By:  Parker                                           S.B. No. 1042
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the regulation of on-site sewage disposal systems;
    1-2  providing civil and administrative penalties.
    1-4        SECTION 1.  Subdivisions (2), (4), and (8), Section 366.002,
    1-5  Health and Safety Code, are amended to read as follows:
    1-6              (2)  "Board" or "commission" means the Texas Natural
    1-7  Resource Conservation Commission.
    1-8              (4)  "Designated representative" means a person who is
    1-9  designated by the department or authorized agent to make
   1-10  percolation tests, system designs, and inspections subject to the
   1-11  department's <or authorized agent's> approval.
   1-12              (8)  "On-site sewage disposal system" means one or more
   1-13  systems of treatment devices and disposal facilities <that are not
   1-14  regulated by the Texas Water Commission and> that:
   1-15                    (A)  produce not more than 5,000 gallons of waste
   1-16  each day; and
   1-17                    (B)  are used only for disposal of sewage
   1-18  produced on the site where the system is located.
   1-19        SECTION 2.  Section 366.014, Health and Safety Code, is
   1-20  amended to read as follows:
   1-21        Sec. 366.014.  Designated Representative. (a)  The department
   1-22  or an authorized agent may designate a person to make percolation
   1-23  tests, systems designs, and inspections subject to the approval of
    2-1  the department or agent.
    2-2        (b)  To qualify as a designated representative, a person
    2-3  must:
    2-4              (1)  demonstrate to the department's or authorized
    2-5  agent's satisfaction the person's competency to make percolation
    2-6  tests, designs, and inspections for on-site sewage disposal systems
    2-7  in accordance with this chapter and rules adopted under this
    2-8  chapter; <and>
    2-9              (2)  successfully complete the training program
   2-10  provided by the department;
   2-11              (3)  successfully pass an examination provided by the
   2-12  department;
   2-13              (4)  receive written certification from the department;
   2-14  and
   2-15              (5)  pay a reasonable fee to the department for
   2-16  administration of this training and certification.
   2-17        SECTION 3.  Section 366.052, Health and Safety Code, is
   2-18  amended to read as follows:
   2-19        Sec. 366.052.  Permit Not Required for On-Site Sewage
   2-20  Disposal on Certain Single Residences. (a)  Sections 366.051,
   2-21  366.053, 366.054, and 366.057 do not apply to an on-site sewage
   2-22  disposal system of a single residence that is located on a land
   2-23  tract that is 25 <10> acres or larger in which the field line or
   2-24  sewage disposal line is not closer than 100 feet of the property
   2-25  line.
    3-1        (b)  Effluent from the on-site sewage disposal system on a
    3-2  single residence:
    3-3              (1)  must be retained in the specified limits;
    3-4              (2)  may not create a nuisance; and
    3-5              (3)  may not pollute groundwater.
    3-6        SECTION 4.  Section 366.092, Health and Safety Code, is
    3-7  amended to read as follows:
    3-8        Sec. 366.092.  INJUNCTION OR CIVIL SUIT.  (a)  If it appears
    3-9  that a person has violated, is violating, or is threatening to
   3-10  violate any provision of this chapter or of any rule, permit, or
   3-11  other order of the commission issued pursuant to this chapter, the
   3-12  department may request the attorney general to bring a civil suit
   3-13  for:
   3-14              (1)  mandatory or prohibitory injunctive relief as
   3-15  warranted by the facts;
   3-16              (2)  a civil penalty as provided by this chapter; or
   3-17              (3)  both injunctive relief and civil penalty.
   3-18        (b)  Venue for an action under this chapter is in district
   3-19  court in Travis County, in the county in which the defendant
   3-20  resides, or in the county in which the violation or threat of
   3-21  violation occurs.  <The department or an authorized agent may bring
   3-22  suit for injunction to prevent or restrain a violation of this
   3-23  chapter.>
   3-24        SECTION 5.  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 person who violates any
    4-3  provision of this subchapter or any rule, permit, or order issued
    4-4  pursuant to this chapter is subject to a civil penalty of not less
    4-5  than $100 nor more than $5,000 for each act of violation and for
    4-6  each day of violation.
    4-7        Sec. 366.0922.  LOCAL ENFORCEMENT.  (a)  A local government
    4-8  may bring an enforcement action under Sections 366.092 and 366.0921
    4-9  in the same manner as the commission.  Civil penalties recovered in
   4-10  an enforcement action initiated by a local government shall be
   4-11  divided equally between the local government and the state.
   4-12        (b)  The commission is a necessary and indispensable party in
   4-13  any enforcement action brought by a local government.
   4-14        Sec. 366.0923.  FEES AND COSTS RECOVERABLE.  If the state or
   4-15  a local government prevails in a suit under this subchapter, it may
   4-16  recover reasonable attorney fees, court costs, and reasonable
   4-17  investigative costs incurred in relation to the proceeding.
   4-18        Sec. 366.0924.  ADMINISTRATIVE PENALTY.  (a)  If a person
   4-19  violates this chapter or a rule or order adopted or a permit issued
   4-20  under this chapter, the commission may assess a civil penalty
   4-21  against that person as provided by this section.
   4-22        (b)  A person who violates this chapter or a rule, order, or
   4-23  permit issued pursuant to this chapter is subject to a civil
   4-24  penalty in an amount not to exceed $5,000 per day or per act of
   4-25  violation.  Each day a violation continues may be considered a
    5-1  separate offense for purposes of assessing a penalty.
    5-2        (c)  In determining the amount of the penalty, the commission
    5-3  shall consider:
    5-4              (1)  the circumstances surrounding the prohibited act,
    5-5  with special consideration of the threat to public health and the
    5-6  environment;
    5-7              (2)  the history of previous violations;
    5-8              (3)  the amount necessary to deter future violations;
    5-9              (4)  efforts to correct the violation; and
   5-10              (5)  any other matters that justice may require.
   5-11        (d)  If the executive director of the commission concludes
   5-12  that a violation has occurred, the executive director may issue a
   5-13  preliminary report:
   5-14              (1)  stating the facts that support the conclusion; and
   5-15              (2)  recommending that a civil penalty be assessed as
   5-16  described in this section.
   5-17        (e)  The executive director shall send a copy of the report
   5-18  to the person charged no later than the 10th day after the report
   5-19  was issued.  That notice shall include a statement that the person
   5-20  has the right to a hearing before the agency.
   5-21        (f)  No later than 20 days after the date on which the notice
   5-22  was received, the person charged may give written consent to the
   5-23  executive director's report or request a hearing.
   5-24        (g)  If the person charged with the violation consents to the
   5-25  penalty recommended by the executive director or does not timely
    6-1  respond to the notice, the commission shall assess the penalty by
    6-2  order or shall order a hearing to be held on the findings and
    6-3  recommendations in the executive director's report.  If the
    6-4  commission assesses the penalty, the commission shall give written
    6-5  notice to the person charged of its decision.
    6-6        (h)  The person assessed an administrative penalty shall pay
    6-7  the penalty not later than the 30th day after the date on which the
    6-8  commission order is final or file a petition for judicial review.
    6-9  If the person seeks judicial review, the person shall send the
   6-10  amount of the penalty to the commission for placement in escrow or
   6-11  post a bond with the commission in a form approved by the
   6-12  commission for the amount of the penalty, the bond to be effective
   6-13  until judicial review of the order is final.  A person who fails to
   6-14  comply with this subsection waives judicial review.
   6-15        (i)  The commission may request enforcement by the attorney
   6-16  general if any person fails to comply with an agency order.
   6-17        (j)  Judicial review of any agency administrative order
   6-18  issued under this section shall be under Section 19, Administrative
   6-19  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
   6-20  Civil Statutes).
   6-21        (k)  An administrative penalty collected under this section
   6-22  shall be deposited in the state treasury to the credit of the
   6-23  general revenue fund.
   6-24        SECTION 6.  This Act takes effect September 1, 1993.
   6-25        SECTION 7.  The importance of this legislation and the
    7-1  crowded condition of the calendars in both houses create an
    7-2  emergency and an imperative public necessity that the
    7-3  constitutional rule requiring bills to be read on three several
    7-4  days in each house be suspended, and this rule is hereby suspended.