By Yost H.B. No. 2491
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain environmental permitting procedures of the
1-3 Texas Natural Resource Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 5, Water Code, is amended by adding
1-6 Subchapter J to read as follows:
1-7 SUBCHAPTER J. ENVIRONMENTAL PERMITTING PROCEDURES
1-8 Sec. 5.371. GENERAL PERMITTING PROCEDURES. (a) This
1-9 subchapter applies to commission procedures for an application to
1-10 issue, amend, or renew a permit for which public notice and an
1-11 opportunity for public hearing is required by Chapter 26 or 27 of
1-12 this code or Chapter 361 or 382, Health and Safety Code.
1-13 (b) The commission shall provide for permits-by-rule under
1-14 the chapters listed in Subsection (a) to the greatest extent
1-15 practicable and consistent with the requirements for United States
1-16 Environmental Protection Agency authorization of a state permit
1-17 program.
1-18 (c) The commission by rule shall identify categories of
1-19 applications related to permits for which notice or opportunity for
1-20 public hearing is not required. The commission shall exempt from
1-21 notice and public hearing requirements an application to:
1-22 (1) maintain or improve the permitted quality or
1-23 method of disposal of waste, control of air emissions, or injection
2-1 of fluid if there is not:
2-2 (A) a significant increase in the quantity of
2-3 waste, air contaminants, or fluid to be discharged, emitted, or
2-4 injected; or
2-5 (B) a material change in the place of discharge,
2-6 injection, emission, control, treatment, storage, or disposal;
2-7 (2) amend a permit in a manner that will not:
2-8 (A) cause a potential deterioration of water
2-9 quality in the state; or
2-10 (B) relax a standard or criterion in a manner
2-11 that raises a potential for deterioration of water quality in the
2-12 state;
2-13 (3) amend a permit in a manner that will not:
2-14 (A) result in a significant net increase in
2-15 permitted allowable emissions; or
2-16 (B) allow a significant emission of air
2-17 contaminants not previously emitted under the permit;
2-18 (4) increase air emissions that are incidental to the
2-19 installation of an emission control device; or
2-20 (5) change a facility in a manner within the scope and
2-21 limitations of a flexible permit.
2-22 (d) For an application described by Subsection (c), the
2-23 commission by rule may provide for the action on the application to
2-24 be taken by the executive director after notice of the application
2-25 is given to persons as required by law and at least 10 days before
3-1 the action is taken.
3-2 Sec. 5.372. INITIAL DETERMINATION BY EXECUTIVE DIRECTOR.
3-3 (a) When an application related to a permit is complete, the
3-4 executive director shall prepare and issue:
3-5 (1) a draft permit; or
3-6 (2) a notice of intent to deny.
3-7 (b) The executive director shall include a record of
3-8 proposed decision prepared in accordance with Section 5.373 with a
3-9 draft permit or notice of intent to deny.
3-10 (c) The commission shall send a copy of the record of the
3-11 proposed decision to:
3-12 (1) the applicant;
3-13 (2) a state or federal agency, as required or as
3-14 appropriate; and
3-15 (3) any other person on request of that person.
3-16 (d) Unless precluded by a requirement of the United States
3-17 Environmental Protection Agency related to state program
3-18 authorization, an applicant may give public notice of the
3-19 application before the initial determination of the executive
3-20 director is completed. If all requests for a public hearing the
3-21 commission receives under the notice are unreasonable or the
3-22 commission receives no requests for a public hearing, the executive
3-23 director may take final action on the application notwithstanding
3-24 this section and Sections 5.373 through 5.375.
3-25 (e) A notice of intent to deny shall state the executive
4-1 director's reasons for the intended denial.
4-2 (f) A draft permit shall contain all appropriate conditions,
4-3 compliance schedules, monitoring requirements, and technical
4-4 standards consistent with applicable commission rules.
4-5 Sec. 5.373. RECORD OF PROPOSED DECISION FOR DRAFT PERMIT.
4-6 (a) A record of proposed decision prepared for a draft permit
4-7 must:
4-8 (1) briefly show the principal facts and significant
4-9 factual, legal, methodological, and policy issues considered in
4-10 preparing the draft permit; and
4-11 (2) be based on the administrative record.
4-12 (b) The record of proposed decision must include, as
4-13 applicable:
4-14 (1) a brief description of the type of facility or
4-15 activity that is the subject of the draft permit;
4-16 (2) the type and quantity of wastes proposed to be or
4-17 that are being treated, stored, disposed of, injected, emitted, or
4-18 discharged;
4-19 (3) a brief summary of the reasons for the draft
4-20 permit conditions, including references to applicable statutes or
4-21 rules;
4-22 (4) the reasons a requested variance or alternative to
4-23 a required standard is or is not justified;
4-24 (5) the procedures for reaching a final decision on
4-25 the draft permit, including:
5-1 (A) the dates the comment period begins and
5-2 ends;
5-3 (B) the address where comments will be received;
5-4 and
5-5 (C) a description of:
5-6 (i) procedures for requesting a hearing;
5-7 (ii) the nature of the hearing; and
5-8 (iii) any other procedures by which the
5-9 public may participate in the final decision process; and
5-10 (6) the name and telephone number of a person to
5-11 contact for additional information.
5-12 (c) The commission shall make the record of proposed
5-13 decision available when the public notice is published.
5-14 Sec. 5.374. NOTICE OF INITIAL DETERMINATION; COMMENTS AND
5-15 REQUESTS FOR HEARING. (a) The executive director shall give public
5-16 notice that a draft permit or notice of intent to deny has been
5-17 prepared. The executive director shall provide for a 30-day period
5-18 for public review, comments, and requests for public hearing. The
5-19 period for public review and comments must be extended until the
5-20 close of the public hearing, if one is held.
5-21 (b) Notice required under this section is in addition to the
5-22 requirements of Section 26.028 of this code and Sections 361.081
5-23 and 361.082, Health and Safety Code.
5-24 (c) If the commission receives a timely written notice of
5-25 opposition to a draft permit issued by the executive director and a
6-1 request for a public hearing on the draft permit, the executive
6-2 director shall respond to the request and attempt to resolve the
6-3 issues that create the opposition. The opponent may withdraw the
6-4 request for a public hearing following the executive director's
6-5 response.
6-6 (d) The commission by rule may require additional public
6-7 notice necessary to satisfy requirements of the United States
6-8 Environmental Protection Agency for state permit program
6-9 authorization.
6-10 Sec. 5.375. PUBLIC HEARINGS. (a) A ruling on a permit
6-11 issuance or denial may not be made without an opportunity for a
6-12 public hearing.
6-13 (b) At a public hearing, each interested person shall be
6-14 given a reasonable opportunity to:
6-15 (1) orally or in writing, present significant
6-16 information, views, or arguments; and
6-17 (2) examine testifying witnesses.
6-18 (c) The executive director shall hold the public hearing if
6-19 the executive director determines:
6-20 (1) after examining requests for a public hearing,
6-21 that there is a significant degree of public interest in the draft
6-22 permit or notice of intent to deny; or
6-23 (2) that a public hearing should be held in order to
6-24 clarify one or more issues in the permit decision, regardless of
6-25 whether the commission receives a timely request for a public
7-1 hearing.
7-2 (d) When a draft permit or notice of intent to deny for a
7-3 hazardous waste management permit is at issue, the executive
7-4 director shall hold a public hearing in any case in which the
7-5 commission receives a notice of opposition to the permit decision
7-6 and a request for a public hearing on or before the 30th day after
7-7 the date of public notice under Section 5.374. The executive
7-8 director shall hold the public hearing under this subsection at a
7-9 location convenient to the population center nearest the proposed
7-10 facility whenever it is possible to do so.
7-11 (e) The executive director may designate a hearings officer
7-12 or panel to take evidence at the hearing. A hearing panel may
7-13 include technical experts on the staff of the executive director.
7-14 (f) Chapter 2001, Government Code, does not apply to a
7-15 public hearing held under this section. A hearing held under this
7-16 section shall be conducted so that all relevant information, views,
7-17 arguments, and testimony are sufficiently and fairly received
7-18 without undue repetition.
7-19 (g) A hearing held under this section shall be recorded. On
7-20 request, a hearing shall be transcribed. The person who requests a
7-21 hearing transcript must bear the cost of the transcript.
7-22 (h) The commission shall provide the record and, if
7-23 prepared, the transcript of a hearing for review of any person at
7-24 the commission's main office.
7-25 (i) A person who requests a copy of the record or of a
8-1 transcript must bear the cost of the copy.
8-2 Sec. 5.376. COSTS FOR INFORMATION REGARDING NEW HAZARDOUS
8-3 WASTE PERMIT. (a) On request of an affected person, the applicant
8-4 for a permit for a new hazardous waste management facility shall
8-5 furnish a bond or other financial assurance authorized by the
8-6 commission to guarantee payment of nonlegal costs of the affected
8-7 person incurred in providing to the commission information related
8-8 to the issuance of the permit.
8-9 (b) For an application for a new commercial hazardous waste
8-10 management facility, the bond or assurance must be in the amount of
8-11 $100,000.
8-12 (c) For an application for a new noncommercial hazardous
8-13 waste management facility, the bond or assurance must be in the
8-14 amount of $20,000.
8-15 (d) In determining whether the affected person is entitled
8-16 to reimbursement under this section, the executive director shall
8-17 apply the considerations provided by Section 361.0833(e), Health
8-18 and Safety Code.
8-19 (e) Nonlegal costs subject to reimbursement under this
8-20 section include the cost of a copy of the administrative record in
8-21 the case.
8-22 (f) The commission may not award in a case costs to one or
8-23 more persons that total an amount greater than the amount of
8-24 financial assurance required by this section.
8-25 (g) Subject to the limitations of Subsections (d) and (f),
9-1 the commission may award to a unit of local government legal costs
9-2 in addition to other costs.
9-3 Sec. 5.377. FINAL DECISION OF EXECUTIVE DIRECTOR. (a) The
9-4 executive director shall consider all comments received during the
9-5 public comment period and during any public hearing in determining:
9-6 (1) whether to issue the permit; and
9-7 (2) conditions on the permit if a permit is issued.
9-8 (b) In ruling on a permit application, the executive
9-9 director may deny the permit in whole or in part and may provide
9-10 reasonable conditions to a permit if:
9-11 (1) it appears that the permit applied for does not
9-12 meet applicable requirements; or
9-13 (2) the applicant refuses to agree to a permit
9-14 condition the executive director determines is necessary after
9-15 reviewing comments the commission receives.
9-16 (c) When the executive director issues a final decision on
9-17 an application, the executive director shall issue a response to
9-18 comments the commission receives. The response must:
9-19 (1) identify provisions of the draft permit that have
9-20 been changed for the final permit, if any, and state the reasons
9-21 for the change; and
9-22 (2) briefly describe and respond to all significant
9-23 comments the commission receives on the draft permit or permit
9-24 application.
9-25 (d) The response must be available to the public.
10-1 (e) The executive director shall mail notice of the final
10-2 decision on the application to the applicant and to each person who
10-3 commented during the public comment period or participated in the
10-4 public hearing. The notice must:
10-5 (1) include the response issued under Subsection (c);
10-6 (2) state that any person affected by the decision may
10-7 petition the commission as provided by Section 5.378;
10-8 (3) explain the petition process;
10-9 (4) identify the location and availability of the
10-10 administrative record; and
10-11 (5) state that limited copies of the administrative
10-12 record may be made available under Section 5.376, with costs of the
10-13 copies borne by the applicant.
10-14 (f) A final decision on a permit application becomes
10-15 effective 30 days after the date notice of the decision is mailed,
10-16 unless a petition for review is filed in accordance with Section
10-17 5.738, or at a later time specified by the executive director in
10-18 the decision.
10-19 Sec. 5.378. PETITION FOR COMMISSION REVIEW. (a) The
10-20 commission shall review the executive director's decision on a
10-21 permit application as provided by this section.
10-22 (b) Any person affected by the decision of the executive
10-23 director may file a petition for review with the commission. A
10-24 petition for review must be filed on or before the 30th day after
10-25 the date the executive director's notice of final decision is
11-1 mailed.
11-2 (c) The petition must include a statement of the reasons
11-3 that support commission review of the decision, demonstrate that
11-4 the issue raised by the petition was raised during the public
11-5 comment period or public hearing, identify all provisions of the
11-6 draft permit or order of denial of the application with which the
11-7 appellant disagrees, and show that the decision or a permit
11-8 condition is based on:
11-9 (1) a finding of fact or a conclusion of law that is
11-10 clearly in error; or
11-11 (2) an important policy consideration or an exercise
11-12 of discretion that the commission should review.
11-13 (d) The commission shall determine if the petitioner is an
11-14 affected person not later than the 60th day after the notice of
11-15 final decision is mailed. Any valid petition granted by the
11-16 commission shall be referred by the commission to the State Office
11-17 of Administrative Hearings for a hearing in accordance with Section
11-18 2003.047, Government Code. If the commission does not act on or
11-19 before that date, the petition is automatically referred as
11-20 provided in this subsection.
11-21 (e) At all stages of the petition to the commission and the
11-22 hearing at the State Office of Administrative Hearings, each
11-23 factual representation contained in the draft permit prepared by
11-24 the executive director and in the application, to the extent not
11-25 inconsistent with the draft permit, shall be deemed to be true and
12-1 correct, unless specifically controverted by sworn testimony or
12-2 other competent evidence in accordance with the requirements of
12-3 Subsection (f).
12-4 (f) An applicant in a permitting procedure established by
12-5 this subchapter shall bear the burdens of production and persuasion
12-6 with respect to the specification, condition, provisions, or facts
12-7 at issue in a draft permit prepared by the executive director.
12-8 (g) The filing of a petition under this section stays the
12-9 effect of a permit issued by the executive director until the
12-10 commission approves, modifies, or rejects the executive director's
12-11 permit decision.
12-12 Sec. 5.379. COMMISSION ACTION. (a) After the
12-13 administrative law judge of the State Office of Administrative
12-14 Hearings submits a proposal for decision to the commission, the
12-15 commission shall proceed as provided in Section 2003.047(i),
12-16 Government Code.
12-17 (b) The commission decision is final as provided in Section
12-18 2001.144, Government Code.
12-19 (c) Any motions for commission rehearing shall be governed
12-20 by Sections 2001.145 and 2001.146, Government Code.
12-21 Sec. 5.380. JUDICIAL REVIEW OF COMMISSION PERMIT DECISIONS.
12-22 (a) A person affected by the commission's final decision on a
12-23 permit application may petition for judicial review. The petition
12-24 must be filed on or before the 30th day after the date the
12-25 commission mails its final decision on the application.
13-1 (b) Failure to timely petition for commission review of the
13-2 executive director's decision is a bar to judicial review of the
13-3 decision.
13-4 (c) Judicial review of decisions of the commission under
13-5 this subchapter shall be under the substantial evidence rules as
13-6 provided by Section 2001.174, Government Code.
13-7 (d) The filing of an appeal does not stay any action
13-8 required by the commission's decision.
13-9 (e) The record of appeal shall include the record of
13-10 proceedings of the contested case hearing at the State Office of
13-11 Administrative Hearings.
13-12 SECTION 2. Subchapter I, Chapter 2001, Government Code, is
13-13 amended by adding Section 2001.226 to read as follows:
13-14 Sec. 2001.226. CERTAIN ENVIRONMENTAL PERMITS. Subchapters C
13-15 through H do not apply to a permit application required to be filed
13-16 with the Texas Natural Resource Conservation Commission for an
13-17 authorization under Chapter 26 or 27, Water Code, or Chapter 361 or
13-18 382, Health and Safety Code, if the application is subject to
13-19 Subchapter J, Water Code.
13-20 SECTION 3. The importance of this legislation and the
13-21 crowded condition of the calendars in both houses create an
13-22 emergency and an imperative public necessity that the
13-23 constitutional rule requiring bills to be read on three several
13-24 days in each house be suspended, and this rule is hereby suspended,
13-25 and that this Act take effect and be in force from and after its
14-1 passage, and it is so enacted.