HBA-RBT H.B. 801 76(R)BILL ANALYSIS
Office of House Bill AnalysisC.S.H.B. 801
By: Uher
Environmental Regulation
4/13/1999
Committee Report (Substituted)
BACKGROUND AND PURPOSE
The Texas Natural Resource Conservation Commission (commission) is
responsible for permitting programs which authorize wastewater discharges,
hazardous and solid waste management, underground injection, and air
emissions. For certain commission actions, state law requires that the
public be afforded an opportunity to request a contested case hearing. In
1975, the Legislature passed the Administrative Procedure and Texas
Register Act, which established the current process for contested case
hearings. This process pre-dates many of the refinements to administrative
decision-making and public involvement that have occurred both at the
federal level and in other states.
C.S.H.B. 801 modifies the current permitting process for certain
environmental permit programs administered by the commission for which
public notice and opportunity for hearing are currently required. This
bill requires early public notice, encourages early public involvement, and
requires substantive public comment and agency response. This bill
establishes criteria that would limit the scope of hearings by requiring
referral of discrete issues that are in dispute and material to the
decision of the commission. In addition, the bill requires the commission
to establish hearing deadlines to prevent unnecessary delays in the
permitting process. This process will apply to applications for issuance,
amendment, and renewal of permits pursuant to Chapters 26 and 27 of the
Water Code (water quality permits, underground injection permits) and
Chapters 361 and 382 of the Health and Safety Code (solid waste permits,
air permits).
RULEMAKING AUTHORITY
It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Natural Resource Conservation
Commission in SECTION 2 (Sections 5.551, 5.552, 5.553, 5.555, and 5.556,
Water Code); SECTION 4 (Section 382.056, Health and Safety Code); and
SECTION 5 (Section 2003.47, Government Code) of this bill.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Section 5.115(a), Water Code, to delete text providing
that the Texas Natural Resource Conservation Commission (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.
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 applies only to commission permit actions for which public
notice and an opportunity for public hearing under Subchapter C-H, Chapter
2001 of the Government Code, are required under Chapter 26 or 27 of the
Water Code (concerning water quality permits or underground injection
permits) or under Chapter 361, Health and Safety Code (concerning solid
waste permits). Provides that this subchapter does not expand or restrict
the types of commission actions for which notice and an opportunity for
public hearing under Subchapters C-H, Chapter 2001, Government Code, are
required. Requires the commission by rule to provide for additional
notice, opportunity for public comment, or opportunity for hearing to
satisfy requirements for United States Environmental Protection Agency
authorization of a state permit program. Defines "permit."
Sec. 5.552. NOTICE OF INTENT TO OBTAIN PERMIT. Requires the executive
director to determine when an application is administratively complete.
Requires the applicant to publish notice of intent to obtain a permit
within 30 days after the determination of administrative completeness.
Specifies how and to whom notice must be given. Requires the commission,
by rule, to establish the form and content of the initial notice.
Specifies minimum requirements for information to be contained in the
notice. Requires the applicant to comply with any additional public notice
requirements imposed by the applicable requirements of Chapters 26 and 27
of the Water Code and Chapter 361 of the Health and Safety Code and the
regulations promulgated under those chapters. Requires the permit
applicant to place a copy of the application for review and copying in a
public place in the county in which the facility is located or proposed to
be located. Allows the permit applicant, in cooperation with the executive
director, to hold a public meeting in the county where the facility is
located or proposed to be located to inform the public about the
application and to seek input from the public.
Sec. 5.553. PRELIMINARY DECISION; NOTICE AND PUBLIC COMMENT. Requires
the executive director to conduct a technical review of the application and
issue a preliminary decision. Requires the applicant to publish notice
announcing the executive director's preliminary decision. Requires the
commission by rule to establish the form and content of the notice, the
manner of newspaper publication, and the length of the comment period.
Specifies minimum requirements for notice information. Requires the
applicant to comply with any additional public notice requirements imposed
by the applicable requirements of Chapters 26 and 27 of the Water Code and
Chapter 361 of the Health and Safety Code and the regulations promulgated
under those chapters. Requires the applicant to make a copy of the
preliminary decision available for review and copying in a public place in
the county in which the facility is located or proposed to be located.
Sec. 5.554. PUBLIC MEETING. Authorizes the executive director, during
the comment period, to convene public meetings in the county where the
facility is located or proposed to be located. Requires that a public
meeting be convened if requested by a member of the legislature from the
general area in which the facility is located or proposed to be located, or
if the executive director concludes that there is substantial public
interest.
Section 5.555. RESPONSE TO PUBLIC COMMENTS. Requires the executive
director to file with the chief clerk of the commission a response to each
relevant and material public comment on the preliminary decision. Requires
the chief clerk to transmit to certain persons the executive director's
response to comment responses, the executive director's decision, and
instructions for seeking reconsideration.
Section 5.556. REQUEST FOR RECONSIDERATION OR CONTESTED CASE HEARING.
Provides that an affected person may request that the commission reconsider
the preliminary decision or hold a contested case hearing. Provides that
such a request must be filed with the commission within the time frame
established by commission rule. Requires the commission to act on a request
for reconsideration or for contested case hearing within the time frame
established by commission rule. Prohibits the commission from granting a
request for a contested case hearing unless the affected person mets the
definition in Section 5.115 (Persons Affected in Commission Hearings;
Notice of Application), Water Code. Specifies the criteria governing the
commission's decision to refer an issue to the State Office of
Administrative Hearings (SOAH) for hearing. Provides that if the
commission grants a hearing request it must limit the number and scope of
issues considered and specify the maximum expected duration of the hearing.
Provides that nothing in the section precludes the commission from holding
a hearing if it determines that the public interest warrants doing so.
SECTION 3. Amends Section 361.088, Health and Safety Code, by amending
Subsection (c), and by adding Subsections (e) and (f), to authorize the
commission to act on certain types of applications without providing an
opportunity for a contested case hearing after early public notice and
notice of preliminary decision and public comment have been given as
required. Requires the commission to provide an opportunity for a
contested case hearing if the 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.
SECTION 4. Amends Section 382.056, Health and Safety Code, by amending
Subsections (a), (b), (d), and (e), and adding Subsections (f)-(n), as
follows:
(a) Requires an applicant for a preconstruction permit, a federal operating
permit, or a permit renewal review who publishes notice of intent to obtain
the permit or permit review, to do so within 30 days following the
determination of administrative completeness. Requires the commission to
prescribe the form and content of the notice in addition to when notice
must be published.
(b) Provides additional notice requirements. Deletes text concerning a
statement to be included in the notice by affected persons entitled to
request a hearing. Makes conforming changes.
(d) Requires the permit applicant to place a copy of the application for
review and copying in a public place in the county in which the facility is
located or proposed to be located.
(e) Authorizes an applicant, in cooperation with the executive director, to
hold a public meeting to inform the public about the application and to
seek input from the public.
(f) Requires the executive director to conduct a technical review of the
application and issue a preliminary decision.
(g) Provides for further public notice and comment procedures where a
person makes a timely hearing request following the initial public notice
that is not withdrawn prior to the executive director's preliminary
decision. Prohibits the commission from seeking further public comment or
holding a hearing in response to a hearing request on an amendment,
modification, or renewal that would not result in an increase in allowable
emissions and that would not result in the emission of an air contaminant
not previously emitted. Makes conforming changes.
(h) Requires the commission, by rule, to establish the form and content of
the notice, the manner of publication, and the duration of the comment
period. Specifies minimum requirements for notice.
(i) Requires the applicant to make a copy of the preliminary decision
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.
(j) Authorizes the executive director to convene public meetings in the
county where the facility is located or proposed. Specifies conditions
under which the executive director is required to hold a public meeting.
(k) Requires the executive director to prepare and file application
decisions and comment responses with the chief clerk.
(l) Requires the chief clerk to transmit to certain persons the executive
director's comment responses, the executive director's decision, and
instructions for seeking reconsideration.
(m) Provides that the commission's consideration of a request for a public
hearing and requests for reconsideration are governed by Section 5.556,
Water Code, except as provided by Section 382.0561.
(n) Makes a conforming change.
SECTION 5. Amends Section 2003.047, Government Code, by amending
Subsections (e)-(j), and adding Subsections (k)-(o), as follows:
(e) Requires the commission to provide to the administrative law judge a
date by which the proceeding is expected to be completed and a proposal for
decision provided to the commission. Specifies circumstances in which the
administrative law judge may extend the proceeding and requiring the
administrative law judge to establish a docket control order.
(f) Establishes the scope of issues to be considered at the hearing.
(g) Establishes the scope of permissible discovery.
(h) Requires the commission to promulgate discovery rules that are
consistent with the nature and complexity of the types of cases considered
by the commission.
Redesignates Subsections (f)-(j) to (i)-(o)
SECTION 6. Effective date: September 1, 1999.
Makes application of this Act prospective.
SECTION 7. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
SECTION 1 of the original bill added Subchapter M, Chapter 5, Water Code
(Environmental Permitting Procedures), including proposed Sections
5.551-5.559, Water Code, which: established a regulatory scheme for
environmental permitting procedures which defined permit, set forth the
circumstances in which the Act applied; provided for public notice and an
opportunity to comment and allowed certain persons to request a public
hearing; established procedures for public hearings; provided for a
supplemental information process; required the executive director to issue
decisions on the permit applications; and provided for commission and
judicial review.
The substitute in SECTION 2 adds a new proposed Subchapter M, Chapter 5,
Water Code (Environmental Permitting Procedures), including Sections
5.551-5.556, Water Code, thereby replacing the proposed regulatory scheme
with a different regulatory scheme for environmental permitting procedures,
which: provides the applicability of permitting procedures; requires the
publication of notice of intent to obtain a permit; requires the executive
director to issue a preliminary decision and provide notice and an
opportunity for public comment; provides for a public meeting; provides for
a response to public comments, and provides for a request for
reconsideration or contested case hearing.
The substitute modifies the original in SECTION 1 by adding proposed
Section 5.115(a), Water Code, to delete text providing that the Texas
Natural Resource Conservation Commission (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 substitute modifies the original in SECTION 3 by amending Section
361.088, Health and Safety Code, by amending Subsection (c), and by adding
Subsections (e) and (f), relating to whether the commission is required to
provide an opportunity for a contested case hearing
The substitute modifies the original in SECTION 4 by amending Section
382.056, Health and Safety Code, by amending Subsections (a), (b), (d), and
(e), and adding Subsections (f)-(n), authorizing the commission to renew
certai permits without providing an opportunity for a contested case
hearing.
The substitute modifies the original in SECTION 5 by amending Section
2003.047, Government Code, by amending Subsections (e)-(j), and adding
Subsections (k)-(o), to set forth requirements relating to the nature and
scope of administrative hearings.
The substitute modifies the original by redesignating SECTIONS 2 (effective
date) and 3 (emergency clause) as SECTIONS 6 and 7.