73R9746 E
By Parker S.B. No. 1042
Substitute the following for S.B. No. 1042:
By Oakley C.S.S.B. No. 1042
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 and> 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.
1-24 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>.
2-26 SECTION 6. Section 366.077(a), Health and Safety Code, is
2-27 amended to read as follows:
3-1 (a) An installer's statewide registration may be revoked by
3-2 the department <or an authorized agent> after notice and hearing if
3-3 the installer violates this chapter or a rule adopted under this
3-4 chapter.
3-5 SECTION 7. Section 366.092, Health and Safety Code, is
3-6 amended to read as follows:
3-7 Sec. 366.092. INJUNCTION OR CIVIL SUIT. (a) If it appears
3-8 that a person has violated, is violating, or is threatening to
3-9 violate any provision of this chapter, or any rule, permit, or
3-10 other order of the commission issued pursuant to this chapter, the
3-11 commission may request the attorney general to bring a civil suit
3-12 for:
3-13 (1) mandatory or prohibitory injunctive relief, as
3-14 warranted by the facts;
3-15 (2) a civil penalty as provided by this chapter; or
3-16 (3) both injunctive relief and civil penalty.
3-17 (b) Venue for an action under this chapter is in Travis
3-18 County District Court, the county in which the defendant resides,
3-19 or in the county in which the violation or threat of violation
3-20 occurs. <The department or an authorized agent may bring suit for
3-21 injunction to prevent or restrain a violation of this chapter.>
3-22 SECTION 8. Subchapter F, Chapter 366, Health and Safety
3-23 Code, is amended by adding Sections 366.0921, 366.0922, 366.0923,
3-24 and 366.0924 to read as follows:
3-25 Sec. 366.0921. CIVIL PENALTY. (a) An owner who violates
3-26 any provision of this subchapter or any rule, permit, or order
3-27 issued pursuant to this chapter is subject to a civil penalty of
4-1 not less than $100 nor more than $500 for each act of violation and
4-2 for each day of violation.
4-3 (b) Any other person who violates any provision of this
4-4 subchapter or any rule, permit, or order issued pursuant to this
4-5 chapter is subject to a civil penalty of not less than $500 nor
4-6 more than $5,000 for each act of violation and for each day of
4-7 violation.
4-8 Sec. 366.0922. COMMISSION DESIGNATED SOLE AUTHORITY TO
4-9 ENFORCE. The commission shall be the sole authority designated to
4-10 initiate an enforcement action under Sections 366.092, 366.0921,
4-11 and 366.0924. However, a local government may request that the
4-12 commission initiate an enforcement action pursuant to these
4-13 sections through a petition filed with the commission. If the
4-14 commission chooses to initiate an enforcement action on behalf of a
4-15 local government, civil penalties recovered shall be divided
4-16 between the local government and the state based on the proportion
4-17 of resources expended by each entity in the course of enforcement
4-18 action.
4-19 Sec. 366.0923. FEES AND COSTS RECOVERABLE. If the state
4-20 prevails in a suit under this subchapter, it may recover reasonable
4-21 attorney's fees, court costs, and reasonable investigative costs
4-22 incurred in relation to the proceeding.
4-23 Sec. 366.0924. ADMINISTRATIVE PENALTY. (a) If a person
4-24 violates this chapter or a rule or order adopted or a permit issued
4-25 under this chapter, the commission may assess an administrative
4-26 penalty against that person as provided by this section.
4-27 (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 as follows:
5-3 (1) an owner shall be subject to a civil penalty in an
5-4 amount not to exceed $500 per day or act of violation. Each day a
5-5 violation continues may be considered a separate offense for
5-6 purposes of assessing a penalty; and
5-7 (2) any other person shall be subject to a civil
5-8 penalty in an amount not to exceed $5,000 per day or act of
5-9 violation. Each day a violation continues may be considered a
5-10 separate offense for purposes of assessing a penalty.
5-11 (c) In determining the amount of the penalty, the commission
5-12 shall consider:
5-13 (1) the circumstances surrounding the prohibited act,
5-14 with special consideration of the threat to public health and the
5-15 environment;
5-16 (2) the history of previous violations;
5-17 (3) the amount necessary to deter future violations;
5-18 (4) efforts to correct the violation; and
5-19 (5) any other matters that justice may require.
5-20 (d) If the executive director of the commission concludes
5-21 that a violation has occurred, the executive director may issue a
5-22 preliminary report:
5-23 (1) stating the facts that support the conclusion; and
5-24 (2) recommending that a civil penalty be assessed as
5-25 described in this section.
5-26 (e) The executive director shall send a copy of the report
5-27 to the person charged no later than the 10th day after the report
6-1 was issued. That notice shall include a statement that the person
6-2 has the right to a hearing before the agency.
6-3 (f) The person charged may, no later than 20 days after the
6-4 date on which the notice was received, give written consent to the
6-5 executive director's report or request a hearing.
6-6 (g) If the person charged with the violation consents to the
6-7 penalty recommended by the executive director or does not timely
6-8 respond to the notice, the commission shall assess the penalty by
6-9 order, or shall order a hearing to be held on the findings and
6-10 recommendations in the executive director's report. If the
6-11 commission assesses the penalty, the commission shall give written
6-12 notice to the person charged of its decision.
6-13 (h) The person assessed an administrative penalty shall pay
6-14 the penalty not later than the 30th day after the date on which the
6-15 commission order is final or file a petition for judicial review.
6-16 (i) The commission may request enforcement by the attorney
6-17 general if any person fails to comply with an agency order.
6-18 (j) Judicial review of any agency administrative order
6-19 issued under this section shall be under Section 19, Administrative
6-20 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
6-21 Civil Statutes).
6-22 (k) An administrative penalty collected under this section
6-23 shall be deposited in the state treasury to the credit of the
6-24 general revenue fund.
6-25 SECTION 9. The importance of this legislation and the
6-26 crowded condition of the calendars in both houses create an
6-27 emergency and an imperative public necessity that the
7-1 constitutional rule requiring bills to be read on three several
7-2 days in each house be suspended, and this rule is hereby suspended.