76R11693 SMH-F
By Uher, Keffer, Bonnen, Culberson, Hawley, H.B. No. 801
et al.
Substitute the following for H.B. No. 801:
By Palmer C.S.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
2-1 Subchapter M to read as follows:
2-2 SUBCHAPTER M. ENVIRONMENTAL PERMITTING PROCEDURES
2-3 Sec. 5.551. PERMITTING PROCEDURES; APPLICABILITY. (a) This
2-4 subchapter applies only to public notice and opportunity for public
2-5 hearing under Subchapters C-H, Chapter 2001, Government Code,
2-6 regarding commission actions relating to a permit under Chapter 26
2-7 or 27 of this code or Chapter 361, Health and Safety Code.
2-8 (b) This subchapter does not expand or restrict the types of
2-9 commission actions for which public notice and an opportunity for
2-10 public hearing under Subchapters C-H, Chapter 2001, Government
2-11 Code, are required.
2-12 (c) The commission by rule shall provide for additional
2-13 notice, opportunity for public comment, or opportunity for hearing
2-14 to the extent necessary to satisfy a requirement for United States
2-15 Environmental Protection Agency authorization of a state permit
2-16 program.
2-17 (d) In this subchapter, "permit" means a permit, approval,
2-18 registration, or other form of authorization required by law for a
2-19 person to engage in an action.
2-20 Sec. 5.552. NOTICE OF INTENT TO OBTAIN PERMIT. (a) The
2-21 executive director shall determine when an application is
2-22 administratively complete.
2-23 (b) Not later than the 30th day after the date the executive
2-24 director determines the application to be administratively
2-25 complete:
2-26 (1) the applicant shall publish notice of intent to
2-27 obtain a permit at least once in the newspaper of largest
3-1 circulation in the county in which the facility to which the
3-2 application relates is located or proposed to be located; and
3-3 (2) the chief clerk of the commission shall mail
3-4 notice of intent to obtain a permit to:
3-5 (A) the state senator and representative who
3-6 represent the general area in which the facility is located or
3-7 proposed to be located;
3-8 (B) the mayor and health authorities of the
3-9 municipality in which the facility is located or proposed to be
3-10 located;
3-11 (C) the county judge and health authorities of
3-12 the county in which the facility is located or proposed to be
3-13 located; and
3-14 (D) the river authority in which the facility is
3-15 located or proposed to be located if the application is under
3-16 Chapter 26, Water Code.
3-17 (c) The commission by rule shall establish the form and
3-18 content of the notice. The notice must include:
3-19 (1) the location and nature of the proposed activity;
3-20 (2) the location at which a copy of the application is
3-21 available for review and copying as provided by Subsection (e);
3-22 (3) a description, including a telephone number, of
3-23 the manner in which a person may contact the commission for further
3-24 information;
3-25 (4) a description, including a telephone number, of
3-26 the manner in which a person may contact the applicant for further
3-27 information;
4-1 (5) a description of the procedural rights and
4-2 obligations of the public, printed in a font style or size that
4-3 clearly provides emphasis and distinguishes it from the remainder
4-4 of the notice;
4-5 (6) a description of the procedure by which a person
4-6 may be placed on a mailing list in order to receive additional
4-7 information about the application;
4-8 (7) the time and location of any public meeting to be
4-9 held under Subsection (f); and
4-10 (8) any other information the commission by rule
4-11 requires.
4-12 (d) In addition to providing notice under Subsection (b)(1),
4-13 the applicant shall comply with any applicable public notice
4-14 requirements under Chapters 26 and 27 of this code, Chapter 361,
4-15 Health and Safety Code, and rules adopted under those chapters.
4-16 (e) The applicant shall make a copy of the application
4-17 available for review and copying at a public place in the county in
4-18 which the facility is located or proposed to be located.
4-19 (f) The applicant, in cooperation with the executive
4-20 director, may hold a public meeting in the county in which the
4-21 facility is located or proposed to be located in order to inform
4-22 the public about the application and obtain public input.
4-23 Sec. 5.553. PRELIMINARY DECISION; NOTICE AND PUBLIC COMMENT.
4-24 (a) The executive director shall conduct a technical review of and
4-25 issue a preliminary decision on the application.
4-26 (b) The applicant shall publish notice of the preliminary
4-27 decision in a newspaper.
5-1 (c) The commission by rule shall establish the form and
5-2 content of the notice, the manner of publication, and the duration
5-3 of the public comment period. The notice must include:
5-4 (1) the information required by Sections
5-5 5.552(c)(1)-(5);
5-6 (2) a summary of the preliminary decision;
5-7 (3) the location at which a copy of the preliminary
5-8 decision is available for review and copying as provided by
5-9 Subsection (e);
5-10 (4) a description of the manner in which comments
5-11 regarding the preliminary decision may be submitted; and
5-12 (5) any other information the commission by rule
5-13 requires.
5-14 (d) In addition to providing notice under this section, the
5-15 applicant shall comply with any applicable public notice
5-16 requirements under Chapters 26 and 27 of this code, Chapter 361,
5-17 Health and Safety Code, and rules adopted under those chapters.
5-18 (e) The applicant shall make a copy of the preliminary
5-19 decision available for review and copying at a public place in the
5-20 county in which the facility is located or proposed to be located.
5-21 Sec. 5.554. PUBLIC MEETING. During the public comment
5-22 period, the executive director may hold one or more public meetings
5-23 in the county in which the facility is located or proposed to be
5-24 located. The executive director shall hold a public meeting:
5-25 (1) on the request of a member of the legislature who
5-26 represents the general area in which the facility is located or
5-27 proposed to be located; or
6-1 (2) if the executive director determines that there is
6-2 substantial public interest in the proposed activity.
6-3 Sec. 5.555. RESPONSE TO PUBLIC COMMENTS. (a) The executive
6-4 director, in accordance with procedures provided by commission
6-5 rule, shall file with the chief clerk of the commission a response
6-6 to each relevant and material public comment on the preliminary
6-7 decision filed during the public comment period.
6-8 (b) The chief clerk of the commission shall transmit the
6-9 executive director's decision, the executive director's response to
6-10 public comments, and instructions for requesting that the
6-11 commission reconsider the executive director's decision or hold a
6-12 contested case hearing to:
6-13 (1) the applicant;
6-14 (2) any person who submitted comments during the
6-15 public comment period; and
6-16 (3) any person who requested to be on the mailing list
6-17 for the permit action.
6-18 Sec. 5.556. REQUEST FOR RECONSIDERATION OR CONTESTED CASE
6-19 HEARING. (a) A person may request that the commission reconsider
6-20 the executive director's decision or hold a contested case hearing.
6-21 A request must be filed with the commission during the period
6-22 provided by commission rule.
6-23 (b) The commission shall act on a request during the period
6-24 provided by commission rule.
6-25 (c) The commission may not grant a request for a contested
6-26 case hearing unless the commission determines that the request was
6-27 filed by an affected person as defined by Section 5.115.
7-1 (d) The commission may not refer an issue to the State
7-2 Office of Administrative Hearings for a hearing unless the
7-3 commission determines that the issue:
7-4 (1) involves a disputed question of fact;
7-5 (2) was raised during the public comment period; and
7-6 (3) is relevant and material to the decision on the
7-7 application.
7-8 (e) If the commission grants a request for a contested case
7-9 hearing it shall:
7-10 (1) limit the number and scope of the issues to be
7-11 referred to the State Office of Administrative Hearings for a
7-12 hearing; and
7-13 (2) consistent with the nature and number of the
7-14 issues to be considered at the hearing, specify the maximum
7-15 expected duration of the hearing.
7-16 (f) This section does not preclude the commission from
7-17 holding a hearing if it determines that the public interest
7-18 warrants doing so.
7-19 SECTION 3. Section 361.088, Health and Safety Code, is
7-20 amended by amending Subsection (c) and by adding Subsections (e)
7-21 and (f) to read as follows:
7-22 (c) Except as provided by Subsection (e), before [Before] a
7-23 permit is issued, amended, extended, or renewed, the commission
7-24 shall provide an opportunity for a hearing to the applicant and
7-25 persons affected. The commission may also hold a hearing on its
7-26 own motion.
7-27 (e) After complying with Sections 5.552-5.555, Water Code,
8-1 the commission, without providing an opportunity for a contested
8-2 case hearing, may act on an application to renew a permit for:
8-3 (1) storage of hazardous waste in containers, tanks,
8-4 or other closed vessels if the waste:
8-5 (A) was generated on-site; and
8-6 (B) does not include waste generated from other
8-7 waste transported to the site; and
8-8 (2) processing of hazardous waste if:
8-9 (A) the waste was generated on-site;
8-10 (B) the waste does not include waste generated
8-11 from other waste transported to the site; and
8-12 (C) the processing does not include thermal
8-13 processing.
8-14 (f) Notwithstanding Subsection (e), if the commission
8-15 determines that an applicant's compliance history for the preceding
8-16 five years raises an issue regarding the applicant's ability to
8-17 comply with a material term of its permit, the commission shall
8-18 provide an opportunity to request a contested case hearing.
8-19 SECTION 4. Section 382.056, Health and Safety Code, is
8-20 amended by amending Subsections (a), (b), (d), and (e) and adding
8-21 Subsections (f)-(n) to read as follows:
8-22 (a) An applicant for a permit under Section 382.0518 or
8-23 382.054 or a permit renewal review under Section 382.055 shall
8-24 publish notice of intent to obtain the permit or permit review not
8-25 later than the 30th day after the date the commission determines
8-26 the application to be administratively complete. The commission by
8-27 rule may require an applicant for a federal operating permit to
9-1 publish notice of intent to obtain a permit or permit review
9-2 consistent with federal requirements and with the requirements of
9-3 this section. The applicant shall publish the notice at least once
9-4 in a newspaper of general circulation in the municipality in which
9-5 the facility or federal source is located or is proposed to be
9-6 located or in the municipality nearest to the location or proposed
9-7 location of the facility or federal source. If the elementary or
9-8 middle school nearest to the facility or proposed facility provides
9-9 a bilingual education program as required by Subchapter B, Chapter
9-10 29, Education Code, the applicant shall also publish the notice at
9-11 least once in an additional publication of general circulation in
9-12 the municipality or county in which the facility is located or
9-13 proposed to be located that is published in the language taught in
9-14 the bilingual education program. This requirement is waived if
9-15 such a publication does not exist or if the publisher refuses to
9-16 publish the notice. The commission by rule shall prescribe the
9-17 form and content of the notice and when notice must be published.
9-18 The commission [and] may require publication of additional notice.
9-19 Notice required to be published under this section shall only be
9-20 required to be published in the United States.
9-21 (b) The notice must include:
9-22 (1) a description of the location or proposed location
9-23 of the facility or federal source;
9-24 (2) the location at which a copy of the application is
9-25 available for review and copying as provided by Subsection (d) [a
9-26 statement that a person who may be affected by emissions of air
9-27 contaminants from the facility, proposed facility, or federal
10-1 source is entitled to request a hearing from the commission];
10-2 (3) a description, including a telephone number, of
10-3 the manner in which the commission may be contacted for further
10-4 information; [and]
10-5 (4) a description, including a telephone number, of
10-6 the manner in which the applicant may be contacted for further
10-7 information;
10-8 (5) a description of the procedural rights and
10-9 obligations of the public, printed in a font style or size that
10-10 clearly provides emphasis and distinguishes it from the remainder
10-11 of the notice, that includes a statement that a person who may be
10-12 affected by emissions of air contaminants from the facility,
10-13 proposed facility, or federal source is entitled to request a
10-14 hearing from the commission;
10-15 (6) a description of the procedure by which a person
10-16 may be placed on a mailing list in order to receive additional
10-17 information about the application;
10-18 (7) the time and location of any public meeting to be
10-19 held under Subsection (e); and
10-20 (8) any other information the commission by rule
10-21 requires.
10-22 (d) The applicant shall make a copy of the application
10-23 available for review and copying at a public place in the county in
10-24 which the facility or federal source is located or proposed to be
10-25 located.
10-26 (e) The applicant, in cooperation with the executive
10-27 director, may hold a public meeting in the county in which the
11-1 facility or federal source is located or proposed to be located in
11-2 order to inform the public about the application and obtain public
11-3 input.
11-4 (f) The executive director shall conduct a technical review
11-5 of and issue a preliminary decision on the application.
11-6 (g) If, in response to the notice published under Subsection
11-7 (a), a person requests during the period provided by commission
11-8 rule that the commission hold a public hearing and the request is
11-9 not withdrawn before the date the preliminary decision is issued,
11-10 the applicant shall publish notice of the preliminary decision in a
11-11 newspaper, and the commission shall seek public comment on the
11-12 preliminary decision. The commission shall consider the request
11-13 for public hearing under the procedures provided by Subsections
11-14 (h)-(m). The commission may not seek further public comment or
11-15 hold a public hearing under the procedures provided by Subsections
11-16 (h)-(m) in response to a request for a public hearing on [Except as
11-17 provided by Section 382.0561 or Subsection (e), the commission or
11-18 its delegate shall hold a public hearing on the permit application
11-19 or permit renewal application before granting the permit or renewal
11-20 if a person who may be affected by the emissions, or a member of
11-21 the legislature from the general area in which the facility or
11-22 proposed facility is located, requests a hearing within the period
11-23 set by commission rule. The commission shall not hold a hearing if
11-24 the basis of a request by a person who may be affected is
11-25 determined to be unreasonable. Reasons for which a request for a
11-26 hearing on a permit amendment, modification, or renewal shall be
11-27 considered to be unreasonable include, but are not limited to,] an
12-1 amendment, modification, or renewal that would not result in an
12-2 increase in allowable emissions and would not result in the
12-3 emission of an air contaminant not previously emitted.
12-4 (h) The commission by rule shall establish the form and
12-5 content of the notice, the manner of publication, and the duration
12-6 of the public comment period. The notice must include:
12-7 (1) the information required by Subsection (b);
12-8 (2) a summary of the preliminary decision;
12-9 (3) the location at which a copy of the preliminary
12-10 decision is available for review and copying as provided by
12-11 Subsection (i);
12-12 (4) a description of the manner in which comments
12-13 regarding the preliminary decision may be submitted; and
12-14 (5) any other information the commission by rule
12-15 requires.
12-16 (i) The applicant shall make a copy of the preliminary
12-17 decision available for review and copying at a public place in the
12-18 county in which the facility or federal source is located or
12-19 proposed to be located.
12-20 (j) During the public comment period, the executive director
12-21 may hold one or more public meetings in the county in which the
12-22 facility or federal source is located or proposed to be located.
12-23 The executive director shall hold a public meeting:
12-24 (1) on the request of a member of the legislature who
12-25 represents the general area in which the facility or federal source
12-26 is located or proposed to be located; or
12-27 (2) if the executive director determines that there is
13-1 substantial public interest in the proposed activity.
13-2 (k) The executive director, in accordance with procedures
13-3 adopted by the commission by rule, shall file with the chief clerk
13-4 of the commission a response to each relevant and material public
13-5 comment on the preliminary decision filed during the public comment
13-6 period.
13-7 (l) The chief clerk of the commission shall transmit the
13-8 executive director's decision, the executive director's response to
13-9 public comments, and instructions for requesting that the
13-10 commission reconsider the executive director's decision or hold a
13-11 contested case hearing to:
13-12 (1) the applicant;
13-13 (2) any person who submitted comments during the
13-14 public comment period;
13-15 (3) any person who requested to be on the mailing list
13-16 for the permit action; and
13-17 (4) any person who timely filed a request for a public
13-18 hearing in response to the notice published under Subsection (a).
13-19 (m) Except as provided by Section 382.0561, the commission
13-20 shall consider a request that the commission reconsider the
13-21 executive director's decision or hold a public hearing in
13-22 accordance with the procedures provided by Section 5.556, Water
13-23 Code.
13-24 (n) [(e)] Notwithstanding other provisions of this chapter,
13-25 the commission may hold a hearing on a permit amendment,
13-26 modification, or renewal if the commission [board] determines that
13-27 the application involves a facility for which the applicant's
14-1 compliance history contains violations which are unresolved and
14-2 which constitute a recurring pattern of egregious conduct which
14-3 demonstrates a consistent disregard for the regulatory process,
14-4 including the failure to make a timely and substantial attempt to
14-5 correct the violations.
14-6 SECTION 5. Section 2003.047, Government Code, is amended by
14-7 amending Subsections (e)-(j) and adding Subsections (k)-(o) to read
14-8 as follows:
14-9 (e) In referring a matter for hearing [When the office
14-10 receives jurisdiction of a proceeding], the commission shall
14-11 provide to the administrative law judge a list of disputed issues.
14-12 The commission shall specify the date by which the administrative
14-13 law judge is expected to complete the proceeding and provide a
14-14 proposal for decision to the commission. The administrative law
14-15 judge may extend the proceeding if the administrative law judge
14-16 determines that failure to grant an extension would deprive a party
14-17 of due process or another constitutional right. The administrative
14-18 law judge shall establish a docket control order designed to
14-19 complete the proceeding by the date specified by the commission.
14-20 (f) Except as otherwise provided by this subsection, the
14-21 scope of the hearing is limited to the issues referred by the
14-22 commission. On the request of a party, the administrative law
14-23 judge may consider an issue that was not referred by the commission
14-24 if the administrative law judge determines that:
14-25 (1) the issue is material;
14-26 (2) the issue is supported by evidence; and
14-27 (3) there are good reasons for the failure to supply
15-1 available information regarding the issue during the public comment
15-2 period.
15-3 (g) The scope of permissible discovery is limited to:
15-4 (1) any matter reasonably calculated to lead to the
15-5 discovery of admissible evidence regarding any issue referred to
15-6 the administrative law judge by the commission or that the
15-7 administrative law judge has agreed to consider; and
15-8 (2) the production of documents:
15-9 (A) reviewed or relied on in preparing
15-10 application materials or selecting the site of the proposed
15-11 facility; or
15-12 (B) relating to the ownership of the applicant
15-13 or the owner or operator of the facility or proposed facility.
15-14 (h) The commission by rule shall:
15-15 (1) provide for subpoenas and commissions for
15-16 depositions; and
15-17 (2) require that discovery be conducted in accordance
15-18 with the Texas Rules of Civil Procedure, except that the commission
15-19 by rule shall determine the level of discovery under Rule 190,
15-20 Texas Rules of Civil Procedure, appropriate for each type of case
15-21 considered by the commission, taking into account the nature and
15-22 complexity of the case.
15-23 (i) [or areas that must be addressed. In addition, the
15-24 commission may identify and provide to the administrative law judge
15-25 at any time additional issues or areas that must be addressed.]
15-26 [(f)] The office and the commission jointly shall adopt
15-27 rules providing for certification to the commission of an issue
16-1 that involves an ultimate finding of compliance with or
16-2 satisfaction of a statutory standard the determination of which is
16-3 committed to the discretion or judgment of the commission by law.
16-4 The rules must address, at a minimum, the issues that are
16-5 appropriate for certification and the procedure to be used in
16-6 certifying the issue. Each agency shall publish the jointly
16-7 adopted rules.
16-8 (j) [(g)] An administrative law judge hearing a case on
16-9 behalf of the commission, on the judge's own motion or on motion of
16-10 a party and after notice and an opportunity for a hearing, may
16-11 impose appropriate sanctions as provided by Subsection (k) [(h)]
16-12 against a party or its representative for:
16-13 (1) filing a motion or pleading that is groundless and
16-14 brought:
16-15 (A) in bad faith;
16-16 (B) for the purpose of harassment; or
16-17 (C) for any other improper purpose, such as to
16-18 cause unnecessary delay or needless increase in the cost of the
16-19 proceeding;
16-20 (2) abuse of the discovery process in seeking, making,
16-21 or resisting discovery; or
16-22 (3) failure to obey an order of the administrative law
16-23 judge or the commission.
16-24 (k) [(h)] A sanction imposed under Subsection (j) [(g)] may
16-25 include, as appropriate and justified, issuance of an order:
16-26 (1) disallowing further discovery of any kind or of a
16-27 particular kind by the offending party;
17-1 (2) charging all or any part of the expenses of
17-2 discovery against the offending party or its representatives;
17-3 (3) holding that designated facts be considered
17-4 admitted for purposes of the proceeding;
17-5 (4) refusing to allow the offending party to support
17-6 or oppose a designated claim or defense or prohibiting the party
17-7 from introducing designated matters in evidence;
17-8 (5) disallowing in whole or in part requests for
17-9 relief by the offending party and excluding evidence in support of
17-10 those requests; and
17-11 (6) striking pleadings or testimony, or both, in whole
17-12 or in part.
17-13 (l) [(i)(1)] After hearing evidence and receiving legal
17-14 argument, an administrative law judge shall make findings of fact,
17-15 conclusions of law, and any ultimate findings required by statute,
17-16 all of which shall be separately stated. The administrative law
17-17 judge shall make a proposal for decision to the commission and
17-18 shall serve the proposal for decision on all parties. An
17-19 opportunity shall be given to each party to file exceptions to the
17-20 proposal for decision and briefs related to the issues addressed in
17-21 the proposal for decision. The commission shall consider and act
17-22 on the proposal for decision.
17-23 (m) [(2)] Except as provided in Section 361.0832, Health and
17-24 Safety Code, the commission shall consider the proposal for
17-25 decision prepared by the administrative law judge, the exceptions
17-26 of the parties, and the briefs and argument of the parties. The
17-27 commission may amend the proposal for decision, including any
18-1 finding of fact, but any such amendment thereto and order shall be
18-2 based solely on the record made before the administrative law
18-3 judge. Any such amendment by the commission shall be accompanied
18-4 by an explanation of the basis of the amendment. The commission
18-5 may also refer the matter back to the administrative law judge to
18-6 reconsider any findings and conclusions set forth in the proposal
18-7 for decision or take additional evidence or to make additional
18-8 findings of fact or conclusions of law. The commission shall serve
18-9 a copy of the commission's order, including its finding of facts
18-10 and conclusions of law, on each party.
18-11 (n) [(3)] The provisions of Chapter 2001[,] shall apply to
18-12 contested case hearings for the commission to the extent not
18-13 inconsistent with this section.
18-14 (o) [(j)] An administrative law judge hearing a case on
18-15 behalf of the commission may not, without the agreement of all
18-16 parties, issue an order referring the case to an alternative
18-17 dispute resolution procedure if the commission has already
18-18 conducted an unsuccessful alternative dispute resolution procedure.
18-19 If the commission has not already conducted an alternative dispute
18-20 resolution procedure, the administrative law judge shall consider
18-21 the commission's recommendation in determining whether to issue an
18-22 order referring the case to the procedure.
18-23 SECTION 6. (a) This Act takes effect September 1, 1999.
18-24 (b) The changes in law made by this Act apply only to an
18-25 application to issue, amend, or renew a permit that is declared to
18-26 be administratively complete on or after the effective date of this
18-27 Act. An application to issue, amend, or renew a permit that was
19-1 declared to be administratively complete before the effective date
19-2 of this Act is governed by the former law, and that law is
19-3 continued in effect for that purpose.
19-4 SECTION 7. The importance of this legislation and the
19-5 crowded condition of the calendars in both houses create an
19-6 emergency and an imperative public necessity that the
19-7 constitutional rule requiring bills to be read on three several
19-8 days in each house be suspended, and this rule is hereby suspended.