| (a) Applicability. This MOU applies to civil enforcement proceedings and complaints filed on storage tanks subject to this chapter. Pursuant to the Texas Water Code, §5.104, the Texas Natural Resource Conservation Commission adopts an MOU between the Texas Natural Resource Conservation Commission (TNRCC) and the attorney general of Texas. The MOU contains the TNRCC's and the attorney general's interpretation concerning intervention in the civil enforcement process under the Texas Water Code. This section applies as follows. (1) The Texas Water Commission (now the Texas Natural Resource Conservation Commission, TNRCC) was designated as the state agency for the regulation of underground storage tanks by enactment of Senate Bill 779 of the 70th Texas Legislature, 1987. (2) The Texas Water Code authorizes the Texas Natural Resource Conservation Commission to have instituted civil suits for injunctive relief and the
assessment and recovery of a civil penalty, whenever it appears that a person has violated, or is violating or threatening to violate, any provision of the Texas Water Code, or of any rule, permit, or other order of the Texas Natural Resource Conservation Commission. (3) The Texas Water Code provides that at the request of the executive director of the Texas Natural Resource Conservation Commission, the attorney general of Texas shall institute and conduct a suit in the name of the State of Texas for injunctive relief or to recover a civil penalty, or for both injunctive relief and penalty. (4) Federal regulations promulgated by the United States Environmental Protection Agency pursuant to the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976, Subtitle I, require that any state agency administering the Underground Storage Tank Program authorized under that Act provide for public participation in the state
enforcement process. (5) All citizen complaints filed, either orally or in writing, that relate to underground storage tanks will be investigated timely and thoroughly by the Texas Natural Resource Conservation Commission. Citizen complaint responses will be first initiated by attempting to establish telephone contact with the complainant within 48 hours of receipt of the complaint, and concurrently beginning whatever records review is necessary. Upon completion of the investigation, the complainant will be informed in writing of the results. In addition, the complainant will be apprised of the ultimate resolution of the problem. The executive director of the Texas Natural Resource Conservation Commission shall keep a complaint file in accordance with §337.4 of this title (relating to Enforcement). (6) Notice of proposed settlements of civil enforcement actions that relate to underground storage tanks will be published by the attorney
general of Texas in the Texas Register (except where immediate action is necessary to adequately protect human health and the environment) and that opportunity will be provided for the public to comment on such proposed settlements. (7) Nothing in this agreement shall be construed to limit or impair the attorney general's right to control and direct litigation on behalf of the state. (8) The attorney general will not oppose intervention where permissive intervention may be authorized by statute, rule, or regulation into any civil suit involving the State of Texas relating to violations of the Underground Storage Tank Program by any citizen having an interest which is or may be adversely affected. (9) The attorney general, on behalf of the State of Texas, will consent to a proposed judgment in an action to enjoin violations of the Underground Storage Tank Program only after the publication of notice which provides at least
30 days for public comment on the proposed judgment prior to its entry by the court, provided that the attorney general may permit an exception to the 30-day comment period if a settlement or judgment is required to avoid delays that would adversely affect public health or the environment. (b) Execution by all signatories. After execution by all signatories, this agreement shall remain in effect until rescinded by formal action of either agency. (c) Effective date. The effective date of the memorandum of understanding is the effective date of this rule adoption.
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