BILL ANALYSIS
H.B. 2491
By: Yost (Ratliff)
Natural Resources
05-25-95
Senate Committee Report (Amended)
BACKGROUND
Some believe that the current contested case process in Texas is
complex and unclear in comparison to other states.
PURPOSE
As proposed, H.B. 2491 creates a less formal hearing process
similar to what the federal Environmental Protection Agency uses,
for certain environmental permitting procedures of the Texas
Natural Resource Conservation Commission.
RULEMAKING AUTHORITY
It is the committee's opinion that rulemaking authority is granted
to the Texas Natural Resource Conservation Commission under SECTION
1 (Sections 5.371(c) and (d), and 5.374(d), Water Code) of this
bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 5, Water Code, by adding Subchapter J,
as follows:
SUBCHAPTER J. ENVIRONMENTAL PERMITTING PROCEDURES
Sec. 5.371. GENERAL PERMITTING PROCEDURES. (a) Provides that
this subchapter applies to the Texas Natural Resource
Conservation Commission (commission) procedures for an
application to issue, amend, or renew a permit for which
public notice and an opportunity for public hearing is
required by Chapter 26 or 27 of this code or Chapter 361 or
382, Health and Safety Code.
(b) Requires the commission to provide for permits-by-rule
under the chapters listed in Subsection (a) to the greatest
extent practicable and consistent with the requirements for
U.S. Environmental Protection Agency (EPA) authorization of
a state permit program.
(c) Requires the commission, by rule, to identify categories
of applications related to permits for which notice or
opportunity for public hearing is not required. Requires the
commission to exempt from notice and public hearing
requirements certain applications.
(d) Authorizes the commission to provide for the action on
the application to be taken by the executive director after
notice of the application is given to persons as required by
law and at least 10 days before the action is taken.
Sec. 5.372. INITIAL DETERMINATION BY EXECUTIVE DIRECTOR. (a)
Requires the executive director, when an application related
to a permit is complete, to prepare and issue a draft permit;
or a notice of intent to deny.
(b) Requires the executive director to include a record of
proposed decision prepared in accordance with Section 5.373
with a draft permit or notice of intent to deny.
(c) Requires the commission to send a copy of the record of
the proposed decision to the applicant; a state or federal
agency; and any other person on request of that person.
(d) Authorizes an applicant, unless precluded by a
requirement of the EPA related to state program
authorization, to give public notice of the application
before the initial determination of the executive director
is completed. Authorizes the executive director, if all
requests for a public hearing the commission receives under
the notice are unreasonable or the commission receives under
no requests for a public hearing, to take final action on
the application notwithstanding this section and Sections
5.373 through 5.378.
(e) Requires a notice of intent to deny to state the
executive director's reasons for the intended denial.
(f) Requires a draft permit to contain all appropriate
conditions, compliance schedules, monitoring requirements,
and technical standards consistent with applicable
commission rules.
Sec. 5.373. RECORD OF PROPOSED DECISION FOR DRAFT PERMIT. (a)
Sets forth requirements for a record of proposed decision
prepared for a draft permit.
(b) Sets forth provisions the record of proposed decision
must include.
(c) Requires the commission to make the record of proposed
decision available when the public notice is published.
Sec. 5.374. NOTICE OF INITIAL DETERMINATION; COMMENTS AND
REQUESTS FOR HEARING. (a) Requires the executive director to
give public notice that a draft permit or notice of intent to
deny has been prepared. Requires the executive director to
provide for a 30-day period for public review, comments, and
requests for public hearing. Requires the period for public
review and comments to be extended until the close of the
public hearing, if one is held.
(b) Provides that notice required under this section is in
addition to the requirements of Section 26.028 of this code
and Sections 361.081 and 361.082, Health and Safety Code.
(c) Requires the executive director, if the commission
receives a notice of opposition to a draft permit issued by
the executive director and a request for a public hearing on
the draft permit, to respond to the request and attempt to
resolve the issues that create the opposition. Authorizes
the opponent to withdraw the request for a public hearing
following the executive director's response.
(d) Authorizes the commission, by rule, to require
additional public notice necessary to satisfy requirements
of the EPA for state permit program authorization.
Sec. 5.375. PUBLIC HEARINGS. (a) Prohibits a ruling on a
permit issuance or denial from being made without an
opportunity for a public hearing.
(b) Requires each interested person, at a public hearing, to
be given a reasonable opportunity to orally or in writing,
present significant information, views, or arguments; and
examine testifying witnesses.
(c) Requires the executive director to hold the public
hearing upon making certain determinations.
(d) Requires the executive director, when a draft permit or
notice of intent to deny for a hazardous waste management
permit is at issue, to hold a public hearing in any case in
which the commission receives a notice of opposition to the
permit decision and a request for a public hearing on or
before the 30th day after the date of public notice under
Section 5.374. Requires the executive director to hold the
public hearing under this subsection at a location
convenient to the population center nearest the proposed
facility whenever it is possible to do so.
(e) Authorizes the executive director to designate a
hearings officer or panel to take evidence at the hearing.
Authorizes a hearing panel to include technical experts on
the staff of the executive director.
(f) Provides that Chapter 2001, Government Code, does not
apply to a public hearing held under this section. Requires
a hearing held under this section to be conducted so that
all relevant information, views, arguments, and testimony
are sufficiently and fairly received without undue
repetition.
(g) Requires a hearing held under this section to be
recorded. Requires a hearing to be transcribed. Requires the
person who requests a hearing transcript to bear the cost of
the transcript.
(h) Requires the commission to provide the record and the
transcript of a hearing for review of any person at the
commission's main office.
(i) Requires a person who requests a copy of the record or
of a transcript to bear the cost of the copy.
Sec. 5.376. COSTS FOR INFORMATION REGARDING NEW HAZARDOUS
WASTE PERMIT. (a) Requires the applicant for a permit for a
new hazardous waste management facility to furnish a bond or
other financial assurance authorized by the commission to
guarantee payment of nonlegal costs of the affected person
incurred in providing to the commission information related to
the issuance of the permit.
(b) Requires the bond or assurance for an application for a
new commercial hazardous waste management facility, to be in
the amount of $100,000.
(c) Requires the bond or assurance for an application for a
new noncommercial hazardous waste management facility to be
in the amount of $20,000.
(d) Requires the executive director, in determining whether
the affected person is entitled to reimbursement under this
section, to apply to considerations provided by Section
361.0833(e), Health and Safety Code.
(e) Provides that nonlegal costs subject to reimbursement
under this section include the cost of a copy of the
administrative record in the case.
(f) Prohibits the commission from awarding in a case costs
to one or more persons that total an amount greater than the
amount of financial assurance required by this section.
(g) Authorizes the commission to award to a unit of local
government legal costs in addition to other costs.
Sec. 5.377. FINAL DECISION OF EXECUTIVE DIRECTOR. (a) Requires
the executive director, for decisions on applications
processed under Sections 5.373 through 5.375, to consider all
comments received during the public comment period and during
any public hearing in determining whether to issue the permit;
and conditions on the permit if a permit is issued.
(b) Sets forth provisions under which the executive director
may, in ruling on a permit application, deny the permit in
whole or in part and provide conditions to a permit.
(c) Requires the executive director, when issuing a final
decision on an application, to issue a response to comments
the commission receives. Sets forth requirements for the
response.
(d) Requires the response to be available to the public.
(e) Requires the executive director to mail notice of the
final decision on the application to the applicant and to
each person who commented during the public comment period
or participated in the public hearing. Sets forth
requirements for the notice.
(f) Provides that a final decision on a permit application
becomes effective 30 days after the date notice of the
decision is mailed, unless a petition for review is filed in
accordance with Section 5.738, or at a later time specified
by the executive director in the decision.
Sec. 5.378. PETITION FOR COMMISSION REVIEW. (a) Requires the
commission to review the executive director's decision on a
permit application as provided by this section.
(b) Authorizes any person affected by the decision of the
executive director to file a petition for review with the
commission. Requires a petition for review to be filed on or
before the 30th day after the date the executive director's
notice of final decision is mailed.
(c) Requires the petition to include a statement of the
reasons that support commission review of the decision,
demonstrate that the issue raised by the petition was raised
during the public comment period or public hearing, identify
all provisions of the draft permit or order of denial of the
application with which the appellant disagrees, and show
that the decision or a permit condition is based on a
finding of fact or conclusion of law that is clearly in
error; or an important policy consideration or an exercise
of discretion that the commission should review.
(d) Requires the commission to determine if the petitioner
is an affected person. Requires, no later than 60 days after
the notice of final decision is mailed, a petition based on
Subsection (c)(1) to be referred by the commission to the
State Office of Administrative Hearings for a hearing in
accordance with Section 2003.047, Government Code, unless
the commission has determined that the petitioner is not an
affected person or that the petition is unreasonable.
Provides that if the commission does not act on or before
that date, the petition is automatically referred as
provided in this subsection. Requires the commission, for a
petition based on Subsection (c) (2) of this section, to
give notice to the petitioner and each other person who
commented during the public comment period or who
participated in the public hearing no later than 60 days
after the notice of final decision is mailed that the
petition has been granted or denied. Requires the notice, if
the petition is granted, to provide a briefing schedule for
the review and state that any person affected may file an
amicus brief.
(e) Provides that at all stages of the petition to the
commission and the hearing at the State Office of
Administrative Hearings, each factual representation
contained in the draft permit prepared by the executive
director and in the application shall be deemed to be true
and correct, unless specifically controverted by sworn
testimony or other competent evidence which either the
commission or the administrative law judge recognizes as
being sufficient to render the factual matter controverted.
Provides that at the commencement of the hearing at the
State Office of Administrative Hearings, the draft permit
prepared by the executive director, as well as the
application and any amendments or supplements thereto, shall
be received into the evidentiary record.
(f) Requires an applicant in a permitting procedure
established by this subchapter to bear the burdens of
production and persuasion with respect to the specification,
condition, provisions, or facts at issue in a draft permit
prepared by the executive director which are recognized as
controverted under Subsection (e).
(g) Provides that the filing of a petition under this
section stays the effect of a permit issued by the executive
director until the commission approves, modifies, or rejects
the executive director's permit decision.
Sec. 5.379. COMMISSION ACTION. (a) Requires the commission,
after the administrative law judge of the State Office of
Administrative Hearings submits a proposal for decision to the
commission, to proceed as provided in Section 2003.047(i),
Government Code.
(b) Provides that the commission decision is final.
(c) Requires any motions for commission rehearing to be
governed by Sections 2001.145 and 2001.146, Government Code.
Sec. 5.380. JUDICIAL REVIEW OF COMMISSION PERMIT DECISIONS.
(a) Authorizes a person affected by the commission's final
decision on a permit application to petition for judicial
review. Requires the petition to be filed on or before the
30th day after the date the commission mails its final
decision on the application.
(b) Provides that failure to timely petition for commission
review of the executive director's decision is a bar to
judicial review of the decision.
(c) Requires judicial review of decisions of the commission
under this subchapter to be under the substantial evidence
rules as provided by Section 2001.174, Government Code.
(d) Provides that the filing of an appeal does not stay any
action required by the commission's decision.
(e) Requires the record of appeal to include the record of
proceedings of the contested case hearing at the State
Office of Administrative Hearings.
SECTION 2. Amends Chapter 2001I, Government Code, by adding Section
2001.226, as follows:
Sec. 2001.226. CERTAIN ENVIRONMENTAL PERMITS. (a) Provides
that Subchapters C through H do not apply to a permit
application required to be filed with the Texas Natural
Resource Conservation Commission for an authorization under
Chapter 26 or 27, Water Code, or Chapter 361 or 382, Health
and Safety Code, if the application is subject to Subchapter
J, Water Code, except as provided by Subsection (b).
(b) Provides that Subchapters C through H apply to a
proceeding transferred to the State Office of Administrative
Hearings under Section 5.378, Water Code.
SECTION 3. Emergency clause.
Effective date: upon passage.