The Texas Commission on Environmental Quality (commission) files this notice of intention to review and proposes the readoption of Chapter 70, Enforcement.

This review of Chapter 70 is proposed in accordance with the requirements of Texas Government Code, §2001.039, which requires state agencies to review and consider for readoption each of their rules every four years. The review must include an assessment of whether the reasons for the rules continue to exist.

CHAPTER SUMMARY

Chapter 70 provides for general rules governing enforcement actions before the commission and consists of three subchapters.

Subchapter A, Enforcement Generally, states the purpose of the chapter; defines terms used in the chapter; authorizes the use of enforcement guidelines that announce the manner in which the agency expects to exercise its discretion in future proceedings; authorizes the use of information demonstrating possible violations from private individuals and provides the criteria for evaluating the value and credibility of information received; describes the remedies available to the commission in enforcement actions; authorizes the executive director to institute legal proceedings to enforce and compel compliance; provides for exemption from enforcement violations caused solely by an act of God, war, strike, riot, or other catastrophe; states that a party asserting inability to pay a recommended penalty shall have the burden of establishing that a lesser penalty is justified; authorizes the use of installment payments of an administrative penalty; authorizes the use of agreed orders and requires certain procedures for public notice and comment; and requires that parties are given notice of rulings, orders, or decisions.

Subchapter B, Mandatory Enforcement Hearings, requires the executive director to monitor compliance with all permits and licenses issued by the commission and requires certain actions if the evidence available indicates substantial noncompliance.

Subchapter C, Enforcement Referrals to State Office of Administrative Hearings (SOAH), authorizes the use of an Executive Director's Preliminary Report to initiate enforcement action; spells out the procedures for pleadings other than the Executive Director's Preliminary Report; authorizes the executive director to file a petition as the instrument for initiating an enforcement action; requires the executive director to give written notice of the Executive Director's Preliminary Report to the respondent and spells out procedures; authorizes a respondent to file with the chief clerk a written response to the Executive Director's Preliminary Report or a pleading which may deny the alleged violations and/or the amount of the penalty; authorizes the use of and spells out the procedures for default orders if any respondent to an Executive Director's Preliminary Report or petition initiating an enforcement action fails to timely file an answer; requires that, if required by law, an enforcement hearing shall be held before any final enforcement order is issued and, if an enforcement hearing is not required, authorizes the commission to hold a hearing on its own motion, or upon the request of the executive director, before issuing a final enforcement order or to direct SOAH to hold such a hearing; provides that in a contested enforcement case, unless the commission chooses to hear the case itself, SOAH shall have the delegated authority to preside over the case; and spells out the procedures for referring to SOAH.

PRELIMINARY ASSESSMENT OF WHETHER THE REASONS FOR THE RULES CONTINUE TO EXIST

The commission conducted a preliminary review and determined that the basis for the rules in Chapter 70 continue to exist. The rules are needed to implement the commission's enforcement authority under Texas Water Code (TWC), §7.002 to enforce the laws within the commission's jurisdiction. The commission is required to adopt rules necessary to carry out its powers and duties under the TWC and other laws of the state, and to adopt reasonable procedural rules to be followed in a commission hearing (TWC, §5.103). The commission is required to adopt rules of practice stating the nature of all available formal and informal procedures (Texas Government Code, §2001.004). The rules also authorize the executive director to pursue an enforcement matter through court action (by referring the matter to the Texas Attorney General), as is contemplated in TWC, §5.230.

This review revealed that revisions are needed to improve clarity, consistency, and readability. The commission intends to consider correction of these items in a separate rulemaking (Rule Log Number 2002-063-070-AD).

PUBLIC COMMENT

This proposal is limited to the review in accordance with the requirements of Texas Government Code, §2001.039. The commission invites public comment on this preliminary review of the rules in Chapter 70. Comments may be submitted to Patricia Durón, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 2002-023-070-AD. Comments must be received in writing by 5:00 p.m., February 10, 2002. For further information or questions concerning this proposal, please contact Richard O'Connell, Litigation Division, at (512) 239-5528; or Debra Barber, Policy and Regulations Division, at (512) 239-0412.

TRD-200208573

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: December 30, 2002

The Texas Commission on Environmental Quality (commission) files this notice of intention to review and proposes the readoption of Chapter 285, On-Site Sewage Facilities.

This review of Chapter 285 is proposed in accordance with the requirements of Texas Government Code, §2001.039, which requires state agencies to review and consider for readoption each of their rules every four years. The review must include an assessment of whether the reasons for the rules continue to exist.

CHAPTER SUMMARY

Chapter 285 provides the requirements for on-site sewage facilities (OSSF). Subchapter A contains the general provisions of the rules including purpose and applicability, definitions, general requirements, facility planning requirements, submittal requirements for planning materials, cluster systems requirements, maintenance requirements, and multiple OSSF systems on one large tract of land requirements. Subchapter B includes the requirements for the local administration of the OSSF program. Subchapter C includes the requirements for the commission's administration of the OSSF program in areas where no authorized agent exists. Subchapter D contains the planning, construction, and installation standards for OSSFs. Subchapter E contains the requirements for OSSFs in the Edwards Aquifer recharge zone. Subchapter F contains the licensing and registration requirements for installers, apprentices, designated representatives, and site evaluators. Subchapter G contains the criteria for enforcement. Subchapter H contains the requirements for treatment and disposal of greywater. Subchapter I contains the Appendices.

PRELIMINARY ASSESSMENT OF WHETHER THE REASONS FOR THE RULES CONTINUE TO EXIST

The commission conducted a preliminary review and determined that the reasons for the rules in Chapter 285 continue to exist. The rules in this chapter protect the public health and welfare by providing a comprehensive regulatory program for the management of OSSFs, as prescribed by Texas Health and Safety Code (THSC), Chapter 366, On-Site Sewage Disposal Systems. Additionally, the rules are needed to implement THSC, Chapter 366, including THSC, §366.001, which provides the policy and purpose of Chapter 366; THSC, §366.011, which provides for the commission's general supervision and authority over the location, design, construction, installation, and proper functioning of the OSSF; THSC, §366.012, which provides the commission authority to adopt rules concerning on-site sewage disposal systems; THSC, §366.053, which provides the commission authority to adopt rules and procedures relating to the submission, review, and approval or rejection of permit applications; THSC, §366.058, which requires the commission to adopt rules addressing permit fees; THSC, §366.059, as amended by House Bill 2912, §3.09, 77th Legislature, 2001, which allows the commission to assess a reasonable and appropriate charge-back fee; and THSC, §366.072, which provides the authority for the commission to adopt rules for registration.

PUBLIC COMMENT

This proposal is limited to the review in accordance with the requirements of Texas Government Code, §2001.039. The commission invites public comment on this preliminary review of the rules in Chapter 285. Comments may be submitted to Joyce Spencer, Office of Environmental Policy, Analysis, and Assessment, MC 205, P.O. Box 13087, Austin, Texas 78711-3087 or faxed to (512) 239-4808. All comments should reference Rule Log Number 2002-025-285-WT. Comments must be received in writing by 5:00 p.m., February 10, 2003. For further information or questions concerning this proposal, please contact Kathy Ramirez, Policy and Regulations Division, at (512) 239-6757.

TRD-200208570

Stephanie Bergeron

Director, Environmental Law Division

Texas Commission on Environmental Quality

Filed: December 30, 2002