SRC-HRD S.B. 764 75(R)   BILL ANALYSIS


Senate Research Center   S.B. 764
By: Ratliff
Natural Resources
3-23-97
As Filed


DIGEST 

Currently, Texas law provides for formal evidentiary hearings under the
contested-case provisions of the Administrative Procedure Act prior to
environmental permit decisions by the Texas Natural Resource Conservation
Commission.  Texas is one of very few states providing for formal hearings
prior to permit decisions and there are concerns that the trial-like
process of a formal hearing is no longer appropriate given the superior
technical review processes that are in place today.  There are also
concerns that the current process limits public participation and is
abused by permit opponents, who draw out the permit process and delay
projects.  

S.B. 764 provides for informal hearing procedures to resolve all factual,
legal and policy issues associated with permit applications.  The informal
hearing procedures are modeled after the permitting procedures of the U.S.
Environmental Protection Agency and those of many other states.  
PURPOSE

As proposed, S.B. 764 sets forth informal hearing procedures for the Texas
Natural Resource Conservation Commission regarding an application to
issue, amend, or renew certain environmental permits. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the Texas Natural Resource Conservation
Commission under SECTION 1 (Sections 5.371(b), (c), and (d), and Section
5.374(d), Water Code) in this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 5, Water Code, by adding Subchapter J, as
follows: 

SUBCHAPTER J.  ENVIRONMENTAL PERMITTING PROCEDURES

Sec. 5.371.  GENERAL PERMITTING PROCEDURES.  (a) Provides that this
subchapter applies to Texas Natural Resource Conservation Commission
(commission) procedures for an application to issue, amend, or renew a
permit for which public notice and an opportunity for public hearing is
required by Chapter 26 or 27 of this code or Chapter 361 or 382, Health
and Safety Code.  

(b) Requires the commission to provide for permits-by-rule under the
chapters listed in Subsection (a) to the greatest extent practicable and
consistent with the requirements of the United States Environmental
Protection Agency (EPA) authorization of a state permit program. 

(c) Authorizes the commission, by rule, to identify categories of
applications related to permits for which notice or opportunity for public
hearing is not required.  Requires the commission to exempt certain
applications from notice and public hearing requirements. 

(d) Authorizes the commission, by rule, for an application described by
Subsection (c), to provide for the action on the application to be taken
by the executive director. 

 Sec. 5.372.  INITIAL DETERMINATION BY EXECUTIVE DIRECTOR.  Requires the
executive director, after an application related to a permit is
administratively and technically complete, to prepare and issue a draft
permit or a notice of intent to deny.  Requires the executive director to
include a record of proposed decision prepared in accordance with Section
5.373 with a draft permit or notice of intent to deny.  Requires the
commission to send a copy of the record of the proposed decision to the
applicant; a state or federal agency, as required or as appropriate; and
any other person on request of that person.  Authorizes an applicant to
give public notice of the application before the initial determination of
the executive director is completed, unless precluded by a requirement of
EPA related to state program authorization.  Sets forth provisions
applicable if all requests for a public hearing the commissioner receives
are unreasonable or the commission receives no requests. Requires a notice
of intent to deny to state the executive director's reasons for the
intended denial.  Sets forth the requirements for a draft permit. 

Sec. 5.373.  RECORD OF PROPOSED DECISION FOR DRAFT PERMIT.  Sets forth
requirements regarding a record of proposed decision prepared for a draft
permit.  Sets forth requirements regarding the record of proposed
decision.  Requires the commission to make the record of proposed decision
available when the public notice is published. 

Sec. 5.374.  NOTICE OF INITIAL DETERMINATION; COMMENTS AND REQUESTS FOR
HEARING.  (a) Requires the executive director to give public notice that a
draft permit or notice of intent to deny has been prepared.  Requires the
executive director to provide for a 30-day period for public review,
comments, and requests for public hearing.  Requires the period for public
review and comments to be extended until the close of the public hearing,
if one is held. 

(b) Requires all persons, including applicants, who believe that any
condition of a draft permit is inappropriate or that the executive
director's tentative decision to deny an application, terminate a permit,
or prepare a draft permit is inappropriate to raise all reasonably
ascertainable issues and submit all reasonably available arguments
supporting their position by the close of the public comment period.
Requires additional time to be granted to the extent that a commenter who
requests additional time demonstrates the need for such time. 

(c) Sets forth a provision regarding notice under this section.

(d) Authorizes the commission, by rule, to require additional public
notice necessary to satisfy requirements of the EPA for state permit
program authorization. 

(e)  Sets forth requirements for the executive director applicable if the
commission receives a timely written notice of opposition to a draft
permit issued by the executive director and a request for a public hearing
on the draft permit. 

Sec. 5.375.  PUBLIC HEARINGS.  Prohibits a ruling on a permit issuance or
denial from being made without an opportunity for a public hearing.
Authorizes a person to submit oral or written statements and data
concerning the initial determination of the executive director. Authorizes
the setting of reasonable limits to be set for the time allowed for oral
comments, and the submission of statements in writing or under oath to be
required.  Requires the executive director to hold the public hearing
under certain conditions.  Sets forth provisions applicable when a draft
permit or notice of intent is at issue.  Requires the executive director
to hold the public hearing under this subsection at a convenient location.
Authorizes the executive director to designate a presiding officer or
hearing panel to conduct the hearing. Authorizes a hearing panel to
include technical experts on the staff of the executive director. Provides
that Chapter 2001, Government Code, does not apply to a public hearing
held under this section.  Sets forth additional requirements regarding a
hearing held under this section.  
Sec. 5.376.  COSTS FOR INFORMATION REGARDING NEW HAZARDOUS WASTE PERMIT.
Requires, on request of an affected person, the applicant for a permit for
a new hazardous waste management facility to furnish a bond or other
financial assurance  authorized by the commission to guarantee payment of
nonlegal costs of the affected person incurred in providing to the
commission information related to the issuance of the permit. Sets forth
requirements regarding an application for a new commercial or new
noncommercial hazardous waste management facility.  Requires the executive
director, in determining whether the affected person is entitled to
reimbursement under this section, to apply the considerations provided by
Section 361.0833(e), Health and Safety Code.  Provides that nonlegal costs
subject to reimbursement under this section include the cost of a copy of
the administrative record in the case.  Prohibits the commission from
awarding in a case costs to one or more persons that total an amount
greater than the amount of financial assurance required by this section.
Authorizes the commission, subject to the limitations of Subsection (d)
and (f), to award a unit of local government legal costs in addition to
other costs.   

Sec. 5.377.  FINAL DECISION OF EXECUTIVE DIRECTOR.  Requires the executive
director, for decisions on applications processed under Section 5.373
through 5.375, to consider all comments received during the public comment
period and during any public hearing in making certain determinations.
Authorizes the executive director, in ruling on a permit application, to
deny the permit in whole or in part and to provide reasonable conditions
under certain circumstances.  Authorizes the executive director, in ruling
on a permit application, to consider any adjudicated decision within five
years before the date on which the application is filed that addressed the
applicant's noncompliance with the terms of any permit or order issued by
the commission.  Requires the executive director to make certain
determinations before denying an application under this subsection.  Sets
forth requirements regarding the issuance of a response when the executive
director issues a final decision on an application.  Requires the
executive director to mail notice of the final decision on the application
to the applicant and to each person who commented during the public
comment period or participated in the public hearing.  Sets forth
requirements regarding the notice.  Sets forth a provision regarding the
effective date of a final decision under this section on a permit
application. 

Sec. 5.378.  PETITION FOR COMMISSION REVIEW.  Requires the commission to
review the executive director's decision on a permit application as
provided by this section. Authorizes certain persons to file a petition
for review with the commission.  Requires a petition for review to be
filed on or before the 30th day after the date the executive director's
notice of final decision is mailed.  Provides that the filing of a
petition under this section stays the effect of a permit issued by the
executive director until the commission takes certain action.  Sets forth
requirements regarding the contents of the petition.  Requires the
commission to act on a petition within a certain deadline.  Provides that
if the commission does not act on or before that date, the petition is
denied.  Requires the commission to give notice to the petitioner and each
person who commented during the public comment period under certain
conditions.  Sets forth requirements regarding the notice.  Sets forth
provisions applicable if a petition for review is granted.  Sets forth
provisions applicable if the commission modifies or rejects the executive
director's decision.  Sets forth provisions regarding motions to
reconsider a final order of the commission. 

Sec. 5.379.  JUDICIAL REVIEW OF COMMISSION PERMIT DECISIONS.  Authorizes a
person affected by the executive director's final decision on a permit
application or the commission's action on the petition that modifies or
rejects the executive director's decisions to petition for judicial
review.  Requires the petition to be filed within a certain deadline.
Provides that failure to timely petition for commission review of the
executive director's decision is a bar to judicial review of the decision.
Requires judicial review decisions of the commission under this subchapter
to be under the substantial evidence rule as provided by Section
20001.174, Government Code.  Provides that the filing of an appeal does
not stay any action required by the commission's deadline.  Requires the
record of appeal to be limited to all written and oral substantive public
comments, the transcript of the hearing, all related correspondence, all
responses to comments, and all other information on which the commission
relied in deciding on the executive director's decision. 

SECTION 2. Chapter 2001I, Government Code, by adding Section 2001.227, as
follows: 
 
Sec. 2001.227.  CERTAIN ENVIRONMENTAL PERMITS.  Provides that Subchapters
C through H do not apply to a permit application required to be filed with
the commission for an authorization under Chapter 26 or  27, Water Code,
or Chapter 361 or 382, Health and Safety Code, if the application is
subject to Chapter 5J, Water Code. 

SECTION 3. Emergency clause.
  Effective date: upon passage.