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.