75R10504 JJT-F
By Talton H.B. No. 2444
Substitute the following for H.B. No. 2444:
By Allen C.S.H.B. No. 2444
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain environmental permitting procedures of the
1-3 Texas Natural Resource Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 5, Water Code, is amended by adding
1-6 Subchapter J to read as follows:
1-7 SUBCHAPTER J. ENVIRONMENTAL PERMITTING PROCEDURES
1-8 Sec. 5.371. GENERAL PERMITTING PROCEDURES. (a) This
1-9 subchapter applies to commission procedures for an application to
1-10 issue, amend, or renew a permit for which public notice and an
1-11 opportunity for public hearing is required by or allowed under
1-12 Chapter 26 or 27 or required by or allowed under Chapter 361 or
1-13 382, Health and Safety Code. Subchapters C-H, Chapter 2001,
1-14 Government Code, do not apply to a proceeding to which this
1-15 subchapter applies.
1-16 (b) The commission by rule shall provide for additional
1-17 notice, opportunity for public comment, and opportunity for hearing
1-18 to the extent necessary to satisfy a requirement for United States
1-19 Environmental Protection Agency authorization of a state permit
1-20 program.
1-21 (c) The commission shall provide for permits-by-rule under
1-22 the chapters listed in Subsection (a) to the greatest extent
1-23 practicable and consistent with the requirements for United States
1-24 Environmental Protection Agency authorization of a state permit
2-1 program.
2-2 (d) The commission by rule may identify categories of
2-3 applications related to permits for which notice or opportunity for
2-4 public hearing is not required. The commission may exempt from
2-5 notice and public hearing requirements an application to:
2-6 (1) maintain or improve the permitted quality or
2-7 method of disposal of waste, control of emissions of air
2-8 contaminants, or injection of fluid if there is not:
2-9 (A) a significant increase in the quantity of
2-10 waste, air contaminants, or fluid to be discharged, emitted, or
2-11 injected; or
2-12 (B) a material change in the place of discharge,
2-13 injection, emission, control, treatment, storage, or disposal;
2-14 (2) amend a permit in a manner that will not:
2-15 (A) cause a potential deterioration of water
2-16 quality in the state;
2-17 (B) relax a standard or criterion in a manner
2-18 that raises a potential for deterioration of water quality in the
2-19 state;
2-20 (C) result in a significant net increase in
2-21 permitted allowable emissions; or
2-22 (D) allow a significant emission of air
2-23 contaminants not previously emitted under the permit;
2-24 (3) increase emissions of air contaminants that are
2-25 incidental to the installation of an emission control device or
2-26 implementation of a control technique; or
2-27 (4) change a facility in a manner within the scope and
3-1 limitations of a flexible permit.
3-2 (e) For an application described by Subsection (d), the
3-3 commission by rule may provide for the executive director to take
3-4 action on the application.
3-5 Sec. 5.372. ISSUANCE OF PERMIT, DRAFT PERMIT, OR NOTICE OF
3-6 INTENT TO DENY. (a) After an application related to a permit is
3-7 administratively and technically complete, the executive director
3-8 shall prepare and issue:
3-9 (1) a notice of intent to deny; or
3-10 (2) a draft permit.
3-11 (b) The executive director shall include with a notice of
3-12 intent to deny or draft permit a record of proposed decision
3-13 prepared in accordance with Section 5.373.
3-14 (c) A notice of intent to deny must state the executive
3-15 director's reasons for denial.
3-16 (d) A draft permit must contain all appropriate conditions,
3-17 compliance schedules, monitoring requirements, and technical
3-18 standards consistent with applicable commission rules.
3-19 (e) The commission shall send a copy of the record of
3-20 proposed decision to:
3-21 (1) the applicant;
3-22 (2) a state or federal agency, as required or as
3-23 appropriate; and
3-24 (3) any person on that person's request.
3-25 (f) Unless precluded by a requirement for United States
3-26 Environmental Protection Agency authorization of a state permit
3-27 program, an applicant may give public notice of the application
4-1 before the executive director issues a draft permit or notification
4-2 of intent to deny.
4-3 (g) If the executive director determines that there is not a
4-4 significant degree of public interest in an application or the
4-5 commission does not receive a request for a public hearing on the
4-6 application, the executive director may take final action on the
4-7 application notwithstanding this section and Sections 5.373-5.377,
4-8 and the permit is effective immediately.
4-9 Sec. 5.373. RECORD OF PROPOSED DECISION FOR DRAFT PERMIT.
4-10 (a) A record of proposed decision prepared for a draft permit
4-11 must:
4-12 (1) be based on the administrative record; and
4-13 (2) briefly state the principal facts and significant
4-14 factual, legal, methodological, and policy issues considered in
4-15 preparing the draft permit.
4-16 (b) The record of proposed decision, as applicable, must:
4-17 (1) briefly describe the type of facility or activity
4-18 that is the subject of the draft permit;
4-19 (2) state the type and quantity of wastes proposed to
4-20 be or that are being treated, stored, disposed of, injected,
4-21 emitted, or discharged under the permit;
4-22 (3) briefly summarize the reasons for the draft permit
4-23 conditions, including references to applicable statutes or rules;
4-24 (4) state the reasons a requested variance or
4-25 alternative to a required standard is or is not justified;
4-26 (5) describe the procedures for reaching a final
4-27 decision on the draft permit, including:
5-1 (A) the dates the comment period begins and
5-2 ends;
5-3 (B) the address where comments will be received;
5-4 and
5-5 (C) a description of:
5-6 (i) procedures for requesting a hearing;
5-7 (ii) the nature of the hearing; and
5-8 (iii) any other procedures by which the
5-9 public may participate in the final decision process; and
5-10 (6) include the name and telephone number of a person
5-11 to contact for additional information.
5-12 (c) The commission shall make the record of proposed
5-13 decision available to the public when the public notice is
5-14 published.
5-15 Sec. 5.374. NOTICE OF INITIAL DETERMINATION; COMMENTS AND
5-16 REQUESTS FOR HEARING. (a) The commission by rule shall provide
5-17 for public notice for each draft permit or notice of intent to deny
5-18 that is prepared.
5-19 (b) The executive director shall provide for a period of at
5-20 least 30 days for public review, comments, and requests for public
5-21 hearing. The period for public review and comments must be
5-22 extended until the close of the public hearing, if a public hearing
5-23 is held. The commission or the executive director at any time
5-24 before a final decision is issued may extend or reopen the comment
5-25 period to allow the receipt of information that may help the
5-26 commission to resolve an issue raised in the application.
5-27 (c) Each person, including an applicant, who believes that a
6-1 condition of a draft permit is inappropriate, or that the executive
6-2 director's tentative decision to deny an application, terminate a
6-3 permit, or prepare a draft permit is inappropriate, must raise all
6-4 reasonably ascertainable issues and present all reasonably
6-5 available arguments supporting the person's position on or before
6-6 the date the public comment period closes. The executive director
6-7 shall grant additional time for comment to the extent that a person
6-8 who requests additional time to comment demonstrates a reasonable
6-9 need for that time.
6-10 (d) Notice required under this section is in addition to the
6-11 requirements of Section 26.028 and of Sections 361.081 and 361.082,
6-12 Health and Safety Code. Notice required under this section may be
6-13 combined with notice required by another section of this code or of
6-14 the Health and Safety Code to satisfy the requirements of each
6-15 section.
6-16 (e) The commission by rule shall provide for additional
6-17 notice and opportunity for public comment to the extent necessary
6-18 to satisfy a requirement for United States Environmental Protection
6-19 Agency authorization of a state permit program.
6-20 (f) If the commission receives a timely written notice of
6-21 opposition to a draft permit issued by the executive director and a
6-22 request for a public hearing on the draft permit, the executive
6-23 director shall respond to the request and attempt to resolve the
6-24 issues that create the opposition. The executive director may
6-25 refer parties to alternative dispute resolution to resolve the
6-26 issues that create the opposition. The opponent may withdraw the
6-27 request for a public hearing following the executive director's
7-1 response.
7-2 Sec. 5.375. PUBLIC HEARINGS. (a) A ruling on a permit
7-3 issuance or denial may not be made without an opportunity for a
7-4 public hearing.
7-5 (b) At a public hearing under this subchapter, any person
7-6 may present an oral or written statement or information concerning
7-7 the draft permit or notice of intent to deny. The person or panel
7-8 conducting a hearing may:
7-9 (1) set reasonable limits on the time allowed for oral
7-10 comments; or
7-11 (2) require statements to be presented in writing or
7-12 under oath.
7-13 (c) The executive director shall hold the public hearing if
7-14 the executive director determines:
7-15 (1) that there is a significant degree of public
7-16 interest in the draft permit or notice of intent to deny, after
7-17 examining requests for a public hearing; or
7-18 (2) that a public hearing should be held to clarify
7-19 one or more issues in the permit decision, regardless of whether
7-20 the commission receives a timely request for a public hearing.
7-21 (d) When a draft permit or notice of intent to deny for a
7-22 hazardous waste management permit is at issue, the executive
7-23 director shall hold a public hearing in any case in which the
7-24 commission receives a notice of opposition to the permit decision
7-25 and a request for a public hearing on or before the end of the
7-26 period provided under Section 5.374 for public hearing requests.
7-27 Whenever it is possible to do so, the executive director shall hold
8-1 the public hearing under this subsection at a location convenient
8-2 to the population center nearest the place proposed for the
8-3 activity to be permitted.
8-4 (e) The executive director may designate a presiding officer
8-5 or hearing panel to conduct the hearing in an orderly manner and to
8-6 receive comments at the hearing. A hearing panel may include
8-7 technical experts on the executive director's staff.
8-8 (f) The presiding officer or hearing panel shall conduct the
8-9 hearing in a manner that helps develop the administrative record.
8-10 The presiding officer or panel may ask questions of persons who
8-11 testify to develop the record fully or to clarify a factual or
8-12 regulatory issue.
8-13 (g) Chapter 2001, Government Code, does not apply to a
8-14 public hearing held under this section. A hearing held under this
8-15 section shall be conducted so that all relevant information, views,
8-16 arguments, and other data are sufficiently and fairly received
8-17 without undue repetition.
8-18 (h) A hearing held under this section shall be recorded. A
8-19 hearing shall be transcribed on request. The person who requests a
8-20 hearing transcription shall bear the cost of the transcription.
8-21 (i) The commission shall provide the record and, if
8-22 prepared, the transcript of a hearing for review by any person at
8-23 the commission's main office.
8-24 (j) A person who requests a copy of the record or of a
8-25 transcript shall bear the cost of the copy.
8-26 Sec. 5.376. FINAL DECISION OF EXECUTIVE DIRECTOR. (a) For
8-27 a decision on an application processed under Sections 5.373-5.375,
9-1 the executive director shall consider all comments received during
9-2 the public comment period and during any public hearing in
9-3 determining:
9-4 (1) whether to issue the permit; and
9-5 (2) conditions to be placed on the permit if a permit
9-6 is issued.
9-7 (b) In ruling on a permit application, the executive
9-8 director may:
9-9 (1) deny the permit in whole or in part or provide
9-10 reasonable conditions to a permit if:
9-11 (A) the permit applied for does not meet
9-12 applicable requirements; or
9-13 (B) the applicant refuses to agree to a permit
9-14 condition the executive director determines is necessary; and
9-15 (2) consider any adjudicated decision within five
9-16 years before the date on which the application is filed that
9-17 addressed the applicant's noncompliance with the terms of any
9-18 permit or order issued by the commission.
9-19 (c) The executive director may not deny an application
9-20 because of an adjudicated decision considered under Subsection
9-21 (b)(2) unless the executive director determines that:
9-22 (1) the applicant's noncompliance resulted in harm to
9-23 public health or the environment; and
9-24 (2) the applicant has not made a substantial attempt
9-25 to correct the noncompliance.
9-26 (d) When the executive director issues a final decision on
9-27 an application, the executive director shall issue a response to
10-1 comments the commission received on the application. The response
10-2 must:
10-3 (1) identify any provision of the draft permit that
10-4 has been changed for the final permit and state the reasons for the
10-5 change; and
10-6 (2) briefly describe and respond to all significant
10-7 comments the commission receives on the draft permit or permit
10-8 application.
10-9 (e) The response must be available to the public.
10-10 (f) The executive director shall mail notice of the final
10-11 decision on the application to the applicant and to each person who
10-12 commented during the public comment period or participated in the
10-13 public hearing. The notice must:
10-14 (1) include the response issued under Subsection (d);
10-15 (2) explain the petition process; and
10-16 (3) identify the location and availability of the
10-17 administrative record.
10-18 (g) A final decision under this section on a permit
10-19 application becomes effective 30 days after the date notice of the
10-20 decision is mailed, unless a petition for review is filed in
10-21 accordance with Section 5.377, or at a later time specified by the
10-22 executive director in the decision.
10-23 Sec. 5.377. PETITION FOR COMMISSION REVIEW. (a) The
10-24 commission shall review the executive director's decision on a
10-25 permit application as provided by this section.
10-26 (b) A person who submitted a comment or participated in a
10-27 public hearing on the tentative decision of the executive director,
11-1 or an applicant in a case in which the executive director takes
11-2 action under Section 5.372(g), may file a petition for review with
11-3 the commission. A person who did not submit a comment or did not
11-4 participate in the public hearing may file a petition for review
11-5 only to the extent of the changes made to the tentative decision
11-6 that are reflected in the final permit decision. A petition for
11-7 review must be filed on or before the 30th day after the date the
11-8 executive director's notice of final decision is mailed.
11-9 (c) The act of filing a petition under this section
11-10 automatically stays the effect of a permit issued by the executive
11-11 director until the commission determines whether to grant a
11-12 petition for review. To the extent a condition of a new permit is
11-13 stayed under this section, a person who holds an existing permit
11-14 must comply with any condition of the existing permit that
11-15 corresponds to the stayed condition, unless compliance with the
11-16 condition of the existing permit would be technologically
11-17 incompatible with compliance with a condition of the new permit
11-18 that has not been stayed.
11-19 (d) The petition must:
11-20 (1) include a statement of the reasons that support
11-21 commission review of the decision;
11-22 (2) demonstrate that the issue raised by the petition:
11-23 (A) was raised during the public comment period
11-24 or public hearing; or
11-25 (B) if not raised during the comment period or
11-26 hearing, was not raised for a good cause;
11-27 (3) identify all provisions of the draft permit or
12-1 order of denial of the application with which the appellant
12-2 disagrees; and
12-3 (4) show that the decision or a permit condition is
12-4 based on:
12-5 (A) a finding of fact or a conclusion of law
12-6 that is clearly in error; or
12-7 (B) an important policy consideration or an
12-8 exercise of discretion that the commission should review.
12-9 (e) The commission shall act on a petition not later than
12-10 the 60th day after the date the notice of final decision is mailed.
12-11 If the commission does not act on or before that date, the petition
12-12 is denied.
12-13 Sec. 5.378. COMMISSION REVIEW. (a) If the commission
12-14 grants the petition for review, the commission shall give notice to
12-15 the petitioner and each person who commented during the public
12-16 comment period or participated in the public hearing. The notice
12-17 must:
12-18 (1) provide a briefing schedule for the review;
12-19 (2) identify provisions of permits stayed under
12-20 Subsection (b); and
12-21 (3) state that any person who submitted comments on
12-22 the tentative decision of the executive director or participated in
12-23 the public hearing may file an amicus brief.
12-24 (b) If a petition for review is granted, the effect of the
12-25 contested permit conditions shall be stayed pending final
12-26 commission action. If the permit involves a new facility,
12-27 injection well, source, or discharger, the applicant shall be
13-1 without a permit for the proposed new facility, injection well,
13-2 source, or discharger pending final commission action. All permit
13-3 provisions for the existing facility, injection well, source, or
13-4 discharging person or facility that are not stayed under this
13-5 subsection remain in effect and enforceable. To the extent a
13-6 condition of a new permit is stayed under this section, a person
13-7 who holds an existing permit must comply with any condition of the
13-8 existing permit that corresponds to the stayed condition, unless
13-9 compliance with the existing condition would be technologically
13-10 incompatible with compliance with a condition of the new permit
13-11 that has not been stayed.
13-12 (c) If the commission modifies or rejects the executive
13-13 director's decision, the commission must issue a written decision
13-14 that includes a statement of the reason and legal basis for the
13-15 decision.
13-16 (d) The decision must be supported by the administrative
13-17 record. The commission shall mail the decision to the petitioner
13-18 and each person who commented during the public comment period or
13-19 who participated in the public hearing.
13-20 (e) The commission may remand any matter to the executive
13-21 director if the commission considers the remand necessary to
13-22 resolve a difficult issue or conflicting factual claims. The
13-23 commission may limit the scope of the remand to particular issues.
13-24 (f) On the initiative of the commission, the commission may
13-25 review any condition of a draft permit prepared by the executive
13-26 director.
13-27 Sec. 5.379. MOTION TO RECONSIDER. A motion to reconsider a
14-1 final order of the commission:
14-2 (1) must be filed before the 11th day after the date
14-3 of service of the final order;
14-4 (2) must state the matters claimed to be erroneously
14-5 decided and the nature of the alleged errors; and
14-6 (3) does not stay the effective date of the final
14-7 order unless the commission specifically orders the stay.
14-8 Sec. 5.380. JUDICIAL REVIEW OF COMMISSION PERMIT DECISIONS.
14-9 (a) A person aggrieved by the executive director's final decision
14-10 on a permit application or the commission's action on the petition
14-11 that modifies or rejects the executive director's decision may
14-12 petition for judicial review. The petition must be filed not later
14-13 than the 30th day after the date:
14-14 (1) the commission mails the decision on the petition
14-15 for commission review under Section 5.378(d); or
14-16 (2) the petition for commission review is denied.
14-17 (b) Failure to timely petition for commission review of the
14-18 executive director's decision is a bar to judicial review of the
14-19 decision.
14-20 (c) In reviewing a decision of the commission, a court may
14-21 not substitute the court's judgment for the commission's judgment
14-22 on the weight of information in the administrative record related
14-23 to a question committed to the commission's discretion. The court:
14-24 (1) may affirm the commission's decision in whole or
14-25 in part; and
14-26 (2) shall reverse or remand the case for further
14-27 proceedings if a substantial right of an appellant has been
15-1 prejudiced because of a finding, inference, conclusion, or decision
15-2 that:
15-3 (A) violates the Texas Constitution, the federal
15-4 constitution, or a statute;
15-5 (B) exceeds the commission's authority;
15-6 (C) is made through an unlawful procedure;
15-7 (D) is affected by an error of law;
15-8 (E) is arbitrary or capricious; or
15-9 (F) is characterized by abuse of discretion or a
15-10 clearly unwarranted exercise of discretion.
15-11 (d) The filing of a petition for review does not stay an
15-12 action required by the commission's decision.
15-13 (e) Except as provided by Subsection (f), the record for
15-14 review is limited to all written and oral substantive public
15-15 comments, the transcript of the hearing, all related
15-16 correspondence, all responses to comments, and all other
15-17 information on which the commission relied in deciding on the
15-18 executive director's decision.
15-19 (f) A party may apply to the court to present additional
15-20 information. If the court finds that the additional information is
15-21 material and that failure to present the additional information in
15-22 the proceeding was for a good reason, the court may order the
15-23 additional information to be taken before the commission on
15-24 conditions the court determines. The commission may change the
15-25 commission's findings or decision after consideration of the
15-26 additional information. The commission shall file the additional
15-27 information with the reviewing court together with any change in
16-1 the commission's findings or decisions.
16-2 (g) A court shall conduct the review sitting without a jury.
16-3 The court may not go outside the administrative record, except that
16-4 the court may receive evidence of any procedural irregularity
16-5 alleged to have occurred before the commission that is not
16-6 reflected in the record.
16-7 SECTION 2. Sections 361.0833(a), (c), (d), (f), and (g),
16-8 Health and Safety Code, are amended to read as follows:
16-9 (a) After considering the factors in Subsection (e), the
16-10 commission may order the applicant for a permit for a new hazardous
16-11 waste management facility to pay reasonable costs an interested
16-12 [incurred by a] person incurred [affected] in presenting to the
16-13 commission information described by [set out in] Subsection (b)
16-14 pertinent to [to the commission on] the question of the issuance of
16-15 the permit.
16-16 (c) The commission may order the applicant for a permit for
16-17 a new hazardous waste management facility to pay reasonable costs
16-18 an interested [incurred by a] person incurred in presenting to the
16-19 commission at a hearing [affected who presented] information [to
16-20 the commission at a hearing] showing that the applicant:
16-21 (1) knowingly made false or misleading statements in
16-22 the application;
16-23 (2) knowingly made false or misleading statements
16-24 during the hearing; or
16-25 (3) failed to present information that the applicant
16-26 had in its possession that would have materially affected the
16-27 issues of fact and law on which the decision of the commission was
17-1 based.
17-2 (d) The total costs awarded under Subsection (a) to all
17-3 interested persons [affected under Subsection (a)] may not exceed
17-4 $100,000 for a new commercial hazardous waste management facility
17-5 or $20,000 for a new noncommercial hazardous waste management
17-6 facility. The total costs awarded under Subsection (c) to all
17-7 interested persons [affected under Subsection (c)] may not exceed
17-8 $150,000 for a new commercial hazardous waste management facility
17-9 or $30,000 for a new noncommercial hazardous waste management
17-10 facility.
17-11 (f) If the applicant fails or refuses to pay the amount of
17-12 costs ordered not later than the 30th day after the date of entry
17-13 of the final order granting payment of costs, the commission shall
17-14 order the applicant's bond or other financial assurance forfeited
17-15 in the amount of the costs ordered reimbursed under Subsection (a)
17-16 or (c) up to and including the full amount of the bond or other
17-17 financial assurance. The commission shall forward the forfeited
17-18 amount to the interested person [affected].
17-19 (g) If a [no] request [is made] for an award of costs under
17-20 this section is not made or if the commission determines that each
17-21 interested [a] person who requests an award for costs is not
17-22 [affected is determined by the commission not to be] entitled to an
17-23 award of costs, the commission shall release the bond or other
17-24 financial assurance of the applicant subject to an appeal of the
17-25 denial of costs under this section. The commission shall also
17-26 release the bond or other financial assurance on presentation of
17-27 proof that the costs awarded have been paid.
18-1 SECTION 3. Subchapter I, Chapter 2001, Government Code, is
18-2 amended by adding Section 2001.227 to read as follows:
18-3 Sec. 2001.227. CERTAIN ENVIRONMENTAL PERMITS. Subchapters
18-4 C-H do not apply to a permit application required to be filed with
18-5 the Texas Natural Resource Conservation Commission for an
18-6 authorization under Chapter 26 or 27, Water Code, or Chapter 361 or
18-7 382, Health and Safety Code, if the application is subject to
18-8 Subchapter J, Chapter 5, Water Code.
18-9 SECTION 4. On the effective date of this Act, Subchapters
18-10 C-H, Chapter 2001, Government Code, or any provision in those
18-11 subchapters, do not apply to the subject matter of a reference to
18-12 that law that occurs in Chapter 26 or 27, Water Code, or Chapter
18-13 361 or 382, Health and Safety Code. Subchapter J, Chapter 5, Water
18-14 Code, applies to the subject matter in place of the referenced law.
18-15 SECTION 5. The importance of this legislation and the
18-16 crowded condition of the calendars in both houses create an
18-17 emergency and an imperative public necessity that the
18-18 constitutional rule requiring bills to be read on three several
18-19 days in each house be suspended, and this rule is hereby suspended,
18-20 and that this Act take effect and be in force from and after its
18-21 passage, and it is so enacted.