| Newsletter
April 2006 Article |
|
|
| Disposing
Waste on You Own Property, Revisited |
|
| Disclaimer:
This article does not constitute legal advice. For
your jurisdiction's specific situation you need to
consult your City or County Attorney, or, if you are
a non-government, your attorney. The purposes of this
article are to lay out some general guidelines
for understanding and using Texas Health &
Safety Code Chapters 341, 343 and 365, Texas Water
Code Chapter 7, the Texas Outdoor Burning rule and
other Texas statutes and rules to fight illegal
dumping and burning in your jurisdiction, and to
facilitate discussion of these subjects within the
enforcement community. |
|
|
The question
always arises as to whether a person can dispose waste on his or
her own property. The shouted answers from the crowd are
always divided. The actual answer is a definite
"Maybe." Recent changes in the Texas
Administrative Code will make dumping enforcement on the
perpetrator’s own land even more difficult to police in
some circumstances. Officers will need to distinguish
between criminal and civil enforcement in this area of
their activities.
Criminal Enforcement
Texas Health & Safety Code [THSC] Chapter 365
This is the primary anti-dumping law used to control
illegal dumping of solid waste and litter in Texas. It
sets penalties at the misdemeanor and state jail felony
levels for illegal dumping, based on the weight and volume
of the material dumped and the dumper’s purpose (i.e., commercial
purpose or not). Like virtually all criminal laws in
Texas, it is applicable everywhere in the state. However,
charging a person with criminal dumping on his or her own
land can be a little tricky in some cases, as Sections
365.012 and 365.014 contain defenses available to the
accused when their own land is involved.
Texas
Health & Safety Code Chapter 365: Texas Litter
Abatement Act
§ 365.012. ILLEGAL DUMPING; CRIMINAL PENALTIES. |
| |
(l)
This section does not apply to an individual's
disposal of litter or other solid waste if: |
| |
|
(1) the
litter or waste is generated on land the individual
owns; |
| |
|
(2) the
litter or waste is not generated as a result of an
activity related to a commercial purpose; |
| |
|
(3) the
disposal occurs on land the individual owns; and |
| |
|
(4) the
disposal is not for a commercial purpose |
This provision would apparently protect the landowner
from criminal prosecution under this law if all four
of these provisions were met. (1) Persons leasing or renting
land would not be permitted to foul that land and escape
criminal charges unless the landowner had given them
permission. (2) The waste contemplated must not be from a
commercial operation. So if the land owner was hauling
commercially-generated waste from his business in town out
to his ranch for dumping, this would not be
allowed. (3) The generation of non-commercial waste and
the actual disposal could happen on different pieces of
property, as long as both were owned by the same
individual. (4) Any actual disposal couldn’t be for
commercial purposes, defined at Section 365.011(3) as
"the purpose of economic gain." I’ve heard
more than one prosecutor say that disposal to avoid waste
disposal fees would certainly be included under this
definition. So if a person is dumping household waste
generated on his own property on property he owns for some
reason other than economic gain, the State Legislature
apparently meant to protect this activity from criminal
enforcement. Many officers find the "for commercial
gain" issue is the easiest to address. After giving
the appropriate warnings, the officer simply asks,
"Did you dump that stuff to save money, or
what?" But if all four of these provisions are met,
the individual will probably escape prosecution for a
criminal violation of THSC Chapter 365.
THSC Section 365.014 protects farmers from being
prosecuted for illegal dumping under this law in some
circumstances. It also protects those individuals that are
dumped on through trickery (i.e., the dumper left trash
hidden in among good materials and the receiving
individual didn’t know this and was uncompensated). But
the protection to farmers from prosecution for dumping under some circumstances is the most
important of the several provisions in this section.
Texas
Health & Safety Code Chapter 365: Texas Litter
Abatement Act
§ 365.014. APPLICATION OF SUBCHAPTER; DEFENSES;
PRESUMPTIONS. |
| |
(a)
This subchapter does not apply to farmers: |
| |
|
(1) in
handling anything necessary to grow, handle, and
care for livestock; or |
| |
|
(2) in
erecting, operating, and maintaining improvements
necessary to handle, thresh, and prepare
agricultural products or for conservation projects. |
Farmers who dump feed sacks and such items would be
free from prosecution. Note that the law doesn’t require
the dumping to be on the farmer’s own land, although few
farmers in Texas would dump anything on a neighbor.
Enforcement officers need to be sensitive to these two
defenses when enforcing THSC Chapter 365.
Texas Water Code [TWC] Chapter 7(Subchapter E)
This law contains the bulk of Texas’ felony and
specialized dumping statutes. Included are such things as
dumping waste motor oil, lead-acid batteries, medical and
hazardous waste, dumping that pollutes or threatens to
pollute water, and dumping into the air of Texas through
illegal burning. There are no defenses in this law to
violators based on their ownership of the property where
the dumping took place. For example, if
someone dumps waste motor oil in violation of TWC Section
7.176, the fact that they did so on their own property is
no statutory defense. TWC Section 7.523(c) does provide
defenses to defendants who unknowingly purchased polluted land, provided that they meet specific tests showing due
diligence specified in the statute.
State Criminal Nuisance Laws
Note that there is no defense to violating the nuisance
laws and local ordinances based on the fact that you own
the land where you are committing the violation. The two
primary nuisance abatement statutes in Texas, THSC
Chapters 341 and 343, both contain provisions that would
probably classify trash dumped just about anywhere,
including on one's own property, as a nuisance. Although
the penalties are small, the fact that these statutes both
consider each day of an ongoing violation to be a separate
offense give them sufficient punch to be useful where THSC
Chapter 365 cannot be used and TWC Chapter 7 is not
applicable. Where applicable local ordinances exist, they
too may be a good way to deal with waste dumped on one's
own land.
Civil Enforcement
Sometimes local governments can act civilly to stop
illegal dumping on one’s own property in cases where
criminal violations don’t exist. There are great reasons
for civil enforcement, including the possibility of
getting more parties involved in the cleanup and in
keeping more of any civil penalties assessed in your
jurisdiction. Under Texas Commission on Environmental
Quality Rule 330 (30 Texas Administrative Code 330.7) a
permit or other permission is generally need from the TCEQ
before an individual can undertake any solid waste
activity:
30
TAC 330 Municipal Solid Waste
§330.7.
Permit Required |
| (a)
Except as provided in §§330.9, 330.11, 330.13, or
330.25 of this title (relating to Registration
Required; Notification Required; Waste Management
Activities Exempt from Permitting, Registration, or
Notification; and Relationship with County Licensing
System), no 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. |
Key provisions in this section include the need to
notify the TCEQ before the solid waste activities begin
and the requirement for deed recordation of the activities
at the county courthouse. However, the exemption cited at
Section 330.13 tell the rest of the story and,
unfortunately, may tie the city or county attorney’s
hands in controlling a great deal of own-property dumping:
30
TAC 330 Municipal Solid Waste
§330.13.Waste Management Activities Exempt from
Permitting, Registration, or Notification. |
| |
(a)
A permit, registration, notification, or other
authorization is not required for the disposal of
up to 2,000 pounds per year of litter or other
solid waste generated by an individual on that
individual's own land and is not required to
comply with §330.19 of this title (relating to
Deed Recordation) provided that: |
| |
|
(1)
the litter or waste is generated on land that the
individual owns; |
| |
|
(2)
the litter or waste is not generated as a result
of an activity related to a commercial purpose; |
| |
|
(3)
the disposal occurs on land that the individual
owns; |
| |
|
(4)
the disposal is not for a commercial purpose; |
| |
|
(5)
the waste disposed of is not hazardous waste or
industrial waste; |
| |
|
(6)
the waste disposal method complies with Chapter
111, Subchapter B of this title (relating to
Outdoor Burning); and |
| |
|
(7)
the waste disposal method does not contribute to a
nuisance and does not endanger the public health
or the environment. Exceeding 2,000 pounds per
individual's residence per year is considered to
be a nuisance. |
Readers who have followed this issue will note that this
revised rule, effective March 27, 2006 [31 TexReg 2502],
differs from the 30 TAC 330.4(v) it replaces in a couple
of important ways. First, it removes the necessity for
notice to the TCEQ before the disposal begins and after
the disposal ends. Second, and perhaps more importantly,
it also removes the requirement for the dumper to record
his disposal activities on his deed at the county
courthouse. Consequently, if a property owner wanted to do
so, he or she could bury up to 2,000 pounds of trash each
year out back. As long as he didn’t do so in violation
of (1) through (7) above, he would have committed
neither a criminal nor civil wrong.
By removing the requirement for deed recordation of
waste disposal on private land, the TCEQ has effectively
eliminated any requirement for local records to be
maintained of where the small private family dumps are
located. A title search will no longer yield any affidavit
providing public notice to new buyers of the property. Now
when you dig the hole for the new swimming pool and hit a
few tons of trash, you won’t be as able to sue the
former owner for running a mini-dump without letting
future buyers know about it by deed recordation. Since
everything had been disposed in accordance with TCEQ's
rules, perhaps the existence of the buried trash would not
be a known environmental risk requiring disclosure by the
seller. |
|