S.B. No. 1042
                                        AN ACT
    1-1  relating to the regulation of on-site sewage disposal systems;
    1-2  providing penalties.
    1-4        SECTION 1.  Subdivision (2), Section 366.002, Health and
    1-5  Safety Code, is amended to read as follows:
    1-6              (2)  "Board" or "commission" means the Texas Natural
    1-7  Resource Conservation Commission.
    1-8        SECTION 2.  Subdivision (4), Section 366.002, Health and
    1-9  Safety Code, is amended to read as follows:
   1-10              (4)  "Designated representative" means a person who is
   1-11  designated by the department or authorized agent to make
   1-12  percolation tests, system designs, and inspections subject to the
   1-13  department's <or authorized agent's> approval.
   1-14        SECTION 3.  Subdivision (8), Section 366.002, Health and
   1-15  Safety Code, is amended to read as follows:
   1-16              (8)  "On-site sewage disposal system" means one or more
   1-17  systems of treatment devices and disposal facilities <that are not
   1-18  regulated by the Texas Water Commission and> that:
   1-19                    (A)  produce not more than 5,000 gallons of waste
   1-20  each day; and
   1-21                    (B)  are used only for disposal of sewage
   1-22  produced on the site where the system is located.
   1-23        SECTION 4.  Section 366.014, Health and Safety Code, is
    2-1  amended to read as follows:
    2-2        Sec. 366.014.  Designated Representative.  (a)  The
    2-3  department or an authorized agent may designate a person to make
    2-4  percolation tests, systems designs, and inspections subject to the
    2-5  approval of the department <or agent>.
    2-6        (b)  To qualify as a designated representative, a person
    2-7  must:
    2-8              (1)  demonstrate to the department's <or authorized
    2-9  agent's> satisfaction the person's competency to make percolation
   2-10  tests, designs, and inspections for on-site sewage disposal systems
   2-11  in accordance with this chapter and rules adopted under this
   2-12  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 366.071, Health and Safety Code, is
   2-22  amended to read as follows:
   2-23        Sec. 366.071.  Registration.  A person may not operate as an
   2-24  installer in this state unless the person is registered by the
   2-25  department <or an authorized agent>.
    3-1        SECTION 6.  Subsection (a), Section 366.077, Health and
    3-2  Safety Code, is amended to read as follows:
    3-3        (a)  An installer's statewide registration may be revoked by
    3-4  the department <or an authorized agent> after notice and hearing if
    3-5  the installer violates this chapter or a rule adopted under this
    3-6  chapter.
    3-7        SECTION 7.  Section 366.092, Health and Safety Code, is
    3-8  amended to read as follows:
    3-9        Sec. 366.092.  INJUNCTION OR CIVIL SUIT.  (a)  If it appears
   3-10  that a person has violated, is violating, or is threatening to
   3-11  violate any provision of this chapter, or any rule, permit, or
   3-12  other order of the commission issued pursuant to this chapter, the
   3-13  commission may request the attorney general to bring a civil suit
   3-14  for:
   3-15              (1)  mandatory or prohibitory injunctive relief, as
   3-16  warranted by the facts;
   3-17              (2)  a civil penalty as provided by this chapter; or
   3-18              (3)  both injunctive relief and civil penalty.
   3-19        (b)  Venue for an action under this chapter is in Travis
   3-20  County District Court, the county in which the defendant resides,
   3-21  or in the county in which the violation or threat of violation
   3-22  occurs.  <The department or an authorized agent may bring suit for
   3-23  injunction to prevent or restrain a violation of this chapter.>
   3-24        SECTION 8.  Subchapter F, Chapter 366, Health and Safety
   3-25  Code, is amended by adding Sections 366.0921, 366.0922, 366.0923,
    4-1  and 366.0924 to read as follows:
    4-2        Sec. 366.0921.  CIVIL PENALTY.  (a)  An owner who violates
    4-3  any provision of this subchapter or any rule, permit, or order
    4-4  issued pursuant to this chapter is subject to a  civil penalty of
    4-5  not less than $100 nor more than $500 for each act of violation and
    4-6  for each day of violation.
    4-7        (b)  Any other person who violates any provision of this
    4-8  subchapter or any rule, permit, or order issued pursuant to this
    4-9  chapter is subject to a civil penalty of not less than $500 nor
   4-10  more than $5,000 for each act of violation and for each day of
   4-11  violation.
   4-13  ENFORCE.  The commission shall be the sole authority designated to
   4-14  initiate an enforcement action under Sections 366.092, 366.0921,
   4-15  and 366.0924.  However, a local government may request that the
   4-16  commission initiate an enforcement action pursuant to these
   4-17  sections through a petition filed with the commission.  If the
   4-18  commission chooses to initiate an enforcement action on behalf of a
   4-19  local government, civil penalties recovered shall be divided
   4-20  between the local government and the state based on the proportion
   4-21  of resources expended by each entity in the course of enforcement
   4-22  action.
   4-23        Sec. 366.0923.  FEES AND COSTS RECOVERABLE.  If the state
   4-24  prevails in a suit under this subchapter, it may recover reasonable
   4-25  attorney's fees, court costs, and reasonable investigative costs
    5-1  incurred in relation to the proceeding.
    5-2        Sec. 366.0924.  ADMINISTRATIVE PENALTY.  (a)  If a person
    5-3  violates this chapter or a rule or order adopted or a permit issued
    5-4  under this chapter, the commission may assess an administrative
    5-5  penalty against that person as provided by this section.
    5-6        (b)  A person who violates this chapter or a rule, order, or
    5-7  permit issued pursuant to this chapter is subject to a civil
    5-8  penalty as follows:
    5-9              (1)  an owner shall be subject to a civil penalty in an
   5-10  amount not to exceed $500 per day or act of violation.  Each day a
   5-11  violation continues may be considered a separate offense for
   5-12  purposes of assessing a penalty; and
   5-13              (2)  any other person shall be subject to a civil
   5-14  penalty in an amount not to exceed $5,000 per day or act of
   5-15  violation.  Each day a violation continues may be considered a
   5-16  separate offense for purposes of assessing a penalty.
   5-17        (c)  In determining the amount of the penalty, the commission
   5-18  shall consider:
   5-19              (1)  the circumstances surrounding the prohibited act,
   5-20  with special consideration of the threat to public health and the
   5-21  environment;
   5-22              (2)  the history of previous violations;
   5-23              (3)  the amount necessary to deter future violations;
   5-24              (4)  efforts to correct the violation; and
   5-25              (5)  any other matters that justice may require.
    6-1        (d)  If the executive director of the commission concludes
    6-2  that a violation has occurred, the executive director may issue a
    6-3  preliminary report:
    6-4              (1)  stating the facts that support the conclusion; and
    6-5              (2)  recommending that a civil penalty be assessed as
    6-6  described in this section.
    6-7        (e)  The executive director shall send a copy of the report
    6-8  to the person charged no later than the 10th day after the report
    6-9  was issued.  That notice shall include a statement that the person
   6-10  has the right to a hearing before the agency.
   6-11        (f)  The person charged may, no later than 20 days after the
   6-12  date on which the notice was received, give written consent to the
   6-13  executive director's report or request a hearing.
   6-14        (g)  If the person charged with the violation consents to the
   6-15  penalty recommended by the executive director or does not timely
   6-16  respond to the notice, the commission shall assess the penalty by
   6-17  order or shall order a hearing to be held on the findings and
   6-18  recommendations in the executive director's report.  If the
   6-19  commission assesses the penalty, the commission shall give written
   6-20  notice to the person charged of its decision.
   6-21        (h)  The person assessed an administrative penalty shall pay
   6-22  the penalty not later than the 30th day after the date on which the
   6-23  commission order is final or file a petition for judicial review.
   6-24        (i)  The commission may request enforcement by the attorney
   6-25  general if any person fails to comply with an agency order.
    7-1        (j)  Judicial review of any agency administrative order
    7-2  issued under this section shall be under Section 19, Administrative
    7-3  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
    7-4  Civil Statutes).
    7-5        (k)  An administrative penalty collected under this section
    7-6  shall be deposited in the state treasury to the credit of the
    7-7  general revenue fund.
    7-8        SECTION 9.  The importance of this legislation and the
    7-9  crowded condition of the calendars in both houses create an
   7-10  emergency and an imperative public necessity that the
   7-11  constitutional rule requiring bills to be read on three several
   7-12  days in each house be suspended, and this rule is hereby suspended.