By: Carriker S.B. No. 1109
A BILL TO BE ENTITLED
AN ACT
1-1 relating to procedural requirements for hearing solid waste permit
1-2 applications.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 361.0831, Health and Safety Code, is
1-5 amended to read as follows:
1-6 Sec. 361.0831. Ex Parte Contacts Prohibited. (a) Unless
1-7 required for the disposition of ex parte matters authorized by law
1-8 or unless allowed by Section 17, Administrative Procedure and Texas
1-9 Register Act (Section 17, Article 6252-13a, Vernon's Texas Civil
1-10 Statutes), a hearings examiner of the commission may not
1-11 communicate, directly or indirectly, with any employee of the
1-12 commission who is not an employee of the office of hearings
1-13 examiners, any commissioner, or any party to a hearing conducted by
1-14 the commission in connection with any issue of fact or law
1-15 pertaining to a contested case in which the commission or party is
1-16 involved.
1-17 (b) Except for communications allowed under Subsection (a),
1-18 an <An> employee of the commission, a commissioner, or a party to a
1-19 hearing conducted by the commission may not attempt to influence
1-20 the finding of facts or the application of law or rules by a
1-21 hearings examiner of the commission except by proper evidence,
1-22 pleadings, and legal argument with notice and opportunity for all
1-23 parties to participate.
2-1 (c) If a prohibited contact is made, the hearings examiner
2-2 shall notify all parties with a summary of that contact and notice
2-3 of their opportunity to respond <participate> and shall give all
2-4 parties an opportunity to respond.
2-5 SECTION 2. Section 361.0832, Health and Safety Code, is
2-6 amended to read as follows:
2-7 Sec. 361.0832. Proposal for Decision; Certified Issues;
2-8 Reversal by Commission. (a) After hearing evidence and receiving
2-9 legal arguments, a hearings examiner of the commission shall make
2-10 findings of fact, conclusions of law, and any ultimate findings
2-11 required by statute, all of which shall be separately stated. The
2-12 hearings examiner shall make a proposal for decision to the
2-13 commission and shall serve the proposal for decision on all
2-14 parties. The commission shall consider and act on the proposal for
2-15 decision.
2-16 (b) If a contested case involves an ultimate finding of
2-17 compliance with or satisfaction of a statutory standard the
2-18 determination of which is committed to the discretion or judgment
2-19 of the commission by law, a hearings examiner, on joint motion of
2-20 all parties or sua sponte, may certify those policy issues to the
2-21 commission. A certification request must contain a statement of
2-22 the policy issue to be determined and a statement of all relevant
2-23 facts sufficient to show fully the nature of the controversy. The
2-24 commission may receive written or oral statements from parties to
2-25 the hearing or the hearings examiner on the policy issue certified.
3-1 The commission must answer policy issues not later than the 60th
3-2 day after the date of certification or, in its discretion, may
3-3 decline to answer. If the commission fails to answer a policy
3-4 issue within that period, the commission shall be deemed to have
3-5 declined to answer. The hearings examiner shall proceed with the
3-6 contested case and make a proposal for decision as required by
3-7 Subsection (a).
3-8 (c) The commission may overturn an underlying finding of
3-9 fact that serves as the basis for a decision in a contested case
3-10 only if the commission finds that the finding was not supported by
3-11 the preponderance <great weight> of the evidence.
3-12 (d) The commission may overturn a conclusion of law in a
3-13 contested case only on the grounds that the conclusion was
3-14 <clearly> erroneous in light of precedent and applicable rules.
3-15 (e) If a decision in a contested case involves an ultimate
3-16 finding of compliance with or satisfaction of a statutory standard
3-17 the determination of which is committed to the discretion or
3-18 judgment of the commission by law, the commission may reject a
3-19 proposal for decision as to the ultimate finding for reasons of
3-20 policy only.
3-21 (f) The commission shall issue written rulings, orders, or
3-22 decisions in all contested cases and shall fully explain in a
3-23 ruling, order, or decision the reasoning and grounds for
3-24 overturning each finding of fact or conclusion of law or for
3-25 rejecting any proposal for decision on an ultimate finding.
4-1 (g) This section does not affect the standard of review by a
4-2 district court. The standard of review of a district court is
4-3 prescribed by the Administrative Procedure and Texas Register Act
4-4 (Article 6252-13a, Vernon's Texas Civil Statutes).
4-5 SECTION 3. Section 361.088, Health and Safety Code, is
4-6 amended to read as follows:
4-7 Sec. 361.088. PERMIT ISSUANCE, AMENDMENT, EXTENSION AND
4-8 RENEWAL; NOTICE AND HEARING. (a) The department or the commission
4-9 may amend, extend, or renew a permit it issues in accordance with
4-10 reasonable procedures prescribed by the department or commission,
4-11 as appropriate.
4-12 (b) The procedures prescribed by Section 361.067 for a
4-13 permit application apply to an application to amend, extend, or
4-14 renew a permit.
4-15 (c) Before a permit is issued, amended, extended, or
4-16 renewed, the agency to which the application is submitted shall
4-17 provide an opportunity for a hearing to the applicant and persons
4-18 affected. The agency may also hold a hearing on its own motion.
4-19 (d) In addition to providing an opportunity for a hearing
4-20 held under this section, the department or the commission shall
4-21 hold a public meeting and give notice as provided by Section
4-22 361.0791 on an application for a new hazardous waste or municipal
4-23 solid waste management facility in the county in which the facility
4-24 is to be located. The department or commission, on request of a
4-25 person affected or as otherwise required by agency rule, shall hold
5-1 a public meeting on an application for a Class 3 modification or
5-2 major amendment to an existing facility's hazardous waste permit
5-3 and on an application for a Class I modification to an existing
5-4 facility's municipal solid waste permit.
5-5 SECTION 4. This Act does not apply to an application for a
5-6 new facility or to an application to amend the permit of an
5-7 existing facility if a contested hearing on the application has
5-8 been scheduled before the effective date of this Act.
5-9 SECTION 5. The importance of this legislation and the
5-10 crowded condition of the calendars in both houses create an
5-11 emergency and an imperative public necessity that the
5-12 constitutional rule requiring bills to be read on three several
5-13 days in each house be suspended, and this rule is hereby suspended.