By Yost H.B. No. 2678
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of on-site sewage disposal systems;
1-3 providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 366.002(2), Health and Safety Code, is
1-6 amended to read as follows:
1-7 (2) "Board" or "commission" means the Texas Natural
1-8 Resource Conservation Commission.
1-9 SECTION 2. Section 366.002(4), Health and Safety Code, is
1-10 amended to read as follows:
1-11 (4) "Designated representative" means a person who is
1-12 designated by the department or authorized agent to make
1-13 percolation tests, system designs, and inspections subject to the
1-14 department's <or authorized agent's> approval.
1-15 SECTION 3. Section 366.002(8), Health and Safety Code, is
1-16 amended to read as follows:
1-17 (8) "On-site sewage disposal system" means one or more
1-18 systems of treatment devices and disposal facilities <that are not
1-19 regulated by the Texas Water Commission> that:
1-20 (A) produce not more than 5,000 gallons of waste
1-21 each day; and
1-22 (B) are used only for disposal of sewage
1-23 produced on the site where the system is located.
2-1 SECTION 4. Section 366.014, Health and Safety Code, is
2-2 amended to read as follows:
2-3 Sec. 366.014. Designated Representative. (a) The
2-4 department or an authorized agent may designate a person to make
2-5 percolations tests, system designs, and inspections subject to the
2-6 approval of the department or agent.
2-7 (b) To qualify as a designated representative, a person
2-8 must:
2-9 (1) demonstrate to the department's satisfaction the
2-10 person's competency to make percolation tests, designs, and
2-11 inspections for on-site sewage disposal systems in accordance with
2-12 this chapter and rules adopted under this chapter; <and>
2-13 (2) successfully complete the training program
2-14 provided by the department;
2-15 (3) successfully pass an examination provided by the
2-16 department;
2-17 (4) receive written certification from the department;
2-18 and
2-19 (5) pay a reasonable fee to the department for
2-20 administration of this training and certification.
2-21 SECTION 5. Section 366.052, Health and Safety Code, is
2-22 amended to read as follows:
2-23 Sec. 366.052. Permit Not Required for On-Site Sewage
2-24 Disposal on Certain Single Residences. (a) Sections 366.051,
2-25 366.053, 366.054, and 366.057 do not apply to an on-site sewage
3-1 disposal system of a single residence that is located on a land
3-2 tract that is 25 <10> acres or larger in which the field line or
3-3 sewage disposal line is not closer than 100 feet of the property
3-4 line.
3-5 (b) Effluent from the on-site sewage disposal system on a
3-6 single residence:
3-7 (1) must be retained by the specific limits;
3-8 (2) may not create a nuisance; and
3-9 (3) may not pollute groundwater.
3-10 SECTION 6. Section 366.092, Health and Safety Code, is
3-11 amended to read as follows:
3-12 Sec. 366.092. Injunction or Civil Suit. (a) If it appears
3-13 that a person has violated, is violating, or is threatening to
3-14 violate any provision of this chapter, or of any rule, permit, or
3-15 other order of the commission issued pursuant to this chapter, the
3-16 commission may request the attorney general to bring a civil suit
3-17 for:
3-18 (1) mandatory or prohibitory injunctive relief, as
3-19 warranted by the facts;
3-20 (2) a civil penalty as provided by this chapter; or
3-21 (3) both injunctive relief and civil penalty.
3-22 (b) Venue for an action under this chapter is in Travis
3-23 County District Court, the county in which the defendant resides,
3-24 or in the county in which the violation or threat of violation
3-25 occurs. <The department or an authorized agent may bring suit for
4-1 injunction to prevent or restrain a violation of this chapter.>
4-2 SECTION 7. Subchapter F, Chapter 366, Health and Safety
4-3 Code, is amended by adding new Sections 366.0921, 366.0922,
4-4 366.0923, and 366.0924 to read as follows:
4-5 Sec. 366.0921. Civil Penalty. A person who violates any
4-6 provision of this subchapter or any rule, permit, or order issued
4-7 pursuant to this chapter is subject to a civil penalty of not less
4-8 than $100 nor more than $5,000 for each act of violation and for
4-9 each day of violation.
4-10 Sec. 366.0922. Local Enforcement. (a) A local government
4-11 may bring an enforcement action under Sections 366.092 and 366.0921
4-12 in the same manner as the commission. Civil penalties recovered in
4-13 an enforcement action initiated by a local government shall be
4-14 divided equally between the local government and the state.
4-15 (b) The commission is a necessary and indispensable party in
4-16 any enforcement action brought by a local government.
4-17 Sec. 366.0923. Fees and Costs Recoverable. If the state or
4-18 a local government prevails in a suit under this subchapter, it may
4-19 recover reasonable attorney's fees, court costs, and reasonable
4-20 investigative costs incurred in relation to the proceeding.
4-21 Sec. 366.0924. Administrative Penalty. (a) If a person
4-22 violates this chapter or a rule or order adopted or a permit issued
4-23 under this chapter, the commission may assess an administrative
4-24 penalty against that person as provided by this section.
4-25 (b) A person who violates this chapter or a rule, order, or
5-1 permit issued pursuant to this chapter is subject to a civil
5-2 penalty in an amount not to exceed $5,000 per day or act of
5-3 violation. Each day a violation continues may be considered a
5-4 separate offense for purposes of assessing a penalty.
5-5 (c) In determining the amount of the penalty, the commission
5-6 shall consider:
5-7 (1) the circumstances surrounding the prohibited act,
5-8 with special consideration of the threat to public health and the
5-9 environment;
5-10 (2) the history of previous violations;
5-11 (3) the amount necessary to deter future violations;
5-12 (4) efforts to correct the violation; and
5-13 (5) any other matters that justice may require.
5-14 (d) If the executive director of the commission concludes
5-15 that a violation has occurred, the executive director may issue a
5-16 preliminary report:
5-17 (1) stating the facts that support the conclusion; and
5-18 (2) recommending that a civil penalty be assessed as
5-19 described in this section.
5-20 (e) The executive director shall send a copy of the report
5-21 to the person charged no later than the 10th day after the report
5-22 was issued. That notice shall include a statement that the person
5-23 has the right to a hearing before the agency.
5-24 (f) The person charge may, no later than 20 days after the
5-25 date of which the notice was received, give written consent to the
6-1 executive director's report or request a hearing.
6-2 (g) If the person charged with the violation consents to the
6-3 penalty recommended by the executive director or does not timely
6-4 respond to the notice, the commission shall assess the penalty by
6-5 order, or shall order a hearing to be held on the findings and
6-6 recommendations in the executive director's report. If the
6-7 commission assesses the penalty, the commission shall give written
6-8 notice to the person charged of its decision.
6-9 (h) The person assessed an administrative penalty shall pay
6-10 the penalty not later than the 30th day after the date on which the
6-11 commission order is final or file a petition for judicial review.
6-12 If the person seeks judicial review, the person shall send the
6-13 amount of the penalty to the commission for placement in escrow or
6-14 post a bond with the commission in a form approved by the
6-15 commission for the amount of the penalty, the bond to be effective
6-16 until judicial review of the order is final.
6-17 (i) The commission may request enforcement by the attorney
6-18 general if any person fails to comply with an agency order.
6-19 (j) Judicial review of any agency administrative order
6-20 issued under this section shall be under Section 19, Administrative
6-21 Procedure and Texas Register Act (Section 19, Article 6252-13a,
6-22 Vernon's Texas Civil Statutes).
6-23 (k) An administrative penalty collected under this section
6-24 shall be deposited in the state treasury to the credit of the
6-25 general revenue fund.
7-1 SECTION 8. The importance of this legislation and the
7-2 crowded condition of the calendars in both houses create an
7-3 emergency and an imperative public necessity that the
7-4 constitutional rule requiring bills to be read on three several
7-5 days in each house be suspended, and this rule is hereby suspended.