Amend CSHB 801 by striking all below the enacting clause
(Senate Committee Printing, page 1, line 13) and substituting the
following:
SECTION 1. Section 5.115(a), Water Code, is amended to read
as follows:
(a) For the purpose of an administrative hearing held by or
for the commission involving a contested case, "affected person,"
or "person affected," or "person who may be affected" means a
person who has a personal justiciable interest related to a legal
right, duty, privilege, power, or economic interest affected by the
administrative hearing. An interest common to members of the
general public does not qualify as a personal justiciable interest.
<The commission is not required to hold a hearing if the commission
determines that the basis of a person's request for a hearing as an
affected person is not reasonable or is not supported by competent
evidence.> The commission shall adopt rules specifying factors
which must be considered in determining whether a person is an
affected person in any contested case arising under the air, waste,
or water programs within the commission's jurisdiction and whether
an affected association is entitled to standing in contested case
hearings.
SECTION 2. Chapter 5, Water Code, is amended by adding
Subchapter M to read as follows:
SUBCHAPTER M. ENVIRONMENTAL PERMITTING PROCEDURES
Sec. 5.551. PERMITTING PROCEDURES; APPLICABILITY. (a) This
subchapter establishes procedures for providing public notice, an
opportunity for public comment, and an opportunity for public
hearing under Subchapters C-H, Chapter 2001, Government Code,
regarding commission actions relating to a permit issued under
Chapter 26 or 27 of this code or Chapter 361, Health and Safety
Code. This subchapter is procedural and does not expand or
restrict the types of commission actions for which public notice,
an opportunity for public comment, and an opportunity for public
hearing are provided under Chapter 26 or 27 of this code or Chapter
361, Health and Safety Code.
(b) The commission by rule shall provide for additional
notice, opportunity for public comment, or opportunity for hearing
to the extent necessary to satisfy a requirement for United States
Environmental Protection Agency authorization of a state permit
program.
(c) In this subchapter, "permit" means a permit, approval,
registration, or other form of authorization required by law for a
person to engage in an action.
Sec. 5.552. NOTICE OF INTENT TO OBTAIN PERMIT. (a) The
executive director shall determine when an application is
administratively complete.
(b) Not later than the 30th day after the date the executive
director determines the application to be administratively
complete:
(1) the applicant shall publish notice of intent to
obtain a permit at least once in the newspaper of largest
circulation in the county in which the facility to which the
application relates is located or proposed to be located; and
(2) the chief clerk of the commission shall mail
notice of intent to obtain a permit to:
(A) the state senator and representative who
represent the general area in which the facility is located or
proposed to be located;
(B) the mayor and health authorities of the
municipality in which the facility is located or proposed to be
located;
(C) the county judge and health authorities of
the county in which the facility is located or proposed to be
located; and
(D) the river authority in which the facility is
located or proposed to be located if the application is under
Chapter 26, Water Code.
(c) The commission by rule shall establish the form and
content of the notice. The notice must include:
(1) the location and nature of the proposed activity;
(2) the location at which a copy of the application is
available for review and copying as provided by Subsection (e);
(3) a description, including a telephone number, of
the manner in which a person may contact the commission for further
information;
(4) a description, including a telephone number, of
the manner in which a person may contact the applicant for further
information;
(5) a description of the procedural rights and
obligations of the public, printed in a font style or size that
clearly provides emphasis and distinguishes it from the remainder
of the notice;
(6) a description of the procedure by which a person
may be placed on a mailing list in order to receive additional
information about the application;
(7) the time and location of any public meeting to be
held under Subsection (f); and
(8) any other information the commission by rule
requires.
(d) In addition to providing notice under Subsection (b)(1),
the applicant shall comply with any applicable public notice
requirements under Chapters 26 and 27 of this code, Chapter 361,
Health and Safety Code, and rules adopted under those chapters.
(e) The applicant shall make a copy of the application
available for review and copying at a public place in the county in
which the facility is located or proposed to be located.
(f) The applicant, in cooperation with the executive
director, may hold a public meeting in the county in which the
facility is located or proposed to be located in order to inform
the public about the application and obtain public input.
Sec. 5.553. PRELIMINARY DECISION; NOTICE AND PUBLIC COMMENT.
(a) The executive director shall conduct a technical review of and
issue a preliminary decision on the application.
(b) The applicant shall publish notice of the preliminary
decision in a newspaper.
(c) The commission by rule shall establish the form and
content of the notice, the manner of publication, and the duration
of the public comment period. The notice must include:
(1) the information required by Sections
5.552(c)(1)-(5);
(2) a summary of the preliminary decision;
(3) the location at which a copy of the preliminary
decision is available for review and copying as provided by
Subsection (e);
(4) a description of the manner in which comments
regarding the preliminary decision may be submitted; and
(5) any other information the commission by rule
requires.
(d) In addition to providing notice under this section, the
applicant shall comply with any applicable public notice
requirements under Chapters 26 and 27 of this code, Chapter 361,
Health and Safety Code, and rules adopted under those chapters.
(e) The applicant shall make a copy of the preliminary
decision available for review and copying at a public place in the
county in which the facility is located or proposed to be located.
Sec. 5.554. PUBLIC MEETING. During the public comment
period, the executive director may hold one or more public meetings
in the county in which the facility is located or proposed to be
located. The executive director shall hold a public meeting:
(1) on the request of a member of the legislature who
represents the general area in which the facility is located or
proposed to be located; or
(2) if the executive director determines that there is
substantial public interest in the proposed activity.
Sec. 5.555. RESPONSE TO PUBLIC COMMENTS. (a) The executive
director, in accordance with procedures provided by commission
rule, shall file with the chief clerk of the commission a response
to each relevant and material public comment on the preliminary
decision filed during the public comment period.
(b) The chief clerk of the commission shall transmit the
executive director's decision, the executive director's response to
public comments, and instructions for requesting that the
commission reconsider the executive director's decision or hold a
contested case hearing to:
(1) the applicant;
(2) any person who submitted comments during the
public comment period; and
(3) any person who requested to be on the mailing list
for the permit action.
Sec. 5.556. REQUEST FOR RECONSIDERATION OR CONTESTED CASE
HEARING. (a) A person may request that the commission reconsider
the executive director's decision or hold a contested case hearing.
A request must be filed with the commission during the period
provided by commission rule.
(b) The commission shall act on a request during the period
provided by commission rule.
(c) The commission may not grant a request for a contested
case hearing unless the commission determines that the request was
filed by an affected person as defined by Section 5.115.
(d) The commission may not refer an issue to the State
Office of Administrative Hearings for a hearing unless the
commission determines that the issue:
(1) involves a disputed question of fact;
(2) was raised during the public comment period; and
(3) is relevant and material to the decision on the
application.
(e) If the commission grants a request for a contested case
hearing it shall:
(1) limit the number and scope of the issues to be
referred to the State Office of Administrative Hearings for a
hearing; and
(2) consistent with the nature and number of the
issues to be considered at the hearing, specify the maximum
expected duration of the hearing.
(f) This section does not preclude the commission from
holding a hearing if it determines that the public interest
warrants doing so.
SECTION 3. Subchapter B, Chapter 26, Water Code, is amended
by adding Section 26.0286 to read as follows:
Sec. 26.0286. PROCEDURES APPLICABLE TO PERMITS FOR CERTAIN
CONCENTRATED ANIMAL FEEDING OPERATIONS. (a) In this section,
"sole-source surface drinking water supply" means a body of surface
water that:
(1) is designated as a public water supply in rules
adopted by the commission under Section 26.023; and
(2) is the single source of supply of a public water
supply system, exclusive of emergency water interconnections.
(b) The commission shall process an application for
authorization to construct or operate a concentrated animal feeding
operation as a specific permit under Section 26.028 subject to the
procedures provided by Subchapter M, Chapter 5, if the concentrated
animal feeding operation is located or proposed to be located:
(1) in the watershed of a sole-source surface drinking
water supply; and
(2) sufficiently close, as determined by the
commission by rule, to an intake of a public water supply system in
the sole-source surface drinking water supply that contaminants
discharged from the concentrated animal feeding operation could
potentially affect the public drinking water supply.
SECTION 4. Section 361.088, Health and Safety Code, is
amended by amending Subsection (c) and by adding Subsections (e)
and (f) to read as follows:
(c) Except as provided by Subsection (e), before <Before> a
permit is issued, amended, extended, or renewed, the commission
shall provide an opportunity for a hearing to the applicant and
persons affected. The commission may also hold a hearing on its
own motion.
(e) After complying with Sections 5.552-5.555, Water Code,
the commission, without providing an opportunity for a contested
case hearing, may act on an application to renew a permit for:
(1) storage of hazardous waste in containers, tanks,
or other closed vessels if the waste:
(A) was generated on-site; and
(B) does not include waste generated from other
waste transported to the site; and
(2) processing of hazardous waste if:
(A) the waste was generated on-site;
(B) the waste does not include waste generated
from other waste transported to the site; and
(C) the processing does not include thermal
processing.
(f) Notwithstanding Subsection (e), if the commission
determines that an applicant's compliance history for the preceding
five years raises an issue regarding the applicant's ability to
comply with a material term of its permit, the commission shall
provide an opportunity to request a contested case hearing.
SECTION 5. Section 382.056, Health and Safety Code, is
amended by amending Subsections (a), (b), (d), and (e) and adding
Subsections (f)-(p) to read as follows:
(a) An applicant for a permit under Section 382.0518 or
<382.054 or> a permit renewal review under Section 382.055 shall
publish notice of intent to obtain the permit or permit review not
later than the 30th day after the date the commission determines
the application to be administratively complete. The commission by
rule shall <may> require an applicant for a federal operating
permit under Section 382.054 to publish notice of intent to obtain
a permit or permit review consistent with federal requirements and
with the requirements of Subsection (b) <this section>. The
applicant shall publish the notice at least once in a newspaper of
general circulation in the municipality in which the facility or
federal source is located or is proposed to be located or in the
municipality nearest to the location or proposed location of the
facility or federal source. If the elementary or middle school
nearest to the facility or proposed facility provides a bilingual
education program as required by Subchapter B, Chapter 29,
Education Code, the applicant shall also publish the notice at
least once in an additional publication of general circulation in
the municipality or county in which the facility is located or
proposed to be located that is published in the language taught in
the bilingual education program. This requirement is waived if
such a publication does not exist or if the publisher refuses to
publish the notice. The commission by rule shall prescribe the
form and content of the notice and when notice must be published.
The commission <and> may require publication of additional notice.
The commission by rule shall prescribe alternative procedures for
publication of the notice in a newspaper if the applicant is a
small business stationary source as defined by Section 382.0365 and
will not have a significant effect on air quality. The alternative
procedures must be cost-effective while ensuring adequate notice.
Notice required to be published under this section shall only be
required to be published in the United States.
(b) The notice must include:
(1) a description of the location or proposed location
of the facility or federal source;
(2) the location at which a copy of the application is
available for review and copying as provided by Subsection (d) <a
statement that a person who may be affected by emissions of air
contaminants from the facility, proposed facility, or federal
source is entitled to request a hearing from the commission>;
(3) a description, including a telephone number, of
the manner in which the commission may be contacted for further
information; <and>
(4) a description, including a telephone number, of
the manner in which the applicant may be contacted for further
information;
(5) a description of the procedural rights and
obligations of the public, printed in a font style or size that
clearly provides emphasis and distinguishes it from the remainder
of the notice, that includes a statement that a person who may be
affected by emissions of air contaminants from the facility,
proposed facility, or federal source is entitled to request a
hearing from the commission;
(6) a description of the procedure by which a person
may be placed on a mailing list in order to receive additional
information about the application;
(7) the time and location of any public meeting to be
held under Subsection (e); and
(8) any other information the commission by rule
requires.
(d) The applicant shall make a copy of the application
available for review and copying at a public place in the county in
which the facility or federal source is located or proposed to be
located.
(e) The applicant, in cooperation with the executive
director, may hold a public meeting in the county in which the
facility or federal source is located or proposed to be located in
order to inform the public about the application and obtain public
input.
(f) The executive director shall conduct a technical review
of and issue a preliminary decision on the application.
(g) If, in response to the notice published under Subsection
(a) for a permit under Section 382.0518 or a permit renewal review
under Section 382.055, a person requests during the period provided
by commission rule that the commission hold a public hearing and
the request is not withdrawn before the date the preliminary
decision is issued, the applicant shall publish notice of the
preliminary decision in a newspaper, and the commission shall seek
public comment on the preliminary decision. The commission shall
consider the request for public hearing under the procedures
provided by Subsections (i)-(n). The commission may not seek
further public comment or hold a public hearing under the
procedures provided by Subsections (i)-(n) in response to a request
for a public hearing on <Except as provided by Section 382.0561 or
Subsection (e), the commission or its delegate shall hold a public
hearing on the permit application or permit renewal application
before granting the permit or renewal if a person who may be
affected by the emissions, or a member of the legislature from the
general area in which the facility or proposed facility is located,
requests a hearing within the period set by commission rule. The
commission shall not hold a hearing if the basis of a request by a
person who may be affected is determined to be unreasonable.
Reasons for which a request for a hearing on a permit amendment,
modification, or renewal shall be considered to be unreasonable
include, but are not limited to,> an amendment, modification, or
renewal that would not result in an increase in allowable emissions
and would not result in the emission of an air contaminant not
previously emitted.
(h) If, in response to the notice published under Subsection
(a) for a permit under Section 382.054, a person requests during
the public comment period provided by commission rule that the
commission hold a public hearing, the commission shall consider the
request under the procedures provided by Section 382.0561 and not
under the procedures provided by Subsections (i)-(n).
(i) The commission by rule shall establish the form and
content of the notice, the manner of publication, and the duration
of the public comment period. The notice must include:
(1) the information required by Subsection (b);
(2) a summary of the preliminary decision;
(3) the location at which a copy of the preliminary
decision is available for review and copying as provided by
Subsection (j);
(4) a description of the manner in which comments
regarding the preliminary decision may be submitted; and
(5) any other information the commission by rule
requires.
(j) The applicant shall make a copy of the preliminary
decision available for review and copying at a public place in the
county in which the facility is located or proposed to be located.
(k) During the public comment period, the executive director
may hold one or more public meetings in the county in which the
facility is located or proposed to be located. The executive
director shall hold a public meeting:
(1) on the request of a member of the legislature who
represents the general area in which the facility is located or
proposed to be located; or
(2) if the executive director determines that there is
substantial public interest in the proposed activity.
(l) The executive director, in accordance with procedures
adopted by the commission by rule, shall file with the chief clerk
of the commission a response to each relevant and material public
comment on the preliminary decision filed during the public comment
period.
(m) The chief clerk of the commission shall transmit the
executive director's decision, the executive director's response to
public comments, and instructions for requesting that the
commission reconsider the executive director's decision or hold a
contested case hearing to:
(1) the applicant;
(2) any person who submitted comments during the
public comment period;
(3) any person who requested to be on the mailing list
for the permit action; and
(4) any person who timely filed a request for a public
hearing in response to the notice published under Subsection (a).
(n) Except as provided by Section 382.0561, the commission
shall consider a request that the commission reconsider the
executive director's decision or hold a public hearing in
accordance with the procedures provided by Section 5.556, Water
Code.
(o) <(e)> Notwithstanding other provisions of this chapter,
the commission may hold a hearing on a permit amendment,
modification, or renewal if the commission <board> determines that
the application involves a facility for which the applicant's
compliance history contains violations which are unresolved and
which constitute a recurring pattern of egregious conduct which
demonstrates a consistent disregard for the regulatory process,
including the failure to make a timely and substantial attempt to
correct the violations.
(p) The commission by rule shall provide for additional
notice, opportunity for public comment, or opportunity for public
hearing to the extent necessary to satisfy a requirement to obtain
or maintain delegation or approval of a federal program.
SECTION 6. Section 2003.047, Government Code, is amended by
amending Subsections (e)-(j) and adding Subsections (k)-(o) to read
as follows:
(e) In referring a matter for hearing <When the office
receives jurisdiction of a proceeding>, the commission shall
provide to the administrative law judge a list of disputed issues.
The commission shall specify the date by which the administrative
law judge is expected to complete the proceeding and provide a
proposal for decision to the commission. The administrative law
judge may extend the proceeding if the administrative law judge
determines that failure to grant an extension would deprive a party
of due process or another constitutional right. The administrative
law judge shall establish a docket control order designed to
complete the proceeding by the date specified by the commission.
(f) Except as otherwise provided by this subsection, the
scope of the hearing is limited to the issues referred by the
commission. On the request of a party, the administrative law
judge may consider an issue that was not referred by the commission
if the administrative law judge determines that:
(1) the issue is material;
(2) the issue is supported by evidence; and
(3) there are good reasons for the failure to supply
available information regarding the issue during the public comment
period.
(g) The scope of permissible discovery is limited to:
(1) any matter reasonably calculated to lead to the
discovery of admissible evidence regarding any issue referred to
the administrative law judge by the commission or that the
administrative law judge has agreed to consider; and
(2) the production of documents:
(A) reviewed or relied on in preparing
application materials or selecting the site of the proposed
facility; or
(B) relating to the ownership of the applicant
or the owner or operator of the facility or proposed facility.
(h) The commission by rule shall:
(1) provide for subpoenas and commissions for
depositions; and
(2) require that discovery be conducted in accordance
with the Texas Rules of Civil Procedure, except that the commission
by rule shall determine the level of discovery under Rule 190,
Texas Rules of Civil Procedure, appropriate for each type of case
considered by the commission, taking into account the nature and
complexity of the case.
(i) <or areas that must be addressed. In addition, the
commission may identify and provide to the administrative law judge
at any time additional issues or areas that must be addressed.>
<(f)> The office and the commission jointly shall adopt
rules providing for certification to the commission of an issue
that involves an ultimate finding of compliance with or
satisfaction of a statutory standard the determination of which is
committed to the discretion or judgment of the commission by law.
The rules must address, at a minimum, the issues that are
appropriate for certification and the procedure to be used in
certifying the issue. Each agency shall publish the jointly adopted
rules.
(j) <(g)> An administrative law judge hearing a case on
behalf of the commission, on the judge's own motion or on motion of
a party and after notice and an opportunity for a hearing, may
impose appropriate sanctions as provided by Subsection (k) <(h)>
against a party or its representative for:
(1) filing a motion or pleading that is groundless and
brought:
(A) in bad faith;
(B) for the purpose of harassment; or
(C) for any other improper purpose, such as to
cause unnecessary delay or needless increase in the cost of the
proceeding;
(2) abuse of the discovery process in seeking, making,
or resisting discovery; or
(3) failure to obey an order of the administrative law
judge or the commission.
(k) <(h)> A sanction imposed under Subsection (j) <(g)> may
include, as appropriate and justified, issuance of an order:
(1) disallowing further discovery of any kind or of a
particular kind by the offending party;
(2) charging all or any part of the expenses of
discovery against the offending party or its representatives;
(3) holding that designated facts be considered
admitted for purposes of the proceeding;
(4) refusing to allow the offending party to support
or oppose a designated claim or defense or prohibiting the party
from introducing designated matters in evidence;
(5) disallowing in whole or in part requests for
relief by the offending party and excluding evidence in support of
those requests; and
(6) striking pleadings or testimony, or both, in whole
or in part.
(l) <(i)(1)> After hearing evidence and receiving legal
argument, an administrative law judge shall make findings of fact,
conclusions of law, and any ultimate findings required by statute,
all of which shall be separately stated. The administrative law
judge shall make a proposal for decision to the commission and
shall serve the proposal for decision on all parties. An
opportunity shall be given to each party to file exceptions to the
proposal for decision and briefs related to the issues addressed in
the proposal for decision. The commission shall consider and act
on the proposal for decision.
(m) <(2)> Except as provided in Section 361.0832, Health and
Safety Code, the commission shall consider the proposal for
decision prepared by the administrative law judge, the exceptions
of the parties, and the briefs and argument of the parties. The
commission may amend the proposal for decision, including any
finding of fact, but any such amendment thereto and order shall be
based solely on the record made before the administrative law
judge. Any such amendment by the commission shall be accompanied
by an explanation of the basis of the amendment. The commission
may also refer the matter back to the administrative law judge to
reconsider any findings and conclusions set forth in the proposal
for decision or take additional evidence or to make additional
findings of fact or conclusions of law. The commission shall serve
a copy of the commission's order, including its finding of facts
and conclusions of law, on each party.
(n) <(3)> The provisions of Chapter 2001<,> shall apply to
contested case hearings for the commission to the extent not
inconsistent with this section.
(o) <(j)> An administrative law judge hearing a case on
behalf of the commission may not, without the agreement of all
parties, issue an order referring the case to an alternative
dispute resolution procedure if the commission has already
conducted an unsuccessful alternative dispute resolution procedure.
If the commission has not already conducted an alternative dispute
resolution procedure, the administrative law judge shall consider
the commission's recommendation in determining whether to issue an
order referring the case to the procedure.
SECTION 7. (a) This Act takes effect September 1, 1999.
(b) The changes in law made by this Act apply only to an
application to issue, amend, or renew a permit that is declared to
be administratively complete on or after the effective date of this
Act. An application to issue, amend, or renew a permit that was
declared to be administratively complete before the effective date
of this Act is governed by the former law, and that law is
continued in effect for that purpose.
(c) The changes in law made by Section 5 of this Act do not
expand or restrict the types of actions of the Texas Natural
Resource Conservation Commission for which public notice, an
opportunity for public comment, and an opportunity for public
hearing under Subchapters C-H, Chapter 2001, Government Code, are
provided under Chapter 382, Health and Safety Code.
SECTION 8. The importance of this legislation and the crowded
condition of the calendars in both houses create an emergency and
an imperative public necessity that the constitutional rule
requiring bills to be read on three several days in each house be
suspended, and this rule is hereby suspended.