SRC-DPW H.B. 801 76(R)   BILL ANALYSIS


Senate Research Center   H.B. 801
By: Uher (Armbrister)
Natural Resources
5/5/1999
Engrossed


DIGEST 

Currently, if an application to issue, amend, or renew a permit for which
public notice and an opportunity for public hearing is required or allowed
under Chapter 26 or 27, Water Code, or required or allowed under Chapter
361 or 382, Health and Safety Code, and the application is contested,
Chapter 2001, Government Code, applies.  This bill would establish that
Subchapters D H of Chapter 2001 do not apply to the aforementioned permit
applications and establishes an alternative procedure for such proceedings. 

PURPOSE

As proposed, H.B. 801 establishes procedures for public participation in
certain environmental permitting procedures of the Texas Natural Resource
Conservation Commission. 

RULEMAKING AUTHORITY

Rulemaking authority is granted to the Texas Natural Resource Conservation
Commission in SECTIONS 2, 3, 5, and 6  (Section 5.551(b) and (c), Section
5.555(a), and Section 5.556(a), Section 26.0286(b)(2), Water Code, Section
382.056(a) and (g), Health and Safety Code, and Section 2003.047(h),
Government Code) of this bill.  

SECTION BY SECTION ANALYSIS

SECTION 1. Amens Section 5.115(a), Water Code, to delete a provision
regarding a requirement to hold a hearing. 

SECTION 2. Amends Chapter 5, Water Code, by adding Subchapter M, as follows:

SUBCHAPTER M. ENVIRONMENTAL PERMITTING PROCEDURES

Sec. 5.551. PERMITTING PROCEDURES; APPLICABILITY. Provides that this
subchapter establishes procedures for providing public notice, an
opportunity for public comment and hearing (public actions) regarding the
Texas Natural Resource Conservation Commission (commission) actions
relating to a permit issued under Chapter 26 or 27 of  this code or Chapter
361, Health and Safety Code, and that this subchapter does not restrict or
expand 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 or Chapter 361, Health and Safety Code.
Requires the commission, by rule, to provide for additional public actions
to the extent necessary to satisfy a requirement for United States
Environmental Protection Agency (EPA) authorization of a state permit
program.  Defines "permit." 

Sec. 5.552. NOTICE OF INTENT TO OBTAIN PERMIT. Requires the executive
director of the commission (executive director) to determine when an
application is administratively complete.  Requires an applicant to publish
notice of intent to obtain a permit (notice) in a newspaper and requires
the chief clerk of the commission (clerk) to mail the notice of intent to
obtain a permit to certain governmental offices, not later than 30 days
after the executive director determines an application to be
administratively complete.  Requires the commission, by rule, to establish
the form and content of the notice.  Requires the notice to include certain
information regarding the proposed activity.  Requires an applicant to
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.  Requires the applicant to make a copy of the
application available for public review and copy.  Authorizes the applicant
to hold a public meeting to inform the public about the application and
obtain public input.   

Sec. 5.553. PRELIMINARY DECISION; NOTICE AND PUBLIC COMMENT. Requires the
executive director to conduct a technical review of and issue a preliminary
decision on the application.  Requires the applicant to publish notice of
the preliminary decision in a newspaper. Requires the commission, by rule,
to establish the form and content of the notice, the manner of publication,
and the duration of the public comment period.  Requires the notice to
include certain information regarding the preliminary decision.  Requires
the applicant to make a copy of the preliminary decision available for
public review and copy. Makes conforming changes. 

Sec. 5.554. PUBLIC MEETING. Authorizes the executive director to hold
public meetings and requires the executive director to hold such meetings
at the request of the member of the legislature who represents the general
area in which the facility is located or proposed to be located or if the
executive director determines that there is substantial public interest in
the proposed activity.   

Sec. 5.555. RESPONSE TO PUBLIC COMMENTS. Requires the executive director to
file with the clerk a response to each relevant and material public comment
on the preliminary decision filed during the public comment period.
Requires the clerk to transmit to certain persons involved with the
proposed activity, the executive director's decision, response to public
comments and instructions for requesting that the commission reconsider the
executive director's decision or hold a contested case hearing. 

Sec 5.556. REQUEST FOR RECONSIDERATION OR CONTESTED CASE HEARING.
Authorizes a person to file a request, during the period provided by
commission rule, for the commission to reconsider the executive director's
decision or hold a contested case hearing. Requires the commission to act
on a request during a period provided by commission rule. Prohibits the
commission from granting a request for a contested case hearing unless it
is determined that the request was filed by a person affected as defined by
Section 5.115. Prohibits the commission from referring an issue to the
State Office of Administrative Hearings (SOAH) unless the commission makes
certain determinations.  Requires the commission to limit the number and
scope of the issues to be referred to SOAH and specify the maximum expected
duration of the hearing, if the commission grants a request for a contested
case hearing.  Provides that this section does not preclude the commission
from holding a hearing if it determines that the public interest warrants
doing so. 

SECTION 3. Amends Chapter 26B, Water Code, by adding Section 26.0286, as
follows: 

Sec. 26.086. PROCEDURES APPLICABLE TO PERMITS FOR CERTAIN CONCENTRATED
ANIMAL FEEDING OPERATIONS. Defines "sole-source surface drinking water
supply."  Requires the commission to process an application for
authorization to construct and operate a concentrated animal feeding
operation (feeding operation) as a specific permit under Section 26.028
subject to the procedures provided by Chapter 5M, if the feeding operation
is located or proposed to be located in the watershed of a sole-source
surface drinking water supply and sufficiently close, as determined by
commission rule, to potentially affect the public drinking water supply.   

SECTION 4. Amends Section 361.088, Health and Safety Code, by amending
Subsection (c) and adding Subsections (e) and (f), to require the
commission to provide an opportunity for public hearing before a permit is
issued, except as provided by Subsection (e).  Authorizes the commission,
without providing an opportunity for a contest case hearing, to act on an
application to renew certain permits regarding the storage and processing
of hazardous waste under specified conditions. Requires the commission to
provide an opportunity to request a contested case hearing if the
commission determines an issue of an applicant's ability to comply with a
material term of a permit  is raised, notwithstanding Subsection (e). 

SECTION 5. Amends Section 382.056, Health and Safety Code, by amending
Subsections (a), (b), (d), and (e) and adding Subsections (f) - (p), to
require an applicant for a permit under Section 382.0518, rather than
Section 382.054, or  a permit renewal under Section 382.055 (state permit)
to 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.  Requires, rather than authorizes, the
commission to require an applicant for a federal operating permit under
Section 382.054 to publish notice consistent with the requirements of
Subsection (b), rather than of this section.  Requires the commission, by
rule, to prescribe the form and content of the notice. Authorizes the
commission to require the publication of an additional notice.  Requires
the commission, by rule, to prescribe alternative procedures for
publication of the notice in a newspaper if the applicant is a small
business stationary source and will not have a significant effect on air
quality.  Requires the alternative procedures to be cost-effective.
Requires the notice to include certain information.  Requires the executive
director to conduct a technical review of and issue a preliminary decision
on the application.  Requires the applicant to publish notice of the
preliminary decision in a newspaper and requires the commission to seek
public comment on the preliminary decision, if a person requests during the
period determined by commission rule that the commission hold a public
hearing and the request is not withdrawn prior to the issuance of the
preliminary decision.  Requires the commission to consider a request for
public hearing under the procedures provided by Subsections (i) - (n).
Prohibits the commission from seeking further public comment or hold public
hearing under the procedures provided by Subsections (i) - (n) in response
to a request for a public hearing on a modification that would result in an
increase in allowable emissions. Requires the commission to consider a
request for public comment made during the period provided by commission
rule under the procedures provided by Section 382.0561 and not under the
procedures provided by Subsections (i) - (n).  Requires a notice published
under Subsection (a) to include certain information.  Requires the clerk to
transmit to certain persons, including any person who timely filed a
request for a public hearing in response to the notice published under
Subsection (a), the executive director's decision, response to public
comments and instructions for requesting that the commission reconsider the
executive director's decision or hold a contested case.  Requires the
commission to 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, except as provided by
Section 382.0561.  Authorizes the commission to hold a hearing on a permit
amendment if the commission, rather than board, determines that an
applicant has a negative compliance history.  Requires the commission, by
rule, to provide for public actions to the extent necessary to satisfy a
requirement to obtain or maintain delegation or approval of a federal
program.  Deletes text regarding a statement that a person may be affected
by certain air contaminants.  Deletes a provision requiring the commission
to hold a public hearing.  Makes conforming changes.  

SECTION 6. Amends Section 2003.047, Government Code, by amending
Subsections (e) - (j) and adding Subsections (k) - (o), to require the
commission to provide a list of disputed issues to an administrative law
judge (judge) in referring a matter for hearing, rather than when the
office receives jurisdiction of a proceeding.  Requires the commission to
specify the date by which the administrative law judge is expected to
complete the proceeding and provide a proposal for decision. Authorizes the
judge to extend the proceeding if the judge determines that failure to
grant an extension would deprive a party of due process.  Requires the
judge to establish a docket control order designed to complete the
proceeding by the date specified by the commission.  Provides that the
scope of the hearing is limited to the issues referred by the commission,
except as otherwise provided by this subsection.  Authorizes a judge to
consider an issue that was not referred by the commission under certain
circumstances.  Sets forth limitations to the scope of permissible
discovery.  Requires the commission, by rule, to provide for subpoenas and
commissions for depositions, and require that discovery be conducted in
accordance with the Texas Rules of Civil Procedure, except that the
commission by rule is required to determine the level of discovery under
Rule 190, Texas Rules of Civil Procedure.  Deletes a provision regarding
areas that must be addressed.  Makes conforming changes.   

SECTION 7. (a) Effective date: September 1, 1999.

 (b) Makes application of this Act prospective.

(c) Provides that the changes in law made by SECTION 5 do not expand or
restrict the types of actions of the commission for which public actions
are provided under Chapter 382, Health and Safety Code. 

SECTION 8. Emergency clause.