By Yost H.B. No. 2491
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the environmental permitting procedures of the Texas
1-3 Natural Resource Conservation Commission under Chapters 26 and 27,
1-4 Water Code, and Chapters 361 and 382, Health and Safety Code.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 5, Water Code, is amended by adding a new
1-7 Subchapter I to read as follows:
1-8 SUBCHAPTER I. ENVIRONMENTAL PERMITTING
1-9 Sec. 5.341. PERMITTING PROCEDURES. (a) The permitting
1-10 procedures set forth in this section apply to permit applications
1-11 required to be filed with the Commission for authorization under
1-12 Chapters 26 and 27 of this code and Chapters 361 and 382 of the
1-13 Health and Safety Code. The Commission by rule may provide for
1-14 those activities requiring multiple authorization under these laws
1-15 to be consolidated into a single permit or provide for
1-16 permits-by-rule, consistent with the applicable requirements of the
1-17 United States Environmental Protection Agency for state program
1-18 authorization under these laws.
1-19 (b) The Commission shall encourage applicants for solid
1-20 waste facilities to engage in the preapplication local review
1-21 committee process set forth in Section 361.063, Health and Safety
1-22 Code.
1-23 Sec. 5.342. INITIAL DETERMINATION BY EXECUTIVE DIRECTOR.
2-1 (a) Once an application is complete, the Executive Director shall
2-2 prepare and issue either a Draft Permit or a Notice of Intent to
2-3 Deny.
2-4 (1) A Draft Permit shall contain all appropriate
2-5 conditions, compliance schedules, monitoring requirements and
2-6 technical standards consistent with applicable regulations of the
2-7 Commission.
2-8 (2) A Notice of Intent to Deny shall state the
2-9 Executive Director's reasons for the intended denial.
2-10 (b) Any Draft Permit or Notice of Intent to Deny prepared by
2-11 the Executive Director shall be accompanied by a Record of Proposed
2-12 Decision and shall be based on the Administrative Record. Copies
2-13 of the Record of Proposed Decision shall be sent to the applicant;
2-14 to any state or federal agency, as applicable; and on request, to
2-15 any other person.
2-16 Sec. 5.343. RECORD OF PROPOSED DECISION. A Record of
2-17 Proposed Decision shall be prepared for the Draft Permit. The
2-18 Record of Proposed Decision shall briefly set forth the principal
2-19 facts and the significant factual legal, methodological and policy
2-20 questions considered in preparing the Draft Permit. The Record of
2-21 Proposed Decision shall be available at the time the public notice
2-22 is published and shall include, when applicable:
2-23 (1) A brief description of the type of facility or
2-24 activity which is the subject of the Draft Permit.
2-25 (2) The type and quantity of wastes which are proposed
3-1 to be or are being treated, stored, disposed of, injected, emitted,
3-2 or discharged.
3-3 (3) A brief summary of the basis for the Draft Permit
3-4 conditions including references to applicable statutory or
3-5 regulatory provisions.
3-6 (4) Reasons why any requested variances or
3-7 alternatives to required standards do or not appear justified.
3-8 (5) A description of the procedures for reaching a
3-9 final decision on the Draft Permit including:
3-10 (A) The beginning an ending dates of the comment
3-11 period and the address where comments will be received;
3-12 (B) Procedures for requesting a hearing and the
3-13 nature of that hearing; and
3-14 (C) Any other procedures by which the public may
3-15 participate in the final decision.
3-16 (6) Name and telephone number of a person to contact
3-17 for additional information.
3-18 Sec. 5.344. NOTICE OF INITIAL DETERMINATION. (a) The
3-19 Executive Director shall give public notice that a Draft Permit or
3-20 a Notice of Intent to Deny has been prepared, and shall allow
3-21 forty-five (45) days for review and public comment, including
3-22 requests for public hearing. The comment period shall
3-23 automatically be extended to the close of any public hearing.
3-24 (b) The notice requirements of this section shall be in
3-25 addition to the applicable requirements of Section 26.028 and
4-1 Sections 361.081 and 361.082, Health and Safety Code.
4-2 (c) If the Executive Director issues a Draft Permit, and a
4-3 timely written notice of opposition to the Draft Permit and a
4-4 request for a public hearing is received, the Executive Director
4-5 will respond to the request in an attempt to resolve the issues
4-6 giving rise to the opposition. If such issues are resolved to the
4-7 satisfaction of the opponent, the opponent may withdraw the request
4-8 for a public hearing.
4-9 (d) The Executive Director shall give due consideration and
4-10 the weight deemed appropriate to all comments received during a
4-11 public comment period and to all relevant facts and circumstances
4-12 presented at any public hearing.
4-13 (e) The Commission may by rule establish additional public
4-14 notice requirements in order to satisfy the requirements of the
4-15 United States Environmental Protection Agency for state permit
4-16 program authorization.
4-17 Sec. 5.345. PUBLIC HEARINGS. (a) No ruling shall be made
4-18 on permit issuance or denial without an opportunity for a public
4-19 hearing, at which all interested persons shall be given a
4-20 reasonable chance to submit significant data, views or arguments
4-21 orally or in writing and to examine witnesses testifying at the
4-22 public hearing.
4-23 (b) The public hearing shall be held whenever:
4-24 (1) the Executive Director finds, on the basis of
4-25 requests, a significant degree of public interest in the Draft
5-1 Permit or Notice of Intent to Deny.
5-2 (2) the Executive Director determines following the
5-3 end of the comment period that a public hearing should be held,
5-4 notwithstanding the absence of a timely request for public hearing,
5-5 in order to clarify one or more issues involved in the permit
5-6 decision.
5-7 (c) For hazardous waste management permits only, the
5-8 Executive Director shall hold a public hearing whenever a written
5-9 notice of opposition to the permit decision and a request for a
5-10 hearing is received by the Executive Director within 45 days of
5-11 public notice under Section 5.342. Whenever possible, the
5-12 Executive Director shall schedule a hearing under this section at a
5-13 location convenient to the nearest population center to the
5-14 proposed facility.
5-15 (d) Public Hearings conducted under this section are subject
5-16 to the following:
5-17 (1) The Executive Director may designate a hearing
5-18 officer or a hearing panel to take evidence at the hearing. A
5-19 hearing panel may include technical experts on the Executive
5-20 Director's staff.
5-21 (2) In hearings under this section, the contested case
5-22 hearing procedures of the Administrative Procedure Act, Texas
5-23 Government Code, Chapter 2001, shall not apply, but the hearings
5-24 shall be conducted so that all relevant views, arguments, and
5-25 testimony are amply and fairly received without undue repetition.
6-1 (3) All hearings shall be recorded. On request, the
6-2 hearing shall be transcribed. The cost of the transcript will be
6-3 borne by the person requesting the transcription of the hearing.
6-4 The record or the transcript will be furnished to all persons for
6-5 review at the Commission's main office. Costs of a copy of the
6-6 record of the transcript will be borne by those requesting such
6-7 copies.
6-8 Sec. 5.346. COSTS FOR INFORMATION PROVIDED BY A PERSON
6-9 AFFECTED REGARDING HAZARDOUS WASTE PERMIT. (a) Except as provided
6-10 by Subsection (b), on request of a person affected, the applicant
6-11 for a permit for a new hazardous waste management facility shall
6-12 furnish a bond or other financial assurance authorized by the
6-13 commission to guarantee payment of non-legal costs of a person
6-14 affected who provides information to the commission on the question
6-15 of the issuance of the permit, including costs of a copy of the
6-16 Administrative Record. For applications involving commercial
6-17 hazardous waste management facilities, the bond or other financial
6-18 assurance must be in the amount of one hundred thousand dollars
6-19 ($100,000). For applications that do not involve commercial
6-20 hazardous waste management facilities, the bond or other financial
6-21 assurance must be in the amount of twenty thousand dollars
6-22 ($20,000). In determining whether the person affected is entitled
6-23 to reimbursement of non-legal costs, the Executive Director shall
6-24 use the considerations set forth in Section 361.0833(b), Health and
6-25 Safety Code. The total costs awarded to all persons may not exceed
7-1 the amount of the financial assurance required.
7-2 (b) In addition to costs under Subsection (a), a unit of
7-3 local government may be paid legal costs subject to the limits of
7-4 Subsection (a).
7-5 Sec. 5.347. FINAL DECISION OF EXECUTIVE DIRECTOR. (a)
7-6 Executive Director shall consider all comments received during the
7-7 public comment period including any public hearing in determining
7-8 whether to issue or deny the permit and what conditions should be
7-9 included if a permit is issued.
7-10 (b) When ruling on permit issuance or denial, the Executive
7-11 Director may disapprove in whole or in part, or make reasonable
7-12 conditions to any permit, if it appears that the permit applied for
7-13 will not meet the requirements of applicable regulations of the
7-14 Commission or the applicant refuses to agree to permit conditions
7-15 which the Executive Director determines are necessary based on
7-16 comments received.
7-17 (1) At the time of any final permit decision is
7-18 issued, the Executive Director shall issue a response to comments.
7-19 This response shall:
7-20 (A) specify which provisions, if any, of the
7-21 draft permit have been changed in the final permit decision, and
7-22 the reasons for the change;
7-23 (B) briefly describe and respond to all
7-24 significant comments on the draft permit or the permit application
7-25 raised during the public comment period, or during any hearing; and
8-1 (C) be available to the public.
8-2 (c) The Executive Director shall mail notice of the final
8-3 action on the permit to the applicant and all persons who commented
8-4 during the public comment period (including any public hearing).
8-5 The notice shall include a Record of Decision that responds to all
8-6 significant comments submitted during the public comment period and
8-7 shall identify any change in the conditions of the draft permit and
8-8 the reasons for the change. The notice shall:
8-9 (1) state that any person affected by the decision of
8-10 the Executive Director may petition the Commission in accordance
8-11 with this section;
8-12 (2) state the date by which the petition must be
8-13 filed;
8-14 (3) explain the petition process; and
8-15 (4) identify the location and availability of the
8-16 Administrative Record, stating that limited copies of the
8-17 Administrative Record may be made available with costs to be borne
8-18 by the applicant pursuant to Section 5.346.
8-19 (d) A final permit decision shall become effective thirty
8-20 (30) days after notice of the decision has been mailed to the
8-21 applicant and any other person who has commented during the public
8-22 comment period and has requested to be mailed a copy of the
8-23 decision, or such later time as the Executive Director may specify
8-24 Sec. 5.348. PETITIONS FOR REVIEW. The commission shall
8-25 provide for petitions for review of Executive Director final permit
9-1 decisions.
9-2 (1) A petition shall be filed with the Commission,
9-3 within 30 days of the mailing of the Executive Director's final
9-4 decision.
9-5 (2) The petition shall include a statement of the
9-6 reasons supporting the review of the Executive Director's decision,
9-7 including a demonstration that any issues being raised were raised
9-8 during the public comment period (including any public hearing) and
9-9 a showing that the decision, including the permit condition, is
9-10 based on:
9-11 (A) A finding of fact or conclusion of law that
9-12 is clearly erroneous, or
9-13 (B) An exercise of discretion or an important
9-14 policy consideration that the Commission should, in its discretion,
9-15 review.
9-16 (3) The Commission shall act on a petition not later
9-17 than the 60th day after the date of the mailing of the Executive
9-18 Director's final decision or the petition is overruled by operation
9-19 of law.
9-20 (4) If the petition is granted, the Commission shall
9-21 notify the petitioner and other persons who commented during the
9-22 public comment period (including any public hearing). The notice
9-23 shall set forth a briefing schedule for the review and shall state
9-24 that any affected person may file an amicus brief.
9-25 (5) If the Commission modifies or rejects the
10-1 Executive Director's decision, the Commission's decision must be in
10-2 writing and include a statement of the reason and legal basis for
10-3 the change and be supported by the Administrative Record. The
10-4 decision of the Commission must be mailed to the petitioner and
10-5 other persons who commented during the public comment period
10-6 (including any public hearing). A judicial appeal of the agency's
10-7 decision must be filed within 30 days of the mailing of the
10-8 Commission's decision in accordance with Section 5.351.
10-9 (6) The filing of a timely petition is a prerequisite
10-10 for judicial review of the Executive Director's final decision.
10-11 (7) The petition to the Commission under this section
10-12 does not affect the validity of a permit issued by the Executive
10-13 Director until and unless a different decision is made by the
10-14 Commission.
10-15 Sec. 5.349. JUDICIAL REVIEW OF PERMIT DECISIONS. Judicial
10-16 Review of the Executive Director's decision shall be under the
10-17 substantial evidence rule as provided by the Administrative
10-18 Procedure Act, Chapter 2001, Government Code.
10-19 (1) The filing of an appeal does not act as a stay of
10-20 any action required by the Executive Director's decision.
10-21 (2) The record of appeal shall include all written and
10-22 oral substantive public comments, the transcript of the hearing,
10-23 all related correspondence, any responses to comments, and all
10-24 other information relied upon by the Commission in deciding upon
10-25 the permit action.
11-1 SECTION 2. Subchapter I, Chapter 5, Water Code, is
11-2 renumbered to be Subchapter J.
11-3 SECTION 3. Chapter 2001, Government Code, is amended by
11-4 adding a new Section 2001.226 to read as follows:
11-5 Sec. 2001.226. CERTAIN ENVIRONMENTAL PERMITS. Subchapters C
11-6 through H do not apply to permit applications required to be filed
11-7 with the Texas Natural Resource Conservation Commission for
11-8 authorization under Chapters 26 and 27., Water Code, and Chapters
11-9 361 and 382, Health and Safety Code that are subject to the
11-10 procedures of Subchapter I, Water Code.
11-11 SECTION 4. The importance of this legislation and the
11-12 crowded condition of the calendars in both houses create an
11-13 emergency and an imperative public necessity that the
11-14 constitutional rule requiring bills to be read on three several
11-15 days in each house be suspended, and this rule is hereby suspended,
11-16 and that this Act take effect and be in force from and after its
11-17 passage, and it is so enacted.