1-1 By: Yost (Senate Sponsor - Ratliff) H.B. No. 2491
1-2 (In the Senate - Received from the House May 15, 1995;
1-3 May 18, 1995, read first time and referred to Committee on Natural
1-4 Resources; May 25, 1995, reported favorably, as amended, by the
1-5 following vote: Yeas 7, Nays 1; May 25, 1995, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Ratliff
1-7 Amend H.B. 2491 in SECTION 1 as follows:
1-8 (1) In Sec. 5.372(d) (page 3, line 21), delete "5.375" at
1-9 the end of the subsection and substitute "5.378".
1-10 (2) In Sec. 5.377(a) (page 8, line 15), delete "The" at the
1-11 beginning of the subsection and substitute "For decisions on
1-12 applications processed under Sections 5.373 through 5.375, the"
1-13 (3) In Sec. 5.377(e)(5) (page 9, line 21), between "(5)" and
1-14 "state" insert "for applications for new hazardous waste management
1-15 facilities,"
1-16 COMMITTEE AMENDMENT NO. 2 By: Ratliff
1-17 Amend H.B. 2491 in SECTION 1, by deleting Subsection 5.378(d) (page
1-18 10, line 21 through page 11, line 1), and inserting in lieu thereof
1-19 the following:
1-20 (d) The commission shall determine if the petitioner is an
1-21 affected person. Not later than the 60th day after the notice of
1-22 final decision is mailed, a petition based on subsection (c)(1)
1-23 shall be referred by the commission to the State Office of
1-24 Administrative Hearings for a hearing in accordance with Section
1-25 2003.047, Government Code, unless the commission has determined
1-26 that the petitioner is not an affected person or that the petition
1-27 is unreasonable. If the commission does not act on or before that
1-28 date, the petition is automatically referred as provided in this
1-29 subsection. For a petition based on subsection (c)(2) of this
1-30 section, the commission shall give notice to the petitioner and
1-31 each other person who commented during the public comment period or
1-32 who participated in the public hearing not later than the 60th day
1-33 after the notice of final decision is mailed that the petition has
1-34 been granted or denied. If the petition is granted, the notice
1-35 must provide a briefing schedule for the review and state that any
1-36 person affected may file an amicus brief.
1-37 COMMITTEE AMENDMENT NO. 3 By: Ratliff
1-38 Amend H.B. 2491 in SECTION 1 as follows:
1-39 (1) In Subsection 5.378(e) (page 11, lines 8-9) strike "in
1-40 accordance with the requirements of subsection (f)." and insert in
1-41 lieu thereof "which either the commission or the administrative law
1-42 judge recognizes as being sufficient to render the factual matter
1-43 controverted. At the commencement of the hearing at the State
1-44 Office of Administrative Hearings, the draft permit prepared by the
1-45 executive director, as well as the application and any amendments
1-46 or supplements thereto, shall be received into the evidentiary
1-47 record.
1-48 (2) In Subsection 5.378(f) (page 11, line 13) insert "which
1-49 are recognized as controverted under subsection (e)" between
1-50 "director" and the period at the end of the subsection.
1-51 COMMITTEE AMENDMENT NO. 4 By: Ratliff
1-52 Amend H.B. 2491 in SECTION 2, in the proposed Sec. 2001.226,
1-53 Government Code, by inserting before "Subchapters" at the beginning
1-54 of the Section "(a) Except as provided by Subsection (b)," and by
1-55 adding a new Subsection (b) to read as follows:
1-56 (b) Subchapters C through H apply to a proceeding
1-57 transferred to the State Office of Administrative Hearings under
1-58 Section 5.378, Water Code.
1-59 A BILL TO BE ENTITLED
1-60 AN ACT
1-61 relating to certain environmental permitting procedures of the
1-62 Texas Natural Resource Conservation Commission.
1-63 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-64 SECTION 1. Chapter 5, Water Code, is amended by adding
1-65 Subchapter J to read as follows:
1-66 SUBCHAPTER J. ENVIRONMENTAL PERMITTING PROCEDURES
1-67 Sec. 5.371. GENERAL PERMITTING PROCEDURES. (a) This
1-68 subchapter applies to commission procedures for an application to
2-1 issue, amend, or renew a permit for which public notice and an
2-2 opportunity for public hearing is required by Chapter 26 or 27 of
2-3 this code or Chapter 361 or 382, Health and Safety Code.
2-4 (b) The commission shall provide for permits-by-rule under
2-5 the chapters listed in Subsection (a) to the greatest extent
2-6 practicable and consistent with the requirements for United States
2-7 Environmental Protection Agency authorization of a state permit
2-8 program.
2-9 (c) The commission by rule shall identify categories of
2-10 applications related to permits for which notice or opportunity for
2-11 public hearing is not required. The commission shall exempt from
2-12 notice and public hearing requirements an application to:
2-13 (1) maintain or improve the permitted quality or
2-14 method of disposal of waste, control of air emissions, or injection
2-15 of fluid if there is not:
2-16 (A) a significant increase in the quantity of
2-17 waste, air contaminants, or fluid to be discharged, emitted, or
2-18 injected; or
2-19 (B) a material change in the place of discharge,
2-20 injection, emission, control, treatment, storage, or disposal;
2-21 (2) amend a permit in a manner that will not:
2-22 (A) cause a potential deterioration of water
2-23 quality in the state; or
2-24 (B) relax a standard or criterion in a manner
2-25 that raises a potential for deterioration of water quality in the
2-26 state;
2-27 (3) amend a permit in a manner that will not:
2-28 (A) result in a significant net increase in
2-29 permitted allowable emissions; or
2-30 (B) allow a significant emission of air
2-31 contaminants not previously emitted under the permit;
2-32 (4) increase air emissions that are incidental to the
2-33 installation of an emission control device; or
2-34 (5) change a facility in a manner within the scope and
2-35 limitations of a flexible permit.
2-36 (d) For an application described by Subsection (c), the
2-37 commission by rule may provide for the action on the application to
2-38 be taken by the executive director after notice of the application
2-39 is given to persons as required by law and at least 10 days before
2-40 the action is taken.
2-41 Sec. 5.372. INITIAL DETERMINATION BY EXECUTIVE DIRECTOR.
2-42 (a) When an application related to a permit is complete, the
2-43 executive director shall prepare and issue:
2-44 (1) a draft permit; or
2-45 (2) a notice of intent to deny.
2-46 (b) The executive director shall include a record of
2-47 proposed decision prepared in accordance with Section 5.373 with a
2-48 draft permit or notice of intent to deny.
2-49 (c) The commission shall send a copy of the record of the
2-50 proposed decision to:
2-51 (1) the applicant;
2-52 (2) a state or federal agency, as required or as
2-53 appropriate; and
2-54 (3) any other person on request of that person.
2-55 (d) Unless precluded by a requirement of the United States
2-56 Environmental Protection Agency related to state program
2-57 authorization, an applicant may give public notice of the
2-58 application before the initial determination of the executive
2-59 director is completed. If all requests for a public hearing the
2-60 commission receives under the notice are unreasonable or the
2-61 commission receives no requests for a public hearing, the executive
2-62 director may take final action on the application notwithstanding
2-63 this section and Sections 5.373 through 5.375.
2-64 (e) A notice of intent to deny shall state the executive
2-65 director's reasons for the intended denial.
2-66 (f) A draft permit shall contain all appropriate conditions,
2-67 compliance schedules, monitoring requirements, and technical
2-68 standards consistent with applicable commission rules.
2-69 Sec. 5.373. RECORD OF PROPOSED DECISION FOR DRAFT PERMIT.
2-70 (a) A record of proposed decision prepared for a draft permit
3-1 must:
3-2 (1) briefly show the principal facts and significant
3-3 factual, legal, methodological, and policy issues considered in
3-4 preparing the draft permit; and
3-5 (2) be based on the administrative record.
3-6 (b) The record of proposed decision must include, as
3-7 applicable:
3-8 (1) a brief description of the type of facility or
3-9 activity that is the subject of the draft permit;
3-10 (2) the type and quantity of wastes proposed to be or
3-11 that are being treated, stored, disposed of, injected, emitted, or
3-12 discharged;
3-13 (3) a brief summary of the reasons for the draft
3-14 permit conditions, including references to applicable statutes or
3-15 rules;
3-16 (4) the reasons a requested variance or alternative to
3-17 a required standard is or is not justified;
3-18 (5) the procedures for reaching a final decision on
3-19 the draft permit, including:
3-20 (A) the dates the comment period begins and
3-21 ends;
3-22 (B) the address where comments will be received;
3-23 and
3-24 (C) a description of:
3-25 (i) procedures for requesting a hearing;
3-26 (ii) the nature of the hearing; and
3-27 (iii) any other procedures by which the
3-28 public may participate in the final decision process; and
3-29 (6) the name and telephone number of a person to
3-30 contact for additional information.
3-31 (c) The commission shall make the record of proposed
3-32 decision available when the public notice is published.
3-33 Sec. 5.374. NOTICE OF INITIAL DETERMINATION; COMMENTS AND
3-34 REQUESTS FOR HEARING. (a) The executive director shall give public
3-35 notice that a draft permit or notice of intent to deny has been
3-36 prepared. The executive director shall provide for a 30-day period
3-37 for public review, comments, and requests for public hearing. The
3-38 period for public review and comments must be extended until the
3-39 close of the public hearing, if one is held.
3-40 (b) Notice required under this section is in addition to the
3-41 requirements of Section 26.028 of this code and Sections 361.081
3-42 and 361.082, Health and Safety Code.
3-43 (c) If the commission receives a timely written notice of
3-44 opposition to a draft permit issued by the executive director and a
3-45 request for a public hearing on the draft permit, the executive
3-46 director shall respond to the request and attempt to resolve the
3-47 issues that create the opposition. The opponent may withdraw the
3-48 request for a public hearing following the executive director's
3-49 response.
3-50 (d) The commission by rule may require additional public
3-51 notice necessary to satisfy requirements of the United States
3-52 Environmental Protection Agency for state permit program
3-53 authorization.
3-54 Sec. 5.375. PUBLIC HEARINGS. (a) A ruling on a permit
3-55 issuance or denial may not be made without an opportunity for a
3-56 public hearing.
3-57 (b) At a public hearing, each interested person shall be
3-58 given a reasonable opportunity to:
3-59 (1) orally or in writing, present significant
3-60 information, views, or arguments; and
3-61 (2) examine testifying witnesses.
3-62 (c) The executive director shall hold the public hearing if
3-63 the executive director determines:
3-64 (1) after examining requests for a public hearing,
3-65 that there is a significant degree of public interest in the draft
3-66 permit or notice of intent to deny; or
3-67 (2) that a public hearing should be held in order to
3-68 clarify one or more issues in the permit decision, regardless of
3-69 whether the commission receives a timely request for a public
3-70 hearing.
4-1 (d) When a draft permit or notice of intent to deny for a
4-2 hazardous waste management permit is at issue, the executive
4-3 director shall hold a public hearing in any case in which the
4-4 commission receives a notice of opposition to the permit decision
4-5 and a request for a public hearing on or before the 30th day after
4-6 the date of public notice under Section 5.374. The executive
4-7 director shall hold the public hearing under this subsection at a
4-8 location convenient to the population center nearest the proposed
4-9 facility whenever it is possible to do so.
4-10 (e) The executive director may designate a hearings officer
4-11 or panel to take evidence at the hearing. A hearing panel may
4-12 include technical experts on the staff of the executive director.
4-13 (f) Chapter 2001, Government Code, does not apply to a
4-14 public hearing held under this section. A hearing held under this
4-15 section shall be conducted so that all relevant information, views,
4-16 arguments, and testimony are sufficiently and fairly received
4-17 without undue repetition.
4-18 (g) A hearing held under this section shall be recorded. On
4-19 request, a hearing shall be transcribed. The person who requests a
4-20 hearing transcript must bear the cost of the transcript.
4-21 (h) The commission shall provide the record and, if
4-22 prepared, the transcript of a hearing for review of any person at
4-23 the commission's main office.
4-24 (i) A person who requests a copy of the record or of a
4-25 transcript must bear the cost of the copy.
4-26 Sec. 5.376. COSTS FOR INFORMATION REGARDING NEW HAZARDOUS
4-27 WASTE PERMIT. (a) On request of an affected person, the applicant
4-28 for a permit for a new hazardous waste management facility shall
4-29 furnish a bond or other financial assurance authorized by the
4-30 commission to guarantee payment of nonlegal costs of the affected
4-31 person incurred in providing to the commission information related
4-32 to the issuance of the permit.
4-33 (b) For an application for a new commercial hazardous waste
4-34 management facility, the bond or assurance must be in the amount of
4-35 $100,000.
4-36 (c) For an application for a new noncommercial hazardous
4-37 waste management facility, the bond or assurance must be in the
4-38 amount of $20,000.
4-39 (d) In determining whether the affected person is entitled
4-40 to reimbursement under this section, the executive director shall
4-41 apply the considerations provided by Section 361.0833(e), Health
4-42 and Safety Code.
4-43 (e) Nonlegal costs subject to reimbursement under this
4-44 section include the cost of a copy of the administrative record in
4-45 the case.
4-46 (f) The commission may not award in a case costs to one or
4-47 more persons that total an amount greater than the amount of
4-48 financial assurance required by this section.
4-49 (g) Subject to the limitations of Subsections (d) and (f),
4-50 the commission may award to a unit of local government legal costs
4-51 in addition to other costs.
4-52 Sec. 5.377. FINAL DECISION OF EXECUTIVE DIRECTOR. (a) The
4-53 executive director shall consider all comments received during the
4-54 public comment period and during any public hearing in determining:
4-55 (1) whether to issue the permit; and
4-56 (2) conditions on the permit if a permit is issued.
4-57 (b) In ruling on a permit application, the executive
4-58 director may deny the permit in whole or in part and may provide
4-59 reasonable conditions to a permit if:
4-60 (1) it appears that the permit applied for does not
4-61 meet applicable requirements; or
4-62 (2) the applicant refuses to agree to a permit
4-63 condition the executive director determines is necessary after
4-64 reviewing comments the commission receives.
4-65 (c) When the executive director issues a final decision on
4-66 an application, the executive director shall issue a response to
4-67 comments the commission receives. The response must:
4-68 (1) identify provisions of the draft permit that have
4-69 been changed for the final permit, if any, and state the reasons
4-70 for the change; and
5-1 (2) briefly describe and respond to all significant
5-2 comments the commission receives on the draft permit or permit
5-3 application.
5-4 (d) The response must be available to the public.
5-5 (e) The executive director shall mail notice of the final
5-6 decision on the application to the applicant and to each person who
5-7 commented during the public comment period or participated in the
5-8 public hearing. The notice must:
5-9 (1) include the response issued under Subsection (c);
5-10 (2) state that any person affected by the decision may
5-11 petition the commission as provided by Section 5.378;
5-12 (3) explain the petition process;
5-13 (4) identify the location and availability of the
5-14 administrative record; and
5-15 (5) state that limited copies of the administrative
5-16 record may be made available under Section 5.376, with costs of the
5-17 copies borne by the applicant.
5-18 (f) A final decision on a permit application becomes
5-19 effective 30 days after the date notice of the decision is mailed,
5-20 unless a petition for review is filed in accordance with Section
5-21 5.738, or at a later time specified by the executive director in
5-22 the decision.
5-23 Sec. 5.378. PETITION FOR COMMISSION REVIEW. (a) The
5-24 commission shall review the executive director's decision on a
5-25 permit application as provided by this section.
5-26 (b) Any person affected by the decision of the executive
5-27 director may file a petition for review with the commission. A
5-28 petition for review must be filed on or before the 30th day after
5-29 the date the executive director's notice of final decision is
5-30 mailed.
5-31 (c) The petition must include a statement of the reasons
5-32 that support commission review of the decision, demonstrate that
5-33 the issue raised by the petition was raised during the public
5-34 comment period or public hearing, identify all provisions of the
5-35 draft permit or order of denial of the application with which the
5-36 appellant disagrees, and show that the decision or a permit
5-37 condition is based on:
5-38 (1) a finding of fact or a conclusion of law that is
5-39 clearly in error; or
5-40 (2) an important policy consideration or an exercise
5-41 of discretion that the commission should review.
5-42 (d) The commission shall determine if the petitioner is an
5-43 affected person not later than the 60th day after the notice of
5-44 final decision is mailed. Any valid petition granted by the
5-45 commission shall be referred by the commission to the State Office
5-46 of Administrative Hearings for a hearing in accordance with Section
5-47 2003.047, Government Code. If the commission does not act on or
5-48 before that date, the petition is automatically referred as
5-49 provided in this subsection.
5-50 (e) At all stages of the petition to the commission and the
5-51 hearing at the State Office of Administrative Hearings, each
5-52 factual representation contained in the draft permit prepared by
5-53 the executive director and in the application, to the extent not
5-54 inconsistent with the draft permit, shall be deemed to be true and
5-55 correct, unless specifically controverted by sworn testimony or
5-56 other competent evidence in accordance with the requirements of
5-57 Subsection (f).
5-58 (f) An applicant in a permitting procedure established by
5-59 this subchapter shall bear the burdens of production and persuasion
5-60 with respect to the specification, condition, provisions, or facts
5-61 at issue in a draft permit prepared by the executive director.
5-62 (g) The filing of a petition under this section stays the
5-63 effect of a permit issued by the executive director until the
5-64 commission approves, modifies, or rejects the executive director's
5-65 permit decision.
5-66 Sec. 5.379. COMMISSION ACTION. (a) After the
5-67 administrative law judge of the State Office of Administrative
5-68 Hearings submits a proposal for decision to the commission, the
5-69 commission shall proceed as provided in Section 2003.047(i),
5-70 Government Code.
6-1 (b) The commission decision is final as provided in Section
6-2 2001.144, Government Code.
6-3 (c) Any motions for commission rehearing shall be governed
6-4 by Sections 2001.145 and 2001.146, Government Code.
6-5 Sec. 5.380. JUDICIAL REVIEW OF COMMISSION PERMIT DECISIONS.
6-6 (a) A person affected by the commission's final decision on a
6-7 permit application may petition for judicial review. The petition
6-8 must be filed on or before the 30th day after the date the
6-9 commission mails its final decision on the application.
6-10 (b) Failure to timely petition for commission review of the
6-11 executive director's decision is a bar to judicial review of the
6-12 decision.
6-13 (c) Judicial review of decisions of the commission under
6-14 this subchapter shall be under the substantial evidence rules as
6-15 provided by Section 2001.174, Government Code.
6-16 (d) The filing of an appeal does not stay any action
6-17 required by the commission's decision.
6-18 (e) The record of appeal shall include the record of
6-19 proceedings of the contested case hearing at the State Office of
6-20 Administrative Hearings.
6-21 SECTION 2. Subchapter I, Chapter 2001, Government Code, is
6-22 amended by adding Section 2001.226 to read as follows:
6-23 Sec. 2001.226. CERTAIN ENVIRONMENTAL PERMITS. Subchapters C
6-24 through H do not apply to a permit application required to be filed
6-25 with the Texas Natural Resource Conservation Commission for an
6-26 authorization under Chapter 26 or 27, Water Code, or Chapter 361 or
6-27 382, Health and Safety Code, if the application is subject to
6-28 Subchapter J, Water Code.
6-29 SECTION 3. The importance of this legislation and the
6-30 crowded condition of the calendars in both houses create an
6-31 emergency and an imperative public necessity that the
6-32 constitutional rule requiring bills to be read on three several
6-33 days in each house be suspended, and this rule is hereby suspended,
6-34 and that this Act take effect and be in force from and after its
6-35 passage, and it is so enacted.
6-36 * * * * *