By Uher, Keffer, Bonnen, Culberson, Hawley, H.B. No. 801
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to public participation in certain environmental
1-3 permitting procedures of the Texas Natural Resource Conservation
1-4 Commission.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 5.115(a), Water Code, is amended to read
1-7 as follows:
1-8 (a) For the purpose of an administrative hearing held by or
1-9 for the commission involving a contested case, "affected person,"
1-10 or "person affected," or "person who may be affected" means a
1-11 person who has a personal justiciable interest related to a legal
1-12 right, duty, privilege, power, or economic interest affected by the
1-13 administrative hearing. An interest common to members of the
1-14 general public does not qualify as a personal justiciable interest.
1-15 [The commission is not required to hold a hearing if the commission
1-16 determines that the basis of a person's request for a hearing as an
1-17 affected person is not reasonable or is not supported by competent
1-18 evidence.] The commission shall adopt rules specifying factors
1-19 which must be considered in determining whether a person is an
1-20 affected person in any contested case arising under the air, waste,
1-21 or water programs within the commission's jurisdiction and whether
1-22 an affected association is entitled to standing in contested case
1-23 hearings.
1-24 SECTION 2. Chapter 5, Water Code, is amended by adding
1-25 Subchapter M to read as follows:
2-1 SUBCHAPTER M. ENVIRONMENTAL PERMITTING PROCEDURES
2-2 Sec. 5.551. PERMITTING PROCEDURES; APPLICABILITY. (a) This
2-3 subchapter establishes procedures for providing public notice, an
2-4 opportunity for public comment, and an opportunity for public
2-5 hearing under Subchapters C-H, Chapter 2001, Government Code,
2-6 regarding commission actions relating to a permit issued under
2-7 Chapter 26 or 27 of this code or Chapter 361, Health and Safety
2-8 Code. This subchapter is procedural and does not expand or
2-9 restrict the types of commission actions for which public notice,
2-10 an opportunity for public comment, and an opportunity for public
2-11 hearing are provided under Chapter 26 or 27 of this code or Chapter
2-12 361, Health and Safety Code.
2-13 (b) The commission by rule shall provide for additional
2-14 notice, opportunity for public comment, or opportunity for hearing
2-15 to the extent necessary to satisfy a requirement for United States
2-16 Environmental Protection Agency authorization of a state permit
2-17 program.
2-18 (c) In this subchapter, "permit" means a permit, approval,
2-19 registration, or other form of authorization required by law for a
2-20 person to engage in an action.
2-21 Sec. 5.552. NOTICE OF INTENT TO OBTAIN PERMIT. (a) The
2-22 executive director shall determine when an application is
2-23 administratively complete.
2-24 (b) Not later than the 30th day after the date the executive
2-25 director determines the application to be administratively
2-26 complete:
2-27 (1) the applicant shall publish notice of intent to
3-1 obtain a permit at least once in the newspaper of largest
3-2 circulation in the county in which the facility to which the
3-3 application relates is located or proposed to be located; and
3-4 (2) the chief clerk of the commission shall mail
3-5 notice of intent to obtain a permit to:
3-6 (A) the state senator and representative who
3-7 represent the general area in which the facility is located or
3-8 proposed to be located;
3-9 (B) the mayor and health authorities of the
3-10 municipality in which the facility is located or proposed to be
3-11 located;
3-12 (C) the county judge and health authorities of
3-13 the county in which the facility is located or proposed to be
3-14 located; and
3-15 (D) the river authority in which the facility is
3-16 located or proposed to be located if the application is under
3-17 Chapter 26, Water Code.
3-18 (c) The commission by rule shall establish the form and
3-19 content of the notice. The notice must include:
3-20 (1) the location and nature of the proposed activity;
3-21 (2) the location at which a copy of the application is
3-22 available for review and copying as provided by Subsection (e);
3-23 (3) a description, including a telephone number, of
3-24 the manner in which a person may contact the commission for further
3-25 information;
3-26 (4) a description, including a telephone number, of
3-27 the manner in which a person may contact the applicant for further
4-1 information;
4-2 (5) a description of the procedural rights and
4-3 obligations of the public, printed in a font style or size that
4-4 clearly provides emphasis and distinguishes it from the remainder
4-5 of the notice;
4-6 (6) a description of the procedure by which a person
4-7 may be placed on a mailing list in order to receive additional
4-8 information about the application;
4-9 (7) the time and location of any public meeting to be
4-10 held under Subsection (f); and
4-11 (8) any other information the commission by rule
4-12 requires.
4-13 (d) In addition to providing notice under Subsection (b)(1),
4-14 the applicant shall comply with any applicable public notice
4-15 requirements under Chapters 26 and 27 of this code, Chapter 361,
4-16 Health and Safety Code, and rules adopted under those chapters.
4-17 (e) The applicant shall make a copy of the application
4-18 available for review and copying at a public place in the county in
4-19 which the facility is located or proposed to be located.
4-20 (f) The applicant, in cooperation with the executive
4-21 director, may hold a public meeting in the county in which the
4-22 facility is located or proposed to be located in order to inform
4-23 the public about the application and obtain public input.
4-24 Sec. 5.553. PRELIMINARY DECISION; NOTICE AND PUBLIC COMMENT.
4-25 (a) The executive director shall conduct a technical review of and
4-26 issue a preliminary decision on the application.
4-27 (b) The applicant shall publish notice of the preliminary
5-1 decision in a newspaper.
5-2 (c) The commission by rule shall establish the form and
5-3 content of the notice, the manner of publication, and the duration
5-4 of the public comment period. The notice must include:
5-5 (1) the information required by Sections
5-6 5.552(c)(1)-(5);
5-7 (2) a summary of the preliminary decision;
5-8 (3) the location at which a copy of the preliminary
5-9 decision is available for review and copying as provided by
5-10 Subsection (e);
5-11 (4) a description of the manner in which comments
5-12 regarding the preliminary decision may be submitted; and
5-13 (5) any other information the commission by rule
5-14 requires.
5-15 (d) In addition to providing notice under this section, the
5-16 applicant shall comply with any applicable public notice
5-17 requirements under Chapters 26 and 27 of this code, Chapter 361,
5-18 Health and Safety Code, and rules adopted under those chapters.
5-19 (e) The applicant shall make a copy of the preliminary
5-20 decision available for review and copying at a public place in the
5-21 county in which the facility is located or proposed to be located.
5-22 Sec. 5.554. PUBLIC MEETING. During the public comment
5-23 period, the executive director may hold one or more public meetings
5-24 in the county in which the facility is located or proposed to be
5-25 located. The executive director shall hold a public meeting:
5-26 (1) on the request of a member of the legislature who
5-27 represents the general area in which the facility is located or
6-1 proposed to be located; or
6-2 (2) if the executive director determines that there is
6-3 substantial public interest in the proposed activity.
6-4 Sec. 5.555. RESPONSE TO PUBLIC COMMENTS. (a) The executive
6-5 director, in accordance with procedures provided by commission
6-6 rule, shall file with the chief clerk of the commission a response
6-7 to each relevant and material public comment on the preliminary
6-8 decision filed during the public comment period.
6-9 (b) The chief clerk of the commission shall transmit the
6-10 executive director's decision, the executive director's response to
6-11 public comments, and instructions for requesting that the
6-12 commission reconsider the executive director's decision or hold a
6-13 contested case hearing to:
6-14 (1) the applicant;
6-15 (2) any person who submitted comments during the
6-16 public comment period; and
6-17 (3) any person who requested to be on the mailing list
6-18 for the permit action.
6-19 Sec. 5.556. REQUEST FOR RECONSIDERATION OR CONTESTED CASE
6-20 HEARING. (a) A person may request that the commission reconsider
6-21 the executive director's decision or hold a contested case hearing.
6-22 A request must be filed with the commission during the period
6-23 provided by commission rule.
6-24 (b) The commission shall act on a request during the period
6-25 provided by commission rule.
6-26 (c) The commission may not grant a request for a contested
6-27 case hearing unless the commission determines that the request was
7-1 filed by an affected person as defined by Section 5.115.
7-2 (d) The commission may not refer an issue to the State
7-3 Office of Administrative Hearings for a hearing unless the
7-4 commission determines that the issue:
7-5 (1) involves a disputed question of fact;
7-6 (2) was raised during the public comment period; and
7-7 (3) is relevant and material to the decision on the
7-8 application.
7-9 (e) If the commission grants a request for a contested case
7-10 hearing it shall:
7-11 (1) limit the number and scope of the issues to be
7-12 referred to the State Office of Administrative Hearings for a
7-13 hearing; and
7-14 (2) consistent with the nature and number of the
7-15 issues to be considered at the hearing, specify the maximum
7-16 expected duration of the hearing.
7-17 (f) This section does not preclude the commission from
7-18 holding a hearing if it determines that the public interest
7-19 warrants doing so.
7-20 SECTION 3. Subchapter B, Chapter 26, Water Code, is amended
7-21 by adding Section 26.0286 to read as follows:
7-22 Sec. 26.0286. PROCEDURES APPLICABLE TO PERMITS FOR CERTAIN
7-23 CONCENTRATED ANIMAL FEEDING OPERATIONS. (a) In this section,
7-24 "sole-source surface drinking water supply" means a body of surface
7-25 water that:
7-26 (1) is designated as a public water supply in rules
7-27 adopted by the commission under Section 26.023; and
8-1 (2) is the single source of supply of a public water
8-2 supply system, exclusive of emergency water interconnections.
8-3 (b) The commission shall process an application for
8-4 authorization to construct or operate a concentrated animal feeding
8-5 operation as a specific permit under Section 26.028 subject to the
8-6 procedures provided by Subchapter M, Chapter 5, if the concentrated
8-7 animal feeding operation is located or proposed to be located:
8-8 (1) in the watershed of a sole-source surface drinking
8-9 water supply; and
8-10 (2) sufficiently close, as determined by the
8-11 commission by rule, to an intake of a public water supply system in
8-12 the sole-source surface drinking water supply that contaminants
8-13 discharged from the concentrated animal feeding operation could
8-14 potentially affect the public drinking water supply.
8-15 SECTION 4. Section 361.088, Health and Safety Code, is
8-16 amended by amending Subsection (c) and by adding Subsections (e)
8-17 and (f) to read as follows:
8-18 (c) Except as provided by Subsection (e), before [Before] a
8-19 permit is issued, amended, extended, or renewed, the commission
8-20 shall provide an opportunity for a hearing to the applicant and
8-21 persons affected. The commission may also hold a hearing on its
8-22 own motion.
8-23 (e) After complying with Sections 5.552-5.555, Water Code,
8-24 the commission, without providing an opportunity for a contested
8-25 case hearing, may act on an application to renew a permit for:
8-26 (1) storage of hazardous waste in containers, tanks,
8-27 or other closed vessels if the waste:
9-1 (A) was generated on-site; and
9-2 (B) does not include waste generated from other
9-3 waste transported to the site; and
9-4 (2) processing of hazardous waste if:
9-5 (A) the waste was generated on-site;
9-6 (B) the waste does not include waste generated
9-7 from other waste transported to the site; and
9-8 (C) the processing does not include thermal
9-9 processing.
9-10 (f) Notwithstanding Subsection (e), if the commission
9-11 determines that an applicant's compliance history for the preceding
9-12 five years raises an issue regarding the applicant's ability to
9-13 comply with a material term of its permit, the commission shall
9-14 provide an opportunity to request a contested case hearing.
9-15 SECTION 5. Section 382.056, Health and Safety Code, is
9-16 amended by amending Subsections (a), (b), (d), and (e) and adding
9-17 Subsections (f)-(p) to read as follows:
9-18 (a) An applicant for a permit under Section 382.0518 or
9-19 [382.054 or] a permit renewal review under Section 382.055 shall
9-20 publish notice of intent to obtain the permit or permit review not
9-21 later than the 30th day after the date the commission determines
9-22 the application to be administratively complete. The commission by
9-23 rule shall [may] require an applicant for a federal operating
9-24 permit under Section 382.054 to publish notice of intent to obtain
9-25 a permit or permit review consistent with federal requirements and
9-26 with the requirements of Subsection (b) [this section]. The
9-27 applicant shall publish the notice at least once in a newspaper of
10-1 general circulation in the municipality in which the facility or
10-2 federal source is located or is proposed to be located or in the
10-3 municipality nearest to the location or proposed location of the
10-4 facility or federal source. If the elementary or middle school
10-5 nearest to the facility or proposed facility provides a bilingual
10-6 education program as required by Subchapter B, Chapter 29,
10-7 Education Code, the applicant shall also publish the notice at
10-8 least once in an additional publication of general circulation in
10-9 the municipality or county in which the facility is located or
10-10 proposed to be located that is published in the language taught in
10-11 the bilingual education program. This requirement is waived if
10-12 such a publication does not exist or if the publisher refuses to
10-13 publish the notice. The commission by rule shall prescribe the
10-14 form and content of the notice and when notice must be published.
10-15 The commission [and] may require publication of additional notice.
10-16 The commission by rule shall prescribe alternative procedures for
10-17 publication of the notice in a newspaper if the applicant is a
10-18 small business stationary source as defined by Section 382.0365 and
10-19 will not have a significant effect on air quality. The alternative
10-20 procedures must be cost-effective while ensuring adequate notice.
10-21 Notice required to be published under this section shall only be
10-22 required to be published in the United States.
10-23 (b) The notice must include:
10-24 (1) a description of the location or proposed location
10-25 of the facility or federal source;
10-26 (2) the location at which a copy of the application is
10-27 available for review and copying as provided by Subsection (d) [a
11-1 statement that a person who may be affected by emissions of air
11-2 contaminants from the facility, proposed facility, or federal
11-3 source is entitled to request a hearing from the commission];
11-4 (3) a description, including a telephone number, of
11-5 the manner in which the commission may be contacted for further
11-6 information; [and]
11-7 (4) a description, including a telephone number, of
11-8 the manner in which the applicant may be contacted for further
11-9 information;
11-10 (5) a description of the procedural rights and
11-11 obligations of the public, printed in a font style or size that
11-12 clearly provides emphasis and distinguishes it from the remainder
11-13 of the notice, that includes a statement that a person who may be
11-14 affected by emissions of air contaminants from the facility,
11-15 proposed facility, or federal source is entitled to request a
11-16 hearing from the commission;
11-17 (6) a description of the procedure by which a person
11-18 may be placed on a mailing list in order to receive additional
11-19 information about the application;
11-20 (7) the time and location of any public meeting to be
11-21 held under Subsection (e); and
11-22 (8) any other information the commission by rule
11-23 requires.
11-24 (d) The applicant shall make a copy of the application
11-25 available for review and copying at a public place in the county in
11-26 which the facility or federal source is located or proposed to be
11-27 located.
12-1 (e) The applicant, in cooperation with the executive
12-2 director, may hold a public meeting in the county in which the
12-3 facility or federal source is located or proposed to be located in
12-4 order to inform the public about the application and obtain public
12-5 input.
12-6 (f) The executive director shall conduct a technical review
12-7 of and issue a preliminary decision on the application.
12-8 (g) If, in response to the notice published under Subsection
12-9 (a) for a permit under Section 382.0518 or a permit renewal review
12-10 under Section 382.055, a person requests during the period provided
12-11 by commission rule that the commission hold a public hearing and
12-12 the request is not withdrawn before the date the preliminary
12-13 decision is issued, the applicant shall publish notice of the
12-14 preliminary decision in a newspaper, and the commission shall seek
12-15 public comment on the preliminary decision. The commission shall
12-16 consider the request for public hearing under the procedures
12-17 provided by Subsections (i)-(n). The commission may not seek
12-18 further public comment or hold a public hearing under the
12-19 procedures provided by Subsections (i)-(n) in response to a request
12-20 for a public hearing on [Except as provided by Section 382.0561 or
12-21 Subsection (e), the commission or its delegate shall hold a public
12-22 hearing on the permit application or permit renewal application
12-23 before granting the permit or renewal if a person who may be
12-24 affected by the emissions, or a member of the legislature from the
12-25 general area in which the facility or proposed facility is located,
12-26 requests a hearing within the period set by commission rule. The
12-27 commission shall not hold a hearing if the basis of a request by a
13-1 person who may be affected is determined to be unreasonable.
13-2 Reasons for which a request for a hearing on a permit amendment,
13-3 modification, or renewal shall be considered to be unreasonable
13-4 include, but are not limited to,] an amendment, modification, or
13-5 renewal that would not result in an increase in allowable emissions
13-6 and would not result in the emission of an air contaminant not
13-7 previously emitted.
13-8 (h) If, in response to the notice published under Subsection
13-9 (a) for a permit under Section 382.054, a person requests during
13-10 the public comment period provided by commission rule that the
13-11 commission hold a public hearing, the commission shall consider the
13-12 request under the procedures provided by Section 382.0561 and not
13-13 under the procedures provided by Subsections (i)-(n).
13-14 (i) The commission by rule shall establish the form and
13-15 content of the notice, the manner of publication, and the duration
13-16 of the public comment period. The notice must include:
13-17 (1) the information required by Subsection (b);
13-18 (2) a summary of the preliminary decision;
13-19 (3) the location at which a copy of the preliminary
13-20 decision is available for review and copying as provided by
13-21 Subsection (j);
13-22 (4) a description of the manner in which comments
13-23 regarding the preliminary decision may be submitted; and
13-24 (5) any other information the commission by rule
13-25 requires.
13-26 (j) The applicant shall make a copy of the preliminary
13-27 decision available for review and copying at a public place in the
14-1 county in which the facility is located or proposed to be located.
14-2 (k) During the public comment period, the executive director
14-3 may hold one or more public meetings in the county in which the
14-4 facility is located or proposed to be located. The executive
14-5 director shall hold a public meeting:
14-6 (1) on the request of a member of the legislature who
14-7 represents the general area in which the facility is located or
14-8 proposed to be located; or
14-9 (2) if the executive director determines that there is
14-10 substantial public interest in the proposed activity.
14-11 (l) The executive director, in accordance with procedures
14-12 adopted by the commission by rule, shall file with the chief clerk
14-13 of the commission a response to each relevant and material public
14-14 comment on the preliminary decision filed during the public comment
14-15 period.
14-16 (m) The chief clerk of the commission shall transmit the
14-17 executive director's decision, the executive director's response to
14-18 public comments, and instructions for requesting that the
14-19 commission reconsider the executive director's decision or hold a
14-20 contested case hearing to:
14-21 (1) the applicant;
14-22 (2) any person who submitted comments during the
14-23 public comment period;
14-24 (3) any person who requested to be on the mailing list
14-25 for the permit action; and
14-26 (4) any person who timely filed a request for a public
14-27 hearing in response to the notice published under Subsection (a).
15-1 (n) Except as provided by Section 382.0561, the commission
15-2 shall consider a request that the commission reconsider the
15-3 executive director's decision or hold a public hearing in
15-4 accordance with the procedures provided by Section 5.556, Water
15-5 Code.
15-6 (o) [(e)] Notwithstanding other provisions of this chapter,
15-7 the commission may hold a hearing on a permit amendment,
15-8 modification, or renewal if the commission [board] determines that
15-9 the application involves a facility for which the applicant's
15-10 compliance history contains violations which are unresolved and
15-11 which constitute a recurring pattern of egregious conduct which
15-12 demonstrates a consistent disregard for the regulatory process,
15-13 including the failure to make a timely and substantial attempt to
15-14 correct the violations.
15-15 (p) The commission by rule shall provide for additional
15-16 notice, opportunity for public comment, or opportunity for public
15-17 hearing to the extent necessary to satisfy a requirement to obtain
15-18 or maintain delegation or approval of a federal program.
15-19 SECTION 6. Section 2003.047, Government Code, is amended by
15-20 amending Subsections (e)-(j) and adding Subsections (k)-(o) to read
15-21 as follows:
15-22 (e) In referring a matter for hearing [When the office
15-23 receives jurisdiction of a proceeding], the commission shall
15-24 provide to the administrative law judge a list of disputed issues.
15-25 The commission shall specify the date by which the administrative
15-26 law judge is expected to complete the proceeding and provide a
15-27 proposal for decision to the commission. The administrative law
16-1 judge may extend the proceeding if the administrative law judge
16-2 determines that failure to grant an extension would deprive a party
16-3 of due process or another constitutional right. The administrative
16-4 law judge shall establish a docket control order designed to
16-5 complete the proceeding by the date specified by the commission.
16-6 (f) Except as otherwise provided by this subsection, the
16-7 scope of the hearing is limited to the issues referred by the
16-8 commission. On the request of a party, the administrative law
16-9 judge may consider an issue that was not referred by the commission
16-10 if the administrative law judge determines that:
16-11 (1) the issue is material;
16-12 (2) the issue is supported by evidence; and
16-13 (3) there are good reasons for the failure to supply
16-14 available information regarding the issue during the public comment
16-15 period.
16-16 (g) The scope of permissible discovery is limited to:
16-17 (1) any matter reasonably calculated to lead to the
16-18 discovery of admissible evidence regarding any issue referred to
16-19 the administrative law judge by the commission or that the
16-20 administrative law judge has agreed to consider; and
16-21 (2) the production of documents:
16-22 (A) reviewed or relied on in preparing
16-23 application materials or selecting the site of the proposed
16-24 facility; or
16-25 (B) relating to the ownership of the applicant
16-26 or the owner or operator of the facility or proposed facility.
16-27 (h) The commission by rule shall:
17-1 (1) provide for subpoenas and commissions for
17-2 depositions; and
17-3 (2) require that discovery be conducted in accordance
17-4 with the Texas Rules of Civil Procedure, except that the commission
17-5 by rule shall determine the level of discovery under Rule 190,
17-6 Texas Rules of Civil Procedure, appropriate for each type of case
17-7 considered by the commission, taking into account the nature and
17-8 complexity of the case.
17-9 (i) [or areas that must be addressed. In addition, the
17-10 commission may identify and provide to the administrative law judge
17-11 at any time additional issues or areas that must be addressed.]
17-12 [(f)] The office and the commission jointly shall adopt
17-13 rules providing for certification to the commission of an issue
17-14 that involves an ultimate finding of compliance with or
17-15 satisfaction of a statutory standard the determination of which is
17-16 committed to the discretion or judgment of the commission by law.
17-17 The rules must address, at a minimum, the issues that are
17-18 appropriate for certification and the procedure to be used in
17-19 certifying the issue. Each agency shall publish the jointly
17-20 adopted rules.
17-21 (j) [(g)] An administrative law judge hearing a case on
17-22 behalf of the commission, on the judge's own motion or on motion of
17-23 a party and after notice and an opportunity for a hearing, may
17-24 impose appropriate sanctions as provided by Subsection (k) [(h)]
17-25 against a party or its representative for:
17-26 (1) filing a motion or pleading that is groundless and
17-27 brought:
18-1 (A) in bad faith;
18-2 (B) for the purpose of harassment; or
18-3 (C) for any other improper purpose, such as to
18-4 cause unnecessary delay or needless increase in the cost of the
18-5 proceeding;
18-6 (2) abuse of the discovery process in seeking, making,
18-7 or resisting discovery; or
18-8 (3) failure to obey an order of the administrative law
18-9 judge or the commission.
18-10 (k) [(h)] A sanction imposed under Subsection (j) [(g)] may
18-11 include, as appropriate and justified, issuance of an order:
18-12 (1) disallowing further discovery of any kind or of a
18-13 particular kind by the offending party;
18-14 (2) charging all or any part of the expenses of
18-15 discovery against the offending party or its representatives;
18-16 (3) holding that designated facts be considered
18-17 admitted for purposes of the proceeding;
18-18 (4) refusing to allow the offending party to support
18-19 or oppose a designated claim or defense or prohibiting the party
18-20 from introducing designated matters in evidence;
18-21 (5) disallowing in whole or in part requests for
18-22 relief by the offending party and excluding evidence in support of
18-23 those requests; and
18-24 (6) striking pleadings or testimony, or both, in whole
18-25 or in part.
18-26 (l) [(i)(1)] After hearing evidence and receiving legal
18-27 argument, an administrative law judge shall make findings of fact,
19-1 conclusions of law, and any ultimate findings required by statute,
19-2 all of which shall be separately stated. The administrative law
19-3 judge shall make a proposal for decision to the commission and
19-4 shall serve the proposal for decision on all parties. An
19-5 opportunity shall be given to each party to file exceptions to the
19-6 proposal for decision and briefs related to the issues addressed in
19-7 the proposal for decision. The commission shall consider and act
19-8 on the proposal for decision.
19-9 (m) [(2)] Except as provided in Section 361.0832, Health and
19-10 Safety Code, the commission shall consider the proposal for
19-11 decision prepared by the administrative law judge, the exceptions
19-12 of the parties, and the briefs and argument of the parties. The
19-13 commission may amend the proposal for decision, including any
19-14 finding of fact, but any such amendment thereto and order shall be
19-15 based solely on the record made before the administrative law
19-16 judge. Any such amendment by the commission shall be accompanied
19-17 by an explanation of the basis of the amendment. The commission
19-18 may also refer the matter back to the administrative law judge to
19-19 reconsider any findings and conclusions set forth in the proposal
19-20 for decision or take additional evidence or to make additional
19-21 findings of fact or conclusions of law. The commission shall serve
19-22 a copy of the commission's order, including its finding of facts
19-23 and conclusions of law, on each party.
19-24 (n) [(3)] The provisions of Chapter 2001[,] shall apply to
19-25 contested case hearings for the commission to the extent not
19-26 inconsistent with this section.
19-27 (o) [(j)] An administrative law judge hearing a case on
20-1 behalf of the commission may not, without the agreement of all
20-2 parties, issue an order referring the case to an alternative
20-3 dispute resolution procedure if the commission has already
20-4 conducted an unsuccessful alternative dispute resolution procedure.
20-5 If the commission has not already conducted an alternative dispute
20-6 resolution procedure, the administrative law judge shall consider
20-7 the commission's recommendation in determining whether to issue an
20-8 order referring the case to the procedure.
20-9 SECTION 7. (a) This Act takes effect September 1, 1999.
20-10 (b) The changes in law made by this Act apply only to an
20-11 application to issue, amend, or renew a permit that is declared to
20-12 be administratively complete on or after the effective date of this
20-13 Act. An application to issue, amend, or renew a permit that was
20-14 declared to be administratively complete before the effective date
20-15 of this Act is governed by the former law, and that law is
20-16 continued in effect for that purpose.
20-17 (c) The changes in law made by Section 5 of this Act do not
20-18 expand or restrict the types of actions of the Texas Natural
20-19 Resource Conservation Commission for which public notice, an
20-20 opportunity for public comment, and an opportunity for public
20-21 hearing under Subchapters C-H, Chapter 2001, Government Code, are
20-22 provided under Chapter 382, Health and Safety Code.
20-23 SECTION 8. The importance of this legislation and the
20-24 crowded condition of the calendars in both houses create an
20-25 emergency and an imperative public necessity that the
20-26 constitutional rule requiring bills to be read on three several
20-27 days in each house be suspended, and this rule is hereby suspended.