ACG C.S.H.B. 2444 75(R)BILL ANALYSIS
ENVIRONMENTAL REGULATION
C.S.H.B. 2444
By: Talton
4-3-97
Committee Report (Substituted)
BACKGROUND
Texas environmental permitting programs generally predate federal law.
Texas permitted wastewater discharges, hazardous and solid waste
management, underground injection and regulated air emissions before
federal regulatory programs were adopted. In 1975, the legislature passed
the Administrative Procedure and Texas Register Act which established the
current process for contested-case hearings.
When the Legislature amended Texas law to provide for delegation of
federal programs, no real consideration was ever given to changing the
Texas permit hearing process. While this trial-like process met the need
for the early Texas environmental programs, it is no longer appropriate,
considering the superior technical review processes that are in place
today.
Since 1995, environmental groups and the U.S. Environmental Protection
Agency have questioned whether Texas' current permitting process meets
federal requirements for public participation. In a petition filed last
summer asking EPA to revoke jurisdiction of the UIC program, the
Environmental Defense Fund argued that "unless the Texas Natural Resource
Conservation Commission (commission) were to return to the historic scope
of the State's adjudicatory hearing process, an adequate notice and
comment process would be required." It also stated "the (EPA) rules also
require that comments be considered in the final decision and that the
agency respond to those comments."
PURPOSE
HB 2444 will replace the Texas contested-case permit hearing process with
the more open notice and comment hearing process used and required by EPA.
HB 2444 would significantly increase the opportunity for public
participation in the permit hearing process by replacing the current
contested case process with a more open process that would also be more
cost-effective for applicants, opponents, and the state.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill grants rulemaking authority
to the Texas Natural Resource Conservation Commission in SECTION 1,
Sections 5.371 (b), (d) and (e) and 5.374 (a) and (e), Health and Safety
Code.
SECTION BY SECTION ANALYSIS
SECTION 1. Creates a new Subchapter J to Chapter 5, Water Code, as
follows:
Section 5.371(a) States that this subchapter applies to general
permitting procedures for Chapter 26 or 27, Water Code (water quality
permits or underground injection permits) or Chapter 361 or 382, Health
and Safety Code (solid waste permits or air quality permits).
Section 5.371(b) Requires the commission to provide additional notice,
opportunity for public comment, and opportunity for hearing to satisfy
requirements for United States Environmental Protection Agency
authorization of a state permit program.
Section 5.371(c) Requires permits-by-rule to the greatest extent
practicable.
Section 5.371(d) Allows commission to identify categories of applications
for permits for which notice or opportunity for public hearing is not
required. Allows the commission to provide specified exemptions.
Section 5.371(e) Allows commission to delegate authority to issue
permits under subdivision (d) to the executive director.
Section 5.372(a) Requires the executive director to prepare and issue a
notice of intent to deny or a draft permit after certain requirements have
been met.
Section 5.372(b) Requires a record or proposed decision in accordance
with Section 5.373 to accompany the notice of intent to deny or issue a
draft permit.
Section 5.372(c) Requires notice of intent to deny to state reasons for
denial.
Section 5.372(d) Outlines requirements for draft permit.
Section 5.372(e) Requires distribution of copies of the record to
applicant, state or federal agencies, and persons who request copies.
Section 5.372(f) Allows applicants to give notice before a draft permit
or notice of intent to deny is issued.
Section 5.372(g) Allows executive director to issue uncontested permits
(or permits for which there is no significant degree of public interest)
effective immediately like the current process for air quality permits.
Section 5.373(a) Outlines requirements for a record of proposed decision.
Section 5.373(b) States what must be included in the record of proposed
decision.
Section 5.373(c) Requires commission to make the record of proposed
decision available when public notice is published.
Section 5.374(a) Requires the commission by rule to provide for public
notice.
Section 5.374(b) Requires that the executive director provide at least
30 days for public review, comment, and request for public hearing.
Allows for the commission or the executive director to extend or reopen
the comment period.
Section 5.374(c) Requires the filing of arguments and the raising of
all reasonably ascertainable issues concerning conditions of draft permits
by close of the public comment period. Requires extension of comment
period on demonstration of reasonable need.
Section 5.374(d) Provides that notice in this section is in addition to
other notice required in the law and that notice may be combined.
Section 5.374(e) Requires the commission to require additional notice
and opportunity for public comment to satisfy U.S. EPA requirements.
Section 5.374(f) Requires the executive director to respond to and
attempt to resolve opposition. Allows alternative dispute resolution to
be used and allows opponents to withdraw hearing request.
Section 5.375(a) Requires opportunity for public hearing before a ruling
on permit issuance or denial.
Section 5.375(b) Provides for oral or written comments. Allows agency
to set reasonable time limits for oral comments and allows agency to
require written comments or comments under oath.
Section 5.375(c) Provides criteria for determining when the executive
director shall hold a hearing.
Section 5.375(d) Requires hearings for hazardous waste permits when
requested.
Section 5.375(e) Allows the executive director to appoint presiding
officer or hearing panel which may include technical experts.
Section 5.375(f) Provides direction to the presiding officer of the
hearing panel for the conduct and purpose of the hearing.
Section 5.375(g) States that the hearing is not a contested-case under
Chapter 2001, Government Code, and is to be conducted so that all relevant
information, views, arguments, and other data are sufficiently and fairly
received without undue repetition.
Section 5.375(h) Requires the recording of the hearing and provides for
transcription of the proceedings at the expense of the person who requests
it.
Section 5.375(i) Provides for the record and transcript, if prepared, to
be available for review.
Section 5.375(j) Provides person requesting copies to pay for those
copies.
Section 5.376(a) Requires the executive director to consider comments
when determining whether to issue the permit or what conditions are to be
placed on the permit.
Section 5.376(b) Allows the executive director to deny the permit in
whole or in part under stated conditions; allows the executive director to
consider compliance history from the previous five years.
Section 5.376(c) Provides for conditions under which compliance history
is considered under Section 5.376(b).
Section 5.376(d) Requires the executive director to respond to comments
when issuing a decision.
Section 5.376(e) Requires response to comments to be made available to
the public.
Section 5.376(f) Requires the executive director to mail notice of final
decision to applicant and persons who commented and provides for content
of that notice.
Section 5.376(g) Provides for final decision on a permit to be effective
30 days after date notice of decision is mailed unless a petition for
review is filed or the executive director specifies a later date.
Section 5.377(a) Provides for commission review of the executive
director's decision.
Section 5.377(b) Provides that certain persons may petition the
commission for review within 30 days after the date the executive
director's notice of decision is mailed.
Section 5.377(c) Provides that an act of filing a petition automatically
stays the permit until the commission determines whether to grant a
petition for review.
Section 5.377(d) Outlines the required contents of a petition.
Section 5.377(e) Requires the commission to act on a petition within 60
days after the date the notice of final decision is mailed. If the
commission fails to act, the petition is denied.
Section 5.378(a) Requires commission to give notice to certain persons
of any decision granting the petition for review. Specifies what must be
included in the notice.
Section 5.378(b) Specifies when the entire permit or certain provisions
only are stayed pending the commission decision.
Section 5.378(c) If the commission modifies or rejects the executive
director's decision, the commission is required to issue a written
decision and contents of that decision.
Section 5.378(d) Requires commission decision to be based on the record
and specifies distribution of that decision to certain persons.
Section 5.378(e) Allows the commission to remand matters to the
executive director to resolve difficult issues or conflicting factual
claims. Allows the commission to limit the scope of the remand.
Section 5.378(f) Allows the commission on its own initiative to review
any condition of a draft permit prepared by the executive director.
Section 5.379 Provides conditions for motions to reconsider including
the filing before the 11th day.
Section 5.380(a) Provides for petitions for judicial review by persons
aggrieved by the executive director's final decision or the commission's
action. Requires petitions for judicial review to be filed within 30
days.
Section 5.380(b) Provides that failure to file a timely petition is a
bar to judicial review.
Section 5.380(c) Provides for the standard of judicial review.
Section 5.380(d) Specifies that the filing of an appeal does not stay
any action required by the commission's decision.
Section 5.380(e) Specifies the record of appeal.
Section 5.380(f) Provides for the court to allow the consideration of
additional information and to refer that information back to the
commission for consideration. Allows the commission to change its
findings or decision.
Section 5.380(g) Provides that the court shall conduct the review
without a jury and may not go outside the administrative record except to
receive evidence of procedural irregularities.
SECTION 2. Amends Section 361.0833(a), (c), (d), (f), and (g), Health and
Safety Code by eliminating references to "person affected" and
substituting terms which are more appropriate to the new process; makes
conforming changes implemented by SECTION 1 of the bill.
SECTION 3. Amends Subchapter I, Chapter 2001, Government Codes to add a
new Section 2001.227 to state that certain subchapters do not, under
certain circumstances, apply to permits issued under Chapter 26 or 27,
Water Code, or Chapter 361 or 382, Health and Safety Code.
SECTION 4. Provides that, on the effective date of this Act, references
to Subchapters C-H, Chapter 2001, Government Code, or any provisions in
those subchapters, do not apply to permits under Chapter 26 or 27, Water
Code, or Chapter 361 or 382, Health and Safety Code, and those references
are now references to this Act.
SECTION 5. Emergency Clause
COMPARISON OF ORIGINAL TO SUBSTITUTE
SECTION 1. Section 5.371 (a) of the substitute adds a stipulation that
Subchapters C-H, Chapter 2001, Government Code, do not apply to a
proceeding to which this subchapter applies. There is no similar
provision in the original bill.
Section 5.371 (b) of the substitute requires the commission to provide
additional notice, opportunity for public comment, and opportunity for
hearing to satisfy requirements for United States Environmental Protection
Agency authorization of a state permit program. The original bill does
not have a similar provision.
Section 5.371 (c)(3) of the original requires the commission to exempt
from notice and public hearing requirements an application to increase air
emissions that are incidental to the installation of an emission control
device.
The corresponding Section 5.371 (d)(3) of the substitute requires the
commission to exempt from notice and public hearing requirements an
application to increase emissions of air contaminants that are incidental
to the installation of an emission control device.
Section 5.372 of the original is titled INITIAL DETERMINATION BY
EXECUTIVE DIRECTOR.
Section 5.372 of the substitute is titled ISSUANCE OF PERMIT, DRAFT
PERMIT, OR NOTICE OF INTENT TO DENY.
Section 5.372 of the substitute reorganizes the subsections and clarifies
language.
Section 5.372 (a) of the original stipulates that the record of proposed
decision must show the principal facts.
Section 5.372 (a) of the substitute stipulates that the record of
proposed decision must state the principal facts.
Section 5.373(c) of the substitute adds a stipulation not in the original
that when the record of proposed decision is published, it be made
available to the public.
Section 5.374(a) of the substitute requires the commission to provide for
public notice for each draft permit or notice of intent to deny. The
original does not have this provision.
Section 5.374(a) of the original corresponds to Section 5.374(b) of the
substitute, but the substitute adds that the commission or executive
director may extend or reopen the comment period any time before a final
decision to allow the receipt of information that may help to resolve an
issue.
Section 5.374(c) of the original corresponds to Section 5.374(d) of the
substitute, and the substitute adds a provision that required notice may
be combined with other notice requirements.
Section 5.374(d) of the original corresponds to Section 5.374(e) of the
substitute, although the original is permissive language and the
substitute requires necessary notice and opportunity for public comment.
Section 5.374(e) of the original corresponds to Section 5.374(f) of the
substitute, and the substitute adds a provision that the executive
director may refer parties to alternative dispute resolution.
Section 5.375(d) of the substitute allows a hearing to be held at a
convenient location, but the original requires it.
Section 5.375(f) of the substitute is added to require the hearing to be
conducted in a manner that helps develop the administrative record; allows
the presiding officer or panel to question persons who testify.
Section 5.376 of the original regarding new hazardous waste permits is
not in the substitute.
Section 5.377 of the original corresponds to 5.376 of the substitute with
the following changes:
The language is structured differently.
Section 5.377(f)(2) and (5) of the original are not included in the
substitute.
Section 5.378 (b) of the original allows any person who submitted
comments on the tentative decision of the executive director to file a
petition for review with the commission. This section also gives certain
provision for persons who failed to submit comments to be able to file a
petition for review.
Section 5.377 (b) of the substitute also allows a person who participated
in a public hearing to file a petition for review with the commission, as
well as giving certain provision for persons who did not participate in a
public hearing to be able to file a petition for review.
Section 5.377 (c) of the substitute adds a provision not in the original,
that to the extent a condition of a new permit is stayed under this
section, a person who holds an existing permit must comply with any
condition of the existing permit, with certain exceptions.
Section 5.377 (d)(2)(B) of the substitute adds a provision not in the
original, that if the issue was not raised during the comment period or
hearing, or it was not raised for a good cause a petition may not be
considered.
Section 5.378 (f) of the original corresponds to Section 5.378 (a) of the
substitute. The substitute adds a conforming reference to persons who
participated in a public hearing.
Section 5.378 (g) of the original corresponds to Section 5.378 (b) of the
substitute. The provision in the original about stayed provisions being
identified by the commission when giving notice is not included in the
substitute.
Section 5.378 (e) and (f) of the substitute are not included in the
original.
Section 5.379 (c) of the original stipulates that judicial review of
decisions shall be under the substantial evidence rule as provided by
Section 2001.174, Government Code.
Section 5.379 (c) of the substitute stipulates what a court may do in
reviewing a decision of the commission.
Section 5.380 (f) and (g) of the substitute are not in the original.
SECTION 2 of the substitute is not included in the original.
SECTION 4 of the substitute is not included in the original.