December 28, 1990

Robert Bernstein,M.D. OpinionNo. JR-1278 Commissioner Texas Department of Health Re: Registration of installers 1100West 49th Street of on-site sewage disposal Austin, Texas 78756-3199 systems, and related questions under chapter **366** of the Health and Safety Code (RQ-2037)

Dear Dr. Bernstein:

you ask three questions concerning state and local regulation of installersof on-site sewagedisposal systems1 under chapter 366 of the Health and Safety Code. Chapter 366 codifies article 4477-7e, V.T.C.S.,which was repealed effective September 1, 1989,the date the Health and Safety .Codetook effect. Acts 1989, 71st Leg., ch. 678, § 13, at 3165.

Since your second question is narrower than your first,
we will address it first. you askwhether an "authorized agent" as defined in chapter 366may require installers to meet more stringent registration standards than those requiredby the Texas Departmentof Health [the "department"] pursuant to section 366.073. The registration of

1. On-site sewage disposal systems for purposes of chapter 366 are treatmentdevices and disposal facilities that produce notmore than 5,000gallons of waste each day,
are used only fordisposal of sewageproduced on site, and
are not regulated by the Texas Water Commission. Id.
**S 366.002(B).**  For themost part, these systems are septic tank systems, aerobic treatment plants and other treatment devices used by homeowners and small businesses. m generallv Tex. Engineering ExtensiontServ:c;,toTyi4 A z ; Univ. System,Qn-Site **Seweraae Facili**  **ies -**  **to 6-12**  (July1989). Installersare personswho **are** chmpensatedby others to construct., install, alter or repair on-site sewage disposal systems. Health & Safety Code
**5 366.002(5).** 

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installers is covered **by** subchapterE of chapter 366. It provides that no personmay operate as an installer in Texas unless registeredby the department or an authorized agent. Health & Safety Code 8 366.071. Section 366.073(a) requires the department to issue or authorize the issuance of installerregistrations. Section 366.073(b)provides that the department shall issue a registrationto an installer if he completesboth an application in compliancewith chapter 366 and the trainingprogramprovidedby the department.

"Authorizedagents" are local governmental entities designated by the department to implement and enforce chapter 366 and the rules adopted by the Texas Board of Health under chapter 366. Health & Safety Code 5 366.002(l); gee also iB, 5 366.033. For purposes of chapter 366, the phrase "localgovernmentalentities" refers to municipalities, counties,river authorities or special districts. & 0 366.002(6). According to section 366.011, either the department or an authorized agent has "general authority over the location,design, construction, installation, and proper functioningof on-site sewage disposal systems." Neither subchapterE nor any other provision in chapter 366 or itspredecessor,article 4477-7e, states that state registration in accordance with chapter 366 ' exclusive .orthat authorized agentsmay not impose rnoi: stringent installerregistrationstandards or require state registered installersto register locally. In fact, the one reference in chapter 366 describingdepartmental registration of installersas "statewide" does not indicate any legislative intent to prohibitmore stringent local regulation of installers. a ia, 0 366.077(a) (permitting an authorizedagent as well as the department to revoke an installer's "statewideregistration" forviolating chapter 366 or rules adopted under the chapter).
Subchapter C of chapter 366 requires a local governmental entity desiring designationas an authorized agent to hold a public hearing and adopt an order or resolution satisfying certain statutory requirements so that it rather than the departmentmay exercise the general authority provided by section 366.011. Health 6 Safety Code SS 366.031-.032. Designation takes effect when the department approves the order or resolution in writing. L S 366.031(b).

The order or resolution must satisfy the departmentIs minimum requirements for on-site sewagedisposal systems and include a written enforcement plan. Ig, S 366.032(a); - &EQ j,& S 366.034(b)'(revocation of an authorized agent's designation if it does not consistentlyenforce the minimum requirements). More stringent requirementsare permissible,

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however, in accordance with section 366.032(b) which provides:

If the order or resolutionadoptsmore stringent standards for on-site sewage disposal systems than this chapter or the department's standards and provides greaterpublic health and safetyprotection, the authorized agent's order or resolution prevails over this chapter or the standards.

We conclude the legislature intended section 366.032(b) to authorize any governmental entity that is an authorized agent to adopt more stringent standards and for such standards to prevail after their adoption. Our construction is consistent with the language of article 4477-7e, from which section 366.032(b)was derived, and with the testimony presented to the legislature in 1987 on behalf of House Bill 1875, the bill that enacted article 4477-7e.

Section 366.032(b)modifies and combines language from sections 5(c) and 13 of article 4477-76, V.T.C.S. Acts 1987, 70th Leg., ch. 406, at 1935, 1938. Section 5(c) stated "[t]he order or resolutionmay adoptmore stringent standards for on-site sewage disposal systems than the department's standards." L at 1935. Section 13 stated:

A local governmental.entity's orders and rules that are more stringent than this article or rules adoptedunder this article and that provide greater protection to the public health or safetyprevail in the local governmental entity's jurisdiction.

J,& at 1938. The language in section 5(c) that an "order or resolutionmay adopt more stringent standards for on-site sewagedisposal systems" clearly constitutes authority for any governmental entitywho is an authorized agent to adopt
more stringent standards,and we conclude that the modification of this language from section 5(c) and its combination with language from section 13was not intended to make
a change in the law.2

2. Repeal of these and other sections of article 4477-7e and enactment of chapter 366 was part of a nonsubstantivecodificationof existinghealth and safety laws and thus was not intendedto make substantive legal changes. (FootnoteContinued)

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Furthermore, the testimony offered in 1987 on behalf of House Bill 1875 supports our conclusion that the legislature intended counties and other local entities to have the power to adoptmore stringent standards. Several speakers at a public hearing held in 1987 on House Bill 1875 referred to the bill as a means of implementing minimum standards statewide. Those speakers stated thatminimum state standards would discourage incompetent installers from moving from counties that currently regulated sewage disposal systems and installers to counties without such regulations.3 They also testified that the adoption of minimum state standards in conjunctionwith a grant of authority to authorized agents to collect permit fees, 5ee Health & Safety Code S 366.059, would encourageadditional counties to regulate sewage disposal systems locally and thereby avoid departmental regulationwithin their jurisdictions. No mention was made of any intentto restrictmore stringent

(FootnoteContinued) Acts 1989, 71st Leg., ch. 678, g 14, at 3165 (legislation adopting the Health and Safety Code intended as recodification only: no substantive change intended);
see alSp -on **V.** itv of Fort ,Worth,774 S.W.2d 653, 654-55 (Tex.1989) (withregard to nonsubstantive revisions of statutory law, former statutes control over codified language in cases of conflict):Attorney General Opinion JM-1230 (1990).

3. In 1987 sections 26.031 and 26.032 of the Water Code authorized county commissioners courts to regulate private sewage facilities within their jurisdictions. Testimony at the publichearing indicated that between 70 and 110 countieswere regulating sewage facilitiesand their installers locally. winas on Tex. H.B. 1875 Before the Hou e Comm. on NaturalResources, 70th Leg. (March25, 1987) (teztimoniesof Larry Soward and R.J. King) (tapeson file with House Technical Services). House Bill 1875 repealed sections 26.031 and 26.032 effective September 1, 1989, the date that the bill required the rules to be adopted by the state under article 4477-7e to take effect. Acts 1987, 70th Leg., ch. 406, SS 2-3, at 1938. Given the current language of section 366.032(b) of the Health and Safety Code, the prior language of section 5(c), and the public testimony statingminimum state standardswere needed for counties not regulating sewage disposal facilities, the repeal of sections 26.031 and 26.032does not indicateany intent to deprive counties of their authority to regulate on-site sewage disposal facilities more stringently than the department.

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local regulation or deprive entities such as counties that
were currently regulating sewage facilities or their installersof their power to do so. See. e.a,, -inas on Tex. H.B. 1875 Before the House Co- on Natural Resources, 70th Leg. (March25, 1987) (testimoniesof Mark Hoelscher, Larry Soward,Jack Purcell,R.J. King, representatives of various state and local entities) (tapes available from House Technical Services).4

The department'sbrief filed with us states that section 366.032(b)of the Health and Safety Code does permit authorized agents to adoptmore stringent standards. The brief, however, concludes that authorizedagentsmay adopt
more stringent standards onlywith regard to on-site sewage disposal systems and notmore stringent standards'for the registration of installerswho hold state registrations, We disagreewith this conclusion.

Section 5(c) does expressly refer only to "more stringent standards for on-site sewagedisposal systems" and does not contain express language referring to more stringent standards for installerregistrations. Nevertheless, the language of section 366.032(b)permitting authorized agents in their **orders** or resolutions to adoptmore stringent standards for on-site sewagedisposal systems implies the powers necessary to carry out the grant of the express power. Terre11 v. Saark& 135 S.W. 519, 521 (Tex.1911); Austin Boad Co. v. Rvg~~g,499 S.W.2d 194, 203 (Tex. Civ. App. - Fort Worth 1973, writ refrd n.r.e.); 67 Tex. Jur. 3d Statutes 0 118, at 701-02 (grantof expresspower conveys every incidentalpower necessary and proper to effectuate legislativegrant). As stated earlier, no provision of chapter 366 or its predecessor,article 4477-7e, states that state registration is exclusive or that localitiesmay not imposemore stringentregistrationrequirements.5 Thus, an

4. See also House Research Organization Daily Floor Report - Pt. Two on C.S.H.B. 1875 at 47 (May6, 1987) (local governmentmay adopt more stringent standards than the department).

5. One speaker testifyingat the 1987public hearing
on House Bill 1875 stated that the bill would not prevent a local entity from imposingmore stringent standards if it wanted to license installers and require some additional training. That speakerhad participated in the Texas Rural Water Quality Task Forcewhose work resulted in House Bill **(Footnote** Continued)

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authorized agent who adopts more stringent standards for on-site sewagedisposal systems in its order or resolution pursuant to section 366.032(b)may adopt more stringent standards for local registrationof installers if those standards are necessary to ensure that local installerswill satisfy the agent's more standards.6 stringent disposal system

We now turn to your first question. you ask if local governmental entities, whether or not designated as authorized agents,may impose certain specific requirements
on installerswho hold state registrations. you describe the requirementsas "paying fees,attending training courses, posting suretybonds, or obtaining licenses or registrations." The department's brief contends that chapter 366 preempts all local regulationnot in conformancewith its provisions. You have not provided us with the texts of any existing local orders, resolutions or ordinances adopting such requirements. You also have not indicated either the type of entity imposing the requirements or the legal authority reliedupon to impose specific local requirements. Accordingly,we answeryour question only generally.

We address this question firstwith regard to local governmental entities that have been designated as authorized agents and that possess the power to regulate on-site sewagedisposal systems only under chapter 366. Consistent with our first answer, authorizedagents that have adopted in their orders or resolutions **more** stringent standards for on-site sewage disposal systemspursuant to section 366.032 may adopt additionalregulatory requirementsnecessary to achieve thosemore stringent standardsas long as the additional requirementsdo not directly conflictwith chapter 366! Consequently, to be valid, requirements for local fees

,, 1 training, bonds, licenses, or registrations must
ensure compliancewith the more stringent standards adopted

(FootnoteContinued) i875. winas on Tex. H.B. 1875, sunra (testimonyof R.J. King, speaking on behalf of the Texas Department of Agriculture).

6. An agent's more stringent system or installer standardsmust not directly conflictwith the department's minimum standards. &8 infra Note 7 and accompanying text; gee al **Q** Attorney General Opinion JW-790 (1987) (local regulationpreempted if in direct conflict with state law that does not exclusivelyoccupy the field).

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by authorized agents for sewage disposal systems within their jurisdictions.

We next turn to local governmental entities that possess statutory or other legal authority outside of chapter 366 to regulate on-site sewagedisposal systems and theirpotential threat to the environmentand public health. These entitiesmay ormay not be designated as authorized agents. Local regulationsare preemptedby state law only if the regulationsare expresslyprohibitedby state law, if the legislature intended state law to exclusively occupy the field,or if the regulationsdirectly conflictwith state law. &.8 Attorney General OpinionsJW-790, 374-619(1987).

As we previously stated,we do not find in chapter 366
or in itspredecessor, article 4477-7e,any expressprohibition against local regulations that reflect local soil and water conditions as well as local public health concerns. m Attorney General OpinionJW-1195 (1990) (express statutoryprovision that local licensesnot required) with Attorney General OpinionJW-994 (1988) (noexpress prohibition in Controlled Substances Act on local regulation of abusableglues). Furthermore, the legislature expressly repealed only sections 26.031 and 26.032 of the Water Code when itpassed House Bill 1875, and even then it replaced those sections with section 5(c) of article 4477-7e, now section 366.032(b)of the code. w a, n-3. No provision of either chapter 366 or article 4477-7e suggests the legislature intended to repeal **by** implication any legal authority to regulate on-site sewagedisposal systems at the local level.
Implicit in our firstanswerwas the determination that the legislaturedid not intend chapter 366 or its predecessor, article 4477-7e, to exclusively occupy the' field of on-site sewage disposal regulation. Read as a whole, chapter 366 imposesminimum statewide standardsand a state registration requirement to protect communities within counties imposing little or no regulation. Chapter 366 does not indicateany legislative intent to negate equivalent or more stringent local regulation authorizedby the charters of home rule cities or by state laws. Comnare Attorney General Opinion JW-1195 (1990) (insurancecoverage required by state law indicates legislative intent to preempt local bond requirements) & Attorney General Opinion JW-790 (1987) (detailed state landlord and tenant law indicates legislative intent to occupy fieldand preempt all local regulation)a Attorney General Opinion JW-994 (1988) (stateauthority to regulate sale **of** abusable glues does not per se preempt local ordinance requiringbusiness personnel to assist customers in such sales) ti Attorney General

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Opinion JM-226 (1984) (state public health statutes do not preemptmunicipal standards for storage of hazardous waste).

In addition,various speakersat the public hearing in 1987 referred to a need for statewideminimum requirements and the creation of incentivesto encouragemore counties to regulate on-site systems. No speakerdescribedHouse Bill 1875Asia restrictionon or impliedrepeal of local powers to promote the public health and protect the environment. See. e a. &&rinas on TeX. H.B.

. 18 75 m (testimoniesof Mark Hoe&her. Wavne Farrell,Larrv ioward and R.J. Kina). Thus, we conclude -that the iegislituredid not intend -to occupy the field of on-site sewage disposal system regulation.

Nevertheless, localgovernmental entitiesmay not adopt regulations that impose standards in direct conflict with chapter 366.7 Standards less stringentthan those imposed under chapter 366would directly conflict with state law and thus would be preempted. &8 Health 61 Safety Code 55 366.032(a)(2), 366.034(b). Also preemptedwould be local regulations allowing installers to construct or alter onsite sewage disposal systems locallywithout state registrations or approvedpermits as requiredby chapter 366. See & 59 366.051, 366.071. Furthermore, additional pea fees for costs covered by the state permit fees would directly conflictwith state law. Additional registration and licensing fees alsomay not be chargedby local entities for costs already coveredby the state registration fees. ~n§~o;66.001(2), 366.058, 366.074. Conclusive determinathe validity of a particular fee, license,

7. Local entities, however,may adopt local regulations that are ancillary to and inharmonywith then general scope and purpose of the state law. mv of Brookside Villaae C meau, 633 S.W.2d 790, 796 (Tex.), 459U.S.";OBy (1982) (generallaw city). cert. denied, A local regulation and a state law should not be found repugnant if any reasonable constructioncan give effect to both provisions.

v. c of Dallu 702 S.W.2d 291 (Tex. Dallas 1985,writ ref'd n.i.e.) (homerule city). APP. -Limitations on local powerwill notbe implied unless the provisions of the qeneral law 'are clear and compellinq.l@

.- Jh)wr C 1 r d Ri er Auth

.Citv of San Marcos, 523 S.W;Zd 641: 64; O(geE. lz75) (h:rnz rule city);ss3uUc2 Citv of peslaco v. Melt n 308 S.W.Zd 18, stringent regula% by home 21 (Tex. 1957) (more rule city in some instances constitutesa separate field of regulation).

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registration, bonding or training requirement, however, would depend on factual determinationsthat cannot be made
as part of the opinionprocess.

Your last question concerns the registration of licensedplumbers as installers. you ask whether individuals licensed as plumbers in accordance with article 6243-101, V.T.C.S.,must be registeredas installers chapter 366. as required by

Chapter 366 does not exempt state licensed plumbers from its registration requirements. Section 366.071 requires all persons operating as installersof on-site sewage disposal systems in this state department or an authorizedagent. to be registered by the

"installerw is definedby As mentioned earlier, an

who receives section 366.002(5)as any person

compensation from another to construct, install, alter, or repair on-site sewage disposal systems. See also 25 T.A.C. 55 301.107(a)(5), 301.107(j) (property
owner exempt from registrationwith regard to facilities on his property).

Neither does article 6243-101exempt licensed plumbers from the registrationrequirementsof chapter 366. Section 3(e) of that article currently provides that plumbers holding a license from the Texas State Board of Plumbing Examiners are not "required to be licensedby any other board or agencywhen installingorworking on a lawn irrigation system.' No otherprovision of article 6243-101 or any other state law exempts licensedplumbers from the registration requirementsof chapter 366.

We are aware that the statutorydefinitions of ing" and "on-site sewagedisposal system" create some"plumblatory overlap. &S V.T.C.S. art. 6243-101, 5 2 reguincludesall piping, (plumbing appurtenancesand elimination of sewage, appliances for the includingdisposal systems):Health & Safety Code 5 366.002(B) (oneormore treatment or disposal systemsproducing notmore than 5,000 gallons of on-site waste daily). Althoughparticular actionsmay fall within only one of the two definitionsor within both definitions,
we are unable to resolve questions of fact in the opinion process. Thus,we limit our discussion to the legal issue of whether installer a state licensedplumber must obtain a state

registration to operate as an installer for purposes of chapter 366.

With regard to the legal issue,.thisoffice has ously held that statutory exemptionsare necessary to previavoid state licensingrequirements. Opinion H-495 (1975); see See.%, Attorney General also Attorney General Opinion

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H-960 (1977) (affirmingholding of H-495);Attorney General Opinion H-890 (1976) (state agencies cannot create by contract licensing exemptions not available by statute). Therefore,we conclude that individualsholding valid state plumbing licensesmust also be registeredas installers in accordancewith chapter 366before constructing, installing, repairing, or altering an on-site sewage disposal system in this state for compensation.



### SUMMARY

A local governmental entity that has been designated an authorized agent for purposes of chapter 366 of the Health and Safety Code may adopt more stringent standards for onsite sewage disposal systems in its order or resolutionpursuant to section 366.032(b) of the code. An ~authorizedagent that adopts
more stringent standards for on-site sewage disposal systemspursuant to that sectionmay adopt more stringent standards for local registrationof installersif those standards
are necessary to ensure that local installers will satisfy the agent's more stringent disposal system standards. Thus, authorized agents are authorized by section 366.032(b) to require additional fees or training, local licenses or registrations,and the posting of suretybonds if necessary to ensure accomplishment of their more stringent standards for on-site sewage disposal systems. Local standardsmust not directly conflict with chapter 366 of the Health and Safety Code.
Furthermore, chapter 366 of the Health and Safety Code does not preempt local regulations not directly in conflict with its requirements that are adopted by local governmental entities in accordance with other legal authority. Thus, local governmental entities, whether or not they are designated as authorizedagents, may adopt
more stringent requirementsthan the state for on-site sewagedisposal systems and their installers if they possess the legal authority to do so and if such requirements do not directly conflictwith chapter 366.

Individuals who hold state plumbing licenses in accordancewith article 6243-101,

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V.T.C.S.,must obtain state installer registrations ;;s;IEiretltir chapter 366 to construct, on-site sewage disposal iystems fz: cz$%ation in this state.

JIM MATTOX Attorney General of Texas

MARYKELLER FirstAssistantAttorney General

Lou MCCREARY ,Executive

AssistantAttorney General

JUDGE ZOLLIE STFAKLEY SpecialAssistant Attorney General

RENEA HICKS SpecialAssistantAttorney General

RICK GILPIN Chai,man,Opinion Committee
Preparedby CelesteA. Baker AssistantAttorney General

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