By: Brown S.B. No. 1331 A BILL TO BE ENTITLED AN ACT 1-1 relating to the environmental permitting procedures of the Texas 1-2 Natural Resource Conservation Commission under Chapters 26 and 27, 1-3 Water Code, and Chapters 361 and 382, Health and Safety Code. 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 a new 1-6 Subchapter I to read as follows: 1-7 SUBCHAPTER I. ENVIRONMENTAL PERMITTING 1-8 Sec. 5.341. PERMITTING PROCEDURES. (a) The permitting 1-9 procedures set forth in this section apply to permit applications 1-10 required to be filed with the Commission for authorization under 1-11 Chapters 26 and 27 of this code and Chapters 361 and 382 of the 1-12 Health and Safety Code. The Commission by rule may provide for 1-13 those activities requiring multiple authorization under these laws 1-14 to be consolidated into a single permit or provide for 1-15 permits-by-rule, consistent with the applicable requirements of the 1-16 United States Environmental Protection Agency for state program 1-17 authorization under these laws. 1-18 (b) The Commission shall encourage applicants for solid 1-19 waste facilities to engage in the preapplication local review 1-20 committee process set forth in Section 361.063, Health and Safety 1-21 Code. 1-22 Sec. 5.342. INITIAL DETERMINATION BY EXECUTIVE DIRECTOR. 1-23 (a) Once an application is complete, the Executive Director shall 2-1 prepare and issue either a Draft Permit or a Notice of Intent to 2-2 Deny. 2-3 (1) A Draft Permit shall contain all appropriate 2-4 conditions, compliance schedules, monitoring requirements and 2-5 technical standards consistent with applicable regulations of the 2-6 Commission. 2-7 (2) A Notice of Intent to Deny shall state the 2-8 Executive Director's reasons for the intended denial. 2-9 (b) Any Draft Permit or Notice of Intent to Deny prepared by 2-10 the Executive Director shall be accompanied by a Record of Proposed 2-11 Decision and shall be based on the Administrative Record. Copies 2-12 of the Record of Proposed Decision shall be sent to the applicant; 2-13 to any state or federal agency, as applicable; and on request, to 2-14 any other person. 2-15 Sec. 5.343. RECORD OF PROPOSED DECISION. A Record of 2-16 Proposed Decision shall be prepared for the Draft Permit. The 2-17 Record of Proposed Decision shall briefly set forth the principal 2-18 facts and the significant factual legal, methodological and policy 2-19 questions considered in preparing the Draft Permit. The Record of 2-20 Proposed Decision shall be available at the time the public notice 2-21 is published and shall include, when applicable: 2-22 (1) A brief description of the type of facility or 2-23 activity which is the subject of the Draft Permit. 2-24 (2) The type and quantity of wastes which are proposed 2-25 to be or are being treated, stored, disposed of, injected, emitted, 3-1 or discharged. 3-2 (3) A brief summary of the basis for the Draft Permit 3-3 conditions including references to applicable statutory or 3-4 regulatory provisions. 3-5 (4) Reasons why any requested variances or 3-6 alternatives to required standards do or do not appear justified. 3-7 (5) A description of the procedures for reaching a 3-8 final decision on the Draft Permit including: 3-9 (A) The beginning and ending dates of the 3-10 comment period and the address where comments will be received; 3-11 (B) Procedures for requesting a hearing and the 3-12 nature of that hearing; and 3-13 (C) Any other procedures by which the public may 3-14 participate in the final decision. 3-15 (6) Name and telephone number of a person to contact 3-16 for additional information. 3-17 Sec. 5.344. NOTICE OF INITIAL DETERMINATION. (a) The 3-18 Executive Director shall give public notice that a Draft Permit or 3-19 a Notice of Intent to Deny has been prepared, and shall allow 3-20 forty-five (45) days for review and public comment, including 3-21 requests for public hearing. The comment period shall 3-22 automatically be extended to the close of any public hearing. 3-23 (b) The notice requirements of this section shall be in 3-24 addition to the applicable requirements of Section 26.028 and 3-25 Sections 361.081 and 361.082, Health and Safety Code. 4-1 (c) If the Executive Director issues a Draft Permit, and a 4-2 timely written notice of opposition to the Draft Permit and a 4-3 request for a public hearing is received, the Executive Director 4-4 will respond to the request in an attempt to resolve the issues 4-5 giving rise to the opposition. If such issues are resolved to the 4-6 satisfaction of the opponent, the opponent may withdraw the request 4-7 for a public hearing. 4-8 (d) The Executive Director shall give due consideration and 4-9 the weight deemed appropriate to all comments received during a 4-10 public comment period and to all relevant facts and circumstances 4-11 presented at any public hearing. 4-12 (e) The Commission may by rule establish additional public 4-13 notice requirements in order to satisfy the requirements of the 4-14 United States Environmental Protection Agency for state permit 4-15 program authorization. 4-16 Sec. 5.345. PUBLIC HEARINGS. (a) No ruling shall be made 4-17 on permit issuance or denial without an opportunity for a public 4-18 hearing, at which all interested persons shall be given a 4-19 reasonable chance to submit significant data, views or arguments 4-20 orally or in writing and to examine witnesses testifying at the 4-21 public hearing. 4-22 (b) The public hearing shall be held whenever: 4-23 (1) the Executive Director finds, on the basis of 4-24 requests, a significant degree of public interest in the Draft 4-25 Permit or Notice of Intent to Deny. 5-1 (2) the Executive Director determines following the 5-2 end of the comment period that a public hearing should be held, 5-3 notwithstanding the absence of a timely request for public hearing, 5-4 in order to clarify one or more issues involved in the permit 5-5 decision. 5-6 (c) For hazardous waste management permits only, the 5-7 Executive Director shall hold a public hearing whenever a written 5-8 notice of opposition to the permit decision and a request for a 5-9 hearing is received by the Executive Director within 45 days of 5-10 public notice under Section 5.342. Whenever possible, the 5-11 Executive Director shall schedule a hearing under this section at a 5-12 location convenient to the nearest population center to the 5-13 proposed facility. 5-14 (d) Public Hearings conducted under this section are subject 5-15 to the following: 5-16 (1) The Executive Director may designate a hearing 5-17 officer or a hearing panel to take evidence at the hearing. A 5-18 hearing panel may include technical experts on the Executive 5-19 Director's staff. 5-20 (2) In hearings under this section, the contested case 5-21 hearing procedures of the Administrative Procedure Act, Texas 5-22 Government Code, Chapter 2001, shall not apply, but the hearings 5-23 shall be conducted so that all relevant views, arguments, and 5-24 testimony are amply and fairly received without undue repetition. 5-25 (3) All hearings shall be recorded. On request, the 6-1 hearing shall be transcribed. The cost of the transcript will be 6-2 borne by the person requesting the transcription of the hearing. 6-3 The record or the transcript will be furnished to all persons for 6-4 review at the Commission's main office. Costs of a copy of the 6-5 record of the transcript will be borne by those requesting such 6-6 copies. 6-7 Sec. 5.346. COSTS FOR INFORMATION PROVIDED BY A PERSON 6-8 AFFECTED REGARDING HAZARDOUS WASTE PERMIT. (a) Except as provided 6-9 by Subsection (b), on request of a person affected, the applicant 6-10 for a permit for a new hazardous waste management facility shall 6-11 furnish a bond or other financial assurance authorized by the 6-12 commission to guarantee payment of non-legal costs of a person 6-13 affected who provides information to the commission on the question 6-14 of the issuance of the permit, including costs of a copy of the 6-15 Administrative Record. For applications involving commercial 6-16 hazardous waste management facilities, the bond or other financial 6-17 assurance must be in the amount of one hundred thousand dollars 6-18 ($100,000). For applications that do not involve commercial 6-19 hazardous waste management facilities, the bond or other financial 6-20 assurance must be in the amount of twenty thousand dollars 6-21 ($20,000). In determining whether the person affected is entitled 6-22 to reimbursement of non-legal costs, the Executive Director shall 6-23 use the considerations set forth in Section 361.0833(b), Health and 6-24 Safety Code. The total costs awarded to all persons may not exceed 6-25 the amount of the financial assurance required. 7-1 (b) In addition to costs under Subsection (a), a unit of 7-2 local government may be paid legal costs subject to the limits of 7-3 Subsection (a). 7-4 Sec. 5.347. FINAL DECISION OF EXECUTIVE DIRECTOR. 7-5 (a) Executive Director shall consider all comments received during 7-6 the public comment period including any public hearing in 7-7 determining whether to issue or deny the permit and what conditions 7-8 should be included if a permit is issued. 7-9 (b) When ruling on permit issuance or denial, the Executive 7-10 Director may disapprove in whole or in part, or make reasonable 7-11 conditions to any permit, if it appears that the permit applied for 7-12 will not meet the requirements of applicable regulations of the 7-13 Commission or the applicant refuses to agree to permit conditions 7-14 which the Executive Director determines are necessary based on 7-15 comments received. 7-16 (1) At the time of any final permit decision is 7-17 issued, the Executive Director shall issue a response to comments. 7-18 This response shall: 7-19 (A) specify which provisions, if any, of the 7-20 draft permit have been changed in the final permit decision, and 7-21 the reasons for the change; 7-22 (B) briefly describe and respond to all 7-23 significant comments on the draft permit or the permit application 7-24 raised during the public comment period, or during any hearing; and 7-25 (C) be available to the public. 8-1 (c) The Executive Director shall mail notice of the final 8-2 action on the permit to the applicant and all persons who commented 8-3 during the public comment period (including any public hearing). 8-4 The notice shall include a Record of Decision that responds to all 8-5 significant comments submitted during the public comment period and 8-6 shall identify any change in the conditions of the draft permit and 8-7 the reasons for the change. The notice shall: 8-8 (1) state that any person affected by the decision of 8-9 the Executive Director may petition the Commission in accordance 8-10 with this section; 8-11 (2) state the date by which the petition must be 8-12 filed; 8-13 (3) explain the petition process; and 8-14 (4) identify the location and availability of the 8-15 Administrative Record, stating that limited copies of the 8-16 Administrative Record may be made available with costs to be borne 8-17 by the applicant pursuant to Section 5.346. 8-18 (d) A final permit decision shall become effective thirty 8-19 (30) days after notice of the decision has been mailed to the 8-20 applicant and any other person who has commented during the public 8-21 comment period and has requested to be mailed a copy of the 8-22 decision, or such later time as the Executive Director may specify 8-23 Sec. 5.348. PETITIONS FOR REVIEW. The commission shall 8-24 provide for petitions for review of Executive Director final permit 8-25 decisions. 9-1 (1) A petition shall be filed with the Commission, 9-2 within 30 days of the mailing of the Executive Director's final 9-3 decision. 9-4 (2) The petition shall include a statement of the 9-5 reasons supporting the review of the Executive Director's decision, 9-6 including a demonstration that any issues being raised were raised 9-7 during the public comment period (including any public hearing) and 9-8 a showing that the decision, including the permit condition, is 9-9 based on: 9-10 (A) A finding of fact or conclusion of law that 9-11 is clearly erroneous, or 9-12 (B) An exercise of discretion or an important 9-13 policy consideration that the Commission should, in its discretion, 9-14 review. 9-15 (3) The Commission shall act on a petition not later 9-16 than the 60th day after the date of the mailing of the Executive 9-17 Director's final decision or the petition is overruled by operation 9-18 of law. 9-19 (4) If the petition is granted, the Commission shall 9-20 notify the petitioner and other persons who commented during the 9-21 public comment period (including any public hearing). The notice 9-22 shall set forth a briefing schedule for the review and shall state 9-23 that any affected person may file an amicus brief. 9-24 (5) If the Commission modifies or rejects the 9-25 Executive Director's decision, the Commission's decision must be in 10-1 writing and include a statement of the reason and legal basis for 10-2 the change and be supported by the Administrative Record. The 10-3 decision of the Commission must be mailed to the petitioner and 10-4 other persons who commented during the public comment period 10-5 (including any public hearing). A judicial appeal of the agency's 10-6 decision must be filed within 30 days of the mailing of the 10-7 Commission's decision in accordance with Section 5.351. 10-8 (6) The filing of a timely petition is a prerequisite 10-9 for judicial review of the Executive Director's final decision. 10-10 (7) The petition to the Commission under this section 10-11 does not affect the validity of a permit issued by the Executive 10-12 Director until and unless a different decision is made by the 10-13 Commission. 10-14 Sec. 5.349. JUDICIAL REVIEW OF PERMIT DECISIONS. Judicial 10-15 Review of the Executive Director's decision shall be under the 10-16 substantial evidence rule as provided by the Administrative 10-17 Procedure Act, Chapter 2001, Government Code. 10-18 (1) The filing of an appeal does not act as a stay of 10-19 any action required by the Executive Director's decision. 10-20 (2) The record of appeal shall include all written and 10-21 oral substantive public comments, the transcript of the hearing, 10-22 all related correspondence, any responses to comments, and all 10-23 other information relied upon by the Commission in deciding upon 10-24 the permit action. 10-25 SECTION 2. Subchapter I, Chapter 5, Water Code, is 11-1 renumbered to be Subchapter J. 11-2 SECTION 3. Chapter 2001, Government Code, is amended by 11-3 adding a new Section 2001.226 to read as follows: 11-4 Sec. 2001.226. CERTAIN ENVIRONMENTAL PERMITS. Subchapters C 11-5 through H do not apply to permit applications required to be filed 11-6 with the Texas Natural Resource Conservation Commission for 11-7 authorization under Chapters 26 and 27., Water Code, and Chapters 11-8 361 and 382, Health and Safety Code that are subject to the 11-9 procedures of Subchapter I, Water Code. 11-10 SECTION 4. The importance of this legislation and the 11-11 crowded condition of the calendars in both houses create an 11-12 emergency and an imperative public necessity that the 11-13 constitutional rule requiring bills to be read on three several 11-14 days in each house be suspended, and this rule is hereby suspended, 11-15 and that this Act take effect and be in force from and after its 11-16 passage, and it is so enacted.