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.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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.