Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
December 17,200l
The Honorable Rick Berry Opinion No. JC-0440
Harrison County Criminal District Attorney
P.O. Box 776 Re: Whether a Texas Natural Resource
Marshall, Texas 7567 1 Conservation Commission rule requiring
owners of surface-irrigation on-site sewage
facilities to have ongoing maintenance
contracts is authorized (RQ-0400-JC)
Dear Mr. Berry:
You ask whether the Texas Natural Resource Conservation Commission (“TNRCC”) is
authorized to promulgate a rule requiring owners of certain on-site sewage facilities to have ongoing
maintenance contracts. You also ask whether this rule violates the Due Process Clause or Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution. We conclude that
the rule is a valid exercise of TNRCC’s statutory authority under chapter 366 of the Health and .
Safety Code and that the rule does not deny substantive due process or equal protection.
Chapter 366 of the Health and Safety Code regulates the installation and maintenance of
“on-site sewage disposal systems,” sewage treatment devices or disposal facilities that produce a
limited amount of waste each day and that “are used only for disposal of sewage produced on a site
on which any part of the system is located.” TEX.HEALTH & SAFETY CODE ANN. 8 366.002(7)
(Vernon 2001) (defining “on-site sewage disposal system”). In the rules you ask about, the TNRCC
refers to these systems as “on-site sewage facilities” or “OSSFs,” see 30 TEX. ADMIN. CODE 8
285.2(45), (46) (2001), and we will use that term in this opinion.
The TNRCC is charged with administering chapter 366, with adopting implementing rules,
and with designating local governments as “authorized agents” to assist the TNRCC with enforcing
the chapter and rules. See TEX. HEALTH & SAFETY CODE ANN. @j 366.002( 1) (defining “authorized
agent”), .012 (TNRCC rule-making authority), .03 l-.036 (designation of authorized agents) (Vernon
2001). The TNRCC has promulgated rules implementing chapter 366 in chapter 285 of title 30 of
the Texas Administrative Code. You ask about section 285.7, which establishes special
requirements for OSSFs using surface irrigation as a disposal method. See 30 TEX. ADMIN. CODE
8 285.7 (2001). A ccording to the TNRCC, whereas some types of OSSF systems dispose of effluent
into the subsurface where there is little likelihood that it will come into contact with humans or
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groundwater, surface-irrigation systems dispose of effluent on the surface.’ Because “there is a
much higher risk that humans will contact effluent that is disposed of through surface irrigation,”
surface-irrigation systems must disinfect effluent and treat it to a higher quality than most subsurface
systems. See TNRCC Brief, note 1, at l-2.
Section 285.7 conditions issuance of a final permit for a surface-irrigation system on an
“initial maintenance contract [that] must be valid for a minimum of two years,” 30 TEX. ADMIN.
CODE $j 285.7(d) (2001), and also mandates that “[olngoing maintenance shall be provided by a
maintenance company,” id. 8 285.7(f), re q uiring the OSSF owner to submit to the permitting
authority a copy of a new contract at least thirty days prior to the expiration of the previous contract,
see id. 5 285.7(f)(l). In addition, if either the OSSF owner or the maintenance company decides to
terminate the maintenance contract, the rule requires the maintenance company to notify the
permitting authority at least thirty days prior to the date service will cease. See id. 5 285.7(f)(2).
Finally, if the maintenance company discontinues business, the OSSF owner is required to contract
with another company and provide the permitting authority with a copy of the new contract within
thirty days of the termination date. See id. 8 285.7(f)(3).
We note that the TNRCC adopted amendments to chapter 285 on June 8, 2001, which
became effective shortly before you submitted your query. See 26 Tex. Reg. 4115 (2001) (to be
codified at 30 TEX. ADMIN. CODE ch. 285 (2002)). The amendments revise section 285.7, but
requirements for ongoing maintenance contracts for surface-irrigation systems remain substantially
the same. Compare 30 TEX. ADMIN. CODE $8 285.7,285.91(12) (2001), with 26 Tex. Reg. 4115,
4134,4181-83(tobecodifiedat30T``.AD``.C0````285.7,285.91(12)(2002)(asadoptedJune
8, 2001, effective June 13, 2001)); see also TNRCC Brief, note 1, at 1 (“On [June 8,] 2001, the
TNRCC adopted amendments to the 1997 rules. The requirements for an ongoing maintenance
contract remain the same.“).
You inform us that approximately 1,200 residents of Harrison County have received notices
from the Harrison County Health Department, acting as an authorized agent under chapter 366 of
the Health and Safety Code, “threatening them with criminal charges for failure to have on file
maintenance contracts . . . as required under the rule stated at” 30 TEX. ADMIN. CODE 285.7 (2001).2
Your office is charged with the prosecution of criminal offenses in Harrison County. See Request
Letter, note 2, at 2. You are concerned that the ongoing-maintenance-contract requirement in section
285.7 exceeds TNRCC’s statutory authority and that it violates the Due Process Clause and the
Equal Protection Clause. We address each of these concerns in turn.
First, we address the TNRCC’s authority to adopt a rule requiring owners of surface-
‘See Brief from Kathy H. Brown, Staff Attorney, Environmental Law Division, Texas Natural Resource
Conservation Commission, at 2 (Sept. 5, 2001) (on file with Opinion Committee) [hereinafter TNRCC Brief].
*Letter from Honorable Rick Berry, Harrison County Criminal District Attorney, to Susan Gusky, Chair,
Opinion Committee, Office of the Attorney General, at l-2 (July 6,200 1) (on file with Opinion Committee) [hereinafter
Request Letter].
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irrigation on-site sewage facilities to have ongoing maintenance contracts. In reviewing the rule, we
are guided by the maxim that “[a]n agency can adopt only such rules as are authorized by and
consistent with its statutory authority.” R.R. Comm ‘n v. Arco Oil & Gas Co., 876 S.W.2d 473,48 1
(Tex. App.-Austin 1994, writ denied). The critical factor in determining whether an administrative
agency has exceeded its rule-making authority is whether the rule’s provisions are in harmony with
the general objectives of the statute involved. See Edgewood Indep. Sch. Dist. v. Meno, 9 17 S. W.2d
717,750 (Tex. 1995); R.R. Comm ‘n v. Lone Star Gas Co., 844 S.W.2d 679,685 (Tex. 1992). An
agency rule may not impose additional burdens, conditions, or restrictions in excess of or
inconsistent with the relevant statutory provisions. See Arco Oil & Gas, 876 S.W.2d at 48 1; Tex.
Att’y Gen. Op. No. JC-0020 (1999) (concluding that TNRCC rules requiring certification of persons
who engage in site evaluation were invalid because they imposed burdens not provided for by Health
and Safety Code chapter 366). Applying this standard, we conclude that the TNRCC rule requiring
an owner of a surface-irrigation OSSF to have a maintenance contract in force on an ongoing basis
does not exceed the TNRCC’s statutory authority.
The purpose of chapter 366 is to “eliminate and prevent health hazards by regulating and
properly planning the location, design, construction, installation, operation, and maintenance of
on-site sewage disposal systems.” TEX.HEALTH&SAFETYCODEANN. 5 366.001(l) (Vemon2001).
The TNRCC and its authorized agents:
(1) have general authority over the location, design,
construction, installation, and proper functioning of on-site sewage
disposal systems; and
(2) shall administer this chapter and the rules adopted under
this chapter.
Id. 5 366.011. The TNRCC has express rule-making authority under section 366.012; an authorized
agent operates on the basis of a resolution or order approved by the TNRCC, which must incorporate
the TNRCC’s rules but which may provide for greater protection of health and safety. See id.
55 366.012, .032. A person may not “construct, alter, repair, or extend, or cause to be constructed,
altered, repaired, or extended,” an OSSF “that does not comply with [chapter 3661 and applicable
rules.” Id. § 366.004.
A person who violates chapter 366 or a commission rule under chapter 366 is subject to civil
penalties, an action for injunctive relief, or both. Id. 5 366.092; see also id. fj 366.001(3) (purpose
of chapter 366 includes authorizing “the commission or authorized agent to impose a penalty for a
violation of this chapter or a rule adopted under this chapter”). In addition, chapter 7 of the Water
Code, which generally authorizes the TNRCC to initiate enforcement actions, establishes criminal
penalties for violations of chapter 366 and rules adopted under chapter 366. See TEX. WATER CODE
ANN. $8 7.172, .173, .174 (Vernon 2000).
With respect to permits, section 366.05 1 of the Health and Safety Code provides that a
person must hold a permit and an approved plan “to construct, alter, repair, extend, or operate an on-
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site sewage disposal system.” TEX. HEALTH & SAFETY CODE ANN. 5 366.05 1(a) (Vernon 2001). If
the OSSF is located in the jurisdiction of an authorized agent, the authorized agent issues the permit;
if the OSSF is located in an area that is not within the jurisdiction of an authorized agent, the
TNRCC issues the permit. See id. 8 366.051(b).
With one exception noted below, section 366.05 15 provides that an authorized agent by order
or the TNRCC by rule “may condition approval of a permit for an on-site sewage disposal system
on the system’s owner contracting for the maintenance of the system.” Id. 5 366.0515(b). If a
maintenance contract is required, the owner of the OSSF must submit to the permitting authority
(either the authorized agent or the TNRCC) “a signed contract for the maintenance” of the system
and, in a county with population over 2.8 million, a performance bond from the person contracting
to perform the maintenance. See id. 8 366.05 15(b)(l), (2). This section also provides that:
If the owner of the on-site sewage disposal system enters into
a new maintenance contract or revises the original maintenance
contract, the owner must submit a copy of the new or revised
maintenance contract and a new performance bond to the permitting
authority not later than the 30th day after the date on which the
original contract terminates or is modified.
Id. fj 366.0515(d).
Section 366.05 15 provides in subsection (a) that neither an authorized agent nor the TNRCC
may require a maintenance contract for an OSSF “using aerobic treatment for a single-family
residence located in a county with a population of less than 40,000.” Id. § 366.05 15(a). The
TNRCC rules include this statutory exception. See 30 TEX. ADMIN. CODE § 285.8(b), (c) (2001); 26
Tex. Reg. 4115,4134 (adopted June 8,200l) (to be codified at 30 TEX. ADMIN. CODE 8 285.7(c)(4)
(2002)). As Harrison County’s population exceeds 40,000, that exception is not relevant here. See
I BUREAU OF THE CENSUS, U.S. DEP’T OF COMMERCE, 1990 CENSUS OF POPULATION: General
Population Characteristics: Texas 2 (1992) (the population of Harrison County is 57,483) (62,110
according to 2000 census, available at http://www.census.gov).
We conclude that the TNRCC rule requiring ongoing maintenance contracts for surface-
irrigation systems is expressly authorized by chapter 366, particularly section 366.0515. Section
366.05 15 expressly permits the TNRCC “by rule” to “condition approval of a permit for an on-site
sewage disposal system on the system’s owner contracting for the maintenance of the system.” TEX.
HEALTH & SAFETY CODE ANN. 8 366.0515(b) (Vernon 2001). If the TNRCC promulgates such a
requirement, section 366.05 15 expressly requires the owner of an OSSF for which a maintenance
contract is required to submit a copy of a new or revised maintenance contract to the permitting
authority. See id. 9 366.0515(d). Thus, the regulatory contract requirement does not impose an
additional burden not provided by chapter 366.
You contend that section 366.05 15 does not require an OSSF owner “to renew an expired
contract,” suggesting that while the statute requires an owner to submit any new or revised
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maintenance contract to the permitting authority, it does not actually require the owner to obtain such
a contract. See Request Letter, supra note 2, at 3. We disagree. Section 366.05 1 requires a person
to hold a permit not only to construct an OSSF, but also to operate one. See TEX. HEALTH & SAFETY
CODE ANN. 5 366.051(a) (Vernon 2001) (person must hold a permit and an approved plan “to
construct, alter, repair, extend, or operate an on-site sewage disposal system”) (emphasis added).
Section 366.05 15 expressly allows the TNRCC by rule to condition approval of a permit to construct
an OSSF not only on the plans to construct it but also on manner in which the owner will operate
it. See id. 5 366.05 15(b) (the TNRCC “by rule may condition approval of a permit for an on-site
sewage disposal system on the system’s owner contracting for the maintenance of the system”).
Under chapter 366, the TNRCC’s permitting authority extends not just to the construction and initial
operation of an OSSF but also to its ongoing operation. See id. $9 366.051, .05 15; see also id. 5
366.011(l) (the TNRCC has “general authority over the location, design, construction, installation,
andproperfunctioning of on-site sewage disposal systems”) (emphasis added). The TNRCC rule
requiring an OSSF owner to have an ongoing maintenance contract and to submit new or revised
contracts to the permitting authority is entirely consistent with this statutory scheme.
We note that the TNRCC first adopted section 285.7 to be effective February 5, 1997. See
22 Tex. Reg. 1114 (1997). Section 366.05 15 of the Health and Safety Code was enacted by the
Seventy-fifth Legislature during the 1997 legislative session and did not become effective until
September 1,1997. See Act of May 27,1997,75th Leg., R.S., ch. 1127,1997 Tex. Gen. Laws 4278.
Although there may have been some question whether the rule exceeded TNRCC’s authority at the
time it was adopted in early 1997, see, e.g., TEX. GOV’T CODE ANN. 5 2001.006 (Vernon 2000)
(Administrative Procedure Act provision governing rule-making steps a state agency may take prior
to a statute’s effective date), we do not reach this issue. Given that the requirement for ongoing
maintenance contracts has been readopted in the most recent TNRCC amendments to chapter 285,
this would appear to be a moot question. See 26 Tex. Reg. 4115, 4134 (2001) (adopted June 8,
2001) (to be codified at 30 TEX. ADMIN. CODE 8 285.7 (2002)).
We also note that section 366.05 15(d) provides that if an OSSF owner enters into a new or
revised maintenance contract, the owner must submit a copy of the new contract to the permitting
authority “not later than the 30th day after the date on which the original contract terminates or is
modified.” TEX. HEALTH & SAFETY CODE ANN. 366.0515(d) (Vernon 2001). By contrast, the
TNRCC rule requires OSSF owners to submit new contracts to the permitting authority “at least 30
days prior to expiration of the previous contract.” 30 TEX. ADMIN. CODE 9 285.7(f)(l) (2001). If
the maintenance company discontinues business, however, the owner must provide the permitting
authority with a copy of a new contract “within 30 days of the termination date.” Id. 5 285.7(f)(3).
The requirements of the new rule are substantially similar. See 26 Tex. Reg. 4115,4134 (adopted
June 8,200l) (to be codified at 30 TEX.ADMIN. CODE 9 285.7(c)(2), (3)(D) (2002)). You do not ask
about these differences between the statute and the rule and we do not address them, except to note
that they do not affect our conclusion that requiring ongoing maintenance contracts for surface-
irrigation systems is consistent with the TNRCC’s statutory authority.
Next, we address your constitutional concerns. You believe that if chapter 366 authorizes
the rule requiring ongoing maintenance contracts, then chapter 366 violates the Due Process Clause
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of the Fourteenth Amendment to the United States Constitution because the existence of a
maintenance contract does not bear a rational relationship to the statute’s goal of protecting public
health. See Request Letter, supra note 2, at 5 (citing Harper v. Lindsay, 616 F.2d 849 (5th Cir.
1980) for the proposition that due process requires that state’s police power “must bear a rational
relation to a legitimate state end”). You contend that “[tlhe signing of a contract does not ensure that
raw sewage will not be released into the water supply.” Id. You also believe that if chapter 366
authorizes the rule requiring ongoing maintenance contracts, then chapter 366 violates the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution because, you
assert, the rule treats single family and cluster OSSFs differently and that there is no reasonable basis
for the classification. See id. at 5-6.
Courts review statutes regulating land-use that are challenged on substantive due process or
equal protection grounds under the “rational-relationship” standard. See Mayhew v. Town of
Sunnyvale, 964 S.W.2d 922,938-39 (Tex. 1998); Barshop v. Medina County Underground Water
Conservation Dist., 925 S.W.2d 618, 631-32 (Tex. 1996). To survive these constitutional
challenges, the statute need only be “rationally related” to a legitimate state interest. See Mayhew
964 S.W.2d at 938-39; Barshop, 925 S.W.2d at 631-32. The standard ofreview is elevated to “strict
scrutiny” only if the statute (1) limits a fundamental, constitutionally secured right, or (2) implicates
a suspect class. See Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 559 (Tex. 1985);
R Communications, Inc. v. Sharp, 839 S.W.2d 947, 95 1 (Tex. App.-Austin 1992), rev’d on other
grounds, 875 S.W.2d 314 (Tex. 1994).
You have not indicated that strict scrutiny would apply here, and we are not aware of any
basis for applying the higher standard of review. The purpose of chapter 366 and the ongoing
maintenance contract requirement is the protection of public health and safety, a legitimate state
interest. See TEX. HEALTH& SAFETYCODEANN. 5 366.001 (Vernon 2001) (purpose of chapter 366
is to prevent health hazards by regulating construction and maintenance of OSSFs); 30 TEX ADMIN.
CODE 8 285.1 (2001) (OSSFs regulated to minimize transmission of disease and contamination of
drinking water, surface and groundwater); City of Austin v. Quick, 7 S.W.3d 109, 119 (Tex. 1998)
(recognizing that protection of water quality is a legitimate government interest); Barshop, 925
S.W.2d at 632 (preserving and conserving water and other natural resources is a legitimate state
interest); Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625,634-35 (Tex. App.-Houston [ 14th
Dist] 1997, pet. denied) (upholding city ordinance prohibiting drilling in the area of its watershed
to protect the city water supply against equal protection and substantive due process challenges
because “[mleasures to prevent contamination of Lake Houston caused by drilling for oil and gas
in the area of its watershed are rationally related to the legitimate goal of protecting the City’s water
supply from pollution”). Applying the rational-relationship test, we have no doubt that a court
would conclude that requiring ongoing maintenance contracts for surface-irrigation systems is
rationally related to protecting public health and safety. See HeZZerv. Doe, 509 U.S. 3 12,320 (1993)
(“A statute is presumed constitutional and ‘the burden is on the one attacking the legislative
arrangement to negative every conceivable basis which might support it’. . . [C]ourts are compelled
under rational-basis review to accept a legislature’s generalizations even when there is an imperfect
fit between means and ends. A classification does not fail rational-basis review because ‘it is not
made with mathematical nicety.“‘) (citations omitted); Lens Express, Inc. v. Ewald, 907 S.W.2d 64,
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69 (Tex. App.-Austin 1995, no writ) (“Under the rational-relationship test, the law ‘must be upheld
. . . if there is any reasonably conceivable state of facts that could provide a rational basis for the
classification.“‘) (citation omitted). Finally, we note that there is a dispute between the requestor
and the TNRCC regarding whether the rules treat single-family and cluster systems differently with
regard to the maintenance-contract requirement.3 We believe, however, that the requestor would
have great difficulty demonstrating that such a classification, if it exists, has no conceivable rational
basis. See id.
3See generally TNRCC Brief, supra note 1; Brief from Al Davis, Assistant Criminal District Attorney of
Harrison County, to Susan Gusky, Chair, Opinion Committee (Oct. 2,200l) (on file with Opinion Committee).
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SUMMARY
A Texas Natural Resource Conservation Commission rule
requiring owners of surface-irrigation on-site sewage facilities to have
ongoing maintenance contracts does not exceed the Commission’s
statutory authority. Neither the rule nor the statutory provisions
authorizing it violate federal due process or equal protection
guarantees.
ey General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee