By: Parker S.B. No. 1047
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the acquisition of National Pollutant Discharge
1-2 Elimination System permit delegation, certain permit requirements,
1-3 and eligibility for membership on the Texas Natural Resource
1-4 Conservation Commission.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 26.003, Water Code, is amended to read as
1-7 follows:
1-8 Sec. 26.003. POLICY OF THIS SUBCHAPTER. It is the policy of
1-9 this state and the purpose of this subchapter to maintain the
1-10 quality of water in the state consistent with the public health and
1-11 enjoyment, the propagation and protection of terrestrial and
1-12 aquatic life, the protection of historical and archeological
1-13 properties, the operation of existing industries, and the economic
1-14 development of the state; to encourage and promote the development
1-15 and use of regional and areawide waste collection, treatment, and
1-16 disposal systems to serve the waste disposal needs of the citizens
1-17 of the state; and to require the use of all reasonable methods to
1-18 implement this policy.
1-19 SECTION 2. Subchapter D, Chapter 26, Water Code, is amended
1-20 by adding Section 26.134 to read as follows:
1-21 Sec. 26.134. INTERVENTION; COMMENTS ON SETTLEMENTS.
1-22 (a) This section applies to civil suits and administrative actions
1-23 instituted pursuant to Section 26.123(b), 26.123(c), 26.123(f),
2-1 26.124, or 26.136(h) of this section alleging a violation of an
2-2 NPDES permit or the failure to obtain an NPDES permit.
2-3 (b) In an action identified in Subsection (a) of this
2-4 section, the attorney general and the commission may not oppose
2-5 intervention by a person who has standing to intervene. In an
2-6 administrative action, the commission may align parties with common
2-7 interests to be on the same side of the docket.
2-8 (c)(1) In an action identified in Subsection (a) of this
2-9 section, before the attorney general in a civil action or the
2-10 commission in an administrative action may approve an agreed final
2-11 judgment, consent order, voluntary settlement agreement, or other
2-12 voluntary agreement that would finally settle the action against a
2-13 party, the attorney general or the commission, whichever is
2-14 appropriate, shall permit the public to comment in writing on the
2-15 proposed judgment or agreement.
2-16 (2) Notices of the opportunity to comment shall be
2-17 published not later than the 30th day before the date on which the
2-18 public comment period closes. The commission shall publish a
2-19 notice in the Texas Register. The alleged violator shall publish a
2-20 notice in a newspaper of general circulation in the county in which
2-21 the alleged violation occurred, as identified by the commission.
2-22 (3) The attorney general or commission shall promptly
2-23 consider any written comments and may withdraw or withhold consent
2-24 to the proposed judgment, order, or agreement if the comments
2-25 disclose facts or considerations which the attorney general or
3-1 commission, as appropriate, believes indicate that the proposed
3-2 judgment, order, or agreement would be inadequate to meet, or be
3-3 inconsistent with, the requirements of this chapter.
3-4 (4) No further notice of changes to the proposed
3-5 judgment, order, or agreement must be published if those changes
3-6 arise from comments submitted in response to the previous notice.
3-7 (5) This section applies only to agreed judgments,
3-8 consent orders, or voluntary agreements that would finally dispose
3-9 of all the remaining issues involving a party in the civil suit.
3-10 This section does not require public comment on a proposed
3-11 temporary restraining order, temporary injunction, emergency order,
3-12 or other emergency relief that is not a final judgment or final
3-13 order of the court or the commission.
3-14 SECTION 3. Section 5.053, Water Code, is amended to read as
3-15 follows:
3-16 Sec. 5.053. ELIGIBILITY FOR MEMBERSHIP. (a) A person is
3-17 not eligible to serve on the commission if the person or the
3-18 person's spouse:
3-19 (1) is employed by or participates in the management
3-20 of a business entity or other organization regulated by the
3-21 commission or receiving funds from the commission;
3-22 (2) owns, controls, or has, directly or indirectly,
3-23 more than a 10 percent interest in a business entity or other
3-24 organization regulated by the commission or receiving funds from
3-25 the commission; <or>
4-1 (3) uses or receives a substantial amount of tangible
4-2 goods, services, or funds from the commission; or
4-3 (4) receives or has during the two previous years
4-4 received a significant portion of income directly or indirectly
4-5 from holders of permits or applicants for permits issued by the
4-6 commission.
4-7 (b) In this section:
4-8 (1) Income is not received "directly or indirectly"
4-9 when it is derived from mutual fund payments or from other
4-10 diversified investments for which the recipient does not know the
4-11 identity of the primary sources of income.
4-12 (2) "Income" includes retirement benefits, consultant
4-13 fees, and stock dividends.
4-14 (3) "Holders of permits or applicants for permits"
4-15 does not include any state agency.
4-16 (4) "Significant portion of income" means 10 percent
4-17 or more of gross personal income for a calendar year, except that
4-18 it means 50 percent or more of gross personal income for a calendar
4-19 year if the recipient is over 60 years of age and is receiving that
4-20 portion under retirement, pension, or similar arrangement.
4-21 SECTION 4. Section 26.029, Water Code, is amended by adding
4-22 Subsection (f) to read as follows:
4-23 (f) If a permittee holds a permit issued by the commission
4-24 that expires before an NPDES permit for the same discharge from a
4-25 facility that is classified as a major facility by the United
5-1 States Environmental Protection Agency expires, then the expiration
5-2 date of the state permit is extended to the expiration date of the
5-3 NPDES permit. If the NPDES permit for such facility expires before
5-4 the state permit, the commission may cancel the state permit when
5-5 it issues an NPDES permit for the facility.
5-6 SECTION 5. Section 26.0291, Water Code (effective until
5-7 delegation of NPDES permit authority), is amended to read as
5-8 follows:
5-9 Sec. 26.0291. WASTE TREATMENT PROGRAM <INSPECTION> FEE.
5-10 (a) An annual waste treatment program <inspection> fee is imposed
5-11 on each permittee for each waste discharge permit held by the
5-12 permittee and on each registrant for each registration of an
5-13 activity granted by the commission. The fee is to supplement any
5-14 other funds available to pay expenses of the commission in
5-15 implementing the waste discharge program <inspecting waste
5-16 treatment facilities> and enforcing the laws of the state<,> and
5-17 the rules of the commission<,> governing waste discharge, <and>
5-18 waste treatment facilities, and registered activities. The fee for
5-19 each year is imposed on each permit and on each registration in
5-20 effect during any part of the year.
5-21 (b) The commission, by rule, shall adopt a fee schedule for
5-22 determining the amount of the fee to be charged. The amount of the
5-23 fee may not exceed $15,000 <$11,000> for each waste discharge
5-24 permit held by a permittee and each registration held by a
5-25 registrant. In determining the amount of a fee under this section,
6-1 the commission may consider permitting and registration factors
6-2 such as flow volume, toxic pollutant potential, level of
6-3 traditional pollutants, <and> heat load, and scope of the
6-4 registered activity. The commission also may consider the
6-5 designated uses and segment ranking classification of the water
6-6 affected by discharges or stormwater runoff from the permitted or
6-7 registered facility. Finally, the commission also may consider the
6-8 expenses necessary to obtain and administer the NPDES program.
6-9 (c) The fees collected under this section shall be deposited
6-10 in a special fund in the state treasury to be known as the water
6-11 quality <waste treatment facility inspection> fund. Money in the
6-12 fund shall be used as follows:
6-13 (1) to supplement any other funds available for paying
6-14 expenses of the commission in implementing the <inspecting> waste
6-15 treatment program <facilities>;
6-16 (2) to pay for the issuance and renewal of
6-17 certificates of competency under and to administer Section 26.0301
6-18 of this code; <and>
6-19 (3) to pay for processing plans or amendments to plans
6-20 and inspecting the construction of projects under those plans
6-21 pursuant to Section 26.0461 of this code and rules of the
6-22 commission adopted under Sections 26.046 and 26.0461 of this code;
6-23 and
6-24 (4) to pay for any expenses of the commission
6-25 necessary to obtain and administer the NPDES program in lieu of the
7-1 federal government.
7-2 (d) The commission may adopt rules necessary to administer
7-3 this section.
7-4 (e) A fee collected under this section is in addition to any
7-5 other fee that may be charged under this chapter.
7-6 SECTION 6. Section 26.0291, Water Code (effective on
7-7 delegation of NPDES permit authority), is amended to read as
7-8 follows:
7-9 Sec. 26.0291. WASTE TREATMENT PROGRAM <INSPECTION> FEE.
7-10 (a) An annual waste treatment program <inspection> fee is imposed
7-11 on each permittee for each waste discharge permit held by the
7-12 permittee and on each registrant for each registration of an
7-13 activity granted by the commission. The fee is to supplement any
7-14 other funds available to pay expenses of the commission in
7-15 implementing the waste discharge program <inspecting waste
7-16 treatment facilities> and enforcing the laws of the state and the
7-17 rules of the commission governing waste discharge, <and> waste
7-18 treatment facilities, and registered activities. The fee for each
7-19 year is imposed on each permit and on each registration in effect
7-20 during any part of the year.
7-21 (b) The commission by rule shall adopt a fee schedule for
7-22 determining the amount of the fee to be charged. The amount of the
7-23 fee may not exceed $25,000 <$15,000> for each waste discharge
7-24 permit held by a permittee and each registration held by a
7-25 registrant. In determining the amount of a fee under this section,
8-1 the commission may consider permitting and registration factors
8-2 such as flow volume, toxic pollutant potential, level of
8-3 traditional pollutants, <and> heat load, and scope of the
8-4 registered activity. The commission may consider the designated
8-5 uses and segment ranking classification of the water affected by
8-6 discharges or stormwater runoff from the permitted or registered
8-7 facility. Finally, the commission also may consider the expenses
8-8 necessary to obtain and administer the NPDES program.
8-9 (c) The fees collected under this section shall be deposited
8-10 in a special fund in the state treasury to be known as the water
8-11 quality <waste treatment facility inspection> fund. Money in the
8-12 fund shall be used as follows:
8-13 (1) to supplement any other funds available for paying
8-14 expenses of the commission in implementing the <inspecting> waste
8-15 treatment program <facilities>;
8-16 (2) to pay for the issuance and renewal of
8-17 certificates of competency under and to administer Section 26.0301
8-18 of this code;
8-19 (3) to pay for processing plans or amendments to plans
8-20 and inspecting the construction of projects under those plans
8-21 pursuant to Section 26.0461 of this code and rules of the
8-22 commission adopted under Sections 26.046 and 26.0461 of this code;
8-23 and
8-24 (4) to pay for any expenses of the commission
8-25 necessary to obtain and administer the NPDES program in lieu of the
9-1 federal government.
9-2 (d) The commission may adopt rules necessary to administer
9-3 this section.
9-4 (e) A fee collected under this section is in addition to any
9-5 other fee that may be charged under this chapter.
9-6 SECTION 7. (a) Except as provided by this section, this Act
9-7 takes effect only on delegation to the state by the Administrator
9-8 of the United States Environmental Protection Agency of authority
9-9 to issue National Pollutant Discharge Elimination System permits.
9-10 (b) Section 2 of this Act applies to civil suits or
9-11 administrative actions instituted on or after the effective date of
9-12 this Act. Section 3 of this Act applies to a person who was
9-13 appointed to the Texas Natural Resource Conservation Commission or
9-14 its predecessor agency and confirmed by the senate on or after the
9-15 effective date of this Act. Civil suits or administrative actions
9-16 instituted before the effective date of this Act and persons
9-17 appointed to the Texas Natural Resource Conservation Commission and
9-18 confirmed by the senate before the effective date of this Act are
9-19 covered by the law in effect at the time the suit or action was
9-20 instituted or the person was appointed or confirmed, and the former
9-21 law is continued in effect for this purpose.
9-22 (c) Section 5 of this Act takes effect on September 1, 1993.
9-23 SECTION 8. The importance of this legislation and the
9-24 crowded condition of the calendars in both houses create an
9-25 emergency and an imperative public necessity that the
10-1 constitutional rule requiring bills to be read on three several
10-2 days in each house be suspended, and this rule is hereby suspended.