By Bosse H.B. No. 1159
75R2824 JJT-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to public participation in the Texas Natural Resource
1-3 Conservation Commission's processes for granting authorizations and
1-4 other contested cases.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 5.115, Water Code, is amended to read as
1-7 follows:
1-8 Sec. 5.115. PERSONS AFFECTED IN COMMISSION HEARINGS; ACTION
1-9 ON REQUEST FOR HEARING; NOTICE OF APPLICATION. (a) For the purpose
1-10 of an administrative hearing held by or for the commission
1-11 involving a contested case, "affected person," [or] "person
1-12 affected," or "person who may be affected" means a person who has a
1-13 personal justiciable interest related to a legal right, duty,
1-14 privilege, power, or economic interest affected by the
1-15 administrative hearing. An interest common to members of the
1-16 general public does not qualify as a personal justiciable interest.
1-17 (b) The commission is not required to hold a hearing if the
1-18 commission determines that the basis of a person's request for a
1-19 hearing as an affected person is not reasonable or is not supported
1-20 by competent evidence. The commission shall adopt rules specifying
1-21 factors which must be considered in determining whether a person is
1-22 an affected person in any contested case arising under the air,
1-23 waste, or water programs within the commission's jurisdiction and
1-24 whether an affected association is entitled to standing in
2-1 contested case hearings. The rules must include:
2-2 (1) only objective criteria for determining whether a
2-3 hearing request is reasonable; and
2-4 (2) guidelines designed to assist members of the
2-5 public in determining:
2-6 (A) whether a member of the public may be an
2-7 affected party;
2-8 (B) what the commission requires to demonstrate
2-9 that a request for a hearing is reasonable; and
2-10 (C) what evidence the commission will consider
2-11 competent to support the request.
2-12 (c) In determining whether to grant an affected person's
2-13 request for a hearing on an application for commission
2-14 authorization for an activity, the commission may not consider the
2-15 relative significance of the effects the activity may have on the
2-16 person.
2-17 (d) [(b)] At the time an application for a permit or license
2-18 under this code is filed with the executive director and is
2-19 administratively complete, the commission shall give notice of the
2-20 application to any person who may be affected by the granting of
2-21 the permit or license.
2-22 (e) [(c)] At the time an application for any formal action
2-23 by the commission that will affect lands dedicated to the permanent
2-24 school fund is filed with the executive director or the commission
2-25 and is administratively complete, the commission shall give notice
2-26 of the application to the School Land Board. Notice shall be
2-27 delivered by certified mail, return receipt requested, addressed to
3-1 the deputy commissioner of the asset management division of the
3-2 General Land Office. Delivery is not complete until the return
3-3 receipt is signed by the deputy commissioner of the asset
3-4 management division of the General Land Office and returned to the
3-5 commission.
3-6 (f) [(d)] The commission shall adopt rules for the notice
3-7 required by this section.
3-8 (g) [(e)] The notice must state:
3-9 (1) the identifying number given the application by
3-10 the commission;
3-11 (2) the type of permit or license sought under the
3-12 application;
3-13 (3) the name and address of the applicant;
3-14 (4) the date on which the application was submitted;
3-15 and
3-16 (5) a brief summary of the information included in the
3-17 permit application.
3-18 (h) [(f)] The notice to the School Land Board under this
3-19 section shall additionally:
3-20 (1) state the location of the permanent school fund
3-21 land to be affected; and
3-22 (2) describe any foreseeable impact or effect of the
3-23 commission's action on permanent school fund land.
3-24 (i) [(g)] A formal action or ruling by the commission on an
3-25 application affecting permanent school fund land that is made
3-26 without the notice required by this section is voidable by the
3-27 School Land Board as to any permanent school fund lands affected by
4-1 the action or ruling.
4-2 SECTION 2. Subchapter D, Chapter 5, Water Code, is amended
4-3 by adding Sections 5.123-5.126 to read as follows:
4-4 Sec. 5.123. PUBLIC PARTICIPATION IN PERMIT DECISIONS. (a)
4-5 The commission shall encourage public participation in decisions
4-6 regarding actions the commission may take on a permit application.
4-7 (b) The commission by rule shall provide an opportunity for
4-8 public comment on a decision the commission or executive director
4-9 must make on a permit application. Rules adopted under this
4-10 section must provide for notice to interested persons and the
4-11 public that includes guidance on making a comment. This subsection
4-12 does not affect the commission's duty to provide a hearing
4-13 otherwise required by law.
4-14 (c) In making a decision on a permit application, the
4-15 commission shall:
4-16 (1) consider each comment received as provided by
4-17 Subsection (b); and
4-18 (2) make a written response to the comments.
4-19 (d) If public comment or a public hearing is not expressly
4-20 required by federal or state law, the commission by rule may
4-21 exclude from any public comment or public hearing requirement each
4-22 type of action on a permit application that the commission
4-23 determines cannot affect a member of the public adversely.
4-24 (e) In this section, "permit application" includes an
4-25 application for the issuance, renewal, or amendment of a permit,
4-26 license, registration, variance, or other authorization.
4-27 Sec. 5.124. RECOVERY OF CERTAIN PUBLIC PARTICIPATION
5-1 EXPENSES. (a) The commission by rule shall adopt a procedure by
5-2 which the commission may require a permit applicant to reimburse
5-3 another person's reasonable expenses incurred in a local review
5-4 committee process under Section 361.063, Health and Safety Code, or
5-5 in another proceeding related to the application if:
5-6 (1) after the commission or a hearings examiner has
5-7 taken jurisdiction in a contested case hearing on the permit
5-8 application, the permit applicant seeks to withdraw the application
5-9 without prejudice to the permit applicant's eligibility to apply
5-10 for the same or a similar authorization, amendment, or renewal in
5-11 the future;
5-12 (2) the commission denies the permit application or
5-13 revises the commission's draft of the authorization, amendment, or
5-14 renewal because of information or a technical, legal, or policy
5-15 evaluation provided by the person who requests reimbursement of
5-16 expenses under this section; or
5-17 (3) a fact material to the application is
5-18 misrepresented in or omitted from the application, testimony, or
5-19 other information related to the permit and provided to the
5-20 commission by the applicant.
5-21 (b) The commission shall apply this section to create:
5-22 (1) disincentives for an applicant to file a
5-23 speculative, incomplete, or inadequate application; and
5-24 (2) incentives for:
5-25 (A) the public to participate in important
5-26 policy, legal, or technical issues before the commission in a
5-27 manner likely to assist the commission's review of applications;
6-1 and
6-2 (B) a permit applicant to submit an application
6-3 that is complete and accompanied by accurate information regarding
6-4 all material facts, including facts that may not support the
6-5 application.
6-6 (c) The commission shall determine whether a person who
6-7 requests reimbursement under this section is entitled to the
6-8 reimbursement and the amount of any reimbursement. In determining
6-9 the amount of reimbursement, the commission shall include expenses
6-10 for discovery and fees of attorneys and experts in addition to
6-11 factors provided by Subsections (d) and (e). The commission shall
6-12 base a determination of the amount of reimbursement under this
6-13 section on sworn affidavits or evidence presented at a hearing.
6-14 The commission may issue an order for reimbursement under this
6-15 section that represents a settlement agreement between the
6-16 applicant and the person who requested reimbursement.
6-17 (d) For reimbursement under Subsection (a)(1), the
6-18 commission shall require the permit applicant to pay the reasonable
6-19 expenses incurred by the person who makes the reimbursement request
6-20 so that, after payment, the person will be in an economic position
6-21 to participate in a proceeding on a later application for the same
6-22 or a similar permit by the same applicant that is approximately the
6-23 same economic position as the person was in for the proceedings
6-24 regarding the withdrawn application.
6-25 (e) For reimbursement under Subsection (a)(3), the
6-26 commission shall include in the determination of the person's
6-27 reasonable expenses the person's reasonable expenses associated
7-1 with:
7-2 (1) discovering the misrepresentation or omission;
7-3 (2) presenting the commission with information
7-4 regarding the misrepresentation or omission; and
7-5 (3) any other act the commission finds relevant to the
7-6 commission's determination.
7-7 (f) The commission by rule may:
7-8 (1) provide for acts by a permit applicant similar to
7-9 those described by Subsection (a) for which the commission may
7-10 require the permit applicant to reimburse another person's
7-11 reasonable expenses related to a hearing on the permit application;
7-12 (2) require an applicant to provide a bond in an
7-13 amount sufficient to reimburse other persons if the commission
7-14 orders reimbursement under rules adopted under this section; and
7-15 (3) clarify the types of expenses the commission
7-16 considers reasonable and subject to reimbursement under this
7-17 section.
7-18 (g) Unless an expense claimed in a request for reimbursement
7-19 under this section is addressed in rules adopted under Subsection
7-20 (f)(3), the commission shall presume that the expense is reasonable
7-21 until the permit applicant demonstrates that the expense is not
7-22 reasonable.
7-23 (h) In this section, "permit application" has the meaning
7-24 assigned by Section 5.123.
7-25 Sec. 5.125. ENFORCEMENT OF REIMBURSEMENT ORDER. (a) The
7-26 commission's order for payment of reimbursement issued under
7-27 Section 5.124 is a debt and may be enforced by a court as any other
8-1 debt.
8-2 (b) The commission may not consider a permit application, as
8-3 defined by Section 5.123, made by a person who has not fully paid a
8-4 reimbursement ordered under Section 5.124.
8-5 Sec. 5.126. EFFECTS OF WITHDRAWAL OF APPLICATIONS. The
8-6 commission by rule shall allow a person who files a permit
8-7 application, as defined by Section 5.123, to withdraw that
8-8 application. In adopting rules under this section, the commission
8-9 shall distinguish circumstances under which the applicant may
8-10 withdraw an application and:
8-11 (1) by right, may file the same or a similar permit
8-12 application in the future for the same or a similar authorization;
8-13 or
8-14 (2) may not file a permit application for the same or
8-15 a similar authorization until the 10th anniversary of the date the
8-16 application is withdrawn.
8-17 SECTION 3. Section 382.056(d), Health and Safety Code, is
8-18 amended to read as follows:
8-19 (d) Except as provided by Section 382.0561 or Subsection
8-20 (e), the commission or its delegate shall hold a public hearing on
8-21 the permit application or permit renewal application before
8-22 granting the permit or renewal if a person who may be affected by
8-23 the emissions, or a member of the legislature from the general area
8-24 in which the facility or proposed facility is located, requests a
8-25 hearing within the period set by commission rule. The commission
8-26 shall not hold a hearing if the basis of a request by a person who
8-27 may be affected is determined to be unreasonable. Reasons for
9-1 which a request for a hearing on a permit amendment, modification,
9-2 or renewal shall be considered to be unreasonable include, but are
9-3 not limited to, an amendment, modification, or renewal that would
9-4 not result in an increase in allowable emissions and would not
9-5 result in the emission of an air contaminant not previously
9-6 emitted. The determination of whether a request is considered to
9-7 be reasonable shall be made in accordance with rules adopted under
9-8 Sections 5.115(b) and (c), Water Code.
9-9 SECTION 4. Section 382.0561(c), Health and Safety Code, is
9-10 amended to read as follows:
9-11 (c) The commission or its designee shall hold a public
9-12 hearing on a federal operating permit, a reopening of a federal
9-13 operating permit, or renewal application before granting the permit
9-14 or renewal if within the public comment period a person who may be
9-15 affected by the emissions or a member of the legislature from the
9-16 general area in which the facility is located requests a hearing.
9-17 The commission or its designee is not required to hold a hearing if
9-18 the basis of the request by a person who may be affected is
9-19 determined to be unreasonable. The determination of whether a
9-20 request is considered to be reasonable shall be made in accordance
9-21 with rules adopted under Sections 5.115(b) and (c), Water Code.
9-22 SECTION 5. This Act takes effect September 1, 1997.
9-23 SECTION 6. (a) The Texas Natural Resource Conservation
9-24 Commission, as soon as practicable, shall adopt rules under Section
9-25 5.115, Water Code, as amended by this Act, and Sections
9-26 5.123-5.126, Water Code, as added by this Act. The rules shall
9-27 become effective not later than December 1, 1998.
10-1 (b) Except as provided by Subsection (c) of this section,
10-2 the changes in law made by Sections 1-4 of this Act apply only to
10-3 an application for the issuance, renewal, or amendment of a
10-4 permit, license, registration, variance, or other authorization
10-5 that is filed with the Texas Natural Resource Conservation
10-6 Commission on or after the date the rules adopted as provided by
10-7 Subsection (a) of this section take effect.
10-8 (c) Sections 5.115(c) and 5.123(a), Water Code, as added by
10-9 this Act, take effect September 1, 1997, and apply to an
10-10 application for the issuance, renewal, or amendment of a permit,
10-11 license, registration, variance, or other authorization that is
10-12 filed with the Texas Natural Resource Conservation Commission on or
10-13 after that date, including the evaluation of a request for a
10-14 hearing on such an application made under Section 382.056(d) or
10-15 382.0561(c), Health and Safety Code, as amended by this Act.
10-16 SECTION 7. The importance of this legislation and the
10-17 crowded condition of the calendars in both houses create an
10-18 emergency and an imperative public necessity that the
10-19 constitutional rule requiring bills to be read on three several
10-20 days in each house be suspended, and this rule is hereby suspended.