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.