1-1  By:  Parker                                           S.B. No. 1042
    1-2        (In the Senate - Filed March 12, 1993; March 15, 1993, read
    1-3  first time and referred to Committee on Natural Resources;
    1-4  April 1, 1993, reported favorably by the following vote:  Yeas 7,
    1-5  Nays 0; April 1, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Sims               x                               
    1-9        Truan              x                               
   1-10        Armbrister         x                               
   1-11        Barrientos                                    x    
   1-12        Bivins                                        x    
   1-13        Brown              x                               
   1-14        Carriker           x                               
   1-15        Lucio              x                               
   1-16        Montford                                      x    
   1-17        Ratliff            x                               
   1-18        Shelley                                       x    
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to the regulation of on-site sewage disposal systems;
   1-22  providing civil and administrative penalties.
   1-24        SECTION 1.  Subdivisions (2), (4), and (8), Section 366.002,
   1-25  Health and Safety Code, are amended to read as follows:
   1-26              (2)  "Board" or "commission" means the Texas Natural
   1-27  Resource Conservation Commission.
   1-28              (4)  "Designated representative" means a person who is
   1-29  designated by the department or authorized agent to make
   1-30  percolation tests, system designs, and inspections subject to the
   1-31  department's <or authorized agent's> approval.
   1-32              (8)  "On-site sewage disposal system" means one or more
   1-33  systems of treatment devices and disposal facilities <that are not
   1-34  regulated by the Texas Water Commission and> that:
   1-35                    (A)  produce not more than 5,000 gallons of waste
   1-36  each day; and
   1-37                    (B)  are used only for disposal of sewage
   1-38  produced on the site where the system is located.
   1-39        SECTION 2.  Section 366.014, Health and Safety Code, is
   1-40  amended to read as follows:
   1-41        Sec. 366.014.  Designated Representative.  (a)  The
   1-42  department or an authorized agent may designate a person to make
   1-43  percolation tests, systems designs, and inspections subject to the
   1-44  approval of the department or agent.
   1-45        (b)  To qualify as a designated representative, a person
   1-46  must:
   1-47              (1)  demonstrate to the department's or authorized
   1-48  agent's satisfaction the person's competency to make percolation
   1-49  tests, designs, and inspections for on-site sewage disposal systems
   1-50  in accordance with this chapter and rules adopted under this
   1-51  chapter; <and>
   1-52              (2)  successfully complete the training program
   1-53  provided by the department;
   1-54              (3)  successfully pass an examination provided by the
   1-55  department;
   1-56              (4)  receive written certification from the department;
   1-57  and
   1-58              (5)  pay a reasonable fee to the department for
   1-59  administration of this training and certification.
   1-60        SECTION 3.  Section 366.052, Health and Safety Code, is
   1-61  amended to read as follows:
   1-62        Sec. 366.052.  Permit Not Required for On-Site Sewage
   1-63  Disposal on Certain Single Residences.  (a)  Sections 366.051,
   1-64  366.053, 366.054, and 366.057 do not apply to an on-site sewage
   1-65  disposal system of a single residence that is located on a land
   1-66  tract that is 25 <10> acres or larger in which the field line or
   1-67  sewage disposal line is not closer than 100 feet of the property
   1-68  line.
    2-1        (b)  Effluent from the on-site sewage disposal system on a
    2-2  single residence:
    2-3              (1)  must be retained in the specified limits;
    2-4              (2)  may not create a nuisance; and
    2-5              (3)  may not pollute groundwater.
    2-6        SECTION 4.  Section 366.092, Health and Safety Code, is
    2-7  amended to read as follows:
    2-8        Sec. 366.092.  INJUNCTION OR CIVIL SUIT.  (a)  If it appears
    2-9  that a person has violated, is violating, or is threatening to
   2-10  violate any provision of this chapter or of any rule, permit, or
   2-11  other order of the commission issued pursuant to this chapter, the
   2-12  department may request the attorney general to bring a civil suit
   2-13  for:
   2-14              (1)  mandatory or prohibitory injunctive relief as
   2-15  warranted by the facts;
   2-16              (2)  a civil penalty as provided by this chapter; or
   2-17              (3)  both injunctive relief and civil penalty.
   2-18        (b)  Venue for an action under this chapter is in district
   2-19  court in Travis County, in the county in which the defendant
   2-20  resides, or in the county in which the violation or threat of
   2-21  violation occurs.  <The department or an authorized agent may bring
   2-22  suit for injunction to prevent or restrain a violation of this
   2-23  chapter.>
   2-24        SECTION 5.  Subchapter F, Chapter 366, Health and Safety
   2-25  Code, is amended by adding Sections 366.0921, 366.0922, 366.0923,
   2-26  and 366.0924 to read as follows:
   2-27        Sec. 366.0921.  CIVIL PENALTY.  A person who violates any
   2-28  provision of this chapter or any rule, permit, or order issued
   2-29  pursuant to this chapter is subject to a civil penalty of not less
   2-30  than $100 nor more than $5,000 for each act of violation and for
   2-31  each day of violation.
   2-32        Sec. 366.0922.  LOCAL ENFORCEMENT.  (a)  A local government
   2-33  may bring an enforcement action under Sections 366.092 and 366.0921
   2-34  in the same manner as the commission.  Civil penalties recovered in
   2-35  an enforcement action initiated by a local government shall be
   2-36  divided equally between the local government and the state.
   2-37        (b)  The commission is a necessary and indispensable party in
   2-38  any enforcement action brought by a local government.
   2-39        Sec. 366.0923.  FEES AND COSTS RECOVERABLE.  If the state or
   2-40  a local government prevails in a suit under this subchapter, it may
   2-41  recover reasonable attorney fees, court costs, and reasonable
   2-42  investigative costs incurred in relation to the proceeding.
   2-43        Sec. 366.0924.  ADMINISTRATIVE PENALTY.  (a)  If a person
   2-44  violates this chapter or a rule or order adopted or a permit issued
   2-45  under this chapter, the commission may assess a civil penalty
   2-46  against that person as provided by this section.
   2-47        (b)  A person who violates this chapter or a rule, order, or
   2-48  permit issued pursuant to this chapter is subject to an
   2-49  administrative penalty in an amount not to exceed $5,000 per day or
   2-50  per act of violation.  Each day a violation continues may be
   2-51  considered a separate offense for purposes of assessing a penalty.
   2-52        (c)  In determining the amount of the penalty, the commission
   2-53  shall consider:
   2-54              (1)  the circumstances surrounding the prohibited act,
   2-55  with special consideration of the threat to public health and the
   2-56  environment;
   2-57              (2)  the history of previous violations;
   2-58              (3)  the amount necessary to deter future violations;
   2-59              (4)  efforts to correct the violation; and
   2-60              (5)  any other matters that justice may require.
   2-61        (d)  If the executive director of the commission concludes
   2-62  that a violation has occurred, the executive director may issue a
   2-63  preliminary report:
   2-64              (1)  stating the facts that support the conclusion; and
   2-65              (2)  recommending that a civil penalty be assessed as
   2-66  described in this section.
   2-67        (e)  The executive director shall send a copy of the report
   2-68  to the person charged no later than the 10th day after the report
   2-69  was issued.  That notice shall include a statement that the person
   2-70  has the right to a hearing before the agency.
    3-1        (f)  No later than 20 days after the date on which the notice
    3-2  was received, the person charged may give written consent to the
    3-3  executive director's report or request a hearing.
    3-4        (g)  If the person charged with the violation consents to the
    3-5  penalty recommended by the executive director or does not timely
    3-6  respond to the notice, the commission shall assess the penalty by
    3-7  order or shall order a hearing to be held on the findings and
    3-8  recommendations in the executive director's report.  If the
    3-9  commission assesses the penalty, the commission shall give written
   3-10  notice to the person charged of its decision.
   3-11        (h)  The person assessed an administrative penalty shall pay
   3-12  the penalty not later than the 30th day after the date on which the
   3-13  commission order is final or file a petition for judicial review.
   3-14  If the person seeks judicial review, the person shall send the
   3-15  amount of the penalty to the commission for placement in escrow or
   3-16  post a bond with the commission in a form approved by the
   3-17  commission for the amount of the penalty, the bond to be effective
   3-18  until judicial review of the order is final.  A person who fails to
   3-19  comply with this subsection waives judicial review.
   3-20        (i)  The commission may request enforcement by the attorney
   3-21  general if any person fails to comply with an agency order.
   3-22        (j)  Judicial review of any agency administrative order
   3-23  issued under this section shall be under Section 19, Administrative
   3-24  Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
   3-25  Civil Statutes).
   3-26        (k)  An administrative penalty collected under this section
   3-27  shall be deposited in the state treasury to the credit of the
   3-28  general revenue fund.
   3-29        SECTION 6.  This Act takes effect September 1, 1993.
   3-30        SECTION 7.  The importance of this legislation and the
   3-31  crowded condition of the calendars in both houses create an
   3-32  emergency and an imperative public necessity that the
   3-33  constitutional rule requiring bills to be read on three several
   3-34  days in each house be suspended, and this rule is hereby suspended.
   3-35                               * * * * *
   3-36                                                         Austin,
   3-37  Texas
   3-38                                                         April 1, 1993
   3-39  Hon. Bob Bullock
   3-40  President of the Senate
   3-41  Sir:
   3-42  We, your Committee on Natural Resources to which was referred S.B.
   3-43  No. 1042, have had the same under consideration, and I am
   3-44  instructed to report it back to the Senate with the recommendation
   3-45  that it do pass and be printed.
   3-46                                                         Sims,
   3-47  Chairman
   3-48                               * * * * *
   3-49                               WITNESSES
   3-50                                                  FOR   AGAINST  ON
   3-51  ___________________________________________________________________
   3-52  Name:  James Kowis                                             x
   3-53  Representing:  Tx Water Commission
   3-54  City:  Austin
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