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.
    1-5        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.
    4-9  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.