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.
1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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
1-47 (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
1-56 (4) receive written certification from the department;
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
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
2-14 (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
2-24 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
2-57 (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 * * * * *
3-38 April 1, 1993
3-39 Hon. Bob Bullock
3-40 President of the Senate
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.
3-48 * * * * *
3-50 FOR AGAINST ON
3-52 Name: James Kowis x
3-53 Representing: Tx Water Commission
3-54 City: Austin