BILL ANALYSIS



C.S.H.B. 2491
By: Yost
04-19-95
Committee Report (Substituted)


BACKGROUND

Some feel that the current contested case process results in Texas
having a competitive disadvantage in comparison to other states,
due to what they feel are complex, time-consuming, and expensive
permitting procedures.

PURPOSE

HB 2491 creates a less formal hearing process similar to what the
federal Environmental Protection Agency uses.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill expressly grants
rulemaking authority to the Texas Natural Resource Conservation
Commission (TNRCC) in SECTION 1 of the bill (Sec. 5.371, Water
Code, Sec. 5.374, Water Code).

SECTION BY SECTION ANALYSIS

SECTION 1.  Chapter 5, Water Code, is amended by adding a new
Subchapter J as follows:

     Section 5.371 (a) States that this subchapter applies to
commission procedures for an application for which public notice is
required by Chapters 26 and 27 of the Water Code (water discharges
and injection wells) and Chapters 361 and 382 of the Health and
Safety Code (solid waste and air).  
     (b) Permit by rule is authorized, consistent with federal law. 

     (c) Rulemaking authority is granted to the TNRCC to identify
categories of applications related to permits for which notice or
opportunity for public hearing is not required.  Lists conditions
for permits to be exempt from notice and public hearing
requirements.
     (d) For an exempted application, the commission by rule may
provide for the executive director to take action on the
application.

     Section 5.372 (a) Provides for the issuance of draft permits
or notice of intent to deny by the TNRCC executive director.
     (b) A record of proposed decision shall be included with a
draft permit notice or notice of intent to deny.
     (c) Copies of the record and proposed decision must be sent to
the applicant, state and federal agencies and persons requesting
copies.
     (d) An applicant may give public notice of application before
the initial determination is completed.  Allows the executive
director to take final action.
     (e) A notice of intent to deny shall include reasons for the
intended denial.
     (f) A draft permit shall contain all appropriate conditions,
compliance schedules, monitoring requirements, and technical
standards consistent with applicable commission rules.

     Section 5.373 provides for the preparation of a record of
proposed decision which is made available at the time public notice
is published.  The record of proposed decision must include aspects
of the procedures followed and aspects of the draft permit.

     Section 5.374 provides for public notice and a 30-day comment
period which is automatically extended to the close of any public
hearing.  This notice requirement is in addition to existing notice
requirements for wastewater discharges and solid waste facilities. 
This section also provides for resolution of issues by the
executive director.  The commission is given the authority to
prescribe by rule additional notice requirements to conform with
federal law.

     Section 5.375 (a) Provides for the opportunity for public
hearing.  
     (b) Interested persons shall be given the opportunity to
present significant information, orally or in writing, and to
examine testifying witnesses.
     (c) The executive director shall hold the public hearing if
there is a significant degree of public interest, or it is
determined that a public hearing should be held in order to clarify
issues in the permit decision.  
     (d) For hazardous waste permits only, the executive director
must hold a hearing when a public hearing is requested in writing. 

     (e) The executive director may designate a hearings officer or
hearing panel.
     (f) Hearings held under this Chapter are exempt from the
Administrative procedures and Texas Register Act.  
     (g) Hearings shall be recorded, and transcribed upon request.
     (h) Record and transcript shall be available for review.
     (i) Person requesting record or transcript bears the cost.

     Section 5.376 (a) Authorizes bonds to pay for nonlegal costs
of persons affected who provide information to the commission on
the question of issuance of the permit.  
     (b) Bonds for a new commercial hazardous waste management
facility is $100,000.  
     (c) Bonds for a new noncommercial hazardous waste facility is
$20,000.  
     (d) The executive director is to use current law [Sec.
361.0833(b), Health and Safety Code] to determine who is entitled
to reimbursement of costs.  
     (e) Nonlegal costs include the cost of a copy of the
administrative record in the case.
     (f) Awarded costs are limited to the amount of the bond.  
     (g) Units of local government are allowed to recover legal
costs in addition to other costs.

     Section 5.377 (a) Requires the executive director to consider
all comments.  
     (b) The executive director may deny the permit in whole or in
part and may provide reasonable conditions if the permit applied
for does not meet applicable requirements, or the applicant refuses
to agree to a permit condition the executive director determines is
necessary after reviewing comments.
     (c) Upon issuing a final decision, the executive director must
issue a response to the comments the commission receives.
     (d) The response must be available to the public.
     (e) Notice of final decision on the application must be mailed
to the applicant and to each person who commented.
     (f) A final decision on a permit application becomes effective
30 days after the date the notice of decision is mailed.

     Section 5.378 (a) The commission shall review the executive
director's final decision as provided by this section.
     (b) A petition for review must be filed on or before the 30th
day after the notice of final decision is mailed.
     (c) The petition must include a statement of the reasons that
support commission review of the decision.
     (d) The commission must act on a petition within 60 days after
the notice of final decision is mailed.  
     (e) If the commission grants the petition for review, the
commissioner shall give notice to the petitioner and each person
who commented.
     (f) If the commission modifies or rejects the executive
director's decision, the commission must issue a written decision
that includes the reason and legal basis.
     (g) A petition does not affect the validity of a permit issued
until the commission modifies or rejects the executive director's
decision.

     Section 5.379 (a) A person affected by the executive
director's final decision or the commission's action on that
decision may petition for judicial review.
     (b) Failure to petition for commission review in a timely
manner is bar to judicial review.
     (c) Judicial rule is under the substantial evidence rule.
     (d) The filing of an appeal does not stay any action required
by the commission's decision.
     (e) Stipulates what must be included in the record of appeal.
SECTION 2.  Chapter 2001, Government Code, is amended by adding a
new Section 2001.226 which provides an exception within the
Administrative Procedure and Texas Register Act to apply to permits
under this bill.

SECTION 3.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The committee substitute for HB 2491 is a Legislative Council draft
of the original bill.  The substitute creates a new Subchapter J
(rather than I) of Chapter 5, Water Code.  The following chart
shows the changes between the original and the substitute:


HB 2491
Committee Substitute HB 2491


Authorizes permit by rule and
consolidated permits.
Authorizes permit by rule (not
consolidated permits).



adds the following which is
not in the original bill:
Gives rulemaking authority for
the commission to identify
categories of applications
related to permits for which
notice or opportunity for
public hearing is not
required.  Lists conditions
for permits to be exempt from
notice and public hearing
requirements.
For an exempted application,
the commission by rule may
provide for the executive
director to take action on the
application.



adds the following which is
not in the original bill:
An applicant may give public
notice of application before
the initial determination is
completed.  Allows the
executive director to take
final action under stipulated
circumstances.


After public notice that a
draft permit or notice of
intent to deny has been
prepared, a 45 day comment
period is allowed.
After public notice that a
draft permit or notice of
intent to deny has been
prepared, a 30 day comment
period is allowed.


Re: a draft permit or notice
of intent to deny for a
hazardous waste management
permit - upon request, the
executive director shall hold
a public hearing within 45
days.
Re: a draft permit or notice
of intent to deny for a
hazardous waste management
permit - upon request, the
executive director shall hold
a public hearing on or before
the 30th day.


SUMMARY OF COMMITTEE ACTION

HB 2491 was considered by the House Committee on Environmental
Regulation in a public hearing on April 11, 1995.  The following
persons testified in favor of the bill:
     Paul Seals, representing himself and the Texas Chemical
     Council.
     Jon Fisher, representing the Texas Chemical Council.
     Mary Miksa, Vice President of Governmental Affairs,
     representing herself and Texas Association of Business and
     Chambers of Commerce.
     James Terrell, representing Texas Association of Dairymen.
     Buck Wayne, attorney, former Texas Water Commission Chairman,
     representing himself.
The following persons testified against the bill:
     Ken Kramer, representing the Sierra Club.
     Les Breeding, representing Sierra Blanca Legal Defense Fund.
The following persons testified neutrally on the bill:
     Jim Phillips, Director of the Office of Hearings Examiners,
     TNRCC, representing himself.
     Roliff Purrington, lawyer, representing himself.
Without objection HB 2491 was left pending.

HB 2491 was considered by the House Committee on Environmental
Regulation in a formal meeting on April 19, 1995.  The committee
considered a complete substitute which was adopted without
objection.  HB 2491, as substituted, was reported favorably with
the recommendation that it do pass and be printed, by a record vote
of seven (7) ayes, no (0) nays, no (0) pnv, and two (2) absent.