Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By Talton 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 Chapter 26 or 27 of
1-12 this code or Chapter 361 or 382, Health and Safety Code.
1-13 (b) The commission shall provide for permits-by-rule under
1-14 the chapters listed in Subsection (a) to the greatest extent
1-15 practicable and consistent with the requirements for United States
1-16 Environmental Protection Agency authorization of a state permit
1-17 program.
1-18 (c) The commission by rule may identify categories of
1-19 applications related to permits for which notice or opportunity for
1-20 public hearing is not required. The commission shall exempt from
1-21 notice and public hearing requirements an application to:
1-22 (1) maintain or improve the permitted quality or
1-23 method of disposal of waste, control of air emissions, or injection
1-24 of fluid if there is not:
2-1 (A) a significant increase in the quantity of
2-2 waste, air contaminants, or fluid to be discharged, emitted, or
2-3 injected; or
2-4 (B) a material change in the place of discharge,
2-5 injection, emission, control, treatment, storage, or disposal;
2-6 (2) amend a permit in a manner that will not:
2-7 (A) cause a potential deterioration of water
2-8 quality in the state;
2-9 (B) relax a standard or criterion in a manner
2-10 that raises a potential for deterioration of water quality in the
2-11 state;
2-12 (C) result in a significant net increase in
2-13 permitted allowable emissions; or
2-14 (D) allow a significant emission of air
2-15 contaminants not previously emitted under the permit;
2-16 (3) increase air emissions that are incidental to the
2-17 installation of an emission control device or implementation of a
2-18 control technique; or
2-19 (4) change a facility in a manner within the scope and
2-20 limitations of a flexible permit.
2-21 (d) For an application described by Subsection (c), the
2-22 commission by rule may provide for the action on the application to
2-23 be taken by the executive director.
2-24 Sec. 5.372. INITIAL DETERMINATION BY EXECUTIVE DIRECTOR.
2-25 (a) After an application related to a permit is administratively
2-26 and technically complete, the executive director shall prepare and
2-27 issue:
2-28 (1) a draft permit; or
2-29 (2) a notice of intent to deny.
2-30 (b) The executive director shall include a record of
3-1 proposed decision prepared in accordance with Section 5.373 with a
3-2 draft permit or notice of intent to deny.
3-3 (c) The commission shall send a copy of the record of the
3-4 proposed decision to:
3-5 (1) the applicant;
3-6 (2) a state or federal agency, as required or as
3-7 appropriate; and
3-8 (3) any other person on request of that person.
3-9 (d) Unless precluded by a requirement of the United States
3-10 Environmental Protection Agency related to state program
3-11 authorization, an applicant may give public notice of the
3-12 application before the initial determination of the executive
3-13 director is completed. If all requests for a public hearing the
3-14 commission receives under the notice are unreasonable or the
3-15 commission receives no requests for a public hearing, the executive
3-16 director may take final action on the application notwithstanding
3-17 this section and Sections 5.373 through 5.378, and the permit is
3-18 effective immediately.
3-19 (e) A notice of intent to deny shall state the executive
3-20 director's reasons for the intended denial.
3-21 (f) A draft permit shall contain all appropriate conditions,
3-22 compliance schedules, monitoring requirements, and technical
3-23 standards consistent with applicable commission rules.
3-24 Sec. 5.373. RECORD OF PROPOSED DECISION FOR DRAFT PERMIT.
3-25 (a) A record of proposed decision prepared for a draft permit
3-26 must:
3-27 (1) briefly show the principal facts and significant
3-28 factual, legal, methodological, and policy issues considered in
3-29 preparing the draft permit; and
3-30 (2) be based on the administrative record.
4-1 (b) The record of proposed decision must include, as
4-2 applicable:
4-3 (1) a brief description of the type of facility or
4-4 activity that is the subject of the draft permit;
4-5 (2) the type and quantity of wastes proposed to be or
4-6 that are being treated, stored, disposed of, injected, emitted, or
4-7 discharged;
4-8 (3) a brief summary of the reasons for the draft
4-9 permit conditions, including references to applicable statutes or
4-10 rules;
4-11 (4) the reasons a requested variance or alternative to
4-12 a required standard is or is not justified;
4-13 (5) the procedures for reaching a final decision on
4-14 the draft permit, including:
4-15 (A) the dates the comment period begins and
4-16 ends;
4-17 (B) the address where comments will be received;
4-18 and
4-19 (C) a description of:
4-20 (i) procedures for requesting a hearing;
4-21 (ii) the nature of the hearing; and
4-22 (iii) any other procedures by which the
4-23 public may participate in the final decision process; and
4-24 (6) the name and telephone number of a person to
4-25 contact for additional information.
4-26 (c) The commission shall make the record of proposed
4-27 decision available when the public notice is published.
4-28 Sec. 5.374. NOTICE OF INITIAL DETERMINATION; COMMENTS AND
4-29 REQUESTS FOR HEARING. (a) The executive director shall give
4-30 public notice that a draft permit or notice of intent to deny has
5-1 been prepared. The executive director shall provide for a 30-day
5-2 period for public review, comments, and requests for public
5-3 hearing. The period for public review and comments must be
5-4 extended until the close of the public hearing, if one is held.
5-5 (b) All persons, including applicants, who believe that any
5-6 condition of a draft permit is inappropriate or that the executive
5-7 director's tentative decision to deny an application, terminate a
5-8 permit, or prepare a draft permit is inappropriate must raise all
5-9 reasonably ascertainable issues and submit all reasonably available
5-10 arguments supporting their position by the close of the public
5-11 comment period. Additional time shall be granted to the extent
5-12 that a commenter who requests additional time demonstrates the need
5-13 for such time.
5-14 (c) Notice required under this section is in addition to the
5-15 requirements of Section 26.028 of this code and Sections 361.081
5-16 and 361.082, Health and Safety Code.
5-17 (d) The commission by rule may require additional public
5-18 notice necessary to satisfy requirements of the United States
5-19 Environmental Protection Agency for state permit program
5-20 authorization.
5-21 (e) If the commission receives a timely written notice of
5-22 opposition to a draft permit issued by the executive director and a
5-23 request for a public hearing on the draft permit, the executive
5-24 director shall respond to the request and attempt to resolve the
5-25 issues that create the opposition. The opponent may withdraw the
5-26 request for a public hearing following the executive director's
5-27 response.
5-28 Sec. 5.375. PUBLIC HEARINGS. (a) A ruling on a permit
5-29 issuance or denial may not be made without an opportunity for a
5-30 public hearing.
6-1 (b) Any person may submit oral or written statements and
6-2 data concerning the initial determination of the executive
6-3 director. Reasonable limits may be set for the time allowed for
6-4 oral comments, and the submission of statements in writing or under
6-5 oath may be required.
6-6 (c) The executive director shall hold the public hearing if
6-7 the executive director determines:
6-8 (1) after examining requests for a public hearing,
6-9 that there is a significant degree of public interest in the draft
6-10 permit or notice of intent to deny; or
6-11 (2) that a public hearing should be held in order to
6-12 clarify one or more issues in the permit decision, regardless of
6-13 whether the commission receives a timely request for a public
6-14 hearing.
6-15 (d) When a draft permit or notice of intent to deny for a
6-16 hazardous waste management permit is at issue, the executive
6-17 director shall hold a public hearing in any case in which the
6-18 commission receives a notice of opposition to the permit decision
6-19 and a request for a public hearing on or before the 30th day after
6-20 the date of public notice under Section 5.374. The executive
6-21 director shall hold the public hearing under this subsection at a
6-22 location convenient to the population center nearest the proposed
6-23 facility whenever it is possible to do so.
6-24 (e) The executive director may designate a presiding officer
6-25 or hearing panel to conduct the hearing in an orderly manner and to
6-26 receive comments at the hearing. A hearing panel may include
6-27 technical experts on the staff of the executive director.
6-28 (f) Chapter 2001, Government Code, does not apply to a
6-29 public hearing held under this section. A hearing held under this
6-30 section shall be conducted so that all relevant information, views,
7-1 arguments, and other data are sufficiently and fairly received
7-2 without undue repetition.
7-3 (g) A hearing held under this section shall be recorded. On
7-4 request, a hearing shall be transcribed. The person who requests a
7-5 hearing transcript shall bear the cost of the transcript.
7-6 (h) The commission shall provide the record and, if
7-7 prepared, the transcript of a hearing for review of any person at
7-8 the commission's main office.
7-9 (i) A person who requests a copy of the record or of a
7-10 transcript shall bear the cost of the copy.
7-11 Sec. 5.376. COSTS FOR INFORMATION REGARDING NEW HAZARDOUS
7-12 WASTE PERMIT. (a) On request of an affected person, the applicant
7-13 for a permit for a new hazardous waste management facility shall
7-14 furnish a bond or other financial assurance authorized by the
7-15 commission to guarantee payment of nonlegal costs of the affected
7-16 person incurred in providing to the commission information related
7-17 to the issuance of the permit.
7-18 (b) For an application for a new commercial hazardous waste
7-19 management facility, the bond or assurance must be in the amount of
7-20 $100,000.
7-21 (c) For an application for a new noncommercial hazardous
7-22 waste management facility, the bond or assurance must be in the
7-23 amount of $20,000.
7-24 (d) In determining whether the affected person is entitled
7-25 to reimbursement under this section, the executive director shall
7-26 apply the considerations provided by Section 361.0833(e), Health
7-27 and Safety Code.
7-28 (e) Nonlegal costs subject to reimbursement under this
7-29 section include the cost of a copy of the administrative record in
7-30 the case.
8-1 (f) The commission may not award in a case costs to one or
8-2 more persons that total an amount greater than the amount of
8-3 financial assurance required by this section.
8-4 (g) Subject to the limitations of Subsections (d) and (f),
8-5 the commission may award to a unit of local government legal costs
8-6 in addition to other costs.
8-7 Sec. 5.377. FINAL DECISION OF EXECUTIVE DIRECTOR. (a) For
8-8 decisions on applications processed under Sections 5.373 through
8-9 5.375, the executive director shall consider all comments received
8-10 during the public comment period and during any public hearing in
8-11 determining:
8-12 (1) whether to issue the permit; and
8-13 (2) any conditions to be placed on the permit if a
8-14 permit is issued.
8-15 (b) In ruling on a permit application, the executive
8-16 director may deny the permit in whole or in part and may provide
8-17 reasonable conditions to a permit if:
8-18 (1) the permit applied for does not meet applicable
8-19 requirements; or
8-20 (2) the applicant refuses to agree to a permit
8-21 condition the executive director determines is necessary after
8-22 reviewing comments the commission receives.
8-23 (c) In ruling on a permit application, the executive
8-24 director may consider any adjudicated decision within five years
8-25 before the date on which the application is filed that addressed
8-26 the applicant's noncompliance with the terms of any permit or order
8-27 issued by the commission. Before denying an application under this
8-28 subsection, the executive director must determine that the
8-29 noncompliance has resulted in harm to public health or the
8-30 environment and that the applicant has not made a substantial
9-1 attempt to correct the noncompliance.
9-2 (d) When the executive director issues a final decision on
9-3 an application, the executive director shall issue a response to
9-4 comments the commission receives. The response must:
9-5 (1) identify provisions of the draft permit that have
9-6 been changed for the final permit, if any, and state the reasons
9-7 for the change; and
9-8 (2) briefly describe and respond to all significant
9-9 comments the commission receives on the draft permit or permit
9-10 application.
9-11 (e) The response must be available to the public.
9-12 (f) The executive director shall mail notice of the final
9-13 decision on the application to the applicant and to each person who
9-14 commented during the public comment period or participated in the
9-15 public hearing. The notice must:
9-16 (1) include the response issued under Subsection (d);
9-17 (2) state that any person affected by the decision may
9-18 petition the commission as provided by Section 5.378;
9-19 (3) explain the petition process;
9-20 (4) identify the location and availability of the
9-21 administrative record; and
9-22 (5) for applications for new hazardous waste
9-23 management facilities, state that limited copies of the
9-24 administrative record may be made available under Section 5.376,
9-25 with costs of the copies borne by the applicant.
9-26 (g) A final decision under this section on a permit
9-27 application becomes effective 30 days after the date notice of the
9-28 decision is mailed, unless a petition for review is filed in
9-29 accordance with Section 5.378, or at a later time specified by the
9-30 executive director in the decision.
10-1 Sec. 5.378. PETITION FOR COMMISSION REVIEW. (a) The
10-2 commission shall review the executive director's decision on a
10-3 permit application as provided by this section.
10-4 (b) Any person who submitted comments on the tentative
10-5 decision of the executive director, or an applicant in those cases
10-6 where the executive director takes action under Section 5.372(d),
10-7 may file a petition for review with the commission. Any person who
10-8 failed to submit comments may file a petition for review only to
10-9 the extent of the changes from the tentative to the final permit
10-10 decision. A petition for review must be filed on or before the
10-11 30th day after the date the executive director's notice of final
10-12 decision is mailed.
10-13 (c) The filing of a petition under this section stays the
10-14 effect of a permit issued by the executive director until the
10-15 commission approves, modifies, or rejects the executive director's
10-16 permit decision.
10-17 (d) The petition must include a statement of the reasons
10-18 that support commission review of the decision, demonstrate that
10-19 the issue raised by the petition was raised during the public
10-20 comment period or public hearing, identify all provisions of the
10-21 draft permit or order of denial of the application with which the
10-22 appellant disagrees, and show that the decision or a permit
10-23 condition is based on:
10-24 (1) a finding of fact or a conclusion of law that is
10-25 clearly in error; or
10-26 (2) an important policy consideration or an exercise
10-27 of discretion that the commission should review.
10-28 (e) The commission shall act on a petition not later than
10-29 the 60th day after the date the notice of final decision is mailed.
10-30 If the commission does not act on or before that date, the petition
11-1 is denied.
11-2 (f) If the commission grants the petition for review, the
11-3 commission shall give notice to the petitioner and each person who
11-4 commented during the public comment period. The notice must
11-5 provide a briefing schedule for the review, identify stayed
11-6 provisions of permits pursuant to Subsection (g), and state that
11-7 any person affected and who submitted comments on the tentative
11-8 decision of the executive director may file an amicus brief.
11-9 (g) If a petition for review is granted, the effect of the
11-10 contested permit conditions shall be stayed pending final
11-11 commission action. If the permit involves a new facility,
11-12 injection well, source, or discharger, the applicant shall be
11-13 without a permit for the proposed new facility, injection well,
11-14 source, or discharger pending final commission action. Stayed
11-15 provisions of permits for existing facilities, injection wells,
11-16 sources, and dischargers shall be identified by the commission when
11-17 giving notice pursuant to Subsection (f). All other provisions of
11-18 the permit for the existing facility, injection well, source, or
11-19 discharger shall remain fully effective and enforceable. To the
11-20 extent conditions of any new permit are stayed under this section,
11-21 any person holding an existing permit must comply with the
11-22 conditions of the existing permit which correspond to the stayed
11-23 conditions, unless compliance with the existing conditions would be
11-24 technologically incompatible with compliance with other conditions
11-25 of the new permit which have not been stayed.
11-26 (h) If the commission modifies or rejects the executive
11-27 director's decision, the commission must issue a written decision
11-28 that includes a statement of the reason and legal basis for the
11-29 decision. The decision must be supported by the administrative
11-30 record. The commission shall mail the decision to the petitioner
12-1 and each person who commented during the public comment period or
12-2 who participated in the public hearing.
12-3 (i) Motions to reconsider a final order of the commission
12-4 shall be filed within 10 days after service of the final order. A
12-5 motion to reconsider shall set forth the matters claimed to be
12-6 erroneously decided and the nature of the alleged errors. A motion
12-7 for reconsideration shall not stay the effective date of the final
12-8 order unless specifically ordered by the commission.
12-9 Sec. 5.379. JUDICIAL REVIEW OF COMMISSION PERMIT DECISIONS.
12-10 (a) A person affected by the executive director's final decision
12-11 on a permit application or the commission's action on the petition
12-12 that modifies or rejects the executive director's decision may
12-13 petition for judicial review. The petition must be filed not later
12-14 than the 30th day after the date:
12-15 (1) the commission mails the decision on the petition
12-16 for commission review under Section 5.378(f); or
12-17 (2) the petition for commission review is denied.
12-18 (b) Failure to timely petition for commission review of the
12-19 executive director's decision is a bar to judicial review of the
12-20 decision.
12-21 (c) Judicial review of decisions of the commission under
12-22 this subchapter shall be under the substantial evidence rule as
12-23 provided by Section 2001.174, Government Code.
12-24 (d) The filing of an appeal does not stay any action
12-25 required by the commission's decision.
12-26 (e) The record of appeal shall be limited to all written an
12-27 oral substantive public comments, the transcript of the hearing,
12-28 all related correspondence, all responses to comments, and all
12-29 other information on which the commission relied in deciding on the
12-30 executive director's decision.
13-1 SECTION 2. Subchapter I, Chapter 2001, Government Code, is
13-2 amended by adding Section 2001.227 to read as follows:
13-3 Sec. 2001.227. CERTAIN ENVIRONMENTAL PERMITS. Subchapters C
13-4 through H do not apply to a permit application required to be filed
13-5 with the Texas Natural Resource Conservation Commission for an
13-6 authorization under Chapter 26 or 27, Water Code, or Chapter 361 or
13-7 382, Health and Safety Code, if the application is subject to
13-8 Subchapter J, Chapter 5, Water Code.
13-9 SECTION 3. The importance of this legislation and the
13-10 crowded condition of the calendars in both houses create an
13-11 emergency and an imperative public necessity that the
13-12 constitutional rule requiring bills to be read on three several
13-13 days in each house be suspended, and this rule is hereby suspended,
13-14 and that this Act take effect and be in force from and after its
13-15 passage, and it is so enacted.