JBM C.S.H.B. 1542 75(R)BILL ANALYSIS NATURAL RESOURCES C.S.H.B. 1542 By: Counts 3-26-97 Committee Report (Substituted) BACKGROUND Section 26.040 of the Water Code authorizes the TNRCC to regulate by rule those facilities that discharge small amounts of wastewater. The rules are adopted on a statewide basis and remain in effect unless amended or rescinded by the commission. Categories of facilities for which discharges are regulated under the permit-by-rule system are car washes, cattle trailer washing operations, and petroleum-contaminated groundwater produced from remediation activities. Forty states and the EPA regulate those facilities through general permits instead of by rule. H.B. 1542 proposes the use of a general permit system. In this system, permits would be issued for five years, and they could apply statewide or in a particular geographic area. Further, dischargers must notify the TNRCC of their intent to use the general permit. PURPOSE To authorize the TNRCC to establish a general permit for wastewater discharges that meet certain criteria, replacing the existing permit-by-rule system. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants new rulemaking authority to the TNRCC in Section 1 of the bill, proposed Sections 26.040(b) and 26.040(k) of the Water Code. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 26.040, Water Code, by replacing the existing section with new subsections (a)-(k) to provide as follows: (a) Authorizes the TNRCC to issue a general permit for a category of wastewater discharges in a particular geographical area or statewide if the dischargers meet five criteria. These criteria include: (1) being the same or substantially similar types of operation; (2) discharge the same types of waste; (3) be subject to the same effluent limits or operating conditions; (4) subject to the same or similar monitoring requirements; and (5) the TNRCC finds that the general permit has been drafted to assure it can be readily enforced, that the commission can adequately monitor compliance with the terms of the general permit, and that the category of discharges covered by the general permit will not include a discharge of pollutants which will cause significant adverse effects to water quality. (b) Requires the commission to publish public notice of proposed general permit in a newspaper in the area affected by the activity that is the subject of the proposed permit and in the Texas Register. The notice must include an invitation for public comments on the proposed permit and shall be published for at least 30 days before the permit is adopted. The commission by rule may require additional notice to be given. (c) Allows the commission to hold a public meeting for public comment, with notice of the meeting to be published in the Texas Register required at least 30 days before the meeting. (d) Requires the commission to respond in writing to comments on the general permit before issuing the permit, with the response provided when the commission grants or denies the permit. The response is available to the public and must be mailed to everyone that commented in writing on the permit. (e) Allows a facility that does not have an individual permit to be included under a general permit by providing the commission with the facility's written intent to be included under the general permit. A general permit shall specify the deadline for submitting and the information required to be included in the notice of intent. The facility may begin to discharge on the 31st day after notifying the commission of its intent unless the executive director first notifies the facility that it is not eligible to use the general permit. (f) Allows the commission to require a discharger using a general permit to discharge under an individual permit. (g) Establishes the term of a general permit as five years and allows the permit to be extended for additional terms not to exceed five years each. Provides that the general permit remains in effect until expiration or renewal, unless it is amended, revoked, or canceled by the commission. (h) Allows the commission to add or delete requirements or limitations to a general permit through a renewal or amendment process. This section also requires the commission to allow a discharger covered by a general permit reasonable time to make the necessary changes to be in compliance with the additional requirements. (i) Allows the commission to charge a reasonable and necessary fee on a discharger covered by a general permit. (j) Exempts the issuance, amendment, renewal, suspension, revocation, or cancellation of a general permit or authority to discharge under a general permit from the Administrative Procedures Act (Chapter 2001, Government Code). (k) Allows the commission to adopt rules to implement and administer this section. Removes existing language authorizing the commission to regulate by rule any category of facility that has a common discharge. SECTION 2. (a) Effective date: September 1, 1997. (b) Clarifies that rules adopted under Section 26.040 prior to adoption of this act remain in effect and any change in those rules is subject to the Administrative Procedures Act (Chapter 2001, Government Code). SECTION 3. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE (1) In Section 1 of the substitute, in proposed Section 26.040(a)(5), Water Code, the commission must find that the general permit has been drafted to assure that it can be readily enforced and adequately monitored by the commission and that the category of discharges covered by the general permit will not include a discharge of pollutants which will cause significant adverse effects to water quality. The corresponding provision in Section 1 of the original provided that the commission only find that the dischargers in the category are, in the commission's opinion, more appropriately regulated under a general permit than under individual permits. (2) In Section 1 of the original, in proposed Section 26.040(d), Water Code, the commission was only required to respond to public comments that opposed the general permit. In the corresponding provision in the substitute, the commission must now respond in writing to all public comments relating to the issuance of the general permit. (3) In Section 1, proposed Section 26.040(g), Water Code, of both versions, the language in the substitute clarifies that the commission may renew the general permit for more than one additional term of five years or less. (4) In Section 1 of the substitute, proposed subsection (h) of Section 26.040, Water Code, provides the commission may to add or delete requirements and limitations to a general permit through a renewal or amendment process, and it requires the commission to allow reasonable time for dischargers covered by the general permit to make necessary changes to comply with the additional requirements. This language was not in the original version of the measure.