1-1 By: Bivins S.B. No. 1495
1-2 (In the Senate - Filed March 13, 1997; March 20, 1997, read
1-3 first time and referred to Committee on Natural Resources;
1-4 April 15, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 10, Nays 0; April 15, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1495 By: Bivins
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to notices required to be given in certain proceedings
1-11 conducted by the Texas Natural Resource Conservation Commission.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Chapter 5, Water Code, is amended by adding
1-14 Subchapter J to read as follows:
1-15 SUBCHAPTER J. NOTICE REQUIREMENTS
1-16 Sec. 5.401. APPLICABILITY. (a) The notice provisions of
1-17 this subchapter apply only to:
1-18 (1) permits issued by the commission under:
1-19 (A) Chapters 11, 26, 27, and 28;
1-20 (B) Chapters 361 and 401, Health and Safety
1-21 Code; and
1-22 (C) Sections 382.0518, 382.055, and 382.058,
1-23 Health and Safety Code; and
1-24 (2) public meetings conducted by the commission under
1-25 Chapter 361, Health and Safety Code.
1-26 (b) Unless otherwise provided by commission rules, this
1-27 subchapter does not apply to permits granted by rule adopted under
1-28 Chapter 382, Health and Safety Code.
1-29 Sec. 5.402. MINIMUM REQUIREMENTS. (a) The notice
1-30 requirements imposed by this subchapter are minimum requirements.
1-31 (b) The commission:
1-32 (1) shall adopt rules consistent with this subchapter;
1-33 and
1-34 (2) may adopt rules imposing additional requirements.
1-35 Sec. 5.403. SUBSTANTIAL COMPLIANCE. (a) The commission may
1-36 exercise jurisdiction over an application if the applicant
1-37 substantially complies with this subchapter.
1-38 (b) The inadvertent failure of the commission to mail a
1-39 notice under Section 5.408 to a navigation district that is not a
1-40 claimant or appropriator of water does not prevent the commission
1-41 from considering an application.
1-42 Sec. 5.404. NOTICE OF INTENT TO OBTAIN SOLID WASTE PERMIT.
1-43 (a) An applicant for a permit for a municipal solid waste facility
1-44 under Chapter 361, Health and Safety Code, must publish notice of
1-45 intent to obtain the permit in a newspaper.
1-46 (b) The commission shall publish notice of intent to obtain
1-47 a permit described by Subsection (a) in the Texas Register.
1-48 Sec. 5.405. NOTICE TO SENATOR AND REPRESENTATIVE. The
1-49 commission must mail notice that the commission has received an
1-50 application for, or notice of intent to file an application for, a
1-51 permit under Chapter 361, Health and Safety Code, or Section
1-52 382.0518 or 382.055, Health and Safety Code, to the state senator
1-53 and representative who represent the area in which the facility is
1-54 or will be located.
1-55 Sec. 5.406. NOTICE OF RECEIPT OF ADMINISTRATIVELY COMPLETE
1-56 APPLICATION. (a) Notice of receipt of an administratively
1-57 complete application for a permit or a license must be given to
1-58 each person who may be affected by the granting of the permit or
1-59 license.
1-60 (b) In addition to the notice required by Subsection (a),
1-61 notice of receipt of the application must be published in the Texas
1-62 Register if the application is for an amendment to a license to
1-63 dispose of radioactive waste from other persons within the
1-64 commission's jurisdiction under Chapter 401, Health and Safety
2-1 Code.
2-2 (c) The commission must give notice of receipt of an
2-3 administratively complete application for a permit under Section
2-4 382.0518 or 382.055, Health and Safety Code, to:
2-5 (1) the applicant; and
2-6 (2) any interested party who has requested
2-7 notification.
2-8 (d) Notwithstanding Subsection (c)(2), if the number of
2-9 interested parties who have requested the notice makes it
2-10 impractical to notify those parties by mail, the commission must
2-11 publish the notice in a newspaper.
2-12 (e) The commission must mail notice of an application for a
2-13 formal action by the commission that will affect lands dedicated to
2-14 the permanent school fund when the application is administratively
2-15 complete, as provided by Section 5.413(c).
2-16 Sec. 5.407. NOTICE OF PUBLIC MEETING FOR SOLID WASTE PERMIT.
2-17 An applicant must publish in a newspaper notice of a public meeting
2-18 that is required under Section 361.0791(a) or (b), Health and
2-19 Safety Code.
2-20 Sec. 5.408. NOTICE OF APPLICATION AND OPPORTUNITY TO REQUEST
2-21 A HEARING. (a) Except as provided by Subsection (c), notice of
2-22 application and opportunity to request a hearing must be given by:
2-23 (1) mail; and
2-24 (2) publication in a newspaper.
2-25 (b) If the application is for an amendment to a license to
2-26 dispose of radioactive waste from other persons within the
2-27 commission's jurisdiction under Chapter 401, Health and Safety
2-28 Code, notice of application and opportunity to request a hearing
2-29 must also be given by publication in the Texas Register.
2-30 (c) An applicant for a permit under Section 382.0518 or
2-31 382.058, Health and Safety Code, or a permit renewal review under
2-32 Section 382.055, Health and Safety Code, must:
2-33 (1) publish notice of application and opportunity to
2-34 request a hearing in a newspaper;
2-35 (2) post a sign at the site of the facility or
2-36 proposed facility that:
2-37 (A) declares the filing of the application for a
2-38 permit or permit review for the facility or proposed facility; and
2-39 (B) states the manner in which the commission
2-40 may be contacted for further information;
2-41 (3) mail notice of the application and opportunity to
2-42 request a hearing to:
2-43 (A) a person who makes a written request for
2-44 notice, as prescribed by commission rules; and
2-45 (B) any other person to whom the commission by
2-46 rule requires that notice be mailed; and
2-47 (4) comply with Section 5.416.
2-48 (d) The commission shall adopt rules as necessary to
2-49 administer this section.
2-50 Sec. 5.409. NOTICE OF HEARING. (a) Notice of a hearing
2-51 must be given by:
2-52 (1) mail; and
2-53 (2) publication in a newspaper.
2-54 (b) Notice of a hearing under Section 401.114, Health and
2-55 Safety Code, must also be given in the manner provided by Chapter
2-56 313, Government Code.
2-57 (c) Notice of a hearing on an application for a permit under
2-58 Section 382.0518, 382.055, or 382.058, Health and Safety Code, must
2-59 be mailed only to:
2-60 (1) a person who makes a written request for notice,
2-61 as prescribed by commission rules; and
2-62 (2) any other person to whom the commission by rule
2-63 requires that notice be mailed.
2-64 Sec. 5.410. TIMING OF NOTICE. (a) The commission by rule
2-65 may prescribe when notice of intent to obtain a permit under
2-66 Section 5.404 must be published.
2-67 (b) Notice to the senator and representative under Section
2-68 5.405 must be mailed on receipt of an application.
2-69 (c) Notice of receipt of an administratively complete
3-1 application under Section 5.406 must be given when the application
3-2 is administratively complete.
3-3 (d) Notice of a public meeting for a permit under Section
3-4 5.407 must be published not less than once each week during the
3-5 three weeks preceding a public meeting on a new solid waste
3-6 facility.
3-7 (e) Notice of application and opportunity to request a
3-8 hearing under Section 5.408(a) or (b) must be given not later than
3-9 the 30th day before the date the commission acts on the
3-10 application.
3-11 (f) The commission by rule shall prescribe when notice of
3-12 application and opportunity to request a hearing under Section
3-13 5.408(c) must be published.
3-14 (g) Notice of a hearing under Section 5.409 must be given
3-15 not later than the 30th day before the date of the hearing, except
3-16 that:
3-17 (1) notice of a hearing under Section 11.176 must be:
3-18 (A) mailed under Section 5.413(d) not later than
3-19 the 45th day before the date of the hearing; and
3-20 (B) published in a newspaper once each week for
3-21 two consecutive weeks not later than the 30th day before the date
3-22 of the hearing;
3-23 (2) notice of a commission meeting under Section
3-24 26.028(b) must be mailed not later than the 10th day before the
3-25 date of the meeting;
3-26 (3) notice of a public meeting on a solid waste
3-27 facility under Chapter 361, Health and Safety Code, must be
3-28 published not less than once each week during the three weeks
3-29 preceding the meeting; and
3-30 (4) notice of a hearing on a new solid waste
3-31 management facility under Chapter 361, Health and Safety Code, must
3-32 be mailed not later than the 45th day and not earlier than the 30th
3-33 day before the date of the hearing.
3-34 (h) The commission by rule shall prescribe when notice under
3-35 Section 5.416 must be published.
3-36 Sec. 5.411. CONTENTS OF NOTICE. (a) A notice must include,
3-37 if applicable:
3-38 (1) the name of the applicant;
3-39 (2) the application number;
3-40 (3) the type of permit or license sought under the
3-41 application;
3-42 (4) the date on which the application was submitted;
3-43 (5) a brief summary of the information included in the
3-44 application;
3-45 (6) a description of the location or proposed location
3-46 of the facility, discharge point, or point of diversion to which
3-47 the application relates;
3-48 (7) a description of the manner in which the
3-49 commission may be contacted for further information;
3-50 (8) the date, time, and location at which the
3-51 commission will consider the application; and
3-52 (9) any other information the commission by rule
3-53 requires.
3-54 (b) In addition to including the information required by
3-55 Subsection (a), a notice to the School Land Board must:
3-56 (1) state the location of the permanent school fund
3-57 land to be affected; and
3-58 (2) describe any foreseeable impact or effect the
3-59 commission's action may have on the land.
3-60 (c) In addition to including the information required by
3-61 Subsection (a), a notice under Section 5.408 must state that:
3-62 (1) a person who may be affected by the facility,
3-63 proposed facility, or point of diversion to which the application
3-64 relates may request a hearing; and
3-65 (2) an environmental assessment is available, if an
3-66 environmental assessment has been prepared under Chapter 401,
3-67 Health and Safety Code.
3-68 (d) In addition to including the information required by
3-69 Subsection (a), a notice of a public meeting under Section 5.407 or
4-1 of a hearing under Section 5.409 must include:
4-2 (1) the date, time, and place of the meeting or
4-3 hearing;
4-4 (2) a brief description of the purpose of the meeting
4-5 or hearing; and
4-6 (3) the location and availability of copies of the
4-7 application.
4-8 (e) In addition to including the information required by
4-9 Subsection (a), a notice of intent to obtain a solid waste permit
4-10 under Section 5.404 must include a statement that a person who may
4-11 be affected by the facility or proposed facility may request a
4-12 hearing.
4-13 (f) In addition to including the information required by
4-14 Subsection (a), a notice of application and opportunity to request
4-15 a hearing regarding a permit to appropriate water under Chapter 11
4-16 must include:
4-17 (1) the purpose and extent of the proposed
4-18 appropriation of water;
4-19 (2) the source of supply and the place where the water
4-20 is to be stored or taken or diverted from the source of supply; and
4-21 (3) a general description of the location and area of
4-22 the land to be irrigated, if the proposed use is for irrigation.
4-23 (g) Notwithstanding Subsection (a), the commission by rule
4-24 may prescribe the information required to be included on a sign
4-25 required by Section 5.408(c)(2), 5.415, or 5.416.
4-26 Sec. 5.412. PROOF OF NOTICE. (a) An affidavit, or other
4-27 proof of notice approved by the commission, must be provided to the
4-28 commission.
4-29 (b) Before testimony is heard in a contested case, the
4-30 applicant must enter into evidence an affidavit attesting that
4-31 notice was given as required by statute. The affidavit creates a
4-32 rebuttable presumption of proper notice.
4-33 (c) If notice is mailed, the applicant or the commission
4-34 employee responsible for mailing the notice must provide the
4-35 affidavit. The affidavit must:
4-36 (1) list the names and addresses to which the notice
4-37 was mailed;
4-38 (2) list the sources from which the list was created;
4-39 (3) specify the date of mailing; and
4-40 (4) be accompanied by:
4-41 (A) a printed copy of the notice; and
4-42 (B) a copy of the mailing list.
4-43 (d) If notice is published in a newspaper, the applicant
4-44 must provide an affidavit of the newspaper publisher. The
4-45 affidavit must:
4-46 (1) certify that notice was published in the
4-47 newspaper;
4-48 (2) state the circulation of the newspaper and the
4-49 date of publication; and
4-50 (3) be accompanied by a printed copy of the
4-51 publication.
4-52 Sec. 5.413. MAILED NOTICE. (a) Unless otherwise provided
4-53 by law, any notice required by this subchapter to be mailed must be
4-54 mailed by first-class mail, postage prepaid, to each person
4-55 provided by Section 5.414 at the person's most recent address shown
4-56 in the records of the commission.
4-57 (b) Any notice that is required to be mailed may be
4-58 delivered by personal service instead. If the person is not an
4-59 individual, the notice may be given to an officer, agent, or other
4-60 legal representative of the person.
4-61 (c) Notice of receipt of an administratively complete
4-62 application for a formal action by the commission that will affect
4-63 lands dedicated to the permanent school fund must be mailed to the
4-64 School Land Board by certified mail, return receipt requested,
4-65 addressed to the deputy commissioner of the asset management
4-66 division of the General Land Office. Delivery is not complete
4-67 until the return receipt is signed by the deputy commissioner of
4-68 the asset management division of the General Land Office and
4-69 returned to the commission.
5-1 (d) The commission must mail by certified mail, return
5-2 receipt requested, notice of a hearing under Section 11.176 to the
5-3 holder of the permit, certified filing, or certificate of
5-4 adjudication being considered.
5-5 (e) The commission must mail by certified mail, return
5-6 receipt requested, notice of a hearing on the grant, renewal, or
5-7 amendment of a license to dispose of radioactive waste from other
5-8 persons within the commission's jurisdiction under Chapter 401,
5-9 Health and Safety Code, to each person who owns property adjacent
5-10 to the proposed site.
5-11 Sec. 5.414. MAILING LIST. (a) Notice that is required by
5-12 this subchapter to be mailed must be mailed to:
5-13 (1) the applicant;
5-14 (2) any person who makes a written request for notice,
5-15 in accordance with commission rules;
5-16 (3) any person the commission by rule determines may
5-17 be affected; and
5-18 (4) any other person to whom the commission by rule
5-19 requires that notice be mailed.
5-20 (b) In addition to the persons described by Subsection (a),
5-21 notice of application and opportunity to request a hearing
5-22 regarding a permit to appropriate water under Subchapter D, Chapter
5-23 11, must be mailed to:
5-24 (1) each claimant or appropriator of water from the
5-25 source of water supply, the record of whose claim or appropriation
5-26 has been filed with the commission; and
5-27 (2) each navigation district in the river basin
5-28 concerned.
5-29 (c) In addition to the persons described by Subsection (a),
5-30 notice of a permit under Chapter 26 must be mailed to:
5-31 (1) the mayor and health authorities of the
5-32 municipality and the county judge and health authorities of the
5-33 county in which the facility or discharge point is or will be
5-34 located; and
5-35 (2) any other local government to whom the commission
5-36 by rule requires that notice be mailed.
5-37 (d) In addition to the persons described by Subsection (a),
5-38 notice of application and opportunity to request a hearing and
5-39 notice of a hearing regarding the use of water from a dam or
5-40 reservoir for purposes other than domestic or livestock use under
5-41 Subchapter D, Chapter 11, must be mailed to each person whose:
5-42 (1) claim or appropriation has been filed with the
5-43 commission; and
5-44 (2) diversion point is downstream from that described
5-45 by the application.
5-46 (e) In addition to the persons described by Subsection (a),
5-47 notice of application and opportunity to request a hearing under
5-48 Chapter 27 must be mailed to local governments, as defined by
5-49 Section 26.001.
5-50 (f) In addition to the persons described by Subsection (a),
5-51 notice of a hearing under Chapter 28 must be given to local
5-52 governments.
5-53 (g) In addition to the persons described by Subsection (a),
5-54 notice of a hearing under Section 11.176 must be mailed to each
5-55 holder of a permit, certified filing, certificate of adjudication,
5-56 or claim of unadjudicated water rights who has filed a statement
5-57 under Section 11.303 in the same watershed.
5-58 (h) In addition to the persons described by Subsection (a),
5-59 an applicant shall mail notice of a hearing on a new solid waste
5-60 management facility to each residential or business address located
5-61 within one-half mile of the facility and to each owner of real
5-62 property located within one-half mile of the facility as listed in
5-63 the appraisal records of the appraisal district in which the
5-64 facility is to be located as of the date the commission determines
5-65 the application to be technically complete.
5-66 Sec. 5.415. NEWSPAPER PUBLICATION; SIGN POSTING.
5-67 (a) Notice that is required by this subchapter to be published in
5-68 a newspaper must be published in the manner provided by this
5-69 section.
6-1 (b) If the facility, discharge point, or point of diversion
6-2 is located or proposed to be located in a municipality or the
6-3 extraterritorial jurisdiction of a municipality, the notice must be
6-4 published in:
6-5 (1) the newspaper of largest general circulation in
6-6 the municipality; or
6-7 (2) a newspaper of general circulation in the
6-8 municipality, and the applicant must post a sign at the site or
6-9 proposed site of the facility, discharge point, or point of
6-10 diversion declaring the filing of the application and stating the
6-11 manner in which the commission may be contacted for further
6-12 information.
6-13 (c) If the facility, discharge point, or point of diversion
6-14 is not located in a municipality or the extraterritorial
6-15 jurisdiction of a municipality:
6-16 (1) the applicant must post a sign at the site or
6-17 proposed site of the facility, discharge point, or point of
6-18 diversion declaring the filing of the application and stating the
6-19 manner in which the commission may be contacted for further
6-20 information; and
6-21 (2) notice must be published in:
6-22 (A) a newspaper of general circulation that is
6-23 published in the county in which the facility, discharge point, or
6-24 point of diversion is located or proposed to be located; or
6-25 (B) a newspaper of general circulation in the
6-26 county, if a newspaper is not published in the county.
6-27 (d) Published notice of a public meeting on an application
6-28 for a permit for a new solid waste management facility or for a
6-29 Class 3 modification or a major amendment to a permit for an
6-30 existing hazardous waste facility may not be smaller than 96.8
6-31 square centimeters or 15 square inches, with the shortest dimension
6-32 at least 7.6 centimeters or three inches.
6-33 (e) In addition to the notice required by Subsection (b) or
6-34 (c), as applicable, notice of a hearing on the granting or renewal
6-35 of a license to dispose of radioactive waste from other persons,
6-36 within the commission's jurisdiction under Chapter 401, Health and
6-37 Safety Code, must be published in the manner provided by Chapter
6-38 313, Government Code, in the county in which the facility is or
6-39 will be located.
6-40 (f) Notwithstanding Subsection (b), an applicant for a
6-41 permit under Section 382.0518 or 382.058, Health and Safety Code,
6-42 or a permit renewal review under Section 382.055, Health and Safety
6-43 Code, must post a sign at the site of the facility or proposed
6-44 facility as provided by Section 5.408(c).
6-45 (g) The commission shall adopt any rule necessary to
6-46 implement this section.
6-47 Sec. 5.416. BILINGUAL NEWSPAPER PUBLICATION. (a) This
6-48 section applies only to an application for a permit under Section
6-49 382.0518 or 382.058, Health and Safety Code, or a permit renewal
6-50 review under Section 382.055, Health and Safety Code.
6-51 (b) If the elementary or middle school nearest a facility or
6-52 proposed facility provides a bilingual education program as
6-53 required by Subchapter B, Chapter 29, Education Code, and students
6-54 in the elementary or middle school nearest the facility are
6-55 enrolled in the program, the applicant, in addition to publishing
6-56 notice of application and opportunity to request a hearing under
6-57 Section 5.415, shall publish notice at least once in an additional
6-58 publication of general circulation in the municipality or county in
6-59 which the facility is located or proposed to be located that is
6-60 published in the language taught in the bilingual education
6-61 program.
6-62 (c) The commission by rule may require publication of
6-63 additional notice.
6-64 (d) Subsection (b) does not apply if:
6-65 (1) a publication described by that subsection does
6-66 not exist; or
6-67 (2) the publisher refuses to publish the notice.
6-68 (e) Notice required to be published under this section is
6-69 only required to be published in the United States.
7-1 (f) An applicant who is required to publish notice under
7-2 this section must post a sign at the facility or proposed facility
7-3 as provided by Section 5.408(c)(2).
7-4 SECTION 2. Subsections (b) through (g), Section 5.115, Water
7-5 Code, are amended to read as follows:
7-6 (b) [At the time an application for a permit or license
7-7 under this code is filed with the executive director and is
7-8 administratively complete, the commission shall give notice of the
7-9 application to any person who may be affected by the granting of
7-10 the permit or license.]
7-11 [(c) At the time an application for any formal action by the
7-12 commission that will affect lands dedicated to the permanent school
7-13 fund is filed with the executive director or the commission and is
7-14 administratively complete, the commission shall give notice of the
7-15 application to the School Land Board. Notice shall be delivered by
7-16 certified mail, return receipt requested, addressed to the deputy
7-17 commissioner of the asset management division of the General Land
7-18 Office. Delivery is not complete until the return receipt is
7-19 signed by the deputy commissioner of the asset management division
7-20 of the General Land Office and returned to the commission.]
7-21 [(d) The commission shall adopt rules for the notice
7-22 required by this section.]
7-23 [(e) The notice must state:]
7-24 [(1) the identifying number given the application by
7-25 the commission;]
7-26 [(2) the type of permit or license sought under the
7-27 application;]
7-28 [(3) the name and address of the applicant;]
7-29 [(4) the date on which the application was submitted;
7-30 and]
7-31 [(5) a brief summary of the information included in
7-32 the permit application.]
7-33 [(f) The notice to the School Land Board under this section
7-34 shall additionally:]
7-35 [(1) state the location of the permanent school fund
7-36 land to be affected; and]
7-37 [(2) describe any foreseeable impact or effect of the
7-38 commission's action on permanent school fund land.]
7-39 [(g)] A formal action or ruling by the commission on an
7-40 application affecting permanent school fund land that is made
7-41 without the notice required by Subchapter J [this section] is
7-42 voidable by the School Land Board as to any permanent school fund
7-43 lands affected by the action or ruling.
7-44 SECTION 3. Subsection (b), Section 11.085, Water Code, is
7-45 amended to read as follows:
7-46 (b) No person may transfer water from one watershed to
7-47 another without first applying for and receiving a permit from the
7-48 commission to do so. Before issuing such a permit, the commission
7-49 shall hold a hearing to determine the rights that might be affected
7-50 by the transfer. The commission shall give notice and hold the
7-51 hearing in the manner prescribed by Subchapter J, Chapter 5, and
7-52 the commission's [its] procedural rules.
7-53 SECTION 4. Section 11.132, Water Code, is amended to read as
7-54 follows:
7-55 Sec. 11.132. NOTICE. (a) Notice shall be given as required
7-56 by Subchapter J, Chapter 5, and commission rules [to the persons
7-57 who in the judgment of the commission may be affected by an
7-58 application, including those persons listed in Subdivision (2),
7-59 Subsection (d), of this section]. The commission, on the motion of
7-60 a commissioner or on the request of the executive director or any
7-61 affected person, shall hold a public hearing on the application.
7-62 (b) [If the proposed use is for irrigation, the commission
7-63 shall include in the notice a general description of the location
7-64 and area of the land to be irrigated.]
7-65 [(c) In the notice, the commission shall:]
7-66 [(1) state the name and address of the applicant;]
7-67 [(2) state the date the application was filed;]
7-68 [(3) state the purpose and extent of the proposed
7-69 appropriation of water;]
8-1 [(4) identify the source of supply and the place where
8-2 the water is to be stored or taken or diverted from the source of
8-3 supply;]
8-4 [(5) specify the time and location where the
8-5 commission will consider the application; and]
8-6 [(6) give any additional information the commission
8-7 considers necessary.]
8-8 [(d)] The commission may act on the application without
8-9 holding a public hearing if:
8-10 (1) notice is given as required by Subchapter J,
8-11 Chapter 5 [not less than 30 days before the date of action on the
8-12 application by the commission, the applicant has published the
8-13 commission's notice of the application at least once in a newspaper
8-14 regularly published or circulated within the section of the state
8-15 where the source of water is located]; and
8-16 (2) a timely hearing request is not received [not less
8-17 than 30 days before the date of action on the application by the
8-18 commission, the commission mails a copy of the notice by
8-19 first-class mail, postage prepaid, to:]
8-20 [(A) each claimant or appropriator of water from
8-21 the source of water supply, the record of whose claim or
8-22 appropriation has been filed with the commission; and]
8-23 [(B) all navigation districts within the river
8-24 basin concerned; and]
8-25 [(3) within 30 days after the date of the newspaper
8-26 publication of the commission's notice, a public hearing has not
8-27 been requested in writing by a commissioner, the executive
8-28 director, or an affected person who objects to the application.]
8-29 [(e) The inadvertent failure of the commission to mail a
8-30 notice under Subdivision (2), Subsection (d), of this section to a
8-31 navigation district that is not a claimant or appropriator of water
8-32 does not prevent the commission's consideration of the
8-33 application].
8-34 (c) [(f)] If, on the date specified in the notice prescribed
8-35 by Subsection (b) [(c) of this section], the commission determines
8-36 that a public hearing must be held, the matter shall be remanded
8-37 for hearing without the necessity of issuing further notice other
8-38 than advising all parties of the time and place where the hearing
8-39 is to convene.
8-40 SECTION 5. Subsections (d) through (i), Section 11.143,
8-41 Water Code, are amended to read as follows:
8-42 (d) Except as otherwise specifically provided by this
8-43 subsection, before the commission may approve the application and
8-44 issue the permit, it shall give notice and hold a hearing as
8-45 prescribed by Subchapter J, Chapter 5 [this section]. The
8-46 commission may act on the application without holding a public
8-47 hearing if:
8-48 (1) notice is given as prescribed by Subchapter J,
8-49 Chapter 5 [not less than 30 days before the date of action on the
8-50 application by the commission, the applicant has published the
8-51 commission's notice of the application at least once in a newspaper
8-52 regularly published or circulated within the section of the state
8-53 where the source of water is located]; and
8-54 (2) a timely hearing request is not received [not less
8-55 than 30 days before the date of action on the application by the
8-56 commission, the commission mails a copy of the notice by
8-57 first-class mail, postage prepaid, to each person whose claim or
8-58 appropriation has been filed with the commission and whose
8-59 diversion point is downstream from that described in the
8-60 application; and]
8-61 [(3) within 30 days after the date of the newspaper
8-62 publication of the commission's notice, a public hearing is not
8-63 requested in writing by a commissioner, the executive director, or
8-64 an affected person who objects to the application.]
8-65 [(e) In the notice, the commission shall:]
8-66 [(1) state the name and post-office address of the
8-67 applicant;]
8-68 [(2) state the date the application was filed;]
8-69 [(3) state the purpose and extent of the proposed
9-1 appropriation of water;]
9-2 [(4) identify the source of supply and the place where
9-3 the water is stored; and]
9-4 [(5) specify the time and place of the hearing.]
9-5 [(f) The notice shall be published only once, at least 20
9-6 days before the date stated in the notice for the hearing on the
9-7 application, in a newspaper having general circulation in the
9-8 county where the dam or reservoir is located. At least 15 days
9-9 before the date set for the hearing, the commission shall transmit
9-10 a copy of the notice by first-class mail to each person whose claim
9-11 or appropriation has been filed with the commission and whose
9-12 diversion point is downstream from that described in the
9-13 application].
9-14 (e) [(g)] If on the date specified in the notice prescribed
9-15 by Subsection (d) of this section, the commission determines that a
9-16 public hearing must be held, the matter shall be remanded for
9-17 hearing without the necessity of issuing further notice other than
9-18 advising all parties of the time and place where the hearing is to
9-19 convene.
9-20 (f) [(h)] The applicant shall pay the filing fee prescribed
9-21 by Section 12.111(b) of this code at the time he files the
9-22 application.
9-23 (g) [(i)] The commission shall approve the application and
9-24 issue the permit as applied for in whole or part if it determines
9-25 that:
9-26 (1) there is unappropriated water in the source of
9-27 supply;
9-28 (2) the applicant has met the requirements of this
9-29 section;
9-30 (3) the water is to be used for a beneficial purpose;
9-31 (4) the proposed use is not detrimental to the public
9-32 welfare or to the welfare of the locality; and
9-33 (5) the proposed use will not impair existing water
9-34 rights.
9-35 SECTION 6. Section 11.175, Water Code, is amended to read as
9-36 follows:
9-37 Sec. 11.175. NOTICE OF CANCELLATION HEARING. Notice of the
9-38 cancellation hearing shall be mailed and published in a newspaper
9-39 as required by Subchapter J, Chapter 5, and commission rules.
9-40 [(a) At least 45 days before the date of the hearing, the
9-41 commission shall send notice of the hearing to the holder of the
9-42 permit, certified filing, or certificate of adjudication being
9-43 considered for cancellation in whole or in part. Notice shall be
9-44 sent by certified mail, return receipt requested, to the last
9-45 address shown by the records of the commission. The commission
9-46 shall also send notice by regular mail to all other holders of
9-47 permits, certified filings, certificates of adjudication, and
9-48 claims of unadjudicated water rights filed pursuant to Section
9-49 11.303 of this code in the same watershed.]
9-50 [(b) The commission shall also have the notice of the
9-51 hearing published once a week for two consecutive weeks, at least
9-52 30 days before the date of the hearing, in a newspaper published in
9-53 each county in which diversion of water from the source of supply
9-54 was authorized or proposed to be made and in each county in which
9-55 the water was authorized or proposed to be used, as shown by the
9-56 records of the commission. If in any such county no newspaper is
9-57 published, then the notice may be published in a newspaper having
9-58 general circulation in the county.]
9-59 SECTION 7. Subsections (b) through (e), Section 26.022,
9-60 Water Code, are amended to read as follows:
9-61 (b) Notice of the hearing shall be mailed and published in a
9-62 newspaper as required by Subchapter J, Chapter 5, and commission
9-63 rules [at least once in a newspaper regularly published or
9-64 circulated in each county where, by virtue of the county's
9-65 geographical relation to the subject matter of the hearing, the
9-66 commission has reason to believe persons reside who may be affected
9-67 by the action that may be taken as a result of the hearing. The
9-68 date of the publication shall be not less than 20 days before the
9-69 date set for the hearing.]
10-1 [(c) If notice of the hearing is required by this chapter to
10-2 be given to a person, the notice shall be served personally or
10-3 mailed not less than 20 days before the date set for the hearing to
10-4 the person at his last address known to the commission. If the
10-5 party is not an individual, the notice may be given to any officer,
10-6 agent, or legal representative of the party].
10-7 (c) [(d)] The individual or individuals holding the hearing,
10-8 called the hearing body, shall conduct the hearing at the time and
10-9 place stated in the notice. The hearing body may continue the
10-10 hearing from time to time and from place to place without the
10-11 necessity of publishing, serving, mailing, or otherwise issuing a
10-12 new notice.
10-13 (d) [(e)] If a hearing is continued and a time and place for
10-14 the hearing to reconvene are not publicly announced by the person
10-15 conducting the hearing at the hearing before it is recessed, a
10-16 notice of any further setting of the hearing shall be served
10-17 personally or mailed in the manner prescribed by Subchapter J,
10-18 Chapter 5, [in Subsection (c) of this section] at a reasonable time
10-19 before the new setting, but it is not necessary to publish a
10-20 newspaper notice of the new setting.
10-21 SECTION 8. Subsections (a), (b), and (d), Section 26.028,
10-22 Water Code, are amended to read as follows:
10-23 (a) Notice [Except as provided in Subsections (b) and (c) of
10-24 this section, notice] shall be given as prescribed by Subchapter J,
10-25 Chapter 5 [to the persons who in the judgment of the commission may
10-26 be affected by an application for a permit, permit amendment, or
10-27 renewal of a permit. For any application involving an average
10-28 daily discharge of five million gallons or more, the notice shall
10-29 be given not later than 20 days before the date on which the
10-30 commission acts on the application, to each county judge in the
10-31 county or counties located within 100 statute miles of the point of
10-32 discharge who have requested in writing that the commission give
10-33 that notice and through which water, into or adjacent to which
10-34 waste or pollutants are to be discharged under the permit, flows
10-35 after the discharge]. The commission, on the motion of a
10-36 commissioner, or on the request of the executive director or any
10-37 affected person, shall hold a public hearing on the application for
10-38 a permit, permit amendment, or renewal of a permit.
10-39 (b) An application to amend a permit to improve the quality
10-40 of waste authorized to be discharged may be set for consideration
10-41 and may be acted on by the commission at a regular meeting without
10-42 the necessity of holding a public hearing if the applicant does not
10-43 seek to increase significantly the quantity of waste authorized to
10-44 be discharged or change materially the pattern or place of
10-45 discharge. Notice of the application shall be mailed as prescribed
10-46 by Subchapter J, Chapter 5 [to the mayor and health authorities for
10-47 the city or town, and the county judge and health authorities for
10-48 the county, in which the waste is or will be discharged, at least
10-49 10 days before the commission meeting, and they may present
10-50 information to the commission on the application].
10-51 (d) For the purposes of Subsection (a), the commission may
10-52 act on the application without holding a public hearing if [all of
10-53 the following conditions are met]:
10-54 (1) notice is given as required by Subchapter J,
10-55 Chapter 5 [not less than 30 days before the date of action on the
10-56 application by the commission, the applicant has published the
10-57 commission's notice of the application at least once in a newspaper
10-58 regularly published or circulated within each county where the
10-59 proposed facility or discharge is located and in each county
10-60 affected by the discharge]; and
10-61 (2) a timely hearing request is not received. [not
10-62 less than 30 days before the date of action on the application by
10-63 the commission, the applicant has served or mailed the commission's
10-64 notice of the application to persons who in the judgment of the
10-65 commission may be affected, including the county judges as required
10-66 by Subsection (a) of this section. As part of his application the
10-67 applicant shall submit an affidavit which lists the names and
10-68 addresses of the persons who may be affected by the application and
10-69 includes the source of the list;]
11-1 [(3) within 30 days after the date of the newspaper
11-2 publication of the commission's notice, neither a commissioner, the
11-3 executive director, nor an affected person who objects to the
11-4 application has requested a public hearing.]
11-5 SECTION 9. Subsections (c) and (d), Section 27.018, Water
11-6 Code, are amended to read as follows:
11-7 (c) [Before the commission begins to hear testimony in a
11-8 contested case as defined by Chapter 2001, Government Code,
11-9 evidence must be placed in the record to demonstrate that proper
11-10 notice regarding the hearing was given to affected persons. If
11-11 mailed notice to an affected person is required, the commission or
11-12 other party to the hearing shall place evidence in the record that
11-13 notice was mailed to the address of the affected person included in
11-14 the appropriate county tax rolls at the time of mailing. For the
11-15 purposes of this subsection, the affidavit of the commission
11-16 employee responsible for the mailing of the notice, attesting to
11-17 the fact that notice was mailed to the address included in the tax
11-18 rolls at the time of mailing, shall be prima facie evidence of
11-19 proper mailing. The commission may not proceed with receipt of
11-20 testimony in a contested case until there is compliance with this
11-21 subsection.]
11-22 [(d)] An application for an injection well to dispose of
11-23 hazardous waste shall be subject to the pre-application local
11-24 review process established by Section 361.063, Health and Safety
11-25 Code, and to the requirements of Section 361.0791, Health and
11-26 Safety Code.
11-27 SECTION 10. Subsections (a) and (c), Section 361.079, Health
11-28 and Safety Code, are amended to read as follows:
11-29 (a) Except as provided by Sections 361.080(b) and 361.081(b)
11-30 [361.081(c)], the commission by rule shall establish procedures for
11-31 public notice and a public hearing under Section 361.080 or
11-32 361.081.
11-33 (c) To improve the timeliness of notice to the public of a
11-34 public hearing under Section 361.080 or 361.081, public notice of
11-35 receipt of the permit application shall be provided as prescribed
11-36 by Subchapter J, Chapter 5, Water Code [at the time a permit
11-37 application is submitted to the commission].
11-38 SECTION 11. Subsections (c), (e), (f), and (g), Section
11-39 361.0791, Health and Safety Code, are amended to read as follows:
11-40 (c) A public meeting held as part of a local review process
11-41 under Section 361.063 meets the requirement of Subsection (a) or
11-42 (b) if notice is provided as required by Subchapter J, Chapter 5,
11-43 Water Code [this section].
11-44 (e) If a meeting is required under Subsection (a) or (b),
11-45 notice shall be provided as prescribed by Subchapter J, Chapter 5,
11-46 Water Code[, not less than once each week during the three weeks
11-47 preceding a public meeting, the applicant shall publish notice of
11-48 the meeting in the newspaper of the largest general circulation
11-49 that is published in the county in which the proposed facility is
11-50 to be located or, if no newspaper is published in the county, in a
11-51 newspaper of general circulation in the county. The applicant
11-52 shall provide the commission an affidavit certifying that the
11-53 notice was given as required by this section. Acceptance of the
11-54 affidavit creates a rebuttable presumption that the applicant has
11-55 complied with this section].
11-56 (f) [The published notice may not be smaller than 96.8
11-57 square centimeters or 15 square inches with the shortest dimension
11-58 at least 7.6 centimeters or three inches and shall contain, at a
11-59 minimum, the following information:]
11-60 [(1) the permit application number;]
11-61 [(2) the applicant's name;]
11-62 [(3) the proposed location of the facility; and]
11-63 [(4) the location and availability of copies of the
11-64 permit application.]
11-65 [(g)] The applicant shall pay the cost of notice required to
11-66 be provided under this section. The commission by rule may
11-67 establish procedures for payment of those costs.
11-68 SECTION 12. Subsection (b), Section 361.080, Health and
11-69 Safety Code, is amended to read as follows:
12-1 (b) Notice for a hearing session held under this section
12-2 shall be provided in accordance with Subchapter J, Chapter 5, Water
12-3 Code [Section 361.0791].
12-4 SECTION 13. Section 361.081, Health and Safety Code, is
12-5 amended to read as follows:
12-6 Sec. 361.081. NOTICE OF HEARING CONCERNING APPLICATION FOR A
12-7 SOLID WASTE FACILITY. (a) The commission shall require the
12-8 applicant to mail notice as prescribed by Subchapter J, Chapter 5,
12-9 Water Code [to each residential or business address located within
12-10 one-half mile of a new solid waste management facility and to each
12-11 owner of real property located within one-half mile of a new solid
12-12 waste management facility listed in the real property appraisal
12-13 records of the appraisal district in which the solid waste
12-14 management facility is sought to be permitted as of the date the
12-15 commission determines the permit application is administratively
12-16 complete. The notice must be sent by mail and must be deposited
12-17 with the United States postal service not more than 45 days or less
12-18 than 30 days before the date of the hearing].
12-19 (b) [The applicant must certify to the commission that the
12-20 mailings were deposited as required by Subsection (a). Acceptance
12-21 of the certification creates a rebuttable presumption that the
12-22 applicant has complied with this section. Substantial compliance
12-23 with the notice requirements of Subsection (a) is sufficient for
12-24 the commission to exercise jurisdiction over an application for a
12-25 solid waste facility.]
12-26 [(c)] In addition to the requirements of Subsection (a), the
12-27 commission shall hold a public meeting and the applicant shall give
12-28 notice concerning the application for a permit for a new hazardous
12-29 waste management facility as provided by Section 361.0791 of this
12-30 code and Subchapter J, Chapter 5, Water Code.
12-31 SECTION 14. Subsections (c) and (d), Section 361.082, Health
12-32 and Safety Code, are amended to read as follows:
12-33 (c) The commission by rule shall establish procedures for
12-34 public notice and public hearing. At a minimum, the rules shall
12-35 include the public notice requirements set forth in Subchapter J,
12-36 Chapter 5, Water Code [Section 361.081].
12-37 (d) In addition to the hearing held under this section, the
12-38 commission shall hold a public meeting and the applicant shall give
12-39 notice as provided by Section 361.0791 of this code and Subchapter
12-40 J, Chapter 5, Water Code.
12-41 SECTION 15. Sections 382.031, 382.0516, and 382.056, Health
12-42 and Safety Code, are amended to read as follows:
12-43 Sec. 382.031. NOTICE OF HEARINGS. (a) Notice of a hearing
12-44 regarding a permit under Section 382.0518, 382.055, or 382.058
12-45 [this chapter] shall be published in a newspaper as prescribed by
12-46 Subchapter J, Chapter 5, Water Code [at least once in a newspaper
12-47 of general circulation in the municipality in which the facility is
12-48 located or is proposed to be located or in the municipality nearest
12-49 to the location or proposed location of the facility. The notice
12-50 must be published not less than 30 days before the date set for the
12-51 hearing].
12-52 (b) [Notice of the hearing must describe briefly and in
12-53 summary form the purpose of the hearing and the date, time, and
12-54 place of the hearing.]
12-55 [(c) If notice of the hearing is required by this chapter to
12-56 be given to a person, the notice shall be served personally or
12-57 mailed to the person at the person's most recent address known to
12-58 the commission not less than 30 days before the date set for the
12-59 hearing. If the party is not an individual, the notice may be
12-60 given to an officer, agent, or legal representative of the party.]
12-61 [(d)] The hearing body shall conduct the hearing at the time
12-62 and place stated in the notice. The hearing body may continue the
12-63 hearing from time to time and from place to place without the
12-64 necessity of publishing, serving, mailing, or otherwise issuing new
12-65 notice. If a hearing is continued and a time and place for the
12-66 hearing to reconvene are not publicly announced by the hearing body
12-67 at the hearing before it is recessed, a notice of any further
12-68 setting of the hearing shall be served personally or mailed in the
12-69 manner prescribed by Subchapter J, Chapter 5, Water Code,
13-1 [Subsection (c)] at a reasonable time before the new setting, but
13-2 it is not necessary to publish a newspaper notice of the new
13-3 setting. In this subsection, "hearing body" means the individual
13-4 or individuals that hold a hearing under this section.
13-5 [(e) This section applies to all hearings held under this
13-6 chapter except as otherwise specified by Section 382.017, 382.026,
13-7 or 382.063.]
13-8 Sec. 382.0516. NOTICE TO STATE SENATOR AND REPRESENTATIVE.
13-9 On receiving an application for [a construction permit, a special
13-10 permit, or] an operating permit for a facility that may emit air
13-11 contaminants, the commission shall send notice of the application
13-12 to the state senator and representative who represent the area in
13-13 which the facility is or will be located.
13-14 Sec. 382.056. NOTICE OF APPLICATION AND OPPORTUNITY TO
13-15 REQUEST A [INTENT TO OBTAIN PERMIT OR PERMIT REVIEW;] HEARING.
13-16 (a) An applicant for a permit under Section 382.0518 [or 382.054]
13-17 or a permit renewal review under Section 382.055 shall publish
13-18 notice of application and opportunity to request a hearing as
13-19 prescribed by Subchapter J, Chapter 5, Water Code [intent to obtain
13-20 the permit or permit review. The commission by rule may require an
13-21 applicant for a federal operating permit to publish notice of
13-22 intent to obtain a permit or permit review consistent with federal
13-23 requirements and with the requirements of this section. The
13-24 applicant shall publish the notice at least once in a newspaper of
13-25 general circulation in the municipality in which the facility or
13-26 federal source is located or is proposed to be located or in the
13-27 municipality nearest to the location or proposed location of the
13-28 facility or federal source. If the elementary or middle school
13-29 nearest to the facility or proposed facility provides a bilingual
13-30 education program as required by Section 21.109, Education Code,
13-31 and Section 19 TAC Subsection 89.2(a), the applicant shall also
13-32 publish the notice at least once in an additional publication of
13-33 general circulation in the municipality or county in which the
13-34 facility is located or proposed to be located that is published in
13-35 the language taught in the bilingual education program. This
13-36 requirement is waived if such a publication does not exist or if
13-37 the publisher refuses to publish the notice. The commission by
13-38 rule shall prescribe when notice must be published and may require
13-39 publication of additional notice. Notice required to be published
13-40 under this section shall only be required to be published in the
13-41 United States].
13-42 (b) [The notice must include:]
13-43 [(1) a description of the location or proposed
13-44 location of the facility or federal source;]
13-45 [(2) a statement that a person who may be affected by
13-46 emissions of air contaminants from the facility, proposed facility,
13-47 or federal source is entitled to request a hearing from the
13-48 commission;]
13-49 [(3) a description of the manner in which the
13-50 commission may be contacted for further information; and]
13-51 [(4) any other information the commission by rule
13-52 requires.]
13-53 [(c) At the site of a facility, proposed facility, or
13-54 federal source for which an applicant is required to publish notice
13-55 under this section, the applicant shall place a sign declaring the
13-56 filing of an application for a permit or permit review for a
13-57 facility at the site and stating the manner in which the commission
13-58 may be contacted for further information. The commission shall
13-59 adopt any rule necessary to carry out this subsection.]
13-60 [(d)] Except as provided by [Section 382.0561 or] Subsection
13-61 (c) [(e)], the commission or its delegate shall hold a public
13-62 hearing on the permit application or permit renewal application
13-63 before granting the permit or renewal if a person who may be
13-64 affected by the emissions, or a member of the legislature from the
13-65 general area in which the facility or proposed facility is located,
13-66 requests a hearing within the period set by commission rule. The
13-67 commission shall not hold a hearing if the basis of a request by a
13-68 person who may be affected is determined to be unreasonable.
13-69 Reasons for which a request for a hearing on a permit amendment,
14-1 modification, or renewal shall be considered to be unreasonable
14-2 include, but are not limited to, an amendment, modification, or
14-3 renewal that would not result in an increase in allowable emissions
14-4 and would not result in the emission of an air contaminant not
14-5 previously emitted.
14-6 (c) [(e)] Notwithstanding other provisions of this chapter,
14-7 the commission may hold a hearing on a permit amendment,
14-8 modification, or renewal if the commission [board] determines that
14-9 the application involves a facility for which the applicant's
14-10 compliance history contains violations which are unresolved and
14-11 which constitute a recurring pattern of egregious conduct which
14-12 demonstrates a consistent disregard for the regulatory process,
14-13 including the failure to make a timely and substantial attempt to
14-14 correct the violations.
14-15 SECTION 16. Section 382.0561, Health and Safety Code, is
14-16 amended by amending Subsections (b) through (i) and adding
14-17 Subsections (j) through (u) to read as follows:
14-18 (b) At the time an application for a federal operating
14-19 permit is filed with the executive director and is administratively
14-20 complete, the commission shall give notice of the application to
14-21 any person who may be affected by the granting of the permit.
14-22 (c) At the time an application for any formal action by the
14-23 commission that will affect lands dedicated to the permanent school
14-24 fund is filed with the executive director or the commission and is
14-25 administratively complete, the commission shall give notice of the
14-26 application to the School Land Board. Notice shall be delivered by
14-27 certified mail, return receipt requested, addressed to the deputy
14-28 commissioner of the asset management division of the General Land
14-29 Office. Delivery is not complete until the return receipt is
14-30 signed by the deputy commissioner of the asset management division
14-31 of the General Land Office and returned to the commission.
14-32 (d) The commission shall adopt rules governing notice
14-33 required by this section.
14-34 (e) A notice required by Subsection (b) or (c) must:
14-35 (1) state the identifying number given the application
14-36 by the commission;
14-37 (2) state the type of permit or license sought under
14-38 the application;
14-39 (3) state the name and address of the applicant;
14-40 (4) state the date on which the application was
14-41 submitted; and
14-42 (5) include a brief summary of the information
14-43 included in the application.
14-44 (f) In addition to including the information required by
14-45 Subsection (e), a notice under Subsection (c) must:
14-46 (1) state the location of the permanent school fund
14-47 land to be affected; and
14-48 (2) describe any foreseeable impact or effect the
14-49 commission's action may have on permanent school fund land.
14-50 (g) On determination that an application for a federal
14-51 operating permit under Sections 382.054-382.0542 or a renewal of a
14-52 federal operating permit under Section 382.0543 is administratively
14-53 complete and before the beginning of the public comment period, the
14-54 commission or its designee shall prepare a draft permit.
14-55 (h) [(c)] The commission or its designee shall hold a public
14-56 hearing on a federal operating permit, a reopening of a federal
14-57 operating permit, or renewal application before granting the permit
14-58 or renewal if within the public comment period a person who may be
14-59 affected by the emissions or a member of the legislature from the
14-60 general area in which the facility is located requests a hearing.
14-61 The commission or its designee is not required to hold a hearing if
14-62 the basis of the request by a person who may be affected is
14-63 determined to be unreasonable.
14-64 (i) [(d)] The following shall be available for public
14-65 inspection in at least one location in the general area where the
14-66 facility is located:
14-67 (1) information submitted by the application, subject
14-68 to applicable confidentiality laws;
14-69 (2) the executive director's analysis of the proposed
15-1 action; and
15-2 (3) a copy of the draft permit.
15-3 (j) [(e)] The commission or its designee shall hold a public
15-4 comment period on a federal operating permit application, a federal
15-5 operating permit reopening application, or a federal operating
15-6 permit renewal application under Sections 382.054-382.0542 or
15-7 382.0543. Any person may submit a written statement to the
15-8 commission during the public comment period. The commission or its
15-9 designee shall receive public comment for 30 days after the date on
15-10 which notice of the public comment period is published. The
15-11 commission or its designee may extend or reopen the comment period
15-12 if the commission or its designee [executive director] finds an
15-13 extension or reopening to be appropriate.
15-14 (k) The commission by rule may require an applicant for a
15-15 federal operating permit to publish notice of public comment period
15-16 and opportunity for a hearing consistent with federal requirements
15-17 and the requirements of this section. The applicant shall publish
15-18 the notice at least once in a newspaper of general circulation in
15-19 the municipality in which the federal source is located or is
15-20 proposed to be located or in the municipality nearest to the
15-21 location or proposed location of the federal source. The
15-22 commission by rule shall prescribe when notice must be published
15-23 and may require publication of additional notice. Notice required
15-24 to be published under this section is only required to be published
15-25 in the United States.
15-26 (l) The notice described by Subsection (k) must include:
15-27 (1) a description of the location or proposed location
15-28 of the federal source;
15-29 (2) a statement that a person who may be affected by
15-30 emissions of air contaminants from the federal source or proposed
15-31 federal source is entitled to request a hearing from the
15-32 commission;
15-33 (3) a description of the manner in which the
15-34 commission may be contacted for further information; and
15-35 (4) any other information the commission by rule
15-36 requires.
15-37 (m) At the site of a federal source or proposed federal
15-38 source for which an applicant is required to publish notice under
15-39 this section, the applicant shall post a sign that:
15-40 (1) declares the filing of an application for a permit
15-41 or permit review for a facility at the site; and
15-42 (2) states the manner in which the commission may be
15-43 contacted for further information.
15-44 (n) The commission shall adopt any rule necessary to carry
15-45 out Subsection (m).
15-46 (o) Notice of a hearing shall be published at least once in
15-47 a newspaper of general circulation in the municipality in which the
15-48 facility is located or is proposed to be located or in the
15-49 municipality nearest to the location or proposed location of the
15-50 facility. The notice must be published not less than the 30th day
15-51 before the date set for the hearing.
15-52 (p) Notice of the hearing must describe briefly and in
15-53 summary form:
15-54 (1) the purpose of the hearing; and
15-55 (2) the date, time, and place of the hearing.
15-56 (q) If notice of the hearing is required by this chapter to
15-57 be given to a person, the notice must be served personally or
15-58 mailed to the person at the person's most recent address known to
15-59 the commission not less than the 30th day before the date set for
15-60 the hearing. If the person is not an individual, the notice may be
15-61 given to an officer, agent, or legal representative of the person.
15-62 (r) The hearing body shall conduct the hearing at the time
15-63 and place stated in the notice. The hearing body may continue the
15-64 hearing from time to time and from place to place without the
15-65 necessity of publishing, serving, mailing, or otherwise issuing new
15-66 notice. If a hearing is continued and a time and place for the
15-67 hearing to reconvene are not publicly announced by the hearing body
15-68 at the hearing before it is recessed, a notice of any further
15-69 setting of the hearing shall be served personally or mailed in the
16-1 manner prescribed by Subsection (q) at a reasonable time before the
16-2 new setting, but it is not necessary to publish a newspaper notice
16-3 of the new setting. In this subsection, "hearing body" means the
16-4 individual or individuals that hold a hearing under this section.
16-5 (s) [(f) Notice of the public comment period and opportunity
16-6 for a hearing under this section shall be published in accordance
16-7 with Section 382.056.]
16-8 [(g)] Any person may submit an oral or written statement
16-9 concerning the application at the hearing. The individual holding
16-10 the hearing may set reasonable limits on the time allowed for oral
16-11 statements at the hearing. The public comment period extends to
16-12 the close of the hearing and may be further extended or reopened if
16-13 the commission or its designee finds an extension or reopening to
16-14 be appropriate.
16-15 (t) [(h)] Any person, including the applicant, who believes
16-16 that any condition of the draft permit is inappropriate or that the
16-17 preliminary decision of the commission or its designee to issue or
16-18 deny a permit is inappropriate must raise all reasonably
16-19 ascertainable issues and submit all reasonably available arguments
16-20 supporting that position by the end of the public comment period.
16-21 (u) [(i)] The commission or its designee shall consider all
16-22 comments received during the public comment period and at the
16-23 public hearing in determining whether to issue the permit and what
16-24 conditions should be included if a permit is issued.
16-25 SECTION 17. Subsections (a) and (c), Section 382.058, Health
16-26 and Safety Code, are amended to read as follows:
16-27 (a) A person may not begin construction on any concrete
16-28 plant that performs wet batching, dry batching, or central mixing
16-29 under an exemption adopted by the commission under Section 382.057
16-30 unless the person has complied with the notice and opportunity for
16-31 hearing provisions under Section 382.056 of this code and
16-32 Subchapter J, Chapter 5, Water Code.
16-33 (c) For purposes of this section, only those persons
16-34 actually residing in a permanent residence within 440 yards of the
16-35 proposed plant may request a hearing under Section 382.056(b)
16-36 [382.056(d)] as a person who may be affected.
16-37 SECTION 18. Subsection (b), Section 401.113, Health and
16-38 Safety Code, is amended to read as follows:
16-39 (b) The agency shall make the analysis available to the
16-40 public not later than the 30th [31st] day before the date of a
16-41 hearing under Section 401.114.
16-42 SECTION 19. Section 401.114, Health and Safety Code, is
16-43 amended to read as follows:
16-44 Sec. 401.114. NOTICE AND HEARING. (a) Before the
16-45 department [or commission], within its jurisdiction, grants or
16-46 renews a license to process [or dispose of] radioactive waste from
16-47 other persons, the department [agency] shall give notice and shall
16-48 provide an opportunity for a public hearing in the manner provided
16-49 by the department's [agency's] formal hearing procedures
16-50 [procedure] and Chapter 2001, Government Code.
16-51 (b) Before the commission, within its jurisdiction, grants
16-52 or renews a license to dispose of radioactive waste from other
16-53 persons, the commission shall:
16-54 (1) give notice as prescribed by Subchapter J, Chapter
16-55 5, Water Code; and
16-56 (2) provide an opportunity for a public hearing in the
16-57 manner provided by the commission's formal hearing procedures and
16-58 Chapter 2001, Government Code.
16-59 (c) In addition to other notice, the department or
16-60 commission, within its jurisdiction, [agency] shall publish notice
16-61 of the hearing in the manner provided by Chapter 313, Government
16-62 Code, in the county in which the proposed facility is to be
16-63 located. The notice shall state the subject and the time, place,
16-64 and date of the hearing.
16-65 (d) [(c)] The department [agency] shall mail, by certified
16-66 mail in the manner provided by the department's [agency's] rules,
16-67 written notice to each person who owns property adjacent to the
16-68 proposed site. The notice must be mailed not later than the 31st
16-69 day before the date of the hearing and must include the same
17-1 information that is in the published notice. If true, the
17-2 department [agency] or the applicant must certify that the notice
17-3 was mailed as required by this subsection, and at the hearing the
17-4 certificate is conclusive evidence of the mailing.
17-5 (e) The commission shall mail notice as prescribed by
17-6 Subchapter J, Chapter 5, Water Code.
17-7 SECTION 20. Section 401.116, Health and Safety Code, is
17-8 amended by amending Subsections (b), (c), and (d) and adding
17-9 Subsection (e) to read as follows:
17-10 (b) The department [or commission, as appropriate,] shall
17-11 publish notice of a [the] license amendment within its jurisdiction
17-12 once in the Texas Register and in a newspaper of general
17-13 circulation in the county in which the licensed activity is located
17-14 and shall give notice to any person who has notified the agency, in
17-15 advance, of the desire to receive notice of proposed amendment of
17-16 the license.
17-17 (c) Notice under Subsection (b) [this section] must include:
17-18 (1) the identity of the license holder;
17-19 (2) identification of the license; and
17-20 (3) a short and plain statement of the license
17-21 amendment's substance.
17-22 (d) The department [agency] shall give notice and hold a
17-23 hearing to consider the license amendment within its jurisdiction
17-24 if a person affected files a written complaint with the department
17-25 [agency] before the 31st day after the date on which notice is
17-26 published under Subsection (b). The department [agency] shall give
17-27 notice of the hearing as provided by Section 401.114.
17-28 (e) The commission shall publish notice of a license
17-29 amendment within its jurisdiction as prescribed by Subchapter J,
17-30 Chapter 5, Water Code, and shall provide an opportunity for a
17-31 public hearing in the manner provided by the commission's formal
17-32 hearing procedures.
17-33 SECTION 21. Subsection (c), Section 401.263, Health and
17-34 Safety Code, is amended to read as follows:
17-35 (c) The commission shall give notice of the analysis as
17-36 provided by agency rule and shall make the analysis available to
17-37 the public for written comment not later than the 30th [31st] day
17-38 before the date of the hearing on the license.
17-39 SECTION 22. Sections 361.0641 and 361.083, Health and Safety
17-40 Code, are repealed.
17-41 SECTION 23. The changes in law made by this Act apply only
17-42 to a notice given on or after the effective date of this Act. A
17-43 notice given before the effective date of this Act is governed by
17-44 the law as it existed immediately before the effective date of this
17-45 Act, and that law is continued in effect for that purpose.
17-46 SECTION 24. This Act takes effect September 1, 1997.
17-47 SECTION 25. The importance of this legislation and the
17-48 crowded condition of the calendars in both houses create an
17-49 emergency and an imperative public necessity that the
17-50 constitutional rule requiring bills to be read on three several
17-51 days in each house be suspended, and this rule is hereby suspended.
17-52 * * * * *