By Uher H.B. No. 801 76R4382 SMH-F 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. Chapter 5, Water Code, is amended by adding 1-7 Subchapter M to read as follows: 1-8 SUBCHAPTER M. ENVIRONMENTAL PERMITTING PROCEDURES 1-9 Sec. 5.551. DEFINITION. In this subchapter, "permit" means 1-10 a permit, approval, registration, or other form of authorization 1-11 required by law for a person to engage in an action. 1-12 Sec. 5.552. GENERAL PERMITTING PROCEDURES; APPLICABILITY. 1-13 (a) This subchapter applies to commission procedures for an 1-14 application to issue, amend, or renew a permit for which public 1-15 notice and an opportunity for public hearing is required by or 1-16 allowed under Chapter 26 or 27 or required by or allowed under 1-17 Chapter 361 or 382, Health and Safety Code. Subchapters C-H, 1-18 Chapter 2001, Government Code, do not apply to a proceeding to 1-19 which this subchapter applies. 1-20 (b) The commission by rule shall identify the types of 1-21 permit applications subject to public notice and hearing, 1-22 consistent with the applicable requirements of Chapters 26 and 27 1-23 of this code and Chapters 361 and 382, Health and Safety Code. 1-24 (c) The commission by rule shall provide for additional 2-1 notice, opportunity for public comment, or opportunity for hearing 2-2 to the extent necessary to satisfy a requirement for United States 2-3 Environmental Protection Agency authorization of a state permit 2-4 program. 2-5 Sec. 5.553. PUBLIC NOTICE; OPPORTUNITY TO COMMENT AND 2-6 REQUEST PUBLIC HEARING. (a) After receiving a permit application, 2-7 the executive director shall prepare and direct the applicant to 2-8 issue public notice of the permit application. The notice must 2-9 provide the public an opportunity to comment and request a public 2-10 hearing. 2-11 (b) The commission shall determine the content and timing of 2-12 the notice and the period for commenting or requesting a public 2-13 hearing for each type of permit application, consistent with the 2-14 applicable requirements of Chapters 26 and 27 of this code and 2-15 Chapters 361 and 382, Health and Safety Code. 2-16 Sec. 5.554. PUBLIC HEARING. (a) The commission shall 2-17 determine whether to grant a request for a public hearing. In 2-18 determining whether to grant a request for a public hearing, the 2-19 commission shall consider whether the request was filed: 2-20 (1) within the period specified in the public notice 2-21 for requesting a public hearing; and 2-22 (2) by a person who states a reasonable basis for the 2-23 request or by a member of the legislature whose district is located 2-24 in the general area related to the permit application. 2-25 (b) The commission is not required to hold a public hearing 2-26 if the basis of the hearing request is unreasonable. 2-27 (c) The commission by rule shall establish procedures for a 3-1 public hearing under this subchapter. 3-2 (d) A public hearing under this subchapter is intended to be 3-3 a public forum that encourages public participation through the 3-4 receipt of oral and written comments on the permit application. 3-5 Sec. 5.555. SUPPLEMENTAL INFORMATION PROCESS. (a) The 3-6 commission by rule shall establish a formal process by which a 3-7 person may obtain additional information relating to a permit 3-8 application. 3-9 (b) The supplemental information process must be limited to: 3-10 (1) obtaining documents relevant to the application 3-11 from: 3-12 (A) the executive director; 3-13 (B) the applicant; or 3-14 (C) an affected person; and 3-15 (2) taking depositions of: 3-16 (A) the applicant; 3-17 (B) an affected person; 3-18 (C) a witness on whom the applicant or an 3-19 affected person relies; or 3-20 (D) an individual designated by the executive 3-21 director, an applicant, or an affected person as being 3-22 knowledgeable regarding a document produced in connection with or 3-23 an issue raised by the application. 3-24 (c) If the information would be considered confidential 3-25 under applicable law, the commission shall protect the information 3-26 accordingly. The commission may allow disclosure of confidential 3-27 information only under an appropriate protective order. 4-1 (d) A person must file with the commission a request for 4-2 information under the supplemental information process: 4-3 (1) within the period specified for public comment in 4-4 the public notice issued under Section 5.553; or 4-5 (2) if the commission holds a public hearing under 4-6 Section 5.554, not later than the 10th day after the date the 4-7 hearing closes. 4-8 (e) The commission shall grant a request to obtain 4-9 information under the supplemental information process if the 4-10 commission determines that the request: 4-11 (1) was timely filed; 4-12 (2) was filed by the applicant or an affected person; 4-13 and 4-14 (3) seeks information: 4-15 (A) described by Subsection (b); 4-16 (B) regarding an issue: 4-17 (i) that was raised during the comment 4-18 period or, if not raised, was not raised for good and demonstrated 4-19 cause; 4-20 (ii) that is material to issuance or 4-21 denial of the permit; and 4-22 (iii) on which there remains a substantial 4-23 question of fact; and 4-24 (C) that is not otherwise available to the 4-25 person making the request and is likely to be available through the 4-26 supplemental information process. 4-27 (f) A person whose request is granted by the commission must 5-1 complete the supplemental information process not later than the 5-2 60th day after the date the request is granted. The commission may 5-3 grant an extension for good cause shown. 5-4 (g) A person who obtains information in a supplemental 5-5 information process may submit the information and any comments to 5-6 the executive director. 5-7 (h) If a person other than the applicant submits information 5-8 or comments to the executive director under the supplemental 5-9 information process, the applicant may submit additional 5-10 information or comments to the executive director in response. 5-11 Sec. 5.556. DECISION BY EXECUTIVE DIRECTOR. (a) At the 5-12 close of the permit application record, the executive director 5-13 shall issue a decision on the permit application. 5-14 (b) The executive director's decision must: 5-15 (1) be based on: 5-16 (A) the standards, criteria, and considerations 5-17 provided by statute or rule; and 5-18 (B) the permit application record; and 5-19 (2) be accompanied by: 5-20 (A) a written response to each significant 5-21 public comment received during the public comment period; and 5-22 (B) an identification of the provisions of any 5-23 draft permit that have been changed in response to public comments 5-24 and the reasons for the changes. 5-25 (c) The permit application record includes: 5-26 (1) the permit application; 5-27 (2) all staff memoranda or information submitted to or 6-1 considered by the executive director, including any draft permit; 6-2 (3) all public comments and related correspondence and 6-3 responses to comments; 6-4 (4) the transcript of any public hearing conducted; 6-5 (5) information and responses submitted to the 6-6 executive director under the supplemental information process; and 6-7 (6) all other information on which the executive 6-8 director relies in making a decision on the permit application. 6-9 Sec. 5.557. COMMISSION REVIEW. (a) The commission may 6-10 review the executive director's decision: 6-11 (1) on petition of the applicant or a person who 6-12 commented during the public comment period; or 6-13 (2) at the request of one or more of the members of 6-14 the commission or the general counsel to the commission. 6-15 (b) A petition or request for review must be filed not later 6-16 than the 15th day after the date of the executive director's 6-17 decision. 6-18 (c) The commission shall grant or deny a petition or request 6-19 for review not later than the 15th day after the date the petition 6-20 or request is filed. If the commission does not grant or deny the 6-21 petition or request on or before that date, the petition or request 6-22 is denied and the executive director's decision is final. 6-23 Sec. 5.558. EX PARTE CONTACTS. After a permit application 6-24 is filed, a member of the commission may not communicate ex parte 6-25 with: 6-26 (1) the applicant; 6-27 (2) a person seeking to communicate on a matter in 7-1 dispute with respect to an application or the decision of the 7-2 executive director; 7-3 (3) the public interest counsel; 7-4 (4) the executive director; 7-5 (5) a member of the executive director's staff who 7-6 participated in the review of the application; or 7-7 (6) any other interested or affected person. 7-8 Sec. 5.559. JUDICIAL REVIEW. (a) The applicant or an 7-9 affected person who commented during the public comment period may 7-10 appeal the executive director's decision on a permit application or 7-11 the commission's decision on review of the executive director's 7-12 decision by filing an action in a district court in Travis County 7-13 not later than the 30th day after the date the commission: 7-14 (1) issues its decision on review of the executive 7-15 director's decision; or 7-16 (2) denies the petition for review of the executive 7-17 director's decision. 7-18 (b) Failure to timely file a petition for commission review 7-19 of the executive director's decision bars judicial review of the 7-20 executive director's decision. Failure to participate in 7-21 commission review of the executive director's decision bars 7-22 judicial review of the commission's decision. 7-23 (c) In reviewing a decision of the commission, a court may 7-24 not substitute the court's judgment for the commission's judgment 7-25 on the weight of information in the permit application record 7-26 related to a question committed to the commission's discretion. 7-27 The court: 8-1 (1) may affirm the decision in whole or in part; and 8-2 (2) shall reverse or remand the case for further 8-3 proceedings if a substantial right of the appellant has been 8-4 prejudiced because the decision of the commission is: 8-5 (A) in violation of a constitutional or 8-6 statutory provision; 8-7 (B) in excess of the commission's statutory 8-8 authority; 8-9 (C) made through unlawful procedure; 8-10 (D) affected by other error of law; or 8-11 (E) arbitrary or capricious or characterized by 8-12 abuse of discretion or clearly unwarranted exercise of discretion. 8-13 (d) The denial of a request for a public hearing or a 8-14 petition for commission review of the executive director's decision 8-15 is not appealable. 8-16 SECTION 2. (a) This Act takes effect September 1, 1999. 8-17 (b) Except as provided by Subsection (c) of this section, 8-18 this Act applies to an application to issue, amend, or renew a 8-19 permit that is pending on the effective date of this Act or is 8-20 filed on or after the effective date of this Act. 8-21 (c) An application that, on the effective date of this Act, 8-22 is pending and on which a contested case hearing has commenced or 8-23 has been finally closed is governed by the law as it existed 8-24 immediately before the effective date of this Act, and that law is 8-25 continued in effect for that purpose. 8-26 SECTION 3. The importance of this legislation and the 8-27 crowded condition of the calendars in both houses create an 9-1 emergency and an imperative public necessity that the 9-2 constitutional rule requiring bills to be read on three several 9-3 days in each house be suspended, and this rule is hereby suspended.