-started by the state and has grown to where it is today: “Local + State Enforcement Partnership.” Like all partnerships, however, one partner has been stronger than the other,

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and in this instance from the start it was the State side of the equation. And like all partnerships, the parties in this one have continued to learn from each other, each growing to become stronger in its own right. The next phase of development will see more local governments step-up, learn to enforce Texas criminal laws, and begin to carry their end of the load to a greater degree. Many cities and counties have done this already, and many more will do the same as we go forward. And like all partnerships, this one has had its share of pains, each one a valuable experience. But it’s absolutely fair, useful, and humbling to observe the debt that local enforcement programs owe to the state for providing the structure and resources that have brought them into existence. Three Popular Myths Up front, let’s deal with three recurring myths about illegal dumping enforcement: Myth #1: A person can do what he wants with his own property. Not true. One way or another, there are administrative rules, municipal codes, health nuisance laws, criminal laws, or civil suits that can be used to control illegal dumping just about everywhere in Texas, including on private property. Sometimes all of those approaches are available, and in other times just a few. But there is ALWAYS some way to deal with illegal dumping.

Knowledge + Political will = Good dumping enforcement

Myth #2: Local government has no power to enforce these laws. This is incorrect also. The truth is that cities and counties have the same power to enforce these criminal laws as they have the power to enforce the Penal Code or the Traffic Code. And all of the laws we’ll be discussing are in place right now, today, in your city or county (thanks to the State Legislature). No city council or commissioners court has to “adopt” these laws before they apply, and nobody can “opt out” of them either. Like it or not, they are already in force where you are.

Enforcement power of local government remains mostly unused.

Myth #3: Cities, counties, and citizens should just call the EPA and TCEQ to report illegal dumping cases.

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This is incorrect also. Cities and counties should begin with local law enforcement to respond to dumping. That’s who responds to local crimes: local peace officers. As part of their training and experience, local law enforcement agencies will learn when to include the TCEQ, and whether to get the TCEQ administrative enforcement team or the Environmental Crimes Unit involved in a particular situation. With a little training and some reading, any city or county law enforcement agency can easily enforce these laws. If the EPA does need to get involved, the TCEQ will take care of that part. In fact, back in January of 1996, the TNRCC sent a letter to all county judges conveying the important point that the State Legislature had changed the distribution of Solid Waste Disposal and Transportation Fee money — lots more of it was to be going to the Councils of Governments for local projects. Consequently, the TNRCC was being forced to reduce routine dumping enforcement staff in their regional offices and transfer those responsibility to the counties. The agency’s response from that date would be limited to situations posing “immediate danger to human health and/or the environment.” I had forgotten about that happening until recently when a solid waste administrative team leader from one of the TCEQ regional offices kindly provided me a copy. That policy is still in effect, although just about everybody in the counties has forgotten about it, or wasn’t working in local government back then. (If you’d like to read a copy of the letter sent to my home county, just send me an email with your request.)

Within the “Local + State Environmental Enforcement” structure, local governments are usually the first responders to illegal dumping, water pollution, and so on.

I’m sure there are other regular misunderstandings, but these three have been consistent in all parts of Texas for at least the last fifteen years. There Are Always Several Enforcement Approaches Available One of the interesting things about illegal dumping enforcement is that the city or county always has a choice of several approaches — civil or criminal enforcement — and a choice of criminal laws to use — including those for health nuisance violations, illegal dumping violations, possible water pollution, or possible dumping of special kinds of waste. Additionally, a city may have the choice of handling dumping as a municipal code violation. These options raise the policy questions of “What’s the best approach to use?” and “Who gets to decide?”

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For instance, if a company decides to save some money and disposes of 300 pounds of waste by dumping it close to water, inside the city limit, without a permit to do so, local government might treat this act as: (1) A code violation, with a potential penalty of a fine of up to $500 or possibly $2,000; (2) A criminal health nuisance violation of THSC Sec. 341.013(c), with a penalty of a fine to $200; (3) Illegal dumping, with a criminal penalty based of the weight or volume [state jail time to 2 years and/or a fine to $10,000 for commercial dumping over 200 pounds]; (4) Felony water pollution, with a penalty a fine for an individual ranging from $1,000 to $250,000 (if the violator was an individual, the maximum potential penalty is confinement for up to 5 years and/or fine of as much as $100,000); (5) Based on the content of what was dumped — medical waste, used lead acid (car) batteries, hazardous waste, used motor oil — additional criminal laws with major penalties may be involved; (6) And the city may decide to enhance the felony charges against the company if someone — such as the driver — was put “in imminent danger of death or serious bodily injury” in the process; and/or, (7) The city may decide to bring a major civil suit against the polluter to force stop the dumping, force immediate clean-up, and set civil penalties (cities and counties can both do this under Texas Water Code Sec. 7.351, although few know of these powers).

The biggest problem in dumping enforcement is usually deciding what approach to take. The more you know your options, the better your response will be.

So the local government policy issues are (1) “Which, if any, of these approaches does it decide to use?”; and, (2) “Who makes the decision — the first officer on the scene, the city manager, the sheriff, or county judge, who?” By the time you’ve finished this class, we hope that you have learned the options that your city or county has, and have also thought through a few of the policy decisions that have to be made before effective enforcement can take place.

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Ignoring the problem is not an option for local leaders … and this is not a state problem.

If a local jurisdiction decides to take this approach, the citizens will not tolerate it for long. Citizens are getting smarter and smarter about the laws available to keep their communities clean. If the current elected officials won’t do the job, the next batch will Paying for the Clean-up There are not too many possibilities here: (1) The violator pays because you caught him; (2) The property owner eventually pays because the TCEQ or local government forces him to (one can’t have a health nuisance of unpermitted dump on one’s property); (3) Local government eventually pays (because having the mess can’t continue, it didn’t catch the violator, and the property owner can’t or won’t pay); or, (4) Do nothing (and let the community suffer the health and safety results, like we live in Nigeria or someplace).

There may, in some places, be several other possibilities that we’ll call “1.5” because they fit right there. These can ONLY happen if somebody in local government puts out extra effort (for no additional pay, of course) and then they probably won’t be available then: 1.5(a) Get grant from the Council of Governments to pay for the clean-up; 1.5(b) Apply for “Supplemental Environmental Project” funding under TWC Sec. 7.067; 1.5(c) Organize a church group, scouting, neighbors, or other volunteers.

The bottom line on this is that if local government doesn’t catch the dumper and make him pay, they can attempt to hammer the victim of the dumping, pay for the cleanup themselves, or pretend we live in the Third World.

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Enforcement Summary Chart

This chart shows the five approaches that state and local governments can use to solve environmental pollution problems. If this chart is a little too small to read … or if you want to retain a reference copy … just go to www.tidrc.com/resources.html . There’s a way to handle illegal dumping under each of these five approaches, depending on the situation. For example, very small scale dumping inside a city might be best handled as a code violation if the violator owns or controls the property being used for disposal. If the property belongs to somebody else, very small amounts dumped might be best handled as a public health nuisance violation or as a “C” misdemeanor violation of THSC Chapter 365. Commercial dumping might be best handled as an “A” misdemeanor or state jail felony level violation of the same law, or as a specialized violation of TWC Chapter 7 (Subchapter E), if that is more appropriate to address the situation. When your city or county is being dumped on commercially by out-of-county entities

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with money, perhaps the best approach is to simply sue the company under the powers cities and counties have under TWC Sec. 7.351. That will immediately result in stopping the practice, generate an immediate “good-faith-this-was-all-just-a-bigmisunderstanding” site clean-up, and move toward a negotiated payment of civil damages that may run as high as $25,000 per-violation, per-day-of-violation. Since these civil suits are handled as strict liability, the city or county doesn’t have to show it has been actually damaged, just that the plaintiff violated the statute, rule, permit, or TCEQ order involved. Civil penalties can run as high a $25,000 per violation per day, with half going to the state and the other half staying with the local government bringing the successful suit. Most city and county attorneys are unaware of this option, which can be undertaken without the approval of the TCEQ or any other agency. So you can see how knowing all your enforcement options — as depicted on this chart — will help you consider most of your major alternatives to deal with illegal dumping. Note that the names of the five approaches are shown on the left side of the chart, written in rotated letters. Working from the bottom to the top: Admin refers to the enforcement of Texas Administrative Code by the administrative officers of the Texas Commission on Environmental Quality. This is the only type of enforcement shown here that cannot be done directly by local authorities. Your city or county can sue a rule violator under your power at TWC Sec. 7.351, but you can’t directly enforce the administrative rules; only the state can do direct administrative enforcement. The TCEQ regularly gets involved in enforcing administrative violations against recyclers, permitted landfills, gas stations, and other entities they regulate. They may well undertake administrative enforcement — including assessing and collecting administrative penalties — against un-permitted violators too. For example, TCEQ Rule 330.7 — more formally known as Title 30 Texas Administrative Code Sec. 330.7 — requires a state-issued permit before a person can handle solid waste: [N]o person may cause, suffer, allow, or permit any activity of storage, processing, removal, or disposal of any solid waste unless such activity is authorized by a permit or other authorization from the commission. In the event this requirement is violated, the executive director may seek recourse against not only the person that stored, processed, or disposed of the waste but also against the generator, transporter, owner or operator, or other person who caused, suffered, allowed, or permitted its waste to be stored, processed, or disposed.

If a person decides to start using his property as a general dump for his own waste and that of others in a “trash for cash” operation, the TCEQ may well decide that the

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person is breaking this and other related administrative rules. The agency will follow a process — detailed in Subchapter C of Texas Water Code Chapter 7 — in making their determination and reaching an agreed remediation order — probably with administrative penalties attached — to deal with this situation. One important thing to remember is that the TCEQ does not have enough administrative officers and travel budget to handle all illegal dumping cases as administrative violations. Since Texas amounts to almost 9% of the total territory of the United States (less Alaska and Hawaii), there’s just too much area for one agency to cover. Besides, we like taking the local approach to most things here in Texas, so consider using the TCEQ primarily as a technical resource, an agency for the biggest and most administrative and criminal complex cases, and as a source of training. Don’t overlook the continued impact of the funding changes that the State Legislature made in the 74th Legislature in 1995. Regional TCEQ offices continue to have limited resources available to respond to illegal dumping. Except for dumping that poses an immediate threat to human health and/or the environment — and “trash for cash” unpermitted commercial dumping — enforcement is a county responsibility, even if that fact has been forgotten (see Myth #3 above). Code refers to municipal code enforcement by officers in most Texas cities. This is the type of enforcement with which you are probably most familiar. Unfortunately, the use of municipal codes in dealing with illegal dumping cases is, in my opinion, fairly limited. Codes against having “refuse on a lot” can be effective against an owner or renter dumping waste on his own property or on nearby vacant lots. But in situations where the dumper is unknown or the dumping is being done for commercial reasons or the dumping is of a large amount of waste, the best approach may be to use the criminal anti-dumping laws. This is the time for criminal law enforcement to become involved in the case, both because the violator is a criminal and there are potentially increased dangers to the officer. Health refers to the enforcement of health nuisance statutes by one of the 61 formally organized local health departments in the state. Note that police, deputies, constables, TCLEOSE-certified fire marshals, and other law enforcement officers can also enforce these laws, with or without the presence of a formal health department in the jurisdiction. Criminal refers to local peace officers enforcing various state criminal statutes designed by the state legislature to keep pollution under control. State-level peace

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officers … including the criminal investigators of the TCEQ’s Environmental Crime Unit and the specialized game wardens in the Texas Parks and Wildlife Department’s Environmental Crime Unit … can also enforce these laws. But most of the work falls on local peace officers, just because to the number and location of cases and officers. Civil refers to local county attorneys and city attorneys using their powers under TWC Sec. 7.351 to sue polluters to make them stop their activities and to pay civil damages (which can amount to $25,000 per day per violation). Texas local governments … cities, counties, and many special districts … can use all of these except administrative enforcement. That approach is reserved to the various state agencies. Every city can use all of the other four approaches, and Texas counties can use three … Health, Criminal, and Civil … since counties have no municipal codes to enforce. Moreover, you don’t have to apply these approaches in any sequence, and you can often use multiple approaches simultaneously. The remainder of this class will be a closer look at each of these five tools as they may be applied to illegal dumping. The more you know about each of these approaches, the more powerful your city, county, or special district becomes in setting policies that will control dumping. As we suggested at the beginning of this section, you may want to print a copy of this chart and use it as the basis for case analysis and internal education. A great source of information on criminal enforcement issues — for local officers and prosecutors — is the Environmental Crimes Unit of the TCEQ. They have ten-or-so criminal investigators working throughout the state, including North Texas. To reach these officers, call 512-239-3405. Another good source of information on how cities and counties can deal with illegal dumping is the TCEQ’s Small Business and Local Government Assistance group (1-800-447-2827). This particular unit doesn’t have administrative or criminal enforcement duties, but rather exists to help everybody understand how to be in compliance with state rules from the start. Across the state, I have found the staff of the SBLGA program to be knowledgeable, available, and interested. Their Compliance Assistance Specialists are usually well-known to local government officials, and you’ll gain value from talking through a wide range of environmental issues your government is facing with one of their folks. They absolutely know whom to contact in the TCEQ, and also can often put you in contact with another local government who is working on your same issue. These folks are worth knowing.

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Who Can Enforce Anti-Pollution Laws, Rules, and Ordinances in Texas? Environmental Enforcement Options Administrative

Civil 2. Municipal Code Officers

City

Not Available

3. City or County Health Department Officers 11. Suits by City and County Attorneys 3. City or County Health Department Officers

County

Not Available

4. County Employee Trained by Local Health Authority 11. Suits by City and County Attorneys

1. State Administrative Officers - TCEQ

State

12. Suits by State Attorney General’s Office

1. State Administrative Officers - Railroad Commission

Criminal 5. Local Peace Officers 6. Local Environmental Enforcement Officers 10. Local District and County Attorney Investigators 5. Local Peace Officers 6. Local Environmental Enforcement Officers 9. Travis County Attorney Criminal Investigators 10. Local District and County Attorney Investigators 7. TCEQ Environmental Crime Unit Investigators 8. Texas Parks and Wildlife Department Environmental Crime Unit Investigators

Although criminal cases are generally filed in the county where the crime takes place, environmental cases work a little differently. Cases concerning illegal dumping and other major environmental violations … under THSC Chapter 365 and TWC Chapter 7 (Subchapter E) … may be filed (a) in the county where the alleged violator lives, (b) in the county where the offense takes place, (c) in each county the alleged violator passes through (for transportation of waste offenses), and (d) Travis County. The “best” place to file an environmental criminal case will almost always be with the local prosecutors, but they may not always be in the game. In these cases local peace officers often work with their state counterparts … or the enforcement officer in the next county … and arrange for major cases to be filed in Travis County or next door, if that county also has venue. So, given the wide options on venue, if you work through which

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officers have which enforcement powers, you arrive at the information below.

If a local prosecutor refuses to accept anti-pollution cases for some reason, deal with this as a policy issue and solve it locally.

State and Local Environmental Enforcement Officers: 1. State Administrative Officers … such as those working for the TCEQ and Railroad Commission … enforce the administrative rules statewide, along with making sure the permits issued by their agencies are followed and any orders made by their commissioners are enforced. 2. Municipal Code Officers enforce the municipal codes adopted by their cities. Most enforcement is through agreement, but cases may wind-up in municipal court. Our 254 counties have no municipal codes to enforce, so this level of enforcement can’t happen in the unincorporated areas. About 77% of Texans live someplace covered by municipal codes, and volume-wise, this is the most important source of protection. 3. City or County Health Department Officers enforce public health nuisances found in THSC Chapter 341 and, to a lesser extent, THSC Chapter 343. These may be specialized officers who only enforce one violation — for example, assuring restaurant sanitation under THSC Sec. 341.011 — or general environmental health officers who enforce a wider set of THSC Chapters 341 and 343. At last count on the DSHS website there were 61 formal health departments in Texas, organized under THSC Chapter 121. 4. County Employee Trained by Local Health Authority. If the commissioners court creating a formal health department gave them specific powers at the time the health department was created (under THSC Chapter 121, Subchapter D), the enforcement power of a county employee trained by the local health department can cover “any law that is reasonably necessary to protect the public health.” The employee doesn't have to be a peace officer, just trained by the local health authority. If you are considering increasing the enforcement powers of a county in the unincorporated area, you’ll want to read THSC Sec. 121.003 closely and discuss these powers with your county attorney. 5. Local Peace Officers enforce the criminal environmental laws, including THSC

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Chapters 341, 343, and 365 as well as Texas Water Code Chapter 7 (Subchapter E). These are just more criminal statutes and carry penalties from very small fines to major fines and confinement. Such officers include police, deputies, constables, state game wardens working locally, TCLEOSE-certified fire marshals, and other local peace officers. Unless your local peace officers are trained to recognize environmental crimes, they can’t help the general environmental enforcement effort.

Local peace officers should be the primary source of environmental crime enforcement, not the state.

6. Local Environmental Enforcement Officers. Some counties have appointed special peace officers who receive a great deal of environmental criminal enforcement training to enforce the state criminal laws protecting our water, land, and air. They also enforce THSC Chapters 341, 343, and 365 as well as Texas Water Code Chapter 7 (Subchapter E). They can also enforce the criminal provisions of TWC Chapter 11 (Water Rights), although I know of no one doing so presently. In some counties this specialized officer is a deputy sheriff; in others it is an officer associated with the county fire marshal’s office. 7. TCEQ Environmental Crimes Unit Investigators. This is a very small group of criminal investigators — not TCLEOSE-certified peace officers — who handle major environmental criminal cases statewide. There are around ten investigators supported by a manager and two specialized criminal attorneys in this unit. Cases they develop are normally filed in Travis County, which has statewide jurisdiction on most environmental cases. When they need to make an arrest, they team with Texas Parks and Wildlife Environmental Crimes Unit officers or local peace officers. These are some of the smartest environmental criminal investigators in the state. Local officers benefit from knowing the TCEQ officers assigned to their area. 8. Texas Parks and Wildlife Department Environmental Crime Unit Officers. These six officers, who begin their careers as game wardens, are supported by a manager, but no specialized attorneys (although they have easy access to the two attorneys in the TCEQ Environmental Crimes Unit). They work statewide and normally file their environmental criminal cases in Travis County. Like the TCEQ ECU investigators, these folks are among the best in the state at this kind of enforcement. Additionally, since they are TCLEOSE-certified peace officers they do their own arrests.

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8.a. Railroad Commission of Texas Environmental Crimes Unit Investigators. There is no such unit at the Railroad Commission. All agency enforcement there is administrative.

TPWD and TCEQ Environmental Crimes Units are small and must cover the whole state. They can’t be successful unless local peace officers do their part by handling most dumping cases. Use these two state ECU groups as a resource for effective local enforcement. They are often ready to step-in when local cases are to big, too complex, or too politically charged for local officers.

9. Travis County Attorney Criminal Investigators. Travis County has statewide jurisdiction for most environmental crimes — along with the local counties — including felonies and misdemeanors. The felony environmental crimes prosecutor in the Travis County DA’s office is extremely effective, and generally serves as the prosecutor for cases developed by the TCEQ and TPWD Environmental Crimes Units. The County Attorney’s office in Travis County also has state-wide jurisdiction on misdemeanor environmental violations, although their out-of-county work is generally limited to immediately adjacent counties. This office has two outstanding criminal investigators who work with local officers to develop cases. 10. Local District and County Attorney Investigators. In a few counties the investigators working for county and district prosecutors have the training and experience to investigate violations of state criminal anti-pollution laws. These officers are usually individuals whom have worked as environmental enforcement officers earlier in their careers and now find themselves working as general criminal investigators for local prosecutors. 11. Suits by City and County Attorneys. Under TWC Sec. 7.351, city and county attorneys (depending where the pollution takes place) have the right to sue polluters on behalf of their city or county in District Court. The TCEQ is an included party to these suits, but the local attorney is in control of the case. Civil penalties can range as high as $25,000 per day, and each day of an ongoing violation can be treated as a separate offense. The violations for which cities and counties can sue include breaking a list of primary environmental statutes found in TWC Sec. 7.351 as well as the rules, permits, and orders arising from those statutes. On a practical level, most local attorneys neither know of these powers nor would be comfortable working through these time consuming suits. We recommend a city or county contemplating such a suit contact Daniel Ray at Scott Money Ray Thomas, PLLC in Greenville (903/454-0044). They are the experts in the state on this. They work with

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cities and counties and cost nothing up-front. 12. Suits by State Attorney General’s Office. The Attorney General’s Office may occasionally bring civil suits against violators of various environmental laws under the powers described in Texas Water Code Chapter 7, Subchapter D. There are also registered sanitarians, designated representatives, storm water specialists and other such officers filing cases at the local level. The dozen listed above, however, are the primary ones involved in main-stream anti-pollution efforts.

2.

SPECIFIC LAWS AVAILABLE FOR LOCAL USE

Using Municipal Codes to Stop Dumping Since you probably know a great deal about the use of municipal codes already, I’ll just mention them at the start of this section. About 900 of Texas’s 1,210 cities and towns have some form of active code enforcement. In a couple of hundred cases, however, a smaller city may have municipal codes, but no municipal court, which can make enforcement difficult. In some of these unique situations the city may have worked a deal with a county constable to enforce Texas health nuisance statutes when violations happen inside the city, filing cases in JP Court. Or perhaps the city has worked out some other approach, like hiring a local JP to work a day or two each month as a municipal judge to hear cases. In other situations, the city has entered into an Interlocal Agreement and is buying enforcement services from some other jurisdiction. Just because a smaller community can’t afford a full-time municipal judge is no reason to forego code enforcement. Good code enforcement alone, however, may not always get the job done. Most sets of municipal codes, for example, include violations for a person possessing or owning property having piles of disposed refuse on the property, as well as separate offenses for the act of disposing refuse on property anywhere. These ordinances may work well for property owners who dump waste on their own property, but be difficult or even dangerous to use to stop dumping by third parties. That’s where using criminal antidumping laws can be very useful. Of course, if your local police don’t know … or refuse to use … state criminal laws against dumping, city or county management will have to instruct law enforcement officers to act otherwise. Trying to control a mobile illegal dumper with codes is simply using the wrong tool. The Office of Court Administration maintains an enormous amount of reporting data

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about municipal courts on their site. In 2010 the courts reported to the OCA — there’s a mandatory process in which municipal courts report cases filed, cases cleared, and dollars received — that almost seven and a half million cases were filed in Texas municipal courts, of which almost 5% ... 362,825 cases filed ... were municipal code cases. The rest of the cases filed in municipal court that year were for parking violations, moving traffic violations, and “C” level criminal misdemeanors filed at the city level. Collectively, the municipal courts generated over $750,000,000 in revenue that year. You can go to the OCA web address [http://s.coop/tf85] and pull down your own data to see how you compared with state average case filings. Note that the reporting criteria changed as of September 2011, so don’t get confused. For each of the 362,825 municipal code cases actually filed, there were many more that were handled through voluntary compliance. Although we don’t keep track in Texas of the overall number, there are probably a couple of million code violations handled each year. This kind of environmental enforcement is easily the biggest thing we do to assure a clean and healthy Texas. Using Health Nuisance Laws in Illegal Dumping Enforcement Now turning to the primary subject of this chapter, Texas has two very useful health nuisance laws that can be used to deal with illegal dumping. These are Texas Health and Safety Code Chapters 341 and 343. These two laws are used by local health departments (if you have one) to deal with health nuisances both inside cities and in unincorporated areas. The first of these — THSC Chapter 341 "Minimum Standards of Sanitation and Health Protection Measures” — can be used inside cities and out in unincorporated areas alike; the other — THSC Chapter 343 “Abatement of Public Nuisances” — can only be used in unincorporated areas. Both of these laws, and the others discussed below, can be found on the TIDRC website at http://www.tidrc.com/ laws.html. Both of these laws can be enforced by local health departments and by local peace officers. So if you don’t have a health department, don’t worry about it. Your police or deputies can also enforce these statutes, once they learn to use them. And, again, don’t be too quick to say that your police or deputy sheriffs won’t enforce these laws. The truth is that police and deputies enforce the laws as they are directed by their management. So using these laws becomes a matter of local policy decision by the bosses. Together these two laws can provide a means of having what amounts to codelike enforcement in unincorporated areas by using state criminal statutes.

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Inside Texas cities only THSC Chapter 341 is in force, and your police department can use it to reinforce and supplement municipal code enforcement. If a code violator doesn't get the point and won't comply, THSC Chapter 341 is a good way for the city to make its point more clearly by moving to criminal enforcement. Out in the unincorporated areas of the county the officers get to use both of these statues.

INSIDE cities: Use municipal codes + THSC Chapter 341

OUTSIDE cities: Use THSC Chapter 341 + THSC Chapter 343

Both of these health nuisance laws are already in force right now in Texas, today. There's nothing your city council or commissioners court has to do to adopt them, nor is there anything the city council or commissioners court can do to prevent them being in force. The State Legislature has already taken care of that. These are the state laws that define basic health nuisances in the state; the only issue is whether your city or county will enforce them. Also there is, in Chapter 343, a set of procedures that a county can use to abate rural nuisances just like cities abate nuisances through their procedures. If a county wants this additional abatement power, they must first adopt these procedures in commissioners court. And, yes, a county wanting to abate a nuisance structure is bound by the provisions of City of Dallas v. Stewart just like cities are. But the criminal portions of Chapter 343 ... and Chapter 341 ... are in place, right now, in the unincorporated areas of all 254 Texas counties. The only thing a county would have to “adopt” is the optional abatement process. Now lets take a little closer look at how we can use both of these to deal with illegal dumping. THSC Chapter 341 Minimum Standards of Sanitation and Health Protection Measures This law is commonly used by health departments to deal with a wide range of health nuisances, including restaurant inspections. Structurally, Chapter 341 is a fairly long statute that deals with a number of issues, but the first few sections can be used to deal with general illegal dumping. These sections can be used by police to supplement municipal code enforcement in their city. Police don’t enforce codes in

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most places, but they can certainly enforce this criminal law that deals with the same violations as many sets of municipal codes. The initial section of interest is Sec. 341.011, which defines twelve common health nuisances that this law specifically covers. If you haven’t already done so, please take a look at this section of the law, which you can access at http:// www.tidrc.com/laws.html. Notice, for instance, nuisance (3) in Sec. 341.011; this is the provision used by health departments as their statutory basis for inspecting restaurants. Also, notice nuisance (12), which is the catch-all. You could cite this particular one to deal with the effects of dumped materials, but there’s an even easier way described below. If a person possesses a property having a public health nuisance, he or she needs to abate that nuisance as soon as he or she becomes aware of its existence. This is in the initial subsection (a) of Sec. 341.012, which lays out the specific approach to be taken by a local health authority. The rest of Sec. 341.012 describes the steps for a health authority to force the property possessor to deal with the health nuisance in those cases where the possessor has not already acted. Notice the requirement for the health authority (a) to notify the possessor of the existence of the health nuisance on the property; (b) to set a time period to abate the nuisance; (c) to notify the local county prosecuting attorney; and, (d) to follow-up as to the continuation of the mess after the time-to-abate has passed. If the mess hasn’t been abated, the prosecutor shall (notice the mandatory language) “immediately institute proceedings to abate the public health nuisance.” This is a sound procedure, but I’ve never been able to find a health department in Texas that follows it. What normally happens is that the health department officer will notify the property possessor of the violation and set a time for the mess to be abated. But there will be no notice given to the prosecutor at all, even though that is a mandatory step. In the event that the time set by the officer passes and the nuisance hasn’t been abated, the officer will not notify the prosecuting attorney. Instead, the officer will give a Notice of Violation to the property possessor and drag the violator into JP court. There the JP will find the property possessor guilty of having the violation, but will not generally order an abatement (since the criminal enforcement powers of the judge set forth in Sec. 341.091 don’t include being able to order a clean-up).

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The ONLY ways that an abatement can be ordered under this very widely-used law are (1) the health authority officer actually follows the mandated (notice all the “shall” words) procedure in Sec. 341.012; or, (2) the JB over-steps his or her bounds (either intentionally or in error) and orders an abatement of the nuisance. If local health authorities — generally formal health departments — would read, understand, and follow the mandated provisions of the abatement process designed by the State Legislature, local health nuisances could be more readily abated. By immediately abandoning the process described in Sec. 341.012 and issuing a Notice of Violation as soon as the property possessor puts up a little fight by not abating the nuisance within the time set by the officer, the health authority assures that the health nuisance will last longer than it has to. I’m not sure why every health authority I’ve spoken with in Texas — and, of course, I haven’t spoken to them all — ignores the process the State Legislature has established for forcing an abatement, but I suspect that part of the reason is fear of having to inform the local prosecuting attorney that he or she also faces mandatory action. But the State Legislature has this exactly right: when the property possessor won’t keep his or her property clean AND when he or she also ignores orders to clean the property issued by the local health authority, it’s time for local government to act swiftly to force abatement through the prosecutor and the courts. Turning back to what a city or county can do if it doesn’t have a formallyorganized health department or its health authority isn’t focusing on protecting the community from the effects of illegal dumping, please take a look at a provision in the next section: THSC Sec. 341.013(c). This is an extremely powerful section that a city or county can enforce civilly or criminally. (c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents.

This important section covers just about all actual and possible (notice the word “may”) health nuisances that might impact a community. Notice that this definition easily includes illegally dumped materials of just about any kind, just so those items are actually or potentially polluting air, land, or water resources or breeding insects or rodents.

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Many criminal enforcement officers use this section to issue citations and notices to appear in JP court — it could as easily be a municipal court inside a city limit — to discuss having this mess with a judge. Notice that no “warning” or “period to abate” is required in this section. ONLY the previous section — THSC Sec. 341.012 — allows an officer from the health authority to size-up the health nuisance and give the violator some time to abate the nuisance. Deputies and police simply are not given the power under this law to authorize the violator take some time to clean-up the mess (although this often happens) nor can deputies and police order the violator to abate the nuisance (although this often happens too). What the police, sheriff deputies, constables and other law enforcement officers CAN do is cite the guy and meet him in JP or Municipal court. And since the judge is not empowered under this law to order abatement either, what the judge can do is fine the guy and say, “I’ll see you tomorrow,” since each day of an ongoing violation is a separate offense (and the police or deputy would just keep on citing the guy). So you can see that where the local health authority intentionally fails to act to force an abatement using the process given by the State Legislature at THSC Sec. 341.012, about all the police and judges can legally do is keep running a violator through the process until the violator gets tired and cleans the mess. Or until a judge imposes a punishment not allowed under the statute … or until a peace officer goes beyond his or her authority and threatens the guy. Criminal Penalty The punishments for these violations are at THSC Sec. 341.091 (criminal) and Sec. 341.092 (civil). The criminal penalty sets a fine of from $10 to $200 for the first offense, and a penalty for a subsequent conviction — as long as it happens within one year following the first conviction — of a fine of $10 to $1,000 and/or up to 30 days in the county jail. The first conviction can be in JP or municipal court, but a subsequent prosecution — if handled as a subsequent prosecution — must move up to the county court (since there is the possibility of jail time involved). Civil Penalty THSC Sec. 341.092 deals with civil enforcement of violations of Chapter 341, and mandates a civil penalty in these cases: (b) A person who violates this chapter or a rule adopted under this chapter shall be assessed a civil penalty. Not to worry,

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however, because I can’t find anywhere in Texas that there has ever been a civil penalty assessed in one of these cases! Again, notice the use of the word “shall” by the State Legislature in structuring punishment in these health nuisance cases, a directive ignored by local governments in this section as in the Sec. 341.012 abatement procedures. There is an interesting provision for the civil penalty in subsequent violations: it ranges from $10 to $1,000 with each day of an ongoing offense being a separate violation. While a subsequent criminal violation must be charged within one year of the first conviction, there is no “within one year” time period associated with a subsequent civil charge. So for jurisdictions using this law, one strategy might be to bring the first charge as a criminal violation under Sec. 341.091, and then bring any subsequent charge — as long as the violator is around — as a civil violation in the same court. This will increase the pressure on subsequent violators without getting lost with a small case in the county court system. So a good strategy for local governments using this law to stop illegal dumping would be to have local law enforcement officers file criminal charges for violations of Sec. 341.013(c), calling each day a separate initial violation, and handling subsequent violations as civil charges. This is a good law to use for small-scale illegal dumping violations, but things would be a whole lot better if local health authorities would actually use the abatement process established by the State Legislature in Sec. 341.012. Again, this law can be used inside a city or out in the county. THSC Chapter 343 Abatement of Public Nuisances This second useful law applies only to the unincorporated, non-agriculture — per county tax appraisal rolls, according to Sec. 343.011(d) — areas of the county, and is is structurally a lot like THSC Chapter 341. This law also sets civil and criminal penalties for a list of twelve violations, but does not include any provisions for actions by local health authorities, as does THSC Sec. 341.012. This law mentions absolutely no role for local health authorities.

Chapter 343 applies mostly to private property in the unincorporated part of the county, with the exclusion of land carried as agricultural on tax appraisal rolls. You’ll have to use another law for those areas, such as THSC Sec. 341.013(c).

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THSC Chapter 343 requires a local government to wait 30 days following giving notice to the potential-violator of the existence of the nuisance — no particular form of the notice is required. When the 30 days have passed and the problem is still present, then the actual violation has happened. So the sequence is that (1) an officer sees a potential violation, (2) gives notice to whomever is doing the violation that he or she has 30 days to fix the problem, (3) returns in 31 days to see if the nuisance still exists, and, (4) if it does, give the violator a citation to appear in JP court. Criminal Penalty Under THSC Sec. 343.012, which describes the criminal penalty process, a fine ranging from $50 to $200 can be imposed for the first conviction. Subsequent conviction at any time (not just within one year as in the case of THSC Chapter 341), can result in a fine ranging from $200 to $1,000 and/or confinement of up to six months. As in the case of Chapter 341, the subsequent case would be in the county court system, because of the possibility of jail time. Unlike Chapter 341, however, if a person is convicted of a having caused an unabated public nuisance, the judge “shall” order abatement of the nuisance upon conviction [see THSC Sec. 343.012(e)]. Injunctions Preventing Violations Section 343.013 allows the county or a “person affected or to be affected by a violation of this chapter, including a property owner, resident of a neighborhood, or organization of property owners or residents of a neighborhood” to seek an injunction to stop or prevent a violation. Neighbors and Home Owners Associations can seek injunctions just as the county can to force abatement. Also, when the underlying nuisance is one of four specific ones — one concerning a dangerous swimming pool, two concerning dumping in easements, and one general refuse violation discussed below — the county can seek court action to block access to the property, provided the county has made appropriate (but unsuccessful) efforts described in this section to stop the nuisance. This ability to block access to property under certain circumstances is particularly interesting regarding one of the four nuisances: Sec. 343.011(c)(1): keeping, storing, or accumulating refuse on premises in a neighborhood unless the refuse is entirely contained in a closed receptacle. This law uses very specific terms which are

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defined at its beginning. “Premises” are all private properties, and a “neighborhood” is a platted subdivision in the unincorporated area of the county, regardless of whether the commissioners court has granted official recognition to the plat map. So, translated, this particular nuisance consists in keeping, storing, or accumulating refuse outside of closed containers on private property in a rural subdivision. If a person is creating this nuisance and won’t stop in spite of the county making specific efforts to make him stop, then the county can request a court to block further entry to the property until the matter is resolved. Subchapter C of this law also provides a specific process whereby a county can act on its own to abate a public nuisance, just as if it was a city acting under an ordinance. Probably fifty of our 254 counties in Texas have adopted an abatement ordinance that follows the requirements of Subchapter C. Reading these provisions you’ll see that the major issue is giving due process to the property owner before acting to directly abate a public nuisance, including holding a possible hearing before the commissioners court. The recent ruling of the State Supreme Court in City of Dallas v. Stewart … concerning the need to use a court of record to find that a property is, in fact, a nuisance … applies to counties as well as cities. Counties having or drafting a county nuisance abatement process under the provisions of Subchapter C should also bear in mind the impact of this recent ruling. Specific Chapter 343 Public Nuisances Useful to Stopping Dumping All that having been said, which of the 12 public nuisances listed in Sec. 343.011(c) could be useful for dealing with dumping in the unincorporated areas of our state? All aspects of THSC Chapter 343 are already in force in all Texas counties, thanks to the State Legislature. The county commissioners do not have to “adopt” these provisions since they are already in force. These five public nuisances seem useful to respond to illegal dumping: (1) keeping, storing, or accumulating refuse on premises in a neighborhood unless the refuse is entirely contained in a closed receptacle; This is discussed above, and refers to storing (outside of cans) refuse — a very general defined term — on private property in a platted subdivision in an unincorporated area. (2) keeping, storing, or accumulating rubbish, including newspapers, abandoned vehicles, refrigerators, stoves, furniture, tires, and cans, on premises in a neighborhood or within 300 feet of a public street for 10 days or more, unless the rubbish or object is completely enclosed in a building or is not visible from a public street;

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This is a popular charge because it addresses so many situations commonly found in rural subdivisions — “neighborhoods” — but note that it also applies to any location in the unincorporated part of the county that is within 300 feet of a public street. The “for 10 days or more” provision seems to apply before the notice and 30-days to abate provision that applies to all of these Chapter 343 nuisances come into play. Note that this law provides no definition of “abandoned vehicle.” (3) maintaining premises in a manner that creates an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or disease-carrying pests; This is the most general case, but is not as widely used to deal with rural public nuisances as it could be, probably from a simple lack of understanding its provisions. Note that the word “unsanitary” is not defined in this law, but your county attorney may decide that the definition of “sanitary” provided at THSC Chapter 341.001 can be used: (7) "Sanitary" means a condition of good order and cleanliness that precludes the probability of disease transmission. This nuisance applies to all private property in unincorporated Texas that is covered by this law, and is not limited to platted subdivisions. The notion that the State Legislature is getting at here is that if a person maintains a mess in rural Texas that attracts or shelters disease-carrying pests, and refuses to clean the mess up within 30 days or receiving notice, then the person has committed an offense. (5) maintaining a building in a manner that is structurally unsafe or constitutes a hazard to safety, health, or public welfare because of inadequate maintenance, unsanitary conditions, dilapidation, obsolescence, disaster, damage, or abandonment or because it constitutes a fire hazard; This is the section that supports the original intent of the law when it was first passed. The original purpose of the legislation, I was told by the late Pat Buzbee, who had a hand in drafting it, was to create a statute that would support demolishing derelict structures in the unincorporated areas of Harris County. Since its inception over twenty-five years ago, the law has been broadened to include twelve public nuisance situations and now applies to all 254 Texas counties. If your county has a problem structure on private property it is trying to deal with, this may be a perfect section to use. (12) discarding refuse on property that is not authorized for that activity. This is the latest public nuisance to have been created and covers the most general illegal dumping situation. In this provision, if a person discards refuse on any property — public or private — and fails to clean it within 30 days of being notified, the person has violated this section and can be cited. In trying to decide what constitutes property that has not been authorized to be used for

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disposal, you should note that there is no description of authorized or unauthorized property in this law. Ask your county attorney if you should take the definition of authorized disposal locations from THSC Chapter 365 — the Texas Litter Abatement Act — or from TCEQ Rule 330, which covers where waste can normally be disposed.

Public nuisances number (10) and (11) may also be useful when the dumping has taken place in a utility or drainage easement, but these cases seem to me to be included in (12), which is the most recent nuisance added to the list by the State Legislature. Comparing THSC Chapter 341 and THSC Chapter 343 From my view point, what Chapter 343 — used for enforcement in unincorporated, non-agricultural areas only — has going are (1) the statute directs the judge to order the abatement of the nuisance upon conviction; (2) there is a specific provision to deal with derelict structures; and, (3) Subchapter C details the process for counties wanting a resolution allowing county abatement of nuisances. Other than these features, it seems to me that an officer would do better by widely applying the provisions of THSC Sec. 341.013(c): (c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents.

This definition of a nuisance from THSC Chapter 341 covers practically all situations; there is no 30-day waiting period before using it — the violation can be cited immediately; it can be used inside and outside cities; it also applies to land that might have an agricultural exemption. On the negative side, THSC Chapter 341 does not allow for the judge to order that a nuisance be abated, but it does contain provisions where an officer trained by a local health authority can do so.

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3.

USING THE TEXAS LITTER ABATEMENT ACT

This Is the Primary State Illegal Dumping Law Texas Health and Safety Code Chapter 365 — the Texas Litter Abatement Act — is the primary state criminal law that local governments use to fight illegal dumping. When police, deputies, constables, specialized environmental officers, TCLEOSE-certified fire marshals, or other local peace officers begin to focus on dumping, this is usually the first law they use. This is a very flexible law. It sets misdemeanor or felony punishment for dumping based on the weight or volume of waste dumped. Punishment also is structured in such a way that commercial dumping — dumping for the purpose of economic gain — is punished more severely than I-was-cleaning-out-the-garage-and-the-landfill-was-closed dumping.

The Litter Abatement Act handles this …

… to this.

Since this is a state criminal law, enforcement of the complete law is limited to peace officers. Often a county will have a specialized environmental enforcement officer for these cases, but that isn’t absolutely necessary. The provisions of this law are very clear, and any certified peace officer can easily learn how to use it. But if you’re not a peace officer, you’ll need to get one involved to effectively use this law. Definitions Used in This Law As with all Texas laws, the definitions used are extremely important. This law covers two types of waste: solid waste as defined in THSC Sec. 361.003(35) and litter as defined in THSC Chapter 365 itself. Both of these include some surprising items and

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exclude others. Please download a copy of the law from http://www.tidrc.com/laws.html since we’ll be referencing it in this section. The definition of litter is at Sec. 365.011(6): (A) decayable waste from a public or private establishment, residence, or restaurant, including animal and vegetable waste material from a market or storage facility handling or storing produce or other food products, or the handling, preparation, cooking, or consumption of food, but not including sewage, body wastes, or industrial by-products; or (B) nondecayable solid waste, except ashes, that consists of: (i) combustible waste material, including paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, or similar materials; (ii) noncombustible waste material, including glass, crockery, tin or aluminum cans, metal furniture, and similar materials that do not burn at ordinary incinerator temperatures of 1800 degrees Fahrenheit or less; and (iii) discarded or worn-out manufactured materials and machinery, including motor vehicles and parts of motor vehicles, tires, aircraft, farm implements, building or construction materials, appliances, and scrap metal.

This is the most detailed breakdown of the term litter you’ll see anywhere in Texas law; after this definition it’s just called litter and none of these distinctions are used. I’ve highlighted a few concepts of interest: (1) Sewage and body waste are not included in this definition (nor are they included in the definition of solid waste), so you simply can’t use this particular law to deal with such material. Instead, use one of the health nuisance laws discussed previously or, possibly, one of the water pollution laws discussed later. (2) Industrial by-products are not included in the definition of litter. However, you’ll find that they are included in the definition of solid waste. Consequently, you can use this law to deal with most industrial waste. (3) Ashes are not covered by this law, and that would include ashes from your fireplace, ashes from commercial brush burning burn pits, and ashes from cremation. Since ashes are not included in the definition of litter, so you can’t use this law to deal with them. (4) The law covers just about anything that is combustible, including yard trimmings. So if a guy throws a load of yard trimming waste on a vacant lot someplace, it is probably a criminal act under this law.

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(5) The law covers things that are noncombustible, too, such as the bottles and cans left over from legally or illegally burning trash. In fact, some jurisdictions enforce misdemeanor outdoor illegal burning violations by applying the Litter Abatement Act to the mess remaining after the fire is complete [or THSC Sec. 341.013(c)]. (6) Probably the most surprising part of this definition of litter is the fact that it covers discarded or worn-out manufactured materials and machinery and that this includes worn-out or discarded motor vehicles. Rather than using the definitions of a junk or abandoned vehicle found in the transportation Code, many jurisdictions use the Litter Abatement Act to deal with “discarded” motor vehicles, regardless of the presence or absence of current tags or safety inspection sticker. “That abandoned object over there isn’t a ‘car,’ it’s actually a car-shaped piece of discarded or worn-out manufactured material or machinery, which is actually about 2,000 pounds of litter.” The definition the law uses for solid waste is found in THSC Chapter 361, also known as the Texas Solid Waste Act. THSC Sec. 361.003(35) “solid waste" means garbage, rubbish, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, municipal, commercial, mining, and agricultural operations and from community and institutional activities. The term: (A) does not include: (i) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued under Chapter 26, Water Code; (ii) soil, dirt, rock, sand, and other natural or man-made inert solid materials used to fill land if the object of the fill is to make the land suitable for the construction of surface improvements; or (iii) waste materials that result from activities associated with the exploration, development, or production of oil or gas or geothermal resources and other substance or material regulated by the Railroad Commission of Texas under Section 91.101, Natural Resources Code; and, (B) does include hazardous substances, for the purposes of Sections 361.271 through 361.277, 361.280, and 361.343 through 361.345.

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Solid waste or inert fill for surface Improvements?

Discarded manufactured material

As in the case of the definition of litter, I’ve highlighted several things you should note about solid waste: (1) Notice how broad this definition is, including other discarded material and liquid wastes. Thus if a person puts the wrong kind of fuel in his truck, realizes his error, and decides to drain the fuel onto the ground, the liquid fuel is solid waste. Or perhaps a carpet cleaning company runs a hose out to the curb in front of your home and discharges the waste-water into the storm sewer. The discharged water could be treated as a liquid form of solid waste (officers would also want to consult Texas Water Code Sec. 7.145 , which covers felony water pollution, in this situation). (2) Notice that the definition of solid waste includes waste generated from industrial activities, which was not included in the definition of litter. Because it is included here, however, this law can be used to deal with waste generated from industrial activities. (3) Whereas the definition of litter listed a few noncombustible kinds of waste that were to be included in the definition, here the definition of solid waste specifically does not include three categories of waste. (a) As in the case of the definition of litter, this definition excluded human sewage. If that’s the problem, you’ll need to use another law. (b) Also excluded are inert solid materials under one condition: if these inert materials are being used to make the land suitable for the

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construction of surface improvements. But if the inert materials — sand, rock, gravel, concrete without rebar — are simply being disposed on the land and NOT being used to get the land ready for surface improvements, then the material, even though it is inert, is solid waste and cannot be dumped. For example, I was driving from north Texas to Cuero not too long ago on State Highway 77 and I crossed a little bridge that was being re-surfaced by a TxDOT contractor. They were using a Roadtec milling machine to remove the old surface. The surface had been there a long time, and the waste coming off of the conveyor belt was almost like sand. It was certainly inert, and could have easily been used as fill for surface improvements. But this contractor had decided on another approach: rather than have the conveyor feeding the waste from the milling machine into a dump truck for transport to a disposal or re-use location, this particular contractor had simply swung the conveyor belt out over bridge railing and was dumping the waste into the creek. Was this a violation of the Litter Abatement Act? Absolutely. Granted that the waste was inert. But since the inert waste was not being used for fill for surface improvements, the waste remained included in the definition of solid waste. Because of the weight or volumes being dumped into the creek, this was a State Jail Felony level violation. Since a corporation or association was the party doing the violation, the maximum fine became $20,000 per event of dumping, the Litter Abatement Act fine being enhanced by the provisions of Penal Code Sec. 12.51. This waste discharge was also a violation of Texas Water Code Sec. 7.145, which is the state’s felony water pollution provision. The maximum penalty for a nonindividual convicted of violating TWC Sec. 7.145 is a fine of $250,000 per day per event. I imagine that by hiring a contractor based on the lowest bid, and then not actively supervising the job themselves, a state agency may inadvertently encourage these sort of criminal short-cuts. (c) The definition of solid waste also excludes wastes generated from the exploration, development, or production of oil or gas, as those wastes are regulated by the Railroad Commission of Texas under Section 91.101, Natural Resources Code. The actual definitions of such waste are provided in NRC Sec. 91.1011, and include such things as drilling mud, waste from hydraulic fracturing and other well completion or work-over activities, and production salt water that is generated along with the oil or natural gas

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produced. These wastes are regulated administratively by the Railroad Commission under the permitting process set forth in 16 Texas Administrative Code Sec. 3.8 — what he RCT calls “Statewide Rule 8” — and may be addressed by local law enforcement through application of Texas Water Code Chapter 29 and Natural Resources Code Sec. 91.002. There’s a brief discussion of these given below, but for now just know that oil and gas waste regulated by the Railroad Commission are not included in those solid wastes that are subject to the Litter Abatement Act.

Gas and oil waste are dealt with by local enforcement of other state criminal laws discussed later. You can’t use THSC Chapter 365 for this sort of waste. See Section 5 below for an introduction.

There are a couple of other definitions to note that this law uses: Sec. 365.011 (3) "Commercial purpose" means the purpose of economic gain. This is generally interpreted to mean charging some other party to dump somewhere not an approved site or avoiding paying disposal fees yourself by dumping somewhere. This definition makes a difference when considering if a person can dispose of waste on his or her own property. One of the requirements is that the disposal not be for commercial purposes [Sec. 365.012(l)(4)]. Sec. 365.011 (4) "Commercial vehicle" means a vehicle that is operated by a person for a commercial purpose or that is owned by a business or commercial enterprise. This is an important definition because there is a provision at Sec. 365.014(b) that a person dumping over 5 pounds or 13 gallons from a commercial vehicle is assumed to be dumping for a commercial purpose. That would mean that the correct charge would be at lease a Class A misdemeanor for dumping over 5 pounds or 13 gallons in these situations, since there is no Class B misdemeanor available for commercial dumping. Sec. 365.011 (5) "Dispose" and "dump" mean to discharge, deposit, inject, spill, leak, or place litter on or into land or water. Note that abandoned spills are included in this definition. Also, this definition covers dumping onto land or into water, so it may be a useful alternative to charging a person with water pollution in some situations. Illegal burning is not covered by this law; however, dealing with the residue left from illegal burning as litter is fairly common. Some jurisdictions approach illegal burning as the second of a two-step process: the guy first illegally dumped, so charge him with

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that. If you plan to take this approach, discuss it with your prosecutor first.

In general, read all of the definitions carefully each time you seek to apply this law, especially the two key definitions of litter and solid waste. Venue: Where can these cases be filed? Most Texas criminal violations are filed in the county or district in which they happen. The two health nuisance laws considered in the last section — THSC Chapters 341 and 343 — not only are filed in the county where the violation is alleged to have taken place, but in the JP court located in the precinct where the violation happened. If the violation is of THSC Chapter 341 and happens inside a city, the case may be filed in the JP court for the precinct or in the municipal court run by the city. But when you come to the Texas Litter Abatement Act and the Texas Water Code Chapter 7 (Subchapter E), things change significantly. All of the environmental violations defined in these two laws may be filed (1) in the county where the violation is alleged to have taken place; (2) in the county where the alleged violator lives; (3) if the charge involves transportation, every county where the alleged violator drove in committing the violation; and, (4) in Travis County. While most misdemeanor and felony violations of these two laws are filed in the county where the violation took place, they can just as well be filed in these other locations too. Both the Travis County Attorney and Travis County District Attorney offices take these cases state-wide, with actual court proceedings taking place in Austin. When the cases originate from the TCEQ Environmental Crime Unit or Texas Parks and Wildlife Environmental Crime Unit, they are generally prosecuted in Travis County; cases originating in other Texas counties may eventually be filed in Travis County also, especially where the local prosecutor requests Travis County’s involvement, but the local county is where most cases are filed.

Venue for violations of this law include Travis County; however, work with your local prosecutor.

If a local peace officer becomes frustrated with the reluctance of local prosecutors to move ahead on a particular case, the answer is generally not for the officer to attempt to file the case in Travis County directly. The answer in this situation is for the prosecutor, police management, and local senior elected officials to work through the policy issues that are causing the prosecutor to refuse environmental cases. Perhaps there is a misunderstanding of the content of the law itself — remembering that neither peace

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officers nor prosecutors are routinely trained in these statutes — or perhaps the policy issue revolves around how evidence is to be handled. However, if a prosecutor fails to act on a major case out of not wanting to upset local political interests, including his own, a local peace officer may find a way to work around the roadblock by working through officers in another county also having venue. Statute of Limitations Article 12 of the Code of Criminal Procedures sets various time limits to prosecuting crimes in Texas. These usually do not come into play for environmental violations since so often a new violation is generated day-after-day by an ongoing condition. Thus when somebody throws a barrel of waste into a creek, for example, each day the waste is there can constitute a separate water pollution charge under TWC Sec. 7.145; or, each day hazardous waste is stored in violation of TWC Sec. 7.162(a)(1) can be charged as a separate felony. However, in the case of the Texas Litter Disposal Act, this is not the way things are handled. Under this law, the criminal act of disposing solid waste or litter at an unauthorized location — or of receiving the waste for disposal at an unauthorized location or of transporting the waste to an unauthorized location for disposal — is an act that actually happened at a specific time on a specific day. Granted, the result of the dumping may be ongoing water pollution or create an ongoing public health nuisance to be handled under those laws, but the dumping itself happened on a specific date, so the issue of limitations has to be considered. The issue of limitations to how long a prosecutor has to take action following a crime is set forth in CCP Article 12 LIMITATION. There is no specific section for the limitations to prosecution for illegal dumping, so the general provisions set in Article 12.01(7) for felonies (three years) and in Article 12.02 for misdemeanors (two years) are used for violations of THSC Chapter 365. Indictments or informations for felony and misdemeanor illegal dumping violations of the Litter Abatement Act must be presented within these time periods, which begin with the date of the illegal act of dumping, receiving, or transporting — not the day when the officer first finds the waste involved. These periods may be extended — under CCP Article 12.05 — by whatever time the accused was out of Texas, which may make a difference in some situations. Unfortunately, not all illegal dumping in Texas is detected within these time limits. In some cases charges under THSC Chapter 365 are prepared anyway and may even be presented by the prosecutor, out of ignorance and error.

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Not all case management systems used by prosecutors in Texas require entry of the limitation deadline date into the system, although good systems will require that as a data field. Consequently, officers working and presenting cases under THSC Chapter 365 should take personal responsibility to make sure the limitation dates are observed from the beginning of the case and brought to the attention of the prosecutor. When the Dumping Happened Too Long Ago to Use THSC Chapter 365 In situations where the dumping happened far enough in the past to no longer be eligible for prosecution under THSC Chapter 365, the officer should consider using one of the health nuisance laws discussed above. Regardless of where the dumping took place, the best law to use for older dumping is probably THSC Sec. 341.013(c). This is the most general violation, no notice is required to the violator, and each day is a separate offense, so potential fines can be significant. Additionally, if the dumping was done into or “adjacent” to water — including dry creeks and borrow ditches — consider using TWC Sec. 7.145 or Sec. 7.147 water pollution statutes (discussed below). These are not impacted by limitations since every day the waste is there in or near the water, it is either polluting or threatening to pollute the water. The violation is continuous from the time of initial discharge. There’s a discussion of these water pollution statutes below. Likewise, if the violation involves medical waste or hazardous waste, consider using the criminal statutes in TWC Chapter 7 against unauthorized storage of the waste rather than trying to determine an exact date when the waste was dumped and exposing the case to the same issues as old dumping under THSC Chapter 365. Violations: What Are the Crimes Defined by THSC Chapter 365? For this discussion, please consult Sec. 365.012 of the law. This long section contains the violations, penalties, and major defenses to the violations. There are four sections defining violations: Sec. 365.012(a): disposing or allowing or permitting the disposal of litter or other solid waste at a place that is not an approved solid waste site. Sec. 365.012(b): receiving litter or other solid waste for disposal at a place that is not an approved solid waste site. Sec. 365.012(c): transporting litter or other solid waste to a place that is not an approved solid waste site for disposal. Sec. 365.012(j): unauthorized disposal of litter or other solid waste in a dumpster.

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Penalties (mostly based on weight or volume) are found in Sections 365.012(d) through 365.012(g), and are shown in this chart: I. Dumping Not Done for Commercial Purpose (i.e., “The purpose of economic gain”) (a) 5 pounds or less; or, having a volume of 5 gallons or less

Class C Misdemeanor (fine to $500); (If done by corporation or association: Fine to $500 under Penal Code Sec. 12.51)

(b) Over 5 pounds but under 500 pounds; or, over 5 gallons but under 100 cubic feet

Class B Misdemeanor (fine to $2,000 and/or confinement to 180 days); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51)

(c) 500 pounds but under 1,000 pounds; or, 100 cubic feet but under 200 c.f.

Class A Misdemeanor (fine to $4,000 and/or confinement to 1 year); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51)

(d) 1,000 pounds or more; or, 200 c.f. or more

State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

II. Dumping Done for Commercial Purpose (a) 5 pounds or less; or 5 gallons or less

Class C Misdemeanor (fine to $500); (If done by corporation or association: Fine to $500 under Penal Code Sec. 12.51)

(b) Over 5 pounds but under 200 pounds; or, over 5 gallons but under 200 c.f.

Class A Misdemeanor (fine to $4,000 and/or confinement to 1 year); (If done by corporation or association: Fine to $10,000 under Penal Code Sec. 12.51)

(c) Over 200 pounds; or, 200 c.f. or more

State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

III. Dumped for Any Reason (Commercial or Non-Commercial) (a) Any amount of waste in a closed drum or barrel

State Jail Felony (fine to $10,000 and/or confinement of 6 months to 2 years); (If done by corporation or association: Fine to $20,000 under Penal Code Sec. 12.51)

There is no Class B misdemeanor for dumping done for a commercial purpose; over 5 pounds dumped commercially is at least a Class A misdemeanor.

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Closed drums or barrels carry a high fine if dumped because they require an expensive hazardous material response from local government, regardless of the content.

“Lighted Litter” Note that Sec. 365.012(a-1) is new with the last legislature and defines a violation concerning disposing “lighted litter” on open land and roads provided that such disposal causes a fire to take place. The penalty is set at Sec. 365.012(d-1), with other governing provisions at Sections 365.012(p), (q), and (r). Given the requirement that the probably small item of “lighted litter” disposed must be what causes a fire, and the difficulty in proving these elements, makes it probable that this particular set of provisions will be seldom used. The penalty provided in Sec. 365(d-1) also seems a little strange to me: a fine of $500 and/or up to 30 days confinement if the lighted litter (which presumable was destroyed by the fire) weighs 500 pounds or less. No penalty is provided for greater amounts of “lighted litter” being disposed that causes a fire. Moreover, the size of the fire that must be caused isn’t defined either. Could the burning litter itself constitute the required fire? I have a difficult time seeing these new sections being used, given the practical issues with proving the elements.

The new provisions to deal with “lighter litter” that starts a fire will probably be difficult to enforce.

The balance of THSC Sec. 365.012 addresses various situations that clarify the application of the law: Sec. 365.012(h) provides for charging a repeat offender at the next higher level than the penalties would suggest for the volume or weight he dumped. So if a person had a previous conviction at any level and is convicted this time for dumping that would earn a Class A misdemeanor, the judge can sentence him at the State Jail Felony level … regardless of the level of the first conviction. If there was a prior conviction at any level, a current subsequent conviction that would otherwise be at the State Jail Felony level can be increased to a third-degree felony. Note that the prosecutor will have to present positive proof that the person being convicted now is actually the same guy as convicted previously. Sec. 365.012(i) provides for the possibility of seizing equipment used in the dumping under the forfeiture provisions of the Code of Criminal Procedure. Note that the section of the CCP cited requires that forfeiture could only happen after a second conviction, provided that good notice of the risks had been given at the time of the first conviction. I’ve never encountered an agency that has actually seized a vehicle or anything else

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as the result of this section based on illegal dumping. Few prosecutors have included the warnings as part of the court order in the first conviction, so the historic notice requirement hasn’t been met. However, it is common practice to impound a vehicle used in dumping as evidence in the criminal case until such time as the case is resolved. Sec. 365.012(k) allows for temporary storage of waste prior to disposal. This issue was raised by Mr. James Glendening on appeal for his conviction for dumping a couple of hundred thousand used tires in Grayson County. Since this is one of the few illegal dumping convictions that have been successfully appealed, any criminal defense attorney with any competence at all will probably find it. So if you are dealing with situations where you think the alleged violator is going to assert that he was not dumping anything (but just temporarily storing the waste prior to disposal), you’ll need to work out a strategy to avoid this defense. One good way, in my view, is simply to ask the alleged violator if he is, in fact, temporarily storing the waste prior to disposal. When he says that’s what he’s doing, work out how long the person needs to complete this process, and document the agreement. Then if in fact the guy was dumping, you’ll have the documentation for your prosecutor. The important thing is to make sure your prosecutor is aware of this possible defense and to give him or her a copy of the Glendening decision (there’s a copy in the Appendix to this class reading). When he or she understands the issue, your prosecutor will direct you in how to proceed with these cases.

Just as local police, deputies, prosecutors, and elected officials are learning these laws, so are violators. One enforcement officer reports catching in the act of burying a lot of commercial waste in a hole he had dug on his property. When the officer asked the man what he was doing, the guy replied “I’m temporarily storing this waste prior to disposal.” After he stopped laughing, the officer worked out a period for the man to properly dispose the waste and bring the officer a landfill receipt. When criminals start learning the exact phrases to use from the law, I suppose we’re making some kind of progress.

Read the James Glendening appeals decision in the Appendix and think through the best way to deal with the “temporary storage” exemption given at Sec. 365.012(k). Sec. 365.012(l) addresses disposing waste on one’s own property. Note the four conditions that must all be true as well as the fact that this allowance only applies to individuals. The section simply doesn’t apply to corporations, associations, or other non-individual persons, so none of these can dispose of waste on property they own. If

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the waste wasn’t generated on property that the individual owns, or if the waste came from a commercial activity, or if the disposal isn’t on property the same individual owns, or if the disposal is for a commercial purpose — be sure your prosecutor agrees that saving money by not paying waste disposal costs constitutes “commercial purpose” — then the dumping would be criminal. Sec. 365.012(m) allows municipalities or counties to offer a $50 reward for information leading to the conviction of a dumper. I’d suggest that you don’t offer a reward. If you need more dumping cases to work on, just put a little notice on your web site or in the paper, and you’ll be absolutely covered-up with business. Sec. 365.012(n) removes the requirement to prove criminal intent at the misdemeanor level. Misdemeanor dumping and misdemeanor water pollution under TWC Sec. 7.147 are both strict liability statutes.

You don’t have to prove the violator had any level of criminal intent when charging a misdemeanor violation of the Litter Abatement Act. This is also true when charging misdemeanor water pollution under TWC Sec. 7.147. Sec. 365.012(o) gives a waste generator the ability to avoid being held responsible for the criminal dumping of a waste hauler he hires provided the generator has, prior to the hauling, received a signed statement from the hauler that the solid waste will be disposed of legally, with the statement to include the valid Texas driver’s license number of the hauler. So, suppose there was a storm and crews from Oklahoma or Louisiana showed-up to do roofing jobs. But instead of taking the waste to a landfill, they dumped it somewhere. If the homeowner had obtained the document described here, he would avoid any potential liability for the waste dumped by the hauler. Otherwise, there is a possibility that the homeowner would be charged in some circumstances, since he may have colluded with the roofer. Note the requirement for the valid driver’s license be issued by the State of Texas for this exemption to apply.

What else is important about this law? The points made above pretty well highlight the important aspects of using this particular law. Note that it may be an easier law to use for water pollution than the ones we’ll review in the next section, and it is an alternative your peace officers can use when using municipal codes or health nuisance laws are insufficient. Before leaving this section, please note two additional points: Sec. 365.013 sets a Class A misdemeanor for violating “rules and standards regarding processing and treating litter disposed in violation of this subchapter.” This would be a

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very handy provision to have available, but there are some problems with its use. When rules — such as Rule 330 covering Municipal Solid Waste — are created, they are based on particular statutes. In each case, the State Legislature has directed some agency of state government to develop a set of rules for use. There is a closely defined process for such rule development, which includes publishing details of the proposed rule in the Texas Register at various times along the way. One of the things required to be published by any agency proposing a new rule — or a modification to an existing one — is the exact law under which they are proposing the new rule. State agencies can propose rules only as authorized by the State Legislature in specific statutes. Now here’s the problem in this case: when you work through the process for the various rules that have been created to deal with solid waste in Texas, you’ll see that most of them are based on THSC Chapter 361, the general solid waste statute for the state. At no time in the Texas Register’s documentation of the processes followed for any solid waste rule — including Rule 330, the largest solid waste rule we have — does it indicate that a particular rule is based on THSC Chapter 365. So while it would maybe be nice to criminalize violations of various solid waste rules — and not everybody would agree that this would be good — be aware that whatever rule you’re attempting to designate as carrying a Class A misdemeanor for it’s violation, is problematic. No solid waste rule currently in effect, according to the Texas Register, was, in fact, created by the agency to further THSC Chapter 365. So, bring this to the attention of anyone who suggests using Sec. 365.013 to set Class A misdemeanors for violating various rules. It’s not likely that any conviction would survive an appeals process, if one were forthcoming. Had the state specifically promulgated rules regulating waste disposal, storage, and processing in such a way that the rules were clearly created in response to Sec. 365.013, as the State Legislature directed, then the Class A misdemeanor that the State Legislature envisioned could be used to deal with old dumps that pre-date the statute of limitations. Since this is not the case, officers must use another criminal law — or the city or county must bring a suit under TWC Sec. 7.351 — to force the abatement of the mess and impose a penalty. Sec. 365.014 removes certain items used to grow and handle crops from the jurisdiction of this particular law. So the old tractor sitting in the field is probably exempt from being covered under this law, but when the farmer gives the tractor to his nephew to sell as scrap metal and the kid abandons the project and pushes the tractor off in a borrow ditch beside a road, the kid has committed an act of illegal dumping. This section is also where the provision is found that declares anything weighing over 5 pounds or having a volume of over 13 gallons thrown from a commercial vehicle to be commercial dumping, which would earn at least a Class A misdemeanor for such

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actions. Sec. 365.035 sets a penalty for knowingly possessing a glass beverage container in what amounts to Uvalde County. This is interesting in that it is the first time that a law such as this has been successfully passed, although there have been several attempts over the years to impose this restriction state-wide. We can reasonably expect that there will be attempts in future sessions of the State Legislature to expand this law to include other counties, but for now it only applies to this one small (26,000 population) sparsely populated county (17 persons per square mile vs. 96 people per square mile for all of Texas).

THSC Chapter 365 — the Texas Litter Abatement Act — is the most commonly used state criminal law by local governments wanting to stop illegal dumping.

Finally, it should be noted that sometimes local government can become part of the problem too. As an example, there is an extremely interesting illegal dumping case that happened in the mid-to-late-1990s in Dallas. At the time it happened, the city had no specialized environmental law enforcement officers, as they do now, and it’s hard to see how this particular situation could happen again … especially the part where the city was using the facility themselves. There is an extremely interesting narrative of this case at http://s.coop/tgru, called Garbage In, Misery Out: Dump Operators Ruined a Neighborhood - with Dallas’ Help. Unfortunately, sometimes local governments commit environmental crimes too. This usually happens because somebody takes a shortcut … that becomes routine … that eventually becomes a standard way of doing business. Usually one or both of these things are at the root of these criminal violations: our old friends ignorance and arrogance. The ignorance comes into play when city and county workers simply don’t know the law. The second comes into play when some supervisor says, “I don’t give a dang what you and the law say: I’m the boss around here, and if you want to keep your job you’ll do what I tell you!” If this is what you’re running into, get some light put on this situation before the interesting article is about your own city or county.

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4.

WATER POLLUTION AND SPECIALIZED DUMPING

Introduction to TWC Chapter 7 Enforcement Most local criminal illegal dumping enforcement is done using THSC Chapter 365, as discussed in the previous section. Additionally, code enforcement officers inside cities may use ordinances, and health department officers and police may use THSC Chapter 341 to stop smaller-scale illegal dumping. In the unincorporated areas, health department officers, deputy sheriffs, constables, and fire marshals may use both THSC Chapter 341 and THSC Chapter 343 for the same purpose. In addition to these three laws, there are also about 40 criminal laws that the State Legislature has provided local governments to deal with special dumping circumstances. All of these additional laws are located in one place: Texas Water Code Chapter 7, Subchapter E, which was created by the State Legislature in 1997. The overall TWC Chapter 7 is an extremely useful document. Its title is “Enforcement,” and it contains the statutes governing the state’s approach to administrative and civil enforcement of environmental violations, in addition to the additional felonies. For example, Subchapter C details the process that the TCEQ has to follow when they undertake administrative enforcement against a violator, so if you or your government is taking an administrative action — perhaps for violating a waste water discharge permit from your sewage treatment plant — the steps in that process are all found in this subchapter. Likewise, if your local government, or the state attorney general, has brought a civil suit against an individual or other person for an environmental violation, the potential civil penalties and the process to be followed are found in Subchapter D. The additional criminal statutes and penalties mentioned above, including some procedural issues that come into play when prosecuting criminal cases, are in Subchapter E. Some of the specific defenses to administrative, civil, and criminal enforcement by the TCEQ are found in Subchapter F, and so on. This is a very useful chapter for anyone needing to understand the overall TCEQ enforcement process.

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Interesting water pollution at Lake Granbury by a oil and gas waste “production water” hauler; Dumping some salt water while eating lunch!

He ran a hose from his tanker into the lake, killing his own backyard in the process. (Felony violation of TWC Sec. 7.145)

TWC Chapter 7 also serves as a “referee” in some situations when there may be a conflict between the various approaches that may be taken in response to environmental violations. TWC Sec. 7.068 covers potential conflicts between administrative enforcement by the TCEQ and criminal and civil enforcement from that agency or any outside source, including your city or county. The state policy decision provided by this section is that if an administrative enforcement action has been undertaken against a violator and if that action has resulted in the actual payment of an administrative penalty, nobody can undertake additional civil action or criminal prosecution against this violator for the same violation. Of course, if the TCEQ undertakes an administrative action against some violator and that action results in (1) no administrative financial penalty being assessed; or, (2) a financial penalty being set which has not been actually paid, then civil and/or criminal processes can move ahead. If the TCEQ is taking care of business administratively … including actually collecting the penalty … then that settles the issue. TWC Sec. 7.051 covers potential conflicts between civil suits against a violator and TCEQ administrative enforcement. The approach here is that if the attorney general or a local government (under their TWC Sec. 7.351 civil suit powers) is diligently prosecuting the suit, then the TCEQ cannot assess an administrative penalty for violations of the statutes, rules, and permits under the TCEQ’s jurisdiction. The agency can move ahead with the administrative enforcement process, but it cannot assess an administrative penalty. If the AG’s office or a local city or state is actively suing a party, the TCEQ cannot, in effect, blow everybody out of the water by assessing a financial penalty that would trigger TWC Sec. 7.068 if paid.

Note that the situation most likely to impact local government is not addressed by

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these two provisions. That would be the situation where a local criminal case is moving along (unknown to the TCEQ), and the agency opens an administrative action, assesses an administrative penalty, and the violator pays it. Would this then mean that the criminal action the city was pursuing was immediately void under TWC Sec. 7.068? There was an attempt to clarify this situation a few legislative sessions ago; the clarification didn’t pass into law, and its supporters have let the issue drop. This conflict simply doesn’t arise very often. The rule of thumb for local officers has been to develop a closer working relationship with the TCEQ administrative officers to assure that this conflict doesn’t happen. The best way to proceed is to get to know the TCEQ Environmental Crime Unit officer assigned to your area, and use them as the means of communicating with the agency on major cases where such a conflict could be a big problem.

Be sure your local prosecutors know about TWC Sections 7.068 and 7.051.

What criminal violations are covered by TWC Chapter 7, Subchapter E? Before Chapter 7 was created in 1997, criminal environmental laws were scattered through several areas of state law and couldn’t always be easily found. One of the valuable effects of creating Chapter 7, Subchapter E was to pull those scattered laws together in one place: TWC Chapter 7, Subchapter E. In some cases, the results of this consolidation seems contrary to common sense. For instance, the criminal statutes covering water pollution are found in Subchapter E, which makes sense, but the felony and misdemeanor illegal outdoor burning statutes are there too. The laws concerning the mishandling and dumping of medical waste and hazardous waste are also found there, as are the felonies against dumping used motor oil — dumping anywhere, and not just around water. The organizing principle for Subchapter E was “Let’s get all the criminal environmental laws on all subjects in one place for reference,” rather than “Let’s get all of the violations concerning water pollution in one place.” Once you can get past the notion that Subchapter E deals with things other that water, you’ll be happy with this arrangement. But, in fact, this media-independence is true for the whole of TWC Chapter 7, and is not limited to Subchapter E. The administrative process in Subchapter C and the civil suit process in Subchapter D also apply to pollutions of all three media: air, land, and water.

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Additional Charges to Consider As far as being helpful in illegal dumping cases, Subchapter E has these possibilities: (1) If the dumping was done in or adjacent to water, can we bring additional water pollution charges under TWC Sec. 7.174 or Sec. 7.147? (2) If the dumping included any hazardous waste, can any of the several violations at Sec. 7.162 be charged? (3) If the dumping included medical waste, can any of the violations at Sec. 7.165 through Sec. 7.171 be used? (4) If anybody was injured or killed during the process of these violations, was one or more of the related endangerment statutes found in nearby locations violated? (5) Did the waste include used motor oil, and, if so, can the felony violation at Sec. 7.176 be used? (6) Was the waste dumped subsequently burned, and, if so, do the misdemeanor or felony violations at Sec. 7.177, Sec. 7.182, and Sec. 7.183 against illegal outdoor burning apply? (7) In the process of dumping, were any other Subchapter E criminal violations committed [for example, prior to dumping, was the hazardous waste illegally transported in violation of Sec. 7.162(a)(1), or was it transported without the manifest required by Sec. 7.162(a)(5)]?

☆

You need to keep reading to master local environmental enforcement, since there are always so many enforcement options available to you.

Officers working illegal dumping cases under THSC Chapters 341, 343, and 365 need to read and understand the additional violations that the State Legislature has codified in TWC Chapter 7, Subchapter E. This brings up an extremely important point: since practically nobody was exposed

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to these laws in their police, attorney, prosecutor, or city manager training, you probably will have to do some reading — and folks generally don’t like to do that. In fact, in the on-site class we teach called Advanced Substandard Structure Investigation, the instructor always asks the code enforcement officers present, “How many of you have read all of the ordinances for your city?” The consistent response, in all parts of Texas, is less that 2%. So the jurisdictions whose officers read, read, read will naturally develop better enforcement processes, although reading laws, rules, and ordinances is something we generally don’t like to do. Comments on water pollution Statutes When viewing illegally dumped waste for possible THSC Chapter 365 violations, remember the wide definition of water and always ask yourself, “Is there any way this dumping was done in or adjacent to water?” If so, you may want to file additional water pollution charges to give the prosecutor more leverage in resolving the case. In fact, the sections of Subchapter E that officers are most likely to use for illegal dumping cases are those dealing with water pollution, especially Sec. 7.145 and Sec. 7.147, which cover felony and misdemeanor water pollution. Both of these provisions use terms that are closely defined, and are provided below. These two statutes are: Sec. 7.145. INTENTIONAL OR KNOWING UNAUTHORIZED DISCHARGE. (a) A person commits an offense if the person, acting intentionally or knowingly with respect to the person's conduct, discharges or allows the discharge of a waste or pollutant: (1) into or adjacent to water in the state that causes or threatens to cause water pollution unless the waste or pollutant is discharged in strict compliance with all required permits or with an order issued or a rule adopted by the appropriate regulatory agency; or (2) from a point source in violation of Chapter 26 or of a rule, permit, or order of the appropriate regulatory agency. (b) An offense under this section is punishable for an individual under Section 7.187(1) (C) [Fine of $1,000 to $100,000] or Section 7.187(2)(F) [Confinement to 5 years] or both. (c) An offense under this section is punishable for a person other than an individual under Section 7.187(1)(D) [Fine of $1,000 to $250,000] This is the felony water pollution statute and is becoming more widely used. Note that there are two separate violations here:

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(a) discharging a waste or pollutant into or adjacent to water that pollutes or threatens to pollute the water without a permit to make the discharge (which will require properly taking samples of the pollutant, having those samples properly analyzed and interpreted, and defending the procedures used under crossexamination by defense attorneys); and, (b) discharging a waste or pollutant from a point source in violation of TWC Chapter 26 (discharging without a permit in violation of TWC Sec. 26.121(a) being the most common violation). That section reads: Texas Water Code Sec. 26.121. UNAUTHORIZED DISCHARGES PROHIBITED. (a) Except as authorized by the commission, no person may: (1) discharge sewage, municipal waste, recreational waste, agricultural waste, or industrial waste into or adjacent to any water in the state. As he or she understands these two ways of proceeding, your prosecutor will probably appreciate the opportunity to prosecute cases under (b) alone, which will mean that there will be no need to collect samples and prove that the water was actually polluted by the discharge. Where evidence of pollution has been gathered — and the discharge is from a point source — both (a) and (b) can be charged as two separate violations, one under each violation. Note that "adjacent" is not a defined term in this law, but is being used in the widest sense to protect water. The jurisdictions most experienced in handling water pollution cases often interpret “adjacent to the water” to mean “uphill from the water.” Anywhere that waste is dumped, and from where it will migrate to water when it rains, is arguably “adjacent.” The definitions of water, pollution, waste, and point source are provided below. All important definitions concerning water are found in the first section of Texas Water Code Chapter 26 WATER QUALITY CONTROL. Sec. 7.147. UNAUTHORIZED DISCHARGE. (a) A person commits an offense if the person discharges or allows the discharge of any waste or pollutant into any water in the state that causes or threatens to cause water pollution unless the waste or pollutant: (1) is discharged in strict compliance with all required permits or with a valid and currently effective order issued or rule adopted by the appropriate regulatory agency; or

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(2) consists of used oil and the concentration of used oil in the waste stream resulting from the discharge as it enters water in the state is less than 15 parts per million following the discharge and the person is authorized to discharge storm water under a general permit issued under Section 26.040. (b) An offense under this section may be prosecuted without alleging or proving any culpable mental state. (c) An offense under this section is punishable for an individual under Section 7.187(1) (B) [Fine of $1,000 to $50,000] or Section 7.187(2)(D) [Confinement to one year] or both. (d) An offense under this section is punishable for a person other than an individual under Section 7.187(1)(C) [Fine of $1,000 to $100,000]. Discharging or allowing the discharge of a waste or pollutant that causes or threatens to cause water pollution (unless done in strict compliance with a permit, order or rule). This charge is similar to TWC Sec. 7.145 except that no culpable mental state must be proven, but the discharge must be into the water and not simply "adjacent." The act itself is sufficient. Note the threshold of 15 p.p.m. measured after the discharge of used oil, presumably restricted to storm water. There is no guidance as to where the water is to be tested, nor any guidance as to where to test if the watercourse is dry at the time of discharge. However, because it is a strict liability statute, this provision is becoming more widely used state-wide. Sec. 7.186. SEPARATE OFFENSES. Each day a person engages in conduct proscribed by this subchapter constitutes a separate offense. [So each day the waste is laying there, polluting the water or threatening to pollute the water can be handled as a separate offense].

Oil and gas waste are exempt from being under the control of the Litter Abatement Act since the definition of “solid waste” specifically excludes these substances. Oilfield waste that is dumped can be handled under specific laws (see below) created to handle these activities. However, oilfield waste dumped into or adjacent to water is subject to TWC Sec. 7.145 and Sec. 7.147 water pollution statutes just like most other wastes.

Useful Water-Related Definitions In the absence of a specific definition of “water in the state” in these two laws, note that the previous location of these criminal statutes was Chapter 26, Texas Water Code, where the definition of “water” is at Sec. 26.001(5): "Water" or "water in the state" means groundwater, percolating or otherwise, lakes,

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bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.

The definition of ”water” is extremely wide and includes dry beds and banks of watercourses and borrow ditches.

Dry creeks and beds and banks of other watercourses are included in the definition of water. Also note that this state definition includes “non-navigable” watercourses, which makes this definition more stringent than that used in the federal Clean Water Act. In the federal statute, the water in question must be "navigable" for that federal statute to apply. Because of the broader definition of water, Texas is much more protective of our water resources than is the federal government. When federal and state water laws have both been violated, the decision by federal criminal enforcement officers is often to cooperate with Texas officers to bring state charges instead of federal. The rest of the definitions found in Chapter 26.001 will be important in understanding these statutes, including the following: TWC Sec 26.001(19) "To discharge" includes to deposit, conduct, drain, emit, throw, run, allow to seep, or otherwise release or dispose of, or to allow, permit, or suffer any of these acts or omissions. TWC Sec 26.001 (13) "Pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, filter backwash, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into any water in the state. The term: (A) includes: (i) tail water or runoff water from irrigation associated with an animal feeding operation or concentrated animal feeding operation that is located in a major sole source impairment zone as defined by Section 26.502; or (ii) rainwater runoff from the confinement area of an animal feeding operation or concentrated animal feeding operation that is located in a major sole source impairment zone, as defined by Section 26.502; and (B) does not include tail water or runoff water from irrigation or rainwater runoff from

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other cultivated or uncultivated rangeland, pastureland, and farmland or rainwater runoff from an area of land located in a major sole source impairment zone, as defined by Section 26.502, that is not owned or controlled by an operator of an animal feeding operation or concentrated animal feeding operation on which agricultural waste is applied. TWC Sec 26.001 (6) "Waste" means sewage, industrial waste, municipal waste, recreational waste, agricultural waste, or other waste, as defined in this section. TWC Sec 26.001 (12) "Other waste" means garbage, refuse, decayed wood, sawdust, shavings, bark, sand, lime, cinders, ashes, offal, oil, tar, dyestuffs, acids, chemicals, salt water, or any other substance, other than sewage, industrial waste, municipal waste, recreational waste, or agricultural waste. TWC Sec 26.001 (14) "Pollution" means the alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose. TWC Sec 26.001 (21) "Point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants or wastes are or may be discharged into or adjacent to any water in the state.

A meth cook discharging waste out a pipe from his trailer home out into the borrow ditch is actually “discharging a waste or pollutant into water from a point source in violation of TWC Chapter 26,” which is a violation of TWC Sec.7.145 that carries a penalty of up to five (5) years confinement and/or a fine from $1,000 to $100,000.

Finally please note that if the dumping resulted in water pollution and a person was placed “in imminent danger of death or serious bodily injury,” additional charges may be brought under TWC Sections 7.152, 7.153, or 7.154 depending on the circumstances. Always see if the illegal dumping you’re working happened anywhere close to water, or if a person other than the dumper or first responder was placed “in imminent danger of death or serious bodily injury.” If any of these conditions apply, you may have violations of TWC Chapter 7 that can be used to help resolve the problem.

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5.

OIL AND GAS WASTE

Introduction Oil and gas waste — as defined in Texas Natural Resources Code Sec. 91.1011 — includes such substances as “salt water, brine, sludge, drilling mud, and other liquid, semiliquid, or solid waste material.” More generally, Sec. 91.1011(a) defines it as “waste that arises out of or incidental to the drilling for or producing of oil or gas.” This definition is clear enough and certainly covers the drilling mud that is often spilled-and-abandoned on roads while being transported to Railroad Commission authorized disposal sites, used fluids from hydraulic fracturing that are discharged into creeks and ditches, and production salt water that is discharged onto roads — and intentionally dumped — on the way to Class II disposal wells.

Transporting in a Leaking Vehicle (TNRC Sec. 91.002 + “Statewide Rule 8”)

Spilled Drilling Mud Being Cleaned (Texas Water Code Section 29.044)

The TCEQ and Railroad Commission collectively deal with oil and gas waste through a Memorandum of Understanding, which you can read at Title 16 Texas Administrative Code Sec. 3.30. Under this MOU, the Railroad Commission has the primary responsibility for managing this waste, but this can occasionally be ambiguous. The sorts of waste listed at NRC Sec. 91.1011 are clearly those that “arise out of or incidental to the drilling for or producing of oil or gas,” as the more general definition requires. But I’ve actually heard officers from both agencies claim that general solid waste originating at the well site as being under their administrative jurisdiction, but I wonder how the administrative officers from the Railroad Commission would hope to regulate municipal solid waste, as this waste probably actually is, given the fact that they have no rules in Title 16 providing guidance.

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Texas cities, counties, special districts, and other state agencies are not bound by the provisions of the Memorandum of Understanding between the TCEQ and the Railroad Commission.

The primary point to be made is that this MOU setting out the agreement between the agencies has little bearing on local enforcement of criminal laws, because no county, city, special district, or other state agency is a party to it. For example, the officers in Jim Wells County routinely enforce state criminal laws against “disposing oil and gas waste on public roads,” as prohibited by TWC Chapter 29’s criminal provision at Sec. 29.043, when haulers spill-and-abandon drilling mud on local highways. Nor do district attorneys in north Texas hesitate to use TWC Sec. 7.145 against oil waste haulers who intentionally dispose production salt water in creeks and lakes rather than haul it to permitted Class II injection wells for disposal. Nor do the officers of the Environmental Crime Unit of the Texas Parks and Wildlife fail to act in similar cases statewide, with prosecution in Travis County. Enforcement Summary Here’s the general situation concerning oil and gas waste dumping: 1. Administrative enforcement of waste that “arises out of or incidental to the drilling for or producing of oil or gas” is divided between the TCEQ and Railroad Commission as defined in the Memorandum of Understanding between those two agencies at Title 16 Texas Administrative Code Sec. 3.30; 2. Texas cities, counties, special districts, and other state agencies are not bound by this MOU in any way, except perhaps when they want to ask one of the two agencies a question about administrative enforcement; 3. The most popular antidumping law in Texas — THSC Chapter 365 — specifically omits oil and gas wastes from the definitions of the sorts of waste covered by that law. Consequently, local peace officers simply cannot use this law to deal with such things as spilled-and-abandoned drilling mud, used fluids from hydraulic fracturing that are discharged into creeks and ditches, and production salt water that is discharged onto roads and other places. Local police have to use other laws; 4. The easiest law to use locally is TWC Chapter 29: OIL AND GAS WASTE HAULERS. This criminal statute can be enforced in his or her jurisdiction by any peace officer, and sets a fine from $100 to $1,000 and/or confinement for up to ten (10) days in

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the county jail for the following: Sec. 29.041 Hauling without a Railroad Commission issued permit; Sec. 29.043 Using a hauler — either as a generator or receiver of the waste — who doesn’t have a Railroad Commission-issued permit; Sec. 29.044 Disposing oil and gas waste on public roads or other locations without the written authorization of the Railroad Commission; disposing oil and gas waste on private property without the written permission of the owners of the private property; Sec. 29.045 Hauling oil and gas waste in an unmarked or improperly marked vehicle; Sec. 29.046 Sets the penalties noted above.

5. Available for local governments, but not yet (to my knowledge) used, is Texas Natural Resources Code Sec. 91.002. This section sets a $10,000 criminal penalty — prosecuted in the county where the violation occurs — for the intentional or criminally negligent violation of NRC Sec. 91.101 or “a rule, order, or permit of the commission issued under that section.” The rule developed by the Railroad Commission to handle oilfield waste under a permitting system is 16 T.A.C. Sec. 3.8, which is a rule issued under Natural Resources Code Sec. 91.101, among other statutory authorities. 16 T.A.C. Sec. 3.8 is about 25 pages long and provides many requirements the Railroad Commission places on waste haulers, including these common examples. Water pollution prohibited 16 T.A.C. 3.8(b) No pollution. No person conducting activities subject to regulation by the commission may cause or allow pollution of surface or subsurface water in the state. Generators and receivers must use permitted carriers 16 T.A.C. 3.8(d)(5)(A) No generator or receiver may knowingly utilize the services of a carrier to transport oil and gas wastes if the carrier is required by this rule to have a permit to transport such wastes but does not have such a permit. User of carrier or receiver must assure party is permitted 16 T.A.C. 3.8(d)(5)(A) Any person who plans to utilize the services of a carrier or receiver is under a duty to determine that the carrier or receiver has all permits required by the Oil and Gas Division to transport, store, handle, treat, reclaim, or dispose of oil and gas wastes. Applicant for permit must certify that trucks don’t leak 16 T.A.C. 3.8(f)(1)(A)(iv) a certification by the hauler that the vehicles listed on the application are designed so that they will not leak during transportation. Vehicles permitted to haul waste cannot leak 16 T.A.C. 3.8(f)(1)(C)(ix) Each vehicle must be operated and maintained in such a manner as to prevent spillage, leakage, or other escape of oil and gas waste during transportation.

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6. A good local enforcement approach to dealing with this waste is probably to use TWC Chapter 29 to deal with individual oil and gas waste haulers who violate those provisions, and then move into using NRC Sec. 91.002 to imposing criminal penalties against permitted haulers who repeatedly spill by hauling in vehicles that were falsely certified not to leak at the time of initial permit application but which, in fact, leak. 7. Where counties like Jim Wells and Webb, and cities like Laredo, are taking an active enforcement approach, gradually the oilfield waste dumping and abandonedspills problems are coming under control. But at this time these local governments are the exception; many more are still trying to decide if intentional or negligent mismanagement of oil and gas waste by some carriers is something that they will simply have to suffer as part of the associated prosperity, which is incorrect. Realistically, because the Railroad Commission has no criminal enforcement officers on staff and because the number of waste generators is growing much more rapidly than the number of administrative enforcement officers at the Railroad Commission, local governments should look to themselves as the primary source of enforcement against waste haulers who intentionally or with criminal negligence dump waste in unapproved locations, or who spill waste in transit from using leaking vehicles and fail to clean the waste. Accidents do happen, but using a vehicle capable of leaking oil and gas waste in transit is an intentional permit violation, enforceable criminally by local governments under the two statutes mentioned. If you need detailed knowledge about local control of oil and gas waste, we have developed an online class that deals only with that issue, TIDRC002. It’s a three-hour for-credit class, just like his one, and it will provide you with a comprehensive understanding of local options.

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6.

CIVIL SUITS BY CITIES AND COUNTIES

In dealing with environmental pollution, such as these tires, local government has roughly the same power to file civil suits as does the State Attorney General. These powers are found in Texas Water Code Sec. 7.351 and cover violations of most state environmental statutes, the rules that have been adopted to provide administrative enforcement of these statutes, any permits that have been issued under the statutes and rules, and any orders that the TCEQ Commissioners have issued. You’ll find that most local city and county attorneys are simply unaware of these powers.

Running an Unpermitted Disposal Site Local civil suit under TWC Sec. 7.351

Sometimes filing a large civil suit is the correct approach to take, especially in those cases where the Litter Abatement Act cannot be used because the dumping happened over three years previously. The civil penalty that a city or county can be awarded can be as much as $25,000 per day, which is split evenly with the state. There is also statutory provision for the recovery of attorney fees. Still, these significant powers are neither well known nor widely used. Harris County has been suing environmental violators for over 25 years, and, until recently, that was about the only jurisdiction taking this approach. Over recent years, however, Hunt County and several of the cities there … Greenville and Commerce, in particular … have filed these major suits to deal with larger acts of pollution done for money by outside corporations. Since there can be so much money involved in civil penalties —

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and these are “strict liability” suits in which the city or county does not have to show that it has been actually damaged — Hunt County has found that the defense attorneys are generally very good. Moreover, these cases are generally very complex and time consuming. We recommend that cities or counties that are considering this approach get in contact with Daniel Ray at Scott Money Ray Thomas, PLLC, in Greenville. This is the private firm that Hunt County, Greenville, Commerce, Ector County, Sulphur Springs and several other Texas cities and counties are using to handle these suits. Dan’s number is 903/454-0044 and his email address is daniel@smrt-law.com. Using civil suits to deal with an older dump site, which may have become an historic eyesore exactly where you don’t want it to be, will probably work better than any other approach. This is especially true when the current owners of a property with significant dumping live out of the community and have been unwilling to clean-and-fence the property to stop additional dumping or pollution. These absentee owners are often unresponsive to requests from the city to cease committing code violations at the property. However, if the same absentee owners are sued by the city for multiple violations of, for instance, TCEQ Rule 330 — the rule regulating Municipal Solid Waste — they may be more responsive. In response to a suit, the absentee owners may well decide to hire a local defense attorney, who will immediately meet with the city attorney to reach a settlement in the case … which will include cleaning the property and fencing it to prevent additional dumping. Admittedly, the longer a city or county waits — years, perhaps — before responding to illegal dumping situations, the less likely that they will be able to locate living owners or heirs with the money to clean the properties. It seems that the longer we wait to deal with any problem, the less chance there is of a there being a favorable resolution. The resources we could use simply disappear with the passing of time. I personally think that using civil suits to handle major acts of pollution at the local level will become the most common approach taken, after code enforcement, in the years to come. There is no “statute of limitations” on these civil cases, the burden of proof is lower than in criminal cases, and the penalties that can be levied are often greater. Moreover, as soon as the suit is filed, the defense attorney will immediately appear to explain how the pollution was just a big mistake and make immediate plans to clean-up the mess. After all, when a polluting company is caught red-handed and sued, about all they can do is to quickly clean the mess and agree to never do it again … in hopes of reaching a fast settlement and avoid paying significant civil damages.

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7.

CONCLUSION

That concludes the required reading for this class. If you want to know more about these topics, we suggest that you begin by reading the statutes on the TIDRC website at http://www.tidrc.com/laws.html. We also provide in-person courses on many of these topics for officers, managers, and elected officials needing additional information and credit hours. All in-person classes carry six hours of DSHS continuing education credits, and most peace officers report that their Training Officer and Chief have approved them for six-hours of Environmental Enforcement training (TCLEOSE 3880). The schedule for in-person classes is at http://www.tidrc.com/classes.html. Several of our most popular classes are: 1. 2. 3. 4. 5. 6.

Basic and Advanced Illegal Dumping Enforcement Advanced Substandard Structure Investigation Advanced Ordinance Investigation Local Control of Oil and Gas Waste Illegal Outdoor Burning Coordinated Local Environmental Enforcement

If the class schedule at that site doesn’t have what you’re needing, get in contact with me and we can se if we can help solve the problem. There are also resources … including various summary charts … at http:// www.tidrc.com/resources.html for your free use. Many officers download the color charts, have them laminated, and use them for field reference. And finally, visit our mobile site from the browser on your mobile phone at http:// www.mtidrc.com for copies of the current laws, schedule of classes, and other resources that may be useful to you in the field. Now you can return to the class home page at http://www.tidrc.com/onlinedumping.htm to take the examination for this three-hour class and certify that you did all the work. Upon successful completion of these last steps, weʼll email you a Certificate of Completion. All the best, thanks for taking this class, and please do not hesitate to contact me … John Ockels at ockels@tidrc.com … if we can be of additional service in the future.

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8.

APPENDIX

James Glendening Appellant Decision on “Temporary Storage” Provision of THSC Sec. 365.012(k) REVERSED AND REMANDED; Opinion Filed January 9, 2006 In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-06-00001-CR ............................ JAMES F. GLENDENING, Appellant V. THE STATE OF TEXAS, Appellee ............................................................. On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. 049061 ............................................................. OPINION Before Justices Bridges, FitzGerald, and Lang Opinion By Justice FitzGerald         On his plea of not guilty, a jury convicted James F. Glendening of the state jail felony offense of illegal dumping of scrap tires pursuant to section 365.012(g)(2) of the health and safety code. See Tex. Health & Safety Code Ann. § 365.012(g)(2) (Vernon Supp. 2006). He was sentenced to two years' confinement, probated for four years, and assessed a $10,000 fine. In three issues, appellant contends the trial court improperly overruled his objection to the State's closing argument; he received ineffective assistance of counsel at trial because counsel failed to assert a bar to prosecution provided by section 365.012(k) of the health and safety code regarding “temporary storage for future disposal” of the scrap tires; and the term “temporary storage” in section 365.012(k) is unconstitutionally vague. Because we agree appellant received ineffective assistance of counsel, we resolve his second issue in his favor. Therefore, we reverse the trial court's judgment and remand this case to the trial court for new trial. BACKGROUND         In 1999, appellant acquired a tire baler and moved it onto property he bought in rural Grayson County. Appellant applied to the Texas Natural Resource Conservation Commission (the Commission)   See Footnote 1  for registration as a scrap tire facility

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processor, representing that he would use a “mobile bailer” and that the maximum number of tires to be received monthly would be 65,000, and the maximum number and weight of scrap tires to be stored on the site was 5,000, weighing 50 tons. In his application, appellant “agree[d] to develop and operate the site in accordance with the application, regulations, and any special conditions that may be imposed . . . .” Appellant stated that 2,500 to 3,000 scrap tires would be accepted daily at the site; all tires were expected to be processed and baled that same day and no later than 48 hours; all bales would be used for “road base foundation”; and the completed job would require “almost 200,000 scrap tires and we anticipate a 4 to 5 month completion time.”         Appellant also applied to the Commission for registration as a scrap tire transporter. Both applications were approved. By a letter dated September 9, 1999, the Commission approved appellant's application and issued a registration, effective for 60 months; also, the Commission authorized the baling and “the temporary and short-term storage of not more that 65,000 whole passenger size scrap tires (or weight equivalent) at the site . . . .” Further, the letter stated, “The conditions for the issuance of this registration are that all operations be conducted in accordance with the application and in compliance with all applicable Commission rules.”   See Footnote 2          An employee transported tires to the property beginning in December 1999. There was evidence that 110 tires produced 1 bale. About 7,000 tires were baled over a period of seven to eight months, and then the baler stopped working. The baler was never repaired.         The Commission's inspectors visited the property in April 2000, and noted some violations of regulations, such as a lack of mosquito control. The inspectors also noted that no tires were being baled. Their report noted that there were 60 tire bales and 40,000 to 50,000 scrap tires on the ground. In September 2000, the Commission conducted another inspection and noted there were an estimated 70,000 tires on the property and there had been no baling or transporting offsite for over 6 months.         A third inspection was conducted in January 2001. Regulatory violations were noted, and between 110,000 and 120,000 tires were observed on the ground, but no baling operation was observed. The Commission considered appellant's facility to be an “unauthorized tire site.”         The Commission conducted a final inspection on September 26, 2001, “to evaluate and review [appellant's] thirty day supply authorization.” The Commission's environmental investigator/structural management registration coordinator called appellant before the inspection and told him it was “to evaluate his registration.” Appellant told the investigator he did not have the money to continue the baling; he “didn't care” if his registration was revoked; and he “would continue to take tires on his property because he needed the money.” The investigation team noted regulatory violations and about 164,000 tires on the property, and there had been no baling. The Commission rescinded the thirty-day supply, which meant that the site “became unauthorized,” and began the process to revoke appellant's approvals. According to the

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Commission, appellant was “no longer operating according to his registration.” There was evidence appellant received the inspection report. There was also evidence appellant paid a penalty assessed by the Commission and stopped receiving tires after the Commission revoked his approvals.          Appellant testified the Commission told him to stop collecting tires, but he ignored the request because he had monthly expenses to cover. He testified his monthly income from the business was $7,920; his expenses were $10,005; and his monthly loss was $2,085. There was testimony that appellant took some cash from the business account for personal expenses. He testified that the cost of repairing the baler was $1,000. He also testified that he had an arrangement with the Texas Department of Transportation to use the bales for erosion. However, he estimated he needed to get $25 to $35 per bale for the project. The Department discovered it could get free bales from an out-ofstate supplier. Appellant gave the bales to the Department, but decided not to “pay for employees or straps or fuel or anything else to bale more tires without any compensation.”         Appellant also testified that he talked to people in Florida about equipment that would liquify rubber, tires, and garbage into pellets. He also testified that he brought a scrap tire recycling consultant from Kansas City to the site to help determine a way “to get this recycling thing going.” However, she determined the property was not suitable. Appellant testified that he “tried . . . to come up with a solution.” He also testified that he tried to find an investor to “take this business forward and turn it into a viable operation.”         The indictment alleged appellant, on or about September 6, 2001, in Grayson County, for a commercial purpose, intentionally or knowingly transported, disposed, allowed, permitted, or received litter or other solid waste, namely, discarded scrap tires, having an aggregate weight of 200 pounds or more, or a volume of 200 cubic feet or more, at a place that was not an approved solid waste site. The jury charge tracked the indictment.         After the jury convicted him of illegal dumping and punishment was assessed, appellant filed a motion for new trial or motion for arrest of judgment, contending the evidence at trial showed he temporarily stored the tires on his property for future disposal at the time the offense was alleged to have occurred, pursuant to section 365.012(k), but this issue was not raised as a bar to prosecution because his attorney failed to notice this section and did not raise it. Thus, he alleged he received ineffective assistance of counsel. Appellant also asserted that section 365.012(k) was unconstitutionally vague as it applied to him because it did not define “temporary storage.” The trial court heard the motion and orally denied it. This appeal followed. INEFFECTIVE ASSISTANCE OF COUNSEL         In his second issue, appellant contends section 365.012(k) is a bar to prosecution that applied in these circumstances and, therefore, his counsel should have raised it at trial and brought it as part of the jury charge.

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Standard of Review         To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When reviewing a claim of ineffective assistance, we “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (citation omitted). The second prong means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). A “reasonable probability” is one sufficient to undermine confidence in the outcome. Id. We judge counsel's performance by “the totality of the representation”; our scrutiny of counsel's performance must be highly deferential with every effort made to eliminate the distorting effects of hindsight. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Jury Instruction         It is well settled that an accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence. Granger, 3 S.W.3d at 38. The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge. Dyson, 672 S.W.2d at 463.

Criminal Penalties for Illegal Dumping         Section 365.012 of the health and safety code provides for criminal penalties for illegal dumping; subsections (a) through (c) provide: (a) A person commits an offense if the person disposes or allows or permits the disposal of litter or other solid waste at a place that is not an approved solid waste site, including a place on or within 300 feet of a public highway, on a right-of-way, on other public or private property, or into inland or coastal water of the state. (b) A person commits an offense if the person receives litter or other solid waste for disposal at a place that is not an approved solid waste site, regardless of whether the

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litter or other solid waste or the land on which the litter or other solid waste is disposed is owned or controlled by the person. (c) A person commits an offense if the person transports litter or other solid waste to a place that is not an approved solid waste site for disposal at the site. Tex. Health & Safety Code Ann. § 365.012(a)-(c) (Vernon Supp. 2006). Subsection (g) (2) classifies the offense as a state jail felony if the litter or solid waste is disposed of for a commercial purpose and weighs 200 pounds or more or has a volume of 200 cubic feet or more. Id. § 365.012(g)(2).   See Footnote 3  Subsection (k) provides: (k) This section does not apply to the temporary storage for future disposal of litter or other solid waste by a person on land owned by that person, or by that person's agent. The commission by rule shall regulate temporary storage for future disposal of litter or other solid waste by a person on land owned by the person or the person's agent. Id. § 365.012(k). “Litter” includes tires. Id. § 365.011(6)(B)(iii) (Vernon 2001). Discussion         At the hearing on the motion for new trial, appellant's trial counsel testified that he had been a criminal lawyer for about twenty-five years, but this was his first “trash case.” He testified that he “probably” read section 365.012(k), but, “I can't say that I really got familiar with it at that point.” He testified the evidence showed that there were about 200,000 tires on the property owned by appellant; the tires had been on the property for “about a few years”; and appellant “intended on recycling these tires at some point.” Based on that evidence, counsel testified that section 365.012(k) “could have been an exclusion,” but “for whatever reason” he, as counsel, “didn't consider it at this point.” Counsel testified that he should have requested as part of the jury charge “for the jury to consider whether it was temporary storage going on or not.”         Counsel testified that this section “should have been brought out at trial.” He was asked, “[C]ould the results have been different?” He replied, “Yes, I suppose so, depending upon the jury's view of it, yes.” The State asked counsel whether the evidence showing appellant “had to move so many tires within thirty days” would be “more like temporary” than the “two plus years at the time of the indictment.” Counsel replied, “Probably so, yes.” Counsel also testified that appellant “all along [had] the intent of recycling tires” and “temporary” is a “fact issue depending on the circumstances.”         It is undisputed that appellant baled some tires and continued to receive tires in excess of the number approved by the Commission for a 30-day supply and for on-site storage. It is also undisputed that appellant intended the baling business to be a commercial operation and explored possibilities other than baling to dispose of the tires. Appellant's issue depends on whether his testimony, if believed, was some evidence that he was engaged in the “temporary storage for future disposal” of the scrap tires, thus entitling him to an instruction on this issue. See id. § 365.012(k); see also Tex. Pen.

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Code Ann. § 2.03(e) (Vernon 2003) (“A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.”). We conclude that it was. Counsel's testimony at the hearing on the motion for new trial shows that failure to request such an instruction was not the result of trial strategy, but a failure to read subsection (k) and, in light of appellant's testimony at trial, request a defensive jury instruction. See Granger, 3 S.W. 3d at 38; Dyson, 672 S.W.2d at 463. Thus, appellant's counsel's representation fell below the standard of prevailing professional norms by failing to request such an instruction.  Moreover, trial counsel testified that, if the jury believed appellant's testimony, counsel thought the result would have been different. As trial counsel noted, appellant “all along [had] the intent of recycling tires” and “temporary” is a “fact issue depending on the circumstances.” Credibility issues are for the jury. See Granger, 3 S.W.3d at 38; Dyson, 672 S.W.2d at 463. The State argues that appellant failed to put on any evidence that the result of the trial would have been different if counsel had raised subsection (k). The State argues that no jurors testified that such a defense would have changed their opinions. However, “[p]rejudice to [appellant] from counsel's deficient performance is judged by 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'” Ex parte Amezquita, No. AP-75383, 2006 WL 3391037, at *2 (Tex. Crim. App. Nov. 22, 2006) (quoting Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005)); see Strickland, 466 U.S. at 686. “[T]he purpose of the constitutional requirement of effective counsel is to ensure a fair trial.” Ex parte Amezquita, 2006 WL 3391037, at *2 (quoting Ex parte Chandler, 182 S.W.3d at 353); see Strickland, 466 U.S. at 686. The submission of an instruction under section 365.012(k) would have properly presented appellant's defense raised by the evidence. Omission of this instruction deprived appellant of any legal defense. We conclude trial counsel's testimony is some evidence there was a reasonable probability that, but for the failure to request an instruction, the jury would have had the opportunity to consider whether appellant came within subsection (k) and the result of the proceeding would have been different. See Ex parte Gonzales, 204 S.W.3d at 393, 399-400. Consequently, we cannot rely on the trial as having produced a just result. See Ex parte Amezquita, 2006 WL 3391037, at *2.         The State also argues that subsection (k) “appears to protect individual land owners who are engaged in private, non-commercial activities that result in the temporary storage of tires on their own land.” Thus, the State argues that because appellant was running a commercial operation involving large amounts of tires on land “he bought for the purpose of dumping tires on it,” he was not the type of individual meant to be protected by subsection (k). As explained in Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991), courts must interpret an unambiguous statute literally, unless doing so would lead to an absurd result that the legislature could not have intended. By beginning with the plain language of a statute to interpret its meaning, courts “seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation.” Id. (citation omitted). Moreover, every word of a statute is presumed to have been used for a purpose, and every word excluded must also be presumed to have been excluded for a purpose. Timmons v. State, 952 S.W.2d 891, 892 (Tex. App.-

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Dallas 1997, no pet.).         By its plain language, subsection (k) is not directed solely to either ordinary citizens or businesses. See Ex parte Weise, 23 S.W.3d 449, 455 (Tex. App.-Houston [1st Dist.] 2000, orig. proceeding), rev'd on other grounds, 55 S.W.3d 617 (Tex. Crim. App. 2001). We note that both subsections (f)(2) and (g)(2) apply penalties to disposal of litter or other solid waste “for a commercial purpose,” but this language is not included in subsection (k). See Tex. Health & Safety Code Ann. §§ 365.012(f)(2), (g)(2). In addition, section 365.014 provides for a defense for farmers and an affirmative defense for persons who receive litter or other solid waste from another person, but did not know, or reasonably could not have known, that litter or other solid waste was involved, and did not receive compensation for the receipt, storage, processing, or treatment. See id. §§ 365.014(a), (c) (Vernon 2001). We presume the legislature did not include any narrowing language, such as relating to “commercial purpose” or “compensation,” in subsection (k) for a purpose. See Timmons, 952 S.W.2d at 892. Accordingly, we reject the State's argument that subsection (k) applies only to non-commercial operations.          We conclude appellant carried his burden to produce evidence that trial counsel's performance was deficient and that, but for counsel's unprofessional errors, the result of the trial would have been different. See Bone, 77 S.W.3d at 833. Accordingly, we resolve appellant's second issue in his favor. CONCLUSION         Having resolved appellant's second issue in his favor, we reverse the trial court's judgment and remand this case to the trial court for new trial. Because of our disposition of appellant's second issue, we need not address his first issue as to closing argument or his third issue raising a constitutional challenge. See Tex. R. App. P. 47.1; Ward v. State, 188 S.W.3d 874, 876 n.1 (Tex. App.-Amarillo 2006, pet. ref'd) (courts do not consider constitutional challenges when they can dispose of cases on nonconstitutional grounds).                                                                                                                      KERRY P. FITZGERALD                                                           JUSTICE Do Not Publish Tex. R. App. P. 47 060001F.U05

Footnote 1 In 2002, the Texas Natural Resource Conservation Commission was renamed the Texas Commission on Environmental Quality. See City of Marshall v. City of Uncertain, 206 S.W.3d 97, 99 n.1 (Tex. 2006). Our references to “the Commission” include both the TNRCC and the TCEQ.

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Footnote 2 See 30 Tex. Admin. Code § 328.63(b) (1999) (Tex. Comm'n on Envtl. Quality, Scrap Tire Facility Requirements) (providing for “scrap tire storage site registration”). Footnote 3 The Commission considers a passenger tire as occupying 4 cubic feet and weighing 20 pounds. 30 Tex. Admin. Code § 328.71(d)(1) (Tex. Comm'n on Envtl. Quality 1999, amended 2001).

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Illegal Dumping Class Document