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.