BILL ANALYSIS C.S.H.B. 2015 By: Talton (Patterson) Natural Resources 05-03-95 Senate Committee Report (Substituted) BACKGROUND The U.S. Environmental Protection Agency (EPA) administers the National Pollutant Discharge Elimination System (NPDES) permit program under the federal Water Pollution Control Act (Clean Water Act). NPDES permits are issued to facilities discharging wastewaters into waters of the United States. Any Texas city with a wastewater treatment plant is likely to have an NPDES permit and most Texas industries, as well as river authorities, prisons, and educational institutions that operate wastewater treatment plants or systems have NPDES permits. In addition, Texas has its own permitting program to protect waters of the state, implemented by the Texas Natural Resource Conservation Commission (TNRCC) under the Texas Water Code. The discharge of wastewaters from certain oil and gas operations is permitted by the Texas Railroad Commission, in accordance with the water quality laws of this state. The result is that many cities, industries, and other governmental entities and institutions must obtain two permits for the same discharge, one from EPA and one from either the TNRCC or the Railroad Commission. The Clean Water Act provides that the NPDES program can be delegated to a state if the state meets certain criteria and receives approval from EPA. Texas has attempted numerous times to prepare a package to meet the requirements for EPA approval and accomplish delegation of the NPDES program to TNRCC. PURPOSE As proposed, C.S.H.B. 2015 provides statutory changes to obtain delegation to Texas of the National Pollutant Discharge Elimination System. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 5C, Water Code, by adding Section 5.053, as effective upon delegation of the National Pollutant Discharge Elimination System (NPDES) permit authority, as follows: Sec. 5.053. ELIGIBILITY FOR MEMBERSHIP. Text of Sec. 5.053 effective upon delegation of NPDES permit authority. (a) Sets forth provisions under which a person is not eligible to serve on the commission. (b) Requires persons who are appointed to serve on the Texas Water Commission (commission) for terms which expire after August 31, 2001, in addition to the eligibility requirements in Subsection (1) of this section, to also comply at the time of their appointment with the eligibility requirements of 33 U.S.C. Sections 1251-1387, as amended. SECTION 2. Amends Section 26.017, Water Code, to prohibit the commission with respect to obtaining or administering the NPDES program in lieu of the U.S. government, from entering into any memorandum of agreement or other contractual relationship with or among state agencies or the U.S. government which imposes any requirements upon the state other than or more stringent than those specifically set forth in Section 402(b) of the Federal Water Pollution Control Act, as amended. SECTION 3. Amends Section 26.0291, Water Code, as effective upon delegation of NPDES permit authority, to prohibit the commission from adopting any rule designed to increase the fee imposed under this section on a treatment works owned by a local government, as those terms are defined in Section 26.001 of this code, before August 31, 1999. SECTION 4. Amends Chapter 26D, Water Code, by adding Section 26.134, as follows: Sec. 26.134. INTERVENTION; COMMENTS ON SETTLEMENTS. (a) Prohibits the attorney general, in a civil action instituted pursuant to Section 26.123(d) or 26.124 of this chapter alleging a violation of an NPDES permit or the failure to obtain an NPDES permit, from opposing intervention by a person who has standing to intervene, as provided by Rule 60, Texas Rules of Civil Procedure. (b)(1) Requires the attorney general or the commission, in an action identified in Subsection (a) or in an administrative action instituted under Section 26.136 of this chapter, before the attorney general in a civil action or the commission in an administrative action may approve an agreed final judgment, consent order, voluntary settlement agreement, or other voluntary agreement that would finally settle the action against a party, to permit the public to comment in writing on the proposed judgment or agreement. (2) Requires notices of the opportunity to comment to be published no later than 30 days before the public comment period closes. Requires the attorney general or the commission to publish a notice in the Texas Register. (3) Provides that the attorney general or the commission shall consider any written comments and may withdraw or withhold consent to the proposed judgment, order, or agreement if the comments disclose facts or considerations which the attorney general or commission, as appropriate, believes indicate that the proposed judgment, order, or agreement would be inadequate to meet, or inconsistent with, the requirements of this chapter. (4) Provides that no further notice of changes to the proposed judgment, order, or agreement must be published if those changes arise from comments submitted in response to the previous notice. (5) Provides that Subsection (b) of this section applies only to agreed judgments, consent orders, or voluntary agreements that would finally dispose of all the remaining issues involving a party in the civil suit or administrative action. Provides that this section does not require public comment on a proposed temporary restraining order, temporary injunction, emergency order, or other emergency relief that is not a final judgment or final order of the court or the commission. (6) Provides that Chapter 2001, Government Code, does not apply to public comment under this section. SECTION 5. Amends Section 81.054, Natural Resources Code, by adding new Subsection (b), to prohibit the attorney general, if an action is instituted by the attorney general under this section alleging a violation of an NPDES permit or the failure to obtain an NPDES permit under Chapter 91 or Chapter 141 of the Natural Resources Code, from opposing intervention by a person who has standing to intervene as provided by Rule 60, Texas Rules of Civil Procedure. SECTION 6. Amends Section 91.003, Natural Resources Code, to prohibit the attorney general, if the enforcement authority in Section 81.054, Natural Resources Code, is used to institute a civil action alleging a violation of an NPDES permit issued under this chapter, from opposing intervention by a person who has standing to intervene as provided by Rule 60, Texas Rules of Civil Procedure. SECTION 7. Amends Section 141.101, Natural Resources Code, to prohibit the attorney general, if the enforcement authority in Section 81.054, Natural Resources Code, is used to institute a civil action alleging a violation of an NPDES permit or the failure to obtain an NPDES permit issued under this chapter, from opposing intervention by a person who has standing to intervene as provided by Rule 60, Texas Rules of Civil Procedure. SECTION 8. Emergency clause. Effective date: upon passage.