By Armbrister S.B. No. 1953
75R14417 SMH-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain environmental permitting procedures of the
1-3 Texas Natural Resource Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 5, Water Code, is amended by adding
1-6 Subchapter J to read as follows:
1-7 SUBCHAPTER J. ENVIRONMENTAL PERMITTING PROCEDURES
1-8 Sec. 5.371. GENERAL PERMITTING PROCEDURES. (a) This
1-9 subchapter applies to commission procedures for an application to
1-10 issue, amend, or renew a permit for which public notice and an
1-11 opportunity for public hearing is required by or allowed under
1-12 Chapter 26 or 27 or required by or allowed under Chapter 361 or
1-13 382, Health and Safety Code. Subchapters C-H, Chapter 2001,
1-14 Government Code, do not apply to a proceeding to which this
1-15 subchapter applies.
1-16 (b) The commission by rule may provide for additional
1-17 notice, opportunity for public comment, and opportunity for hearing
1-18 to the extent necessary to satisfy a requirement for United States
1-19 Environmental Protection Agency authorization of a state permit
1-20 program.
1-21 (c) The commission shall provide for permits-by-rule under
1-22 the chapters listed in Subsection (a) to the greatest extent
1-23 practicable and consistent with the requirements for United States
1-24 Environmental Protection Agency authorization of a state permit
2-1 program.
2-2 (d) The commission by rule may identify categories of
2-3 applications related to permits for which notice or opportunity for
2-4 public hearing is not required. The commission may exempt from
2-5 notice and public hearing requirements an application to:
2-6 (1) maintain or improve the permitted quality or
2-7 method of disposal of waste, control of emissions of air
2-8 contaminants, or injection of fluid if there is not:
2-9 (A) a significant increase in the quantity of
2-10 waste, air contaminants, or fluid to be discharged, emitted, or
2-11 injected; or
2-12 (B) a material change in the place of discharge,
2-13 injection, emission, control, treatment, storage, or disposal;
2-14 (2) amend a permit in a manner that will not:
2-15 (A) cause a potential deterioration of water
2-16 quality in the state;
2-17 (B) relax a standard or criterion in a manner
2-18 that raises a potential for deterioration of water quality in the
2-19 state;
2-20 (C) result in a significant net increase in
2-21 permitted allowable emissions; or
2-22 (D) allow a significant emission of air
2-23 contaminants not previously emitted under the permit;
2-24 (3) increase emissions of air contaminants that are
2-25 incidental to the installation of an emission control device or
2-26 implementation of a control technique; or
2-27 (4) change a facility in a manner within the scope and
3-1 limitations of a flexible permit.
3-2 (e) For an application described by Subsection (d), the
3-3 commission by rule may provide for the executive director to take
3-4 action on the application.
3-5 Sec. 5.372. ISSUANCE OF PERMIT, DRAFT PERMIT, OR NOTICE OF
3-6 INTENT TO DENY. (a) After an application related to a permit is
3-7 administratively and technically complete, the executive director
3-8 shall prepare and issue:
3-9 (1) a notice of intent to deny; or
3-10 (2) a draft permit.
3-11 (b) The executive director shall include with a notice of
3-12 intent to deny or draft permit a record of proposed decision
3-13 prepared in accordance with Section 5.373.
3-14 (c) A notice of intent to deny must state the executive
3-15 director's reasons for denial.
3-16 (d) A draft permit must contain all appropriate conditions,
3-17 compliance schedules, monitoring requirements, and technical
3-18 standards consistent with applicable commission rules.
3-19 (e) The commission shall send a copy of the record of
3-20 proposed decision to:
3-21 (1) the applicant;
3-22 (2) a state or federal agency, as required or as
3-23 appropriate; and
3-24 (3) any person on that person's request.
3-25 (f) Unless precluded by a requirement for United States
3-26 Environmental Protection Agency authorization of a state permit
3-27 program, an applicant may give public notice of the application
4-1 before the executive director issues a draft permit or notification
4-2 of intent to deny.
4-3 (g) If the executive director determines that there is not a
4-4 significant degree of public interest in an application or the
4-5 commission does not receive a request for a public hearing on the
4-6 application, the executive director may take final action on the
4-7 application notwithstanding this section and Sections 5.373-5.377,
4-8 and the permit is effective immediately.
4-9 Sec. 5.373. RECORD OF PROPOSED DECISION FOR DRAFT PERMIT.
4-10 (a) A record of proposed decision prepared for a draft permit
4-11 must:
4-12 (1) be based on the administrative record; and
4-13 (2) briefly state the principal facts and significant
4-14 factual, legal, methodological, and policy issues considered in
4-15 preparing the draft permit.
4-16 (b) The record of proposed decision, as applicable, must:
4-17 (1) briefly describe the type of facility or activity
4-18 that is the subject of the draft permit;
4-19 (2) state the type and quantity of wastes proposed to
4-20 be or that are being treated, stored, disposed of, injected,
4-21 emitted, or discharged under the permit;
4-22 (3) briefly summarize the reasons for the draft permit
4-23 conditions, including references to applicable statutes or rules;
4-24 (4) state the reasons a requested variance or
4-25 alternative to a required standard is or is not justified;
4-26 (5) describe the procedures for reaching a final
4-27 decision on the draft permit, including:
5-1 (A) the dates the comment period begins and
5-2 ends;
5-3 (B) the address where comments will be received;
5-4 and
5-5 (C) a description of:
5-6 (i) procedures for requesting a hearing;
5-7 (ii) the nature of the hearing; and
5-8 (iii) any other procedures by which the
5-9 public may participate in the final decision process; and
5-10 (6) include the name and telephone number of a person
5-11 to contact for additional information.
5-12 (c) The commission shall make the record of proposed
5-13 decision available to the public when the public notice is
5-14 published.
5-15 Sec. 5.374. NOTICE OF INITIAL DETERMINATION; COMMENTS AND
5-16 REQUESTS FOR HEARING. (a) The commission by rule shall provide
5-17 for public notice for each draft permit or notice of intent to deny
5-18 that is prepared.
5-19 (b) The executive director shall provide for a period of at
5-20 least 30 days for public review, comments, and requests for public
5-21 hearing. The period for public review and comments must be
5-22 extended until the close of the public hearing, if a public hearing
5-23 is held. The commission or the executive director at any time
5-24 before a final decision is issued may extend or reopen the comment
5-25 period to allow the receipt of information that may help the
5-26 commission to resolve an issue raised in the application.
5-27 (c) Each person, including an applicant, who believes that a
6-1 condition of a draft permit is inappropriate, or that the executive
6-2 director's tentative decision to deny an application, terminate a
6-3 permit, or prepare a draft permit is inappropriate, must raise all
6-4 reasonably ascertainable issues and present all reasonably
6-5 available arguments supporting the person's position on or before
6-6 the date the public comment period closes. The executive director
6-7 shall grant additional time for comment to the extent that a person
6-8 who requests additional time to comment demonstrates a reasonable
6-9 need for that time.
6-10 (d) Notice required under this section is in addition to the
6-11 requirements of Section 26.028 and of Sections 361.081 and 361.082,
6-12 Health and Safety Code. Notice required under this section may be
6-13 combined with notice required by another section of this code or of
6-14 the Health and Safety Code to satisfy the requirements of each
6-15 section.
6-16 (e) The commission by rule may provide for additional notice
6-17 and opportunity for public comment to the extent necessary to
6-18 satisfy a requirement for United States Environmental Protection
6-19 Agency authorization of a state permit program.
6-20 (f) If the commission receives a timely written notice of
6-21 opposition to a draft permit issued by the executive director and a
6-22 request for a public hearing on the draft permit, the executive
6-23 director shall respond to the request and attempt to resolve the
6-24 issues that create the opposition. The executive director may
6-25 refer parties to alternative dispute resolution to resolve the
6-26 issues that create the opposition. The opponent may withdraw the
6-27 request for a public hearing following the executive director's
7-1 response.
7-2 Sec. 5.375. PUBLIC HEARINGS. (a) A ruling on a permit
7-3 issuance or denial may not be made without an opportunity for a
7-4 public hearing.
7-5 (b) At a public hearing under this subchapter, any person
7-6 may present an oral or written statement or information concerning
7-7 the draft permit or notice of intent to deny. The person or panel
7-8 conducting a hearing may:
7-9 (1) set reasonable limits on the time allowed for oral
7-10 comments; or
7-11 (2) require statements to be presented in writing or
7-12 under oath.
7-13 (c) The executive director shall hold the public hearing if
7-14 the executive director determines:
7-15 (1) that there is a significant degree of public
7-16 interest in the draft permit or notice of intent to deny, after
7-17 examining requests for a public hearing; or
7-18 (2) that a public hearing should be held to clarify
7-19 one or more issues in the permit decision, regardless of whether
7-20 the commission receives a timely request for a public hearing.
7-21 (d) When a draft permit or notice of intent to deny for a
7-22 hazardous waste management permit is at issue, the executive
7-23 director shall hold a public hearing in any case in which the
7-24 commission receives a notice of opposition to the permit decision
7-25 and a request for a public hearing on or before the end of the
7-26 period provided under Section 5.374 for public hearing requests.
7-27 Whenever it is possible to do so, the executive director shall hold
8-1 the public hearing under this subsection at a location convenient
8-2 to the population center nearest the place proposed for the
8-3 activity to be permitted.
8-4 (e) The executive director may designate a presiding officer
8-5 or hearing panel to conduct the hearing in an orderly manner and to
8-6 receive comments at the hearing. A hearing panel may include
8-7 technical experts on the executive director's staff.
8-8 (f) The presiding officer or hearing panel shall conduct the
8-9 hearing in a manner that helps develop the administrative record.
8-10 The presiding officer or panel may ask questions of persons who
8-11 testify to develop the record fully or to clarify a factual or
8-12 regulatory issue.
8-13 (g) Chapter 2001, Government Code, does not apply to a
8-14 public hearing held under this section. A hearing held under this
8-15 section shall be conducted so that all relevant information, views,
8-16 arguments, and other data are sufficiently and fairly received
8-17 without undue repetition.
8-18 (h) A hearing held under this section shall be recorded. A
8-19 hearing shall be transcribed on request. The person who requests a
8-20 hearing transcription shall bear the cost of the transcription.
8-21 (i) The commission shall provide the record and, if
8-22 prepared, the transcript of a hearing for review by any person at
8-23 the commission's main office and at the appropriate regional office
8-24 of the commission.
8-25 (j) A person who requests a copy of the record or of a
8-26 transcript shall bear the cost of the copy.
8-27 Sec. 5.376. FINAL DECISION OF EXECUTIVE DIRECTOR. (a) For
9-1 a decision on an application processed under Sections 5.373-5.375,
9-2 the executive director shall consider the entire administrative
9-3 record, including the record of proposed decision, all written and
9-4 oral substantive public comments, the transcript of the hearing,
9-5 all related correspondence, and all responses to comments, in
9-6 determining:
9-7 (1) whether to issue the permit; and
9-8 (2) conditions to be placed on the permit if a permit
9-9 is issued.
9-10 (b) In ruling on a permit application, the executive
9-11 director may:
9-12 (1) deny the permit in whole or in part or provide
9-13 reasonable conditions to a permit if:
9-14 (A) the permit applied for does not meet
9-15 applicable requirements; or
9-16 (B) the applicant refuses to agree to a permit
9-17 condition the executive director determines is necessary; and
9-18 (2) consider any adjudicated decision within five
9-19 years before the date on which the application is filed that
9-20 addressed the applicant's noncompliance with the terms of any
9-21 permit or order issued by the commission.
9-22 (c) The executive director may not deny an application
9-23 because of an adjudicated decision considered under Subsection
9-24 (b)(2) unless the executive director determines that:
9-25 (1) the applicant's noncompliance resulted in harm to
9-26 public health or the environment; and
9-27 (2) the applicant has not made a substantial attempt
10-1 to correct the noncompliance.
10-2 (d) When the executive director issues a final decision on
10-3 an application, the executive director shall issue a response to
10-4 comments the commission received on the application. The response
10-5 must:
10-6 (1) identify any provision of the draft permit that
10-7 has been changed for the final permit and state the reasons for the
10-8 change; and
10-9 (2) briefly describe and respond to all significant
10-10 comments the commission receives on the draft permit or permit
10-11 application.
10-12 (e) The response must be available to the public.
10-13 (f) The executive director shall mail notice of the final
10-14 decision on the application to the applicant and to each person who
10-15 commented during the public comment period or participated in the
10-16 public hearing. The notice must:
10-17 (1) include the response issued under Subsection (d);
10-18 (2) explain the petition process; and
10-19 (3) identify the location and availability of the
10-20 administrative record.
10-21 (g) A final decision under this section on a permit
10-22 application becomes effective 30 days after the date notice of the
10-23 decision is mailed, unless a petition for review is filed in
10-24 accordance with Section 5.377, or at a later time specified by the
10-25 executive director in the decision.
10-26 (h) The executive director may not directly or indirectly
10-27 communicate in connection with an issue of fact or law related to a
11-1 permit application with any person other than an employee of the
11-2 commission, except in a public forum or public hearing held for the
11-3 purpose of providing information or receiving comments on the
11-4 proposed action. This provision does not limit the submission of
11-5 comments during the public comment period.
11-6 Sec. 5.377. PETITION FOR COMMISSION REVIEW. (a) The
11-7 commission shall review the executive director's decision on a
11-8 permit application as provided by this section.
11-9 (b) A person who submitted a comment or participated in a
11-10 public hearing on the tentative decision of the executive director,
11-11 or an applicant in a case in which the executive director takes
11-12 action under Section 5.372(g), may file a petition for review with
11-13 the commission. A person who did not submit a comment or did not
11-14 participate in the public hearing may file a petition for review
11-15 only to the extent of the changes made to the tentative decision
11-16 that are reflected in the final permit decision. A petition for
11-17 review must be filed on or before the 30th day after the date the
11-18 executive director's notice of final decision is mailed. The
11-19 executive director may extend the period for filing a petition for
11-20 review on the executive director's initiative or on the request of
11-21 a person who submitted a comment or participated in the public
11-22 hearing. If the executive director extends the period for filing a
11-23 petition for review, the petition must be filed not later than the
11-24 date specified by the executive director.
11-25 (c) The act of filing a petition under this section
11-26 automatically stays the effect of a permit issued by the executive
11-27 director until the commission determines whether to grant a
12-1 petition for review. To the extent a condition of a new permit is
12-2 stayed under this section, a person who holds an existing permit
12-3 must comply with any condition of the existing permit that
12-4 corresponds to the stayed condition, unless compliance with the
12-5 condition of the existing permit would be technologically
12-6 incompatible with compliance with a condition of the new permit
12-7 that has not been stayed.
12-8 (d) The petition must:
12-9 (1) include a statement of the reasons that support
12-10 commission review of the decision;
12-11 (2) demonstrate that the issue raised by the petition:
12-12 (A) was raised during the public comment period
12-13 or public hearing; or
12-14 (B) if not raised during the comment period or
12-15 hearing, was not raised for a good cause;
12-16 (3) identify all provisions of the draft permit or
12-17 order of denial of the application with which the appellant
12-18 disagrees; and
12-19 (4) show that the decision or a permit condition is
12-20 based on:
12-21 (A) an understanding of the facts or a legal
12-22 interpretation or conclusion that is clearly in error; or
12-23 (B) an important policy consideration or an
12-24 exercise of discretion that the commission should review.
12-25 (e) The commission shall determine whether to grant a
12-26 petition for review not later than the 60th day after the date the
12-27 notice of final decision is mailed. If the commission does not act
13-1 on or before that date, the petition is denied.
13-2 Sec. 5.378. COMMISSION REVIEW. (a) If the commission
13-3 grants the petition for review, the commission shall give notice to
13-4 the petitioner and each person who commented during the public
13-5 comment period or participated in the public hearing. The notice
13-6 must:
13-7 (1) provide a briefing schedule for the review;
13-8 (2) identify provisions of permits stayed under
13-9 Subsection (b); and
13-10 (3) state that any interested person may file an
13-11 amicus brief.
13-12 (b) If a petition for review is granted, the effect of the
13-13 contested permit conditions shall be stayed pending final
13-14 commission action. If the permit involves a new facility,
13-15 injection well, source, or discharger, the applicant shall be
13-16 without a permit for the proposed new facility, injection well,
13-17 source, or discharger pending final commission action. All permit
13-18 provisions for the existing facility, injection well, source, or
13-19 discharging person or facility that are not stayed under this
13-20 subsection remain in effect and enforceable. To the extent a
13-21 condition of a new permit is stayed under this section, a person
13-22 who holds an existing permit must comply with any condition of the
13-23 existing permit that corresponds to the stayed condition, unless
13-24 compliance with the existing condition would be technologically
13-25 incompatible with compliance with a condition of the new permit
13-26 that has not been stayed.
13-27 (c) If the commission modifies or rejects the executive
14-1 director's decision, the commission must issue a written decision
14-2 that includes a statement of the reason and legal or policy basis
14-3 for the decision.
14-4 (d) The decision must be supported by the administrative
14-5 record, existing written policies of the commission, or policy
14-6 considerations found in a statute. The commission shall mail the
14-7 decision to the petitioner and each person who commented during the
14-8 public comment period or who participated in the public hearing.
14-9 (e) The commission may remand any matter to the executive
14-10 director if the commission considers the remand necessary to
14-11 resolve a difficult issue or conflicting factual claims. The
14-12 commission may limit the scope of the remand to particular issues.
14-13 (f) On the initiative of the commission, the commission may
14-14 review any condition of a draft permit prepared by the executive
14-15 director.
14-16 (g) The commission may refer an issue of fact or law to the
14-17 State Office of Administrative Hearings. The commission shall
14-18 specify each issue of fact or law referred. The petitioner has the
14-19 burden of proof on an issue referred.
14-20 (h) The commission may refer to the State Office of
14-21 Administrative Hearings for an evidentiary hearing an issue of
14-22 fact:
14-23 (1) that was raised during the public comment period
14-24 or public hearing or was not raised for a good reason as shown by
14-25 the petitioner;
14-26 (2) that is material to the ultimate decision of the
14-27 commission regarding the permit;
15-1 (3) as to which a substantial question exists; and
15-2 (4) that concerns facts that:
15-3 (A) were not available to the petitioner during
15-4 the public comment period or public hearing; and
15-5 (B) probably can be obtained through discovery
15-6 under the referral.
15-7 (i) The State Office of Administrative Hearings shall limit
15-8 discovery to facts that are relevant to the issue of fact referred.
15-9 (j) The commission may refer to the State Office of
15-10 Administrative Hearings an issue of law as to which a significant
15-11 question exists. The State Office of Administrative Hearings:
15-12 (1) shall set a briefing schedule regarding the issue
15-13 not to exceed 30 days;
15-14 (2) shall return a recommendation on the issue to the
15-15 commission not later than the 20th day after the date the briefing
15-16 schedule is completed; and
15-17 (3) may not allow discovery on the issue.
15-18 (k) After hearing any evidence or argument and receiving any
15-19 briefs, the State Office of Administrative Hearings shall make a
15-20 recommendation to the commission. An opportunity shall be given to
15-21 participants to the hearing to file exceptions to and briefs
15-22 regarding the recommendation.
15-23 (l) The commission shall consider the recommendation of the
15-24 State Office of Administrative Hearings and the arguments,
15-25 exceptions, and briefs of the participants to the hearing. The
15-26 commission may accept, reject, or modify the recommendation of the
15-27 State Office of Administrative Hearings. A modification of the
16-1 recommendation must be accompanied by an explanation of the reason
16-2 for the modification.
16-3 (m) The record developed by the State Office of
16-4 Administrative Hearings must be included in the administrative
16-5 record of the commission.
16-6 (n) This section does not modify the scope or standard of
16-7 judicial review under Section 5.380.
16-8 (o) Unless required for the disposition of an ex parte
16-9 matter authorized by law, a member of the commission may not
16-10 directly or indirectly communicate in connection with an issue of
16-11 fact or law related to a permit application with any person except
16-12 on notice to, and opportunity to participate or respond by, the
16-13 petitioner and each person who commented during the public comment
16-14 period or participated in the public hearing. A member of the
16-15 commission may communicate ex parte with an employee of the
16-16 commission who did not participate in the public hearing for the
16-17 purpose of using the special skills or knowledge of the employee in
16-18 evaluating the administrative record.
16-19 Sec. 5.379. MOTION TO RECONSIDER. (a) A motion to
16-20 reconsider a final order of the commission may be filed with the
16-21 commission. The motion:
16-22 (1) must be filed before the 11th day after the date
16-23 of service of the final order;
16-24 (2) must state the matters claimed to be erroneously
16-25 decided and the nature of the alleged errors; and
16-26 (3) does not stay the effective date of the final
16-27 order unless the commission specifically orders the stay.
17-1 (b) Regardless of whether a petition for judicial review has
17-2 been filed, the commission may vacate, modify, correct, or reform a
17-3 final order of the commission not later than the 30th day after the
17-4 date the motion to reconsider the final order is filed.
17-5 (c) The filing of a motion to reconsider a final order of
17-6 the commission is not a prerequisite to judicial review of the
17-7 order.
17-8 Sec. 5.380. JUDICIAL REVIEW OF COMMISSION PERMIT DECISIONS.
17-9 (a) A person aggrieved by a final decision of the commission may
17-10 petition for judicial review. The petition must be filed not later
17-11 than the 30th day after the date:
17-12 (1) the commission mails the decision on the petition
17-13 for commission review under Section 5.378(d); or
17-14 (2) the petition for commission review is denied.
17-15 (b) Failure to timely petition for commission review of the
17-16 executive director's decision is a bar to judicial review of the
17-17 decision.
17-18 (c) In reviewing a decision of the commission, a court may
17-19 not substitute the court's judgment for the commission's judgment
17-20 on the weight of information in the administrative record related
17-21 to a question committed to the commission's discretion. The court:
17-22 (1) may affirm the commission's decision in whole or
17-23 in part; and
17-24 (2) shall reverse or remand the case for further
17-25 proceedings if a substantial right of an appellant has been
17-26 prejudiced because of a finding, inference, conclusion, or decision
17-27 that:
18-1 (A) violates the Texas Constitution, the federal
18-2 constitution, or a statute;
18-3 (B) exceeds the commission's authority;
18-4 (C) is made through an unlawful procedure;
18-5 (D) is affected by an error of law;
18-6 (E) is not reasonably supported on a substantial
18-7 basis, considering the record;
18-8 (F) is arbitrary or capricious; or
18-9 (G) is characterized by abuse of discretion or a
18-10 clearly unwarranted exercise of discretion.
18-11 (d) The filing of a petition for review does not stay an
18-12 action required by the commission's decision.
18-13 (e) Except as provided by Subsection (f), the record for
18-14 review is limited to the administrative record of the final
18-15 decision of the executive director and all other information on
18-16 which the commission relied in deciding on the executive director's
18-17 decision.
18-18 (f) A party may apply to the court to present additional
18-19 information. If the court finds that the additional information is
18-20 material and that failure to present the additional information in
18-21 the proceeding was for a good reason, the court may order the
18-22 additional information to be taken before the commission on
18-23 conditions the court determines. The commission may change the
18-24 commission's findings or decision after consideration of the
18-25 additional information. The commission shall file the additional
18-26 information with the reviewing court together with any change in
18-27 the commission's findings or decisions.
19-1 (g) A court shall conduct the review sitting without a jury.
19-2 The court may not go outside the administrative record, except that
19-3 the court may receive evidence of any procedural irregularity
19-4 alleged to have occurred before the commission that is not
19-5 reflected in the record.
19-6 SECTION 2. Sections 361.0833(a), (c), (d), (f), and (g),
19-7 Health and Safety Code, are amended to read as follows:
19-8 (a) After considering the factors in Subsection (e), the
19-9 commission may order the applicant for a permit for a new hazardous
19-10 waste management facility to pay reasonable costs an interested
19-11 [incurred by a] person incurred [affected] in presenting to the
19-12 commission information described by [set out in] Subsection (b)
19-13 pertinent to [to the commission on] the question of the issuance of
19-14 the permit.
19-15 (c) The commission may order the applicant for a permit for
19-16 a new hazardous waste management facility to pay reasonable costs
19-17 an interested [incurred by a] person incurred in presenting to the
19-18 commission at a hearing [affected who presented] information [to
19-19 the commission at a hearing] showing that the applicant:
19-20 (1) knowingly made false or misleading statements in
19-21 the application;
19-22 (2) knowingly made false or misleading statements
19-23 during the hearing; or
19-24 (3) failed to present information that the applicant
19-25 had in its possession that would have materially affected the
19-26 issues of fact and law on which the decision of the commission was
19-27 based.
20-1 (d) The total costs awarded under Subsection (a) to all
20-2 interested persons [affected under Subsection (a)] may not exceed
20-3 $100,000 for a new commercial hazardous waste management facility
20-4 or $20,000 for a new noncommercial hazardous waste management
20-5 facility. The total costs awarded under Subsection (c) to all
20-6 interested persons [affected under Subsection (c)] may not exceed
20-7 $150,000 for a new commercial hazardous waste management facility
20-8 or $30,000 for a new noncommercial hazardous waste management
20-9 facility.
20-10 (f) If the applicant fails or refuses to pay the amount of
20-11 costs ordered not later than the 30th day after the date of entry
20-12 of the final order granting payment of costs, the commission shall
20-13 order the applicant's bond or other financial assurance forfeited
20-14 in the amount of the costs ordered reimbursed under Subsection (a)
20-15 or (c) up to and including the full amount of the bond or other
20-16 financial assurance. The commission shall forward the forfeited
20-17 amount to the interested person [affected].
20-18 (g) If a [no] request [is made] for an award of costs under
20-19 this section is not made or if the commission determines that each
20-20 interested [a] person who requests an award for costs is not
20-21 [affected is determined by the commission not to be] entitled to an
20-22 award of costs, the commission shall release the bond or other
20-23 financial assurance of the applicant subject to an appeal of the
20-24 denial of costs under this section. The commission shall also
20-25 release the bond or other financial assurance on presentation of
20-26 proof that the costs awarded have been paid.
20-27 SECTION 3. Subchapter I, Chapter 2001, Government Code, is
21-1 amended by adding Section 2001.227 to read as follows:
21-2 Sec. 2001.227. CERTAIN ENVIRONMENTAL PERMITS. Subchapters
21-3 C-H do not apply to a permit application required to be filed with
21-4 the Texas Natural Resource Conservation Commission for an
21-5 authorization under Chapter 26 or 27, Water Code, or Chapter 361 or
21-6 382, Health and Safety Code, if the application is subject to
21-7 Subchapter J, Chapter 5, Water Code.
21-8 SECTION 4. (a) This Act takes effect September 1, 1997.
21-9 (b) The Texas Natural Resource Conservation Commission shall
21-10 adopt rules under Subchapter J, Chapter 5, Water Code, as added by
21-11 this Act, not later than January 1, 1998.
21-12 (c) Except as provided by Subsection (d) of this section, on
21-13 the effective date of the rules adopted under Subchapter J, Chapter
21-14 5, Water Code, as added by this Act, Subchapters C-H, Chapter 2001,
21-15 Government Code, or any provision in those subchapters, do not
21-16 apply to the subject matter of a reference to that law that occurs
21-17 in Chapter 26 or 27, Water Code, or Chapter 361 or 382, Health and
21-18 Safety Code. Subchapter J, Chapter 5, Water Code, applies to the
21-19 subject matter in place of the referenced law.
21-20 (d) The change in law made by this Act does not apply to an
21-21 application that is pending on the effective date of the rules
21-22 adopted under Subchapter J, Chapter 5, Water Code, as added by this
21-23 Act. An application that is pending on the effective date of those
21-24 rules is governed by the law as it existed immediately before the
21-25 effective date of those rules, and that law is continued in effect
21-26 for that purpose.
21-27 (e) Notwithstanding Subsection (d) of this section, an
22-1 applicant whose application is pending on or after the effective
22-2 date of this Act and on or before the effective date of the rules
22-3 adopted under Subchapter J, Chapter 5, Water Code, as added by this
22-4 Act, may elect that the changes made by this Act apply to the
22-5 application by notifying the Texas Natural Resource Conservation
22-6 Commission of the election in writing within 30 days after the date
22-7 on which those rules take effect. If the commission has not
22-8 adopted rules under Subchapter J, Chapter 5, Water Code, as added
22-9 by this Act, at the time the commission receives the notice, the
22-10 commission shall suspend the processing of the application until
22-11 the date the commission adopts the rules. The administrative
22-12 record of a proceeding that resumes on or after the date the
22-13 commission adopts those rules shall include the administrative
22-14 record developed before the proceeding was suspended.
22-15 SECTION 5. The importance of this legislation and the
22-16 crowded condition of the calendars in both houses create an
22-17 emergency and an imperative public necessity that the
22-18 constitutional rule requiring bills to be read on three several
22-19 days in each house be suspended, and this rule is hereby suspended.