Only agencies of the state, such as the TCEQ and Railroad Commission, may enforce Administrative Rules.
Counties may enforce state criminal laws against pollution; cities can enforcement their municipal codes against such things as “refuse on a lot” as well as the criminal anti-polluting laws.
FAQ’s Concerning THSC Chapter 365 [The Primary Illegal Dumping Criminal Law]
Texas cities and counties have primary responsibility for responding to illegal dumping in their jurisdictions. This was established by a policy decision in 1996 by the Texas Natural Respource Conservation Commission, the predecessor agency of the TCEQ, and announced by letter to every county judge in Texas that year. This remains policy, so if illegal dumping is not being addressed in your community, look to your community elected officials.
THSC Chapter 365 is a criminal law, so it is enforced by sworn peace officers. These include police, deputy sheriffs, constables, certified fire marshals, specialized environmental enforcement officers, and other TCOLE-certified officers. The role of code enforcement officers is to serve as the “eyes” of law enforcement, who (in theory) respond to reported crimes. Unfortunately, training in this law is not routinely included in police Academies and officers are often slow or reluctant to respond.
There are seven different ways a person can violate THSC Chapter 365:
1. If a person dumps solid waste or litter at an unauthorized place [Sec. 365.012(a)];
2. If a waste generator allows or permits someone to dump waste controlled or owned by that generator at an unauthorized place [Sec. 365.012(a)];
3. If a person transports solid waste or litter to an unauthorized place for disposal [Sec. 365.012(c)];
4. If a person receives solid waste or liter for disposal at an unauthorized place they control, whether they own the place or not [Sec. 365.012(b)];
5. If a person dumps in somebody’s dumpster without permission [Sec. 365.012(j)];
6. If a person unsuccessfully attempts to do one of these five things [Sec. 365.012(t)];
7. If a person conspires with others to do one of the first five of these [Sec. 365.012(t)].
These are all separate crimes. Often multiple violations are present in one event of dumping, such as a person who transports (#3) waste for unauthorized disposal and then actually does so (#1).
Penalties are determined by the WEIGHT or VOLUME of the waste involved in each of the seven violations. Whether the waste is being disposed for “the purpose of economic gain” or not makes a difference. For example, dumping (to save disposal fees, for instance) anything weighing over 200 pounds OR having a volume of over 200 cubic feet is a State Jail Felony. Another example is transporting for unauthorized disposal (for economic gain) anything over five pounds and under 200 pounds is a Class A Misdemeanor. [See THSC Sec. 365.012(d)-(g) for penalty specifics]. Of special note is that prosecutions for misdemeanor violations do not require the prosecutor to prove any level of criminal intend. Misdemeanor illegal dumping is a strict liability violation.
Yes. THSC Sec. 365.012(s) directs the court to require the person convicted of illegal dumping to serve 1 to 60 hours of community service picking up litter or working in a recycling facility, regardless of the level of conviction. This includes a person found guilty of dumping at the Class C Misdemeanor level (dumping under 5 pounds or under 5 gallons).
No, not any more than a city or county wiukd have to adopt the criminal law against burglary or assault. THSC Chapter 365 is just another state criminal law: the State Legislature has already adopted it for all of Texas. The only question os whether a city or county is enforcing this criminal law, or, for some reason (from lack of knowledge to intentional unscrupulous behavior) is currently ignoring it.
Probably not, unless you’re a permitted landfill, recycling drop-off station or the holder of some other similar state-issued authorization. THSC Sec. 365.012(l) sets the conditions that control this disposal. To simplify the language there:
If you are disposing on your own property to save or make money; OR,
If the waste comes from a commercial operation; OR,
If you do not actually own the property where the waste is generated; OR,
If you do not actually own the property where the waste is being disposed OR,
If you’re not an individual but a partnership, corporation, government, or some other category of non-individual …
THEN you are prohibited from using your own property for disposal, unless permitted or authorized by the TCEQ.
If you do so anyway, you’re probably simply illegally dumping. And even if ALL the conditions are met, you still are prohibited from breaking other criminal laws in disposing on your own property, such as laws prohibiting water pollution, those not allowing the creation of a Public Health Nuisance, and so on.
Codes can work well to control “refuse on a lot” code violations as long as the residents are cooperative, But there are many locations inside a city where nuisance codes can’t reach. These include:
IN UNINCORPORATED AREAS, INCLUDING MOST ETJ’s Texas cities organized under General Laws (about 75% of Texas municipalities) cannot enforce their codes beyond the limits of the municipality; Local Government Code Sec. 217.042 allows Home Rule cities to reach up to 5,000 feet into their ETJ to enforce nuisance ordinances.
IN SOME LOCATIONS INSIDE MANY CITIES
*In cities having no code enforcement program (300 of 1,200 cities don’t);
*In cities that only enforce against “owners” and don’t include tenants or residents as responsible parties under their codes;
*In economically deprived and politically powerless areas of cities (sometimes to seems as if there are two different sets of municipal codes in some cities) where lax enforcement is a local practice;
*Where COMMERCIAL dumpers are targeting poor neighborhoods with their waste and cities are simply overwhelmed by the volumes. When a city foregoes aggressive enforcement against commercial dumpers, there is not enough money available to clean behind violators and code violations are quickly overwhelmed;
*In and around hundreds of homeless camps of various sizes (as far as providing solid waste services is concerned [i.e., under THSC Sec. 363.113 obligations], consider homeless camps as underserved neighborhoods with sometimes difficult access issues);
*In cities where the systems supporting code enforcement are weak (i.e., dysfunctional municipal courts; cities where code management or elected officials have their thumb on the scale directing code enforcement away from some areas);
*In cities where codes are not used on commercially zoned properties (the amount of commercial property in a city varies: Austin 28%; DFW 18%; Houston 13%);
*On public property (i.e., parks, streets, alleys, government property; creeks);
*On accessible commercial open property (i.e., railroad right of ways; open oil/gas leases; vacant land in industrial parks);
*On abandoned residential lots and in structures where history has made code enforcement an administrative tangle (i.e., absent or deceased owners; places with multiple contentious out-of-town owners; properties where ownership hasn’t been established yet);
* Where code enforcement officers hold back because they are themselves in violation of TDLR ethical rules governing officer ethics [16 Texas Administrative Code Section 62.70] and don’t want to attract attention (i.e., where officers are dishonest; chemically impaired; abusive; ignoring crimes that they are required to report; misusing bite stick; using another officer’s registration number).
Just to reach these areas will often require the use of criminal laws.