ACG C.S.S.B. 1495 75(R) BILL ANALYSIS ENVIRONMENTAL REGULATION C.S.S.B. 1495 By: Bivins (Chisum) 5-13-97 Committee Report (Substituted) BACKGROUND Currently, notice requirements for permits issued by the Texas Natural Resource Conservation Commission (commission) are scattered throughout dozens of statutes in the Water Code and the Health and Safety Code. Since most programs have unique notice requirements, it is often difficult for applicants to ensure that they are complying with all notice requirements that apply to their permits. This bill puts all public notice requirements for commission permits in one chapter of the Water ode to assist applicants and the public in determining the applicable notice requirements. PURPOSE As proposed, C.S.S.B. 1495 puts all public notice requirements for the Texas Natural Resource Conservation Commission permits in one chapter of the Water Code to assist applicants and the public in determining the applicable notice requirements. Except for a few changes to promote consistency, the bill is not intended to make substantive changes to current notice requirements. RULEMAKING AUTHORITY Rulemaking authority is granted to the Texas Natural Resource Conservation Commission in SECTION 1 of the bill (5.402(b), 5.408(c) & (d), 5.409(c), 5.410(a),(f), & (h), 5.411(a) & (g), 5.414(a) & (c), 5.415(g) and 5.416(c), Water Code) and in SECTION 16 of the bill (382.0561(d), (k) & (n) Health and Safety Code) of this bill. Although rulemaking authority is not expressly granted to the Texas Natural Resource Conservation Commission rulemaking authority of the agency is referenced in the following SECTIONS of the bill: SECTION 1 of the bill (Section 5.401(b), Health and Safety Code), SECTION 4 of the bill (Section 11.132(a), Water Code) SECTION 6 of the bill (Section 11.175, Water Code) SECTION 7 of the bill (Section 26.022(b), Water Code) SECTION BY SECTION ANALYSIS SUBCHAPTER J. NOTICE REQUIREMENTS SECTION 1. Amends Chapter 5, Water Code, by adding Subchapter J, as follows: Sec. 5.401. APPLICABILITY. Sets forth the applicability of this subchapter to certain permits issued by the commission and certain public meetings, but not certain permits issued by rule. Sec. 5.402. MINIMUM REQUIREMENTS/COMBINED NOTICE. Provides that notice provisions for this subchapter are minimum requirements. Requires the Texas Natural Resource Conservation Commission (commission) to adopt rules consistent with this subchapter and may establish additional requirements. Provides that notices may be combined. Sec. 5.403. SUBSTANTIAL COMPLIANCE. Provides that substantial compliance with the requirements of this subchapter is sufficient for the commission to exercise jurisdiction over an application. Provides that inadvertent failure to mail notice to a navigation district that is not a claimant or appropriator of water does not prevent the commission's consideration of the application. Sec. 5.404. NOTICE OF INTENT TO OBTAIN SOLID WASTE PERMIT. Requires an applicant for a municipal solid waste facility to publish notice of a permit in the newspaper. Requires publication in the Texas Register. Sec. 5.405. NOTICE TO SENATOR AND REPRESENTATIVE. Sets forth notice requirements to local state senator or representative regarding solid waste or air quality permits. Sec. 5.406. NOTICE OF RECEIPT OF ADMINISTRATIVELY COMPLETE APPLICATION. Sets forth notice requirements for notice of receipt of application. Sets forth requirements for publication in the Texas Register for licenses to dispose of radioactive waste. Requires mailed notice to the applicant and any interested person who has requested notification, unless it would be impractical, in which case the commission must publish in a newspaper. Requires notice to the School Land Board if lands dedicated to the permanent school fund will be affected. Sec. 5.407. NOTICE OF PUBLIC MEETING FOR SOLID WASTE PERMIT. Requires an applicant to publish notice in a newspaper for certain solid waste public meetings. Sec. 5.408. NOTICE OF APPLICATION AND OPPORTUNITY TO REQUEST A HEARING. Requires notice of application and opportunity to request a hearing to be given by mail and newspaper. Sets forth requirements for publication in the Texas Register for licenses to dispose of radioactive waste. Sets forth more specific notice requirements for radioactive waste and air quality permits. Requires the commission to adopt rules necessary to administer this section. Sec. 5.409. NOTICE OF HEARING. Sets forth notice requirements for a notice of a hearing for air quality permits and licences for radioactive waste. Requires the commission to adopt rules regarding notice. Sec. 5.410. TIMING OF NOTICES. Sets forth requirements for when notice must be given. Requires the commission, by rule, to prescribe when notice of intent to obtain a municipal solid waste permit is to be published. Requires the commission, by rule, to prescribe when bilingual newspaper notice for air quality permits must be published. Sec. 5.411. CONTENTS OF NOTICE. Sets forth requirements for the contents of notices, special requirements for notice affecting property of the school land board, requirements for when hearings are available, information regarding public meetings, special requirements for solid waste permits and for appropriating water and allows the commission by rule to include certain information on a sign providing notice. Sec. 5.412. PROOF OF NOTICE. Sets forth requirements regarding providing affidavits as proof of notice, requirements for proving notice in contested cases, and provides for allowing the commission or the applicant to prove proper notice was given. Sec. 5.413. MAILED NOTICE. Sets forth requirements for mailed notices, including requirements for using first-class mail, allowing personal service, notice for applications affecting lands in the permanent school fund, certified mail for notice of hearings, and special requirements for amendments for licenses to dispose of radioactive waste. Sec. 5.414. MAILING LIST. Requires mailed notices to be sent to certain affected or interested persons. Authorizes additional notices to be sent to certain interested persons to provide information regarding an application and opportunity to request a hearing for certain permits to appropriate water. Requires notice to be mailed to certain local officials in appropriate circumstances. Requires additional notice for new solid waste management facilities to be mailed to persons located withing within one-half mile of the facility. Sec. 5.415. NEWSPAPER PUBLICATION; SIGN POSTING. Sets forth requirements for notices to be published in a newspaper, including requirements for newspaper and sign notice for proposed facility, discharge point, or point of diversion within the boundaries of a municipality, within its extraterritorial jurisdiction, or not located within any municipal jurisdiction. Provides for size requirements for certain types of published notice. Requires certain notice for radioactive waste licenses to be published in a manner provided by the Government Code in the county where the facility is to be located. Requires notice to be posted at the site for certain facilities. Requires the commission to adopt rules for implementation. Sec. 5.416. BILINGUAL NOTICE. Sets forth requirements for publishing notice of air quality permits in a bilingual newspaper if an elementary or middle school nearest the site provides certain bilingual education programs. Authorizes the commission, by rule, to require publication of additional notice. Provides for exceptions to the bilingual notice requirements. If notice is required to be provided by posting a sign, the sign must be in English and another language if applicable. SECTION 2. Amends Section 5.115, Water Code, to delete Subsections (b)-(f) which provide for notice requirements for permits issued under the Water Code. Makes conforming changes. SECTION 3. Amends Sections 11.085(b), Water Code, to make a conforming changes and add cross reference to Subchapter J, Chapter 5. SECTION 4. Amends Section 11.132, Water Code, to delete a provision that is incorporated into SECTION 1. Deletes existing Subsections (b), (c), (d)(1)-(3) and (e). Makes a conforming changes and adds cross reference to Subchapter J, Chapter 5. SECTION 5. Amends Section 11.143(d)-(i), Water Code, to delete existing Subsections (d)(1)-(3), (e), and (f). Makes conforming changes and adds cross references to Subchapter J, Chapter 5. SECTION 6. Amends Section 11.175, Water Code, as follows: Sec. 11.175. New heading: NOTICE OF CANCELLATION HEARING. Deletes previous Subsections (a) and (b). Requires notice to be mailed and published. Makes a conforming change adds cross reference to Subchapter J, Chapter 5. SECTION 7. Amends Section 26.022, Water Code, to delete previous Subsection (c) and parts of subsection (b). Adds cross reference to Subchapter J, Chapter 5 and makes conforming changes. SECTION 8. Amends Sections 26.028(a), (b), and (d), Water Code, by deleting a provision concerning notice requirements and adds cross references to Subchapter J, Chapter 5. Deletes Subsections (d)(1)-(3). Makes conforming changes. SECTION 9. Amends Sections 27.018(c) and (d), Water Code, to delete existing Subsection (c). Makes a conforming change. SECTION 10. Amends Sections 361.079(a) and (c), Health and Safety Code, to make conforming changes and adds cross references to Subchapter J, Chapter 5. SECTION 11. Amends Sections 361.0791(c) and (e)-(g), Health and Safety Code, to delete provisions regarding notice. Makes conforming changes and adds cross references to Subchapter J, Chapter 5. SECTION 12. Amends Section 361.080(b), Health and Safety Code, to make a conforming change and to add a cross reference to Subchapter J, Chapter 5. SECTION 13. Amends Section 361.081, Health and Safety Code, to delete provisions regarding notice. Makes conforming changes and adds cross reference to Subchapter J, Chapter 5. SECTION 14. Amends Sections 361.082(c) and (d), Health and Safety Code, to make conforming changes and adds cross references to Subchapter J, Chapter 5. SECTION 15. Amends Sections 382.031, 382.0516, and 382.056, Health and Safety Code, as follows: Sec. 382.031. NOTICE OF HEARINGS. Deletes provisions specifying details of newspaper publication. Deletes existing Subsections (b), (c), and (e). Makes conforming changes and adds cross references to Subchapter J, Chapter 5. Sec. 382.0516. NOTICE TO STATE SENATOR AND REPRESENTATIVE. Deletes reference to notice for construction and special permits. Makes a conforming change. Sec. 382.056. New heading: NOTICE OF APPLICATION AND OPPORTUNITY TO REQUEST A HEARING. Deletes text regarding publishing notice and existing Subsections (b) and (c). Makes conforming changes and adds cross reference to Subchapter J, Chapter 5. SECTION 16. Amends Section 382.0561, Health and Safety Code, by amending Subsections (b)-(i) and adding Subsections (j)-(u), to set forth notice requirements for an application for a federal operating permit and notice to the School Land Board for permits affecting lands dedicated to the permanent school fund; requires the commission to adopt rules governing notice; and sets forth specific items which must be included in the notice. Authorizes the commission or its designee to extend or reopen the comment period if the commission or its designee, rather than executive director, finds an extension or reopening to be appropriate. Authorizes the commission, by rule, to require to an applicant for a federal operating permit to publish certain notice and sets forth notice requirements for newspaper notice as well as notice provided at the affected site. Requires notice of hearing to be provided within certain time limits and in the areas affected. Sets forth personal notice requirements for federal operating permits. Sets forth requirements for holding a hearing as stipulated in the notice and allows for recess and reconvening of a hearing. Deletes existing Subsection (f). Makes conforming changes. SECTION 17. Amends Sections 382.058(a) and (c), Health and Safety Code, to make a conforming change and add cross reference to Subchapter J, Chapter 5. SECTION 18. Amends Section 401.113(b), Health and Safety Code, to provide an analysis to be made available to the public no later than the 30th, rather than the 31st, day before the date of the hearing under Section 401.114, Health and Safety Code. SECTION 19. Amends Sections 401.114, Health and Safety Code, to clarify which agency is charges with providing notice for licenses for processing radioactive waste. Makes conforming changes and adds cross reference to Subchapter J, Chapter 5 for notice requirements. SECTION 20. Amends Section 401.116, Health and Safety Code, by amending Subsections (b)-(d), and adding Subsection (e), to make conforming changes and add cross reference to Subchapter J, Chapter 5 as well as including notice requirements for amendments. SECTION 21. Amends Section 401.263(c), Health and Safety Code, to provide an analysis to be made available to the public no later than the 30th, rather than the 31st, day before the date of the hearing under Section 401.263, Health and Safety Code. SECTION 22. Repealer: Sections 361.0641 and 361.083, Health and Safety Code (Notice to senator and representative, and Evidence of notice of hearing, respectively). SECTION 23. Makes application of this Act prospective. SECTION 24. Effective date: September 1, 1997. SECTION 25. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE SECTION 1 of the substitute makes the following changes to the Water Code from the original bill: Section 5.402(c) is changed in the substitute to add a provision clarifying that combining notices is permissible. Section 5.406(c) and (d) of the substitute changes references to "person" from "party" to clarify that the notice goes out before parties are named in contested case hearings. Section 5.410(g)(3) of the substitute changes "public meeting" to "hearing." Section 5.412(a) in the substitute is changed to clarify that proof of notice must be entered into evidence before testimony on the merits is heard in a contested case hearing; and to clarify that evidence other than an affidavit may be acceptable as proof of notice. Section 5.412(b),(c) and (d) in the substitute changes "must" to "may" to clarify that other proof than an affidavit may be used, but if an affidavit is used, the affidavit must be entered into evidence. Section 5.415(b) in the substitute deletes "discharge point, or point of diversion" to clarify that the sign should be placed at the facility. Section 5.415(c)(1) and (2) of the original is deleted in the substitute and the deleted language is replaced with new subsections (c)(1) and (2) to make the newspaper notice requirements for facilities located outside of municipalities parallel to the requirements for facilities in municipalities. Section 5.416 of the substitute changes the heading to BILINGUAL NOTICE, and amends 5.416(f) to clarify that the sign must be in the bilingual language taught in the bilingual education program at the nearest school. SECTION 15 of the substitute makes the following changes to the original bill: Section 382.0516, Health and Safety Code, of the substitute changes "an operating permit" to "a federal operating permit" for clarity and consistency with other statutes. SECTION 17 of the substitute makes the following changes to the original bill: Section 382.058(a), Health and Safety Code is changed in the substitute to clarify that cement batch plants follow the notice provisions for air quality permits.