By:  Ratliff                                  S.B. No. 764

         97S0530/1                           

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to certain environmental permitting procedures of the

 1-2     Texas Natural Resource Conservation Commission.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Chapter 5, Water Code, is amended by adding

 1-5     Subchapter J to read as follows:

 1-6             SUBCHAPTER J.  ENVIRONMENTAL PERMITTING PROCEDURES

 1-7           Sec. 5.371.  GENERAL PERMITTING PROCEDURES.  (a)  This

 1-8     subchapter applies to commission procedures for an application to

 1-9     issue, amend, or renew a permit for which public notice and an

1-10     opportunity for public hearing is required by Chapter 26 or 27 of

1-11     this code or Chapter 361 or 382, Health and Safety Code.

1-12           (b)  The commission shall provide for permits-by-rule under

1-13     the chapters listed in Subsection (a) to the greatest extent

1-14     practicable and consistent with the requirements for United States

1-15     Environmental Protection Agency authorization of a state permit

1-16     program.

1-17           (c)  The commission by rule may identify categories of

1-18     applications related to permits for which notice or opportunity for

1-19     public hearing is not required. The commission shall exempt from

1-20     notice and public hearing requirements an application to:

1-21                 (1)  maintain or improve the permitted quality or

1-22     method of disposal of waste, control of air emissions, or injection

1-23     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

 3-1     and technically complete, the executive director shall prepare and

 3-2     issue:

 3-3                 (1)  a draft permit; or

 3-4                 (2)  a notice of intent to deny.

 3-5           (b)  The executive director shall include a record of

 3-6     proposed decision prepared in accordance with Section 5.373 with a

 3-7     draft permit or notice of intent to deny.

 3-8           (c)  The commission shall send a copy of the record of the

 3-9     proposed decision to:

3-10                 (1)  the applicant;

3-11                 (2)  a state or federal agency, as required or as

3-12     appropriate; and

3-13                 (3)  any other person on request of that person.

3-14           (d)  Unless precluded by a requirement of the United States

3-15     Environmental Protection Agency related to state program

3-16     authorization, an applicant may give public notice of the

3-17     application before the initial determination of the executive

3-18     director is completed.  If all requests for a public hearing the

3-19     commission receives under the notice are unreasonable or the

3-20     commission receives no requests for a public hearing, the executive

3-21     director may take final action on the application notwithstanding

3-22     this section and Sections 5.373 through 5.378, and the permit is

3-23     effective immediately.

3-24           (e)  A notice of intent to deny shall state the executive

3-25     director's reasons for the intended denial.

 4-1           (f)  A draft permit shall contain all appropriate conditions,

 4-2     compliance schedules, monitoring requirements, and technical

 4-3     standards consistent with applicable commission rules.

 4-4           Sec. 5.373.  RECORD OF PROPOSED DECISION FOR DRAFT PERMIT.

 4-5     (a)  A record of proposed decision prepared for a draft permit

 4-6     must:

 4-7                 (1)  briefly show the principal facts and significant

 4-8     factual, legal, methodological, and policy issues considered in

 4-9     preparing the draft permit; and

4-10                 (2)  be based on the administrative record.

4-11           (b)  The record of proposed decision must include, as

4-12     applicable:

4-13                 (1)  a brief description of the type of facility or

4-14     activity that is the subject of the draft permit;

4-15                 (2)  the type and quantity of wastes proposed to be or

4-16     that are being treated, stored, disposed of, injected, emitted, or

4-17     discharged;

4-18                 (3)  a brief summary of the reasons for the draft

4-19     permit conditions, including references to applicable statutes or

4-20     rules;

4-21                 (4)  the reasons a requested variance or alternative to

4-22     a required standard is or is not justified;

4-23                 (5)  the procedures for reaching a final decision on

4-24     the draft permit, including:

4-25                       (A)  the dates the comment period begins and

 5-1     ends;

 5-2                       (B)  the address where comments will be received;

 5-3     and

 5-4                       (C)  a description of:

 5-5                             (i)  procedures for requesting a hearing;

 5-6                             (ii)  the nature of the hearing; and

 5-7                             (iii)  any other procedures by which the

 5-8     public may participate in the final decision process; and

 5-9                 (6)  the name and telephone number of a person to

5-10     contact for additional information.

5-11           (c)  The commission shall make the record of proposed

5-12     decision available when the public notice is published.

5-13           Sec. 5.374.  NOTICE OF INITIAL DETERMINATION; COMMENTS AND

5-14     REQUESTS FOR HEARING.  (a)  The executive director shall give

5-15     public notice that a draft permit or notice of intent to deny has

5-16     been prepared.  The executive director shall provide for a 30-day

5-17     period for public review, comments, and requests for public

5-18     hearing.  The period for public review and comments must be

5-19     extended until the close of the public hearing, if one is held.

5-20           (b)  All persons, including applicants, who believe that any

5-21     condition of a draft permit is inappropriate or that the executive

5-22     director's tentative decision to deny an application, terminate a

5-23     permit, or prepare a draft permit is inappropriate must raise all

5-24     reasonably ascertainable issues and submit all reasonably available

5-25     arguments supporting their position by the close of the public

 6-1     comment period.  Additional time shall be granted to the extent

 6-2     that a commenter who requests additional time demonstrates the need

 6-3     for such time.

 6-4           (c)  Notice required under this section is in addition to the

 6-5     requirements of Section 26.028 of this code and Sections 361.081

 6-6     and 361.082, Health and Safety Code.

 6-7           (d)  The commission by rule may require additional public

 6-8     notice necessary to satisfy requirements of the United States

 6-9     Environmental Protection Agency for state permit program

6-10     authorization.

6-11           (e)  If the commission receives a timely written notice of

6-12     opposition to a draft permit issued by the executive director and a

6-13     request for a public hearing on the draft permit, the executive

6-14     director shall respond to the request and attempt to resolve the

6-15     issues that create the opposition.  The opponent may withdraw the

6-16     request for a public hearing following the executive director's

6-17     response.

6-18           Sec. 5.375.  PUBLIC HEARINGS.  (a)  A ruling on a permit

6-19     issuance or denial may not be made without an opportunity for a

6-20     public hearing.

6-21           (b)  Any person may submit oral or written statements and

6-22     data concerning the initial determination of the executive

6-23     director.  Reasonable limits may be set for the time allowed for

6-24     oral comments, and the submission of statements in writing or under

6-25     oath may be required.

 7-1           (c)  The executive director shall hold the public hearing if

 7-2     the executive director determines:

 7-3                 (1)  after examining requests for a public hearing,

 7-4     that there is a significant degree of public interest in the draft

 7-5     permit or notice of intent to deny; or

 7-6                 (2)  that a public hearing should be held in order to

 7-7     clarify one or more issues in the permit decision, regardless of

 7-8     whether the commission receives a timely request for a public

 7-9     hearing.

7-10           (d)  When a draft permit or notice of intent to deny for a

7-11     hazardous waste management permit is at issue, the executive

7-12     director shall hold a public hearing in any case in which the

7-13     commission receives a notice of opposition to the permit decision

7-14     and a request for a public hearing on or before the 30th day after

7-15     the date of public notice under Section 5.374.  The executive

7-16     director shall hold the public hearing under this subsection at a

7-17     location convenient to the population center nearest the proposed

7-18     facility whenever it is possible to do so.

7-19           (e)  The executive director may designate a presiding officer

7-20     or hearing panel to conduct the hearing in an orderly manner and to

7-21     receive comments at the hearing.  A hearing panel may include

7-22     technical experts on the staff of the executive director.

7-23           (f)  Chapter 2001, Government Code, does not apply to a

7-24     public hearing held under this section.  A hearing held under this

7-25     section shall be conducted so that all relevant information, views,

 8-1     arguments, and other data are sufficiently and fairly received

 8-2     without undue repetition.

 8-3           (g)  A hearing held under this section shall be recorded.  On

 8-4     request, a hearing shall be transcribed.  The person who requests a

 8-5     hearing transcript shall bear the cost of the transcript.

 8-6           (h)  The commission shall provide the record and, if

 8-7     prepared, the transcript of a hearing for review of any person at

 8-8     the commission's main office.

 8-9           (i)  A person who requests a copy of the record or of a

8-10     transcript  shall bear the cost of the copy.

8-11           Sec. 5.376.  COSTS FOR INFORMATION REGARDING NEW HAZARDOUS

8-12     WASTE PERMIT.  (a)  On request of an affected person, the applicant

8-13     for a permit for a new hazardous waste management facility shall

8-14     furnish a bond or other financial assurance authorized by the

8-15     commission to guarantee payment of nonlegal costs of the affected

8-16     person incurred in providing to the commission information related

8-17     to the issuance of the permit.

8-18           (b)  For an application for a new commercial hazardous waste

8-19     management facility, the bond or assurance must be in the amount of

8-20     $100,000.

8-21           (c)  For an application for a new noncommercial hazardous

8-22     waste management facility, the bond or assurance must be in the

8-23     amount of $20,000.

8-24           (d)  In determining whether the affected person is entitled

8-25     to reimbursement under this section, the executive director shall

 9-1     apply the considerations provided by Section 361.0833(e), Health

 9-2     and Safety Code.

 9-3           (e)  Nonlegal costs subject to reimbursement under this

 9-4     section include the cost of a copy of the administrative record in

 9-5     the case.

 9-6           (f)  The commission may not award in a case costs to one or

 9-7     more persons that total an amount greater than the amount of

 9-8     financial assurance required by this section.

 9-9           (g)  Subject to the limitations of Subsections (d) and (f),

9-10     the commission may award to a unit of local government legal costs

9-11     in addition to other costs.

9-12           Sec. 5.377.  FINAL DECISION OF EXECUTIVE DIRECTOR.  (a)  For

9-13     decisions on applications processed under Sections 5.373 through

9-14     5.375, the executive director shall consider all comments received

9-15     during the public comment period and during any public hearing in

9-16     determining:

9-17                 (1)  whether to issue the permit; and

9-18                 (2)  any conditions to be placed on the permit if a

9-19     permit is issued.

9-20           (b)  In ruling on a permit application, the executive

9-21     director may deny the permit in whole or in part and may provide

9-22     reasonable conditions to a permit if:

9-23                 (1)  the permit applied for does not meet applicable

9-24     requirements; or

9-25                 (2)  the applicant refuses to agree to a permit

 10-1    condition the executive director determines is necessary after

 10-2    reviewing comments the commission receives.

 10-3          (c)  In ruling on a permit application, the executive

 10-4    director may consider any adjudicated decision within five years

 10-5    before the date on which the application is filed that addressed

 10-6    the applicant's noncompliance with the terms of any permit or order

 10-7    issued by the commission.  Before denying an application under this

 10-8    subsection, the executive director must determine that the

 10-9    noncompliance has resulted in harm to public health or the

10-10    environment and that the applicant has not made a substantial

10-11    attempt to correct the noncompliance.

10-12          (d)  When the executive director issues a final decision on

10-13    an application, the executive director shall issue a response to

10-14    comments the commission receives.  The response must:

10-15                (1)  identify provisions of the draft permit that have

10-16    been changed for the final permit, if any, and state the reasons

10-17    for the change; and

10-18                (2)  briefly describe and respond to all significant

10-19    comments the commission receives on the draft permit or permit

10-20    application.

10-21          (e)  The response must be available to the public.

10-22          (f)  The executive director shall mail notice of the final

10-23    decision on the application to the applicant and to each person who

10-24    commented during the public comment period or participated in the

10-25    public hearing.  The notice must:

 11-1                (1)  include the response issued under Subsection (d);

 11-2                (2)  state that any person affected by the decision may

 11-3    petition the commission as provided by Section 5.378;

 11-4                (3)  explain the petition process;

 11-5                (4)  identify the location and availability of the

 11-6    administrative record; and

 11-7                (5)  for applications for new hazardous waste

 11-8    management facilities, state that limited copies of the

 11-9    administrative record may be made available under Section 5.376,

11-10    with costs of the copies borne by the applicant.

11-11          (g)  A final decision under this section on a permit

11-12    application becomes effective 30 days after the date notice of the

11-13    decision is mailed, unless a petition for review is filed in

11-14    accordance with Section 5.378, or at a later time specified by the

11-15    executive director in the decision.

11-16          Sec. 5.378.  PETITION FOR COMMISSION REVIEW.  (a)  The

11-17    commission shall review the executive director's decision on a

11-18    permit application as provided by this section.

11-19          (b)  Any person who submitted comments on the tentative

11-20    decision of the executive director, or an applicant in those cases

11-21    where the executive director takes action under Section 5.372(d),

11-22    may file a petition for review with the commission.  Any person who

11-23    failed to submit comments may file a petition for review only to

11-24    the extent of the changes from the tentative to the final permit

11-25    decision.  A petition for review must be filed on or before the

 12-1    30th day after the date the executive director's notice of final

 12-2    decision is mailed.

 12-3          (c)  The filing of a petition under this section stays the

 12-4    effect of a permit issued by the executive director until the

 12-5    commission approves, modifies, or rejects the executive director's

 12-6    permit decision.

 12-7          (d)  The petition must include a statement of the reasons

 12-8    that support commission review of the decision, demonstrate that

 12-9    the issue raised by the petition was raised during the public

12-10    comment period or public hearing, identify all provisions of the

12-11    draft permit or order of denial of the application with which the

12-12    appellant disagrees, and show that the decision or a permit

12-13    condition is based on:

12-14                (1)  a finding of fact or a conclusion of law that is

12-15    clearly in error; or

12-16                (2)  an important policy consideration or an exercise

12-17    of discretion that the commission should review.

12-18          (e)  The commission shall act on a petition not later than

12-19    the 60th day after the date the notice of final decision is mailed.

12-20    If the commission does not act on or before that date, the petition

12-21    is denied.

12-22          (f)  If the commission grants the petition for review, the

12-23    commission shall give notice to the petitioner and each person who

12-24    commented during the public comment period.  The notice must

12-25    provide a briefing schedule for the review, identify stayed

 13-1    provisions of permits pursuant to Subsection (g), and state that

 13-2    any person affected and who submitted comments on the tentative

 13-3    decision of the executive director may file an amicus brief.

 13-4          (g)  If a petition for review is granted, the effect of the

 13-5    contested permit conditions shall be stayed pending final

 13-6    commission action.  If the permit involves a new facility,

 13-7    injection well, source, or discharger, the applicant shall be

 13-8    without a permit for the proposed new facility, injection well,

 13-9    source, or discharger pending final commission action.  Stayed

13-10    provisions of permits for existing facilities, injection wells,

13-11    sources, and dischargers shall be identified by the commission when

13-12    giving notice pursuant to Subsection (f).  All other provisions of

13-13    the permit for the existing facility, injection well, source, or

13-14    discharger shall remain fully effective and enforceable.  To the

13-15    extent conditions of any new permit are stayed under this section,

13-16    any person holding an existing permit must comply with the

13-17    conditions of the existing permit which correspond to the stayed

13-18    conditions, unless compliance with the existing conditions would be

13-19    technologically incompatible with compliance with other conditions

13-20    of the new permit which have not been stayed.

13-21          (h)  If the commission modifies or rejects the executive

13-22    director's decision, the commission must issue a written decision

13-23    that includes a statement of the reason and legal basis for the

13-24    decision.  The decision must be supported by the administrative

13-25    record.  The commission shall mail the decision to the petitioner

 14-1    and each person who commented during the public comment period or

 14-2    who participated in the public hearing.

 14-3          (i)  Motions to reconsider a final order of the commission

 14-4    shall be filed within 10 days after service of the final order. A

 14-5    motion to reconsider shall set forth the matters claimed to be

 14-6    erroneously decided and the nature of the alleged errors.  A motion

 14-7    for reconsideration shall not stay the effective date of the final

 14-8    order unless specifically ordered by the commission.

 14-9          Sec. 5.379.  JUDICIAL REVIEW OF COMMISSION PERMIT DECISIONS.

14-10    (a)  A person affected by the executive director's final decision

14-11    on a permit application or the commission's action on the petition

14-12    that modifies or rejects the executive director's decision may

14-13    petition for judicial review.  The petition must be filed not later

14-14    than the 30th day after the date:

14-15                (1)  the commission mails the decision on the petition

14-16    for commission review under Section 5.378(f); or

14-17                (2)  the petition for commission review is denied.

14-18          (b)  Failure to timely petition for commission review of the

14-19    executive director's decision is a bar to judicial review of the

14-20    decision.

14-21          (c)  Judicial review of decisions of the commission under

14-22    this subchapter shall be under the substantial evidence rule as

14-23    provided by Section 2001.174, Government Code.

14-24          (d)  The filing of an appeal does not stay any action

14-25    required by the commission's decision.

 15-1          (e)  The record of appeal shall be limited to all written an

 15-2    oral substantive public comments, the transcript of the hearing,

 15-3    all related correspondence, all responses to comments, and all

 15-4    other information on which the commission relied in deciding on the

 15-5    executive director's decision.

 15-6          SECTION 2.  Subchapter I, Chapter 2001, Government Code, is

 15-7    amended by adding Section 2001.227 to read as follows:

 15-8          Sec. 2001.227.  CERTAIN ENVIRONMENTAL PERMITS.  Subchapters C

 15-9    through H do not apply to a permit application required to be filed

15-10    with the Texas Natural Resource Conservation Commission for an

15-11    authorization under Chapter 26 or 27, Water Code, or Chapter 361 or

15-12    382, Health and Safety Code, if the application is subject to

15-13    Subchapter J, Chapter 5, Water Code.

15-14          SECTION 3.  The importance of this legislation and the

15-15    crowded condition of the calendars in both houses create an

15-16    emergency and an imperative public necessity that the

15-17    constitutional rule requiring bills to be read on three several

15-18    days in each house be suspended, and this rule is hereby suspended,

15-19    and that this Act take effect and be in force from and after its

15-20    passage, and it is so enacted.