1-1     By:  Uher, et al. (Senate Sponsor - Armbrister)        H.B. No. 801
 1-2           (In the Senate - Received from the House April 28, 1999;
 1-3     April 29, 1999, read first time and referred to Committee on
 1-4     Natural Resources; May 13, 1999, reported adversely, with favorable
 1-5     Committee Substitute by the following vote:  Yeas 6, Nays 0;
 1-6     May 13, 1999, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR H.B. No. 801               By:  Armbrister
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to public participation in certain environmental
1-11     permitting procedures of the Texas Natural Resource Conservation
1-12     Commission.
1-13           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14           SECTION 1.  Section 5.115(a), Water Code, is amended to read
1-15     as follows:
1-16           (a)  For the purpose of an administrative hearing held by or
1-17     for the commission involving a contested case, "affected person,"
1-18     or "person affected," or "person who may be affected" means a
1-19     person who has a personal justiciable interest related to a legal
1-20     right, duty, privilege, power, or economic interest affected by the
1-21     administrative hearing.  An interest common to members of the
1-22     general public does not qualify as a personal justiciable interest.
1-23     [The commission is not required to hold a hearing if the commission
1-24     determines that the basis of a person's request for a hearing as an
1-25     affected person is not reasonable or is not supported by competent
1-26     evidence.]  The commission shall adopt rules specifying factors
1-27     which must be considered in determining whether a person is an
1-28     affected person in any contested case arising under the air, waste,
1-29     or water programs within the commission's jurisdiction and whether
1-30     an affected association is entitled to standing in contested case
1-31     hearings.
1-32           SECTION 2.  Chapter 5, Water Code, is amended by adding
1-33     Subchapter M to read as follows:
1-34             SUBCHAPTER M.  ENVIRONMENTAL PERMITTING PROCEDURES
1-35           Sec. 5.551.  PERMITTING PROCEDURES; APPLICABILITY.  (a)  This
1-36     subchapter establishes procedures for providing public notice, an
1-37     opportunity for public comment, and an opportunity for public
1-38     hearing under Subchapters C-H, Chapter 2001, Government Code,
1-39     regarding commission actions relating to a permit issued under
1-40     Chapter 26 or 27 of this code or Chapter 361, Health and Safety
1-41     Code.  This subchapter is procedural and does not expand or
1-42     restrict the types of commission actions for which public notice,
1-43     an opportunity for public comment, and an opportunity for public
1-44     hearing are provided under Chapter 26 or 27 of this code or Chapter
1-45     361, Health and Safety Code.  This subchapter does not create a new
1-46     opportunity for a contested case hearing or limit the opportunity
1-47     for a contested case hearing for any commission action.
1-48           (b)  The commission by rule shall provide for additional
1-49     notice, opportunity for public comment, or opportunity for hearing
1-50     to the extent necessary to satisfy a requirement for United States
1-51     Environmental Protection Agency authorization of a state permit
1-52     program.
1-53           (c)  In this subchapter, "permit" means a permit, approval,
1-54     registration, or other form of authorization required by law for a
1-55     person to engage in an action.
1-56           Sec. 5.552.  NOTICE OF INTENT TO OBTAIN PERMIT.  (a)  The
1-57     executive director shall determine when an application is
1-58     administratively complete.
1-59           (b)  Not later than the 30th day after the date the executive
1-60     director determines the application to be administratively
1-61     complete:
1-62                 (1)  the applicant shall publish notice of intent to
1-63     obtain a permit at least once in the newspaper of largest
1-64     circulation in the county in which the facility to which the
 2-1     application relates is located or proposed to be located; and
 2-2                 (2)  the chief clerk of the commission shall mail
 2-3     notice of intent to obtain a permit to:
 2-4                       (A)  the state senator and representative who
 2-5     represent the general area in which the facility is located or
 2-6     proposed to be located;
 2-7                       (B)  the mayor and health authorities of the
 2-8     municipality in which the facility is located or proposed to be
 2-9     located;
2-10                       (C)  the county judge and health authorities of
2-11     the county in which the facility is located or proposed to be
2-12     located; and
2-13                       (D)  the river authority in which the facility is
2-14     located or proposed to be located if the application is under
2-15     Chapter 26, Water Code.
2-16           (c)  The commission by rule shall establish the form and
2-17     content of the notice.  The notice must include:
2-18                 (1)  the location and nature of the proposed activity;
2-19                 (2)  the location at which a copy of the application is
2-20     available for review and copying as provided by Subsection (e);
2-21                 (3)  a description, including a telephone number, of
2-22     the manner in which a person may contact the commission for further
2-23     information;
2-24                 (4)  a description, including a telephone number, of
2-25     the manner in which a person may contact the applicant for further
2-26     information;
2-27                 (5)  a description of the procedural rights and
2-28     obligations of the public, printed in a font style or size that
2-29     clearly provides emphasis and distinguishes it from the remainder
2-30     of the notice;
2-31                 (6)  a description of the procedure by which a person
2-32     may be placed on a mailing list in order to receive additional
2-33     information about the application;
2-34                 (7)  the time and location of any public meeting to be
2-35     held under Subsection (f); and
2-36                 (8)  any other information the commission by rule
2-37     requires.
2-38           (d)  In addition to providing notice under Subsection (b)(1),
2-39     the applicant shall comply with any applicable public notice
2-40     requirements under Chapters 26 and 27 of this code, Chapter 361,
2-41     Health and Safety Code, and rules adopted under those chapters.
2-42           (e)  The applicant shall make a copy of the application
2-43     available for review and copying at a public place in the county in
2-44     which the facility is located or proposed to be located.
2-45           (f)  The applicant, in cooperation with the executive
2-46     director, may hold a public meeting in the county in which the
2-47     facility is located or proposed to be located in order to inform
2-48     the public about the application and obtain public input.
2-49           Sec. 5.553.  PRELIMINARY DECISION; NOTICE AND PUBLIC COMMENT.
2-50     (a)  The executive director shall conduct a technical review of and
2-51     issue a preliminary decision on the application.
2-52           (b)  The applicant shall publish notice of the preliminary
2-53     decision in a newspaper.
2-54           (c)  The commission by rule shall establish the form and
2-55     content of the notice, the manner of publication, and the duration
2-56     of the public comment period.  The notice must include:
2-57                 (1)  the information required by Sections 5.552(c)
2-58     (1)-(5);
2-59                 (2)  a summary of the preliminary decision;
2-60                 (3)  the location at which a copy of the preliminary
2-61     decision is available for review and copying as provided by
2-62     Subsection (e);
2-63                 (4)  a description of the manner in which comments
2-64     regarding the preliminary decision may be submitted; and
2-65                 (5)  any other information the commission by rule
2-66     requires.
2-67           (d)  In addition to providing notice under this section, the
2-68     applicant shall comply with any applicable public notice
2-69     requirements under Chapters 26 and 27 of this code, Chapter 361,
 3-1     Health and Safety Code, and rules adopted under those chapters.
 3-2           (e)  The applicant shall make a copy of the preliminary
 3-3     decision available for review and copying at a public place in the
 3-4     county in which the facility is located or proposed to be located.
 3-5           Sec. 5.554.  PUBLIC MEETING.  During the public comment
 3-6     period, the executive director may hold one or more public meetings
 3-7     in the county in which the facility is located or proposed to be
 3-8     located.  The executive director shall hold a public meeting:
 3-9                 (1)  on the request of a member of the legislature who
3-10     represents the general area in which the facility is located or
3-11     proposed to be located; or
3-12                 (2)  if the executive director determines that there is
3-13     substantial public interest in the proposed activity.
3-14           Sec. 5.555.  RESPONSE TO PUBLIC COMMENTS.  (a)  The executive
3-15     director, in accordance with procedures provided by commission
3-16     rule, shall file with the chief clerk of the commission a response
3-17     to each relevant and material public comment on the preliminary
3-18     decision filed during the public comment period.
3-19           (b)  The chief clerk of the commission shall transmit the
3-20     executive director's decision, the executive director's response to
3-21     public comments, and instructions for requesting that the
3-22     commission reconsider the executive director's decision or hold a
3-23     contested case hearing to:
3-24                 (1)  the applicant;
3-25                 (2)  any person who submitted comments during the
3-26     public comment period; and
3-27                 (3)  any person who requested to be on the mailing list
3-28     for the permit action.
3-29           Sec. 5.556.  REQUEST FOR RECONSIDERATION OR CONTESTED CASE
3-30     HEARING.  (a)  A person may request that the commission reconsider
3-31     the executive director's decision or hold a contested case hearing.
3-32     A request must be filed with the commission during the period
3-33     provided by commission rule.
3-34           (b)  The commission shall act on a request during the period
3-35     provided by commission rule.
3-36           (c)  The commission may not grant a request for a contested
3-37     case hearing unless the commission determines that the request was
3-38     filed by an affected person as defined by Section 5.115.
3-39           (d)  The commission may not refer an issue to the State
3-40     Office of Administrative Hearings for a hearing unless the
3-41     commission determines that the issue:
3-42                 (1)  involves a disputed question of fact;
3-43                 (2)  was raised during the public comment period; and
3-44                 (3)  is relevant and material to the decision on the
3-45     application.
3-46           (e)  If the commission grants a request for a contested case
3-47     hearing it shall:
3-48                 (1)  limit the number and scope of the issues to be
3-49     referred to the State Office of Administrative Hearings for a
3-50     hearing; and
3-51                 (2)  consistent with the nature and number of the
3-52     issues to be considered at the hearing, specify the maximum
3-53     expected duration of the hearing.
3-54           (f)  This section does not preclude the commission from
3-55     holding a hearing if it determines that the public interest
3-56     warrants doing so.
3-57           SECTION 3.  Subsection (a), Section 11.138, Water Code, is
3-58     amended to read as follows:
3-59           (a)  The commission may issue temporary permits for
3-60     beneficial purposes to the extent that they do not interfere with
3-61     or adversely affect prior appropriations or vested rights on the
3-62     stream from which water is to be diverted under such temporary
3-63     permit.  The commission may, by appropriate order, authorize any
3-64     member of the commission to approve and issue temporary permits
3-65     without notice and hearing if it appears to such issuing party that
3-66     sufficient water is available at the proposed point of diversion to
3-67     satisfy the requirements of the temporary permit as well as all
3-68     existing rights.  No temporary permit issued without notice and
3-69     hearing shall authorize more than 10 acre-feet of water, nor may it
 4-1     be for a term in excess of one year.  The commission by rule may
 4-2     authorize the beneficial use, without a permit, of not more than 25
 4-3     acre-feet of water, for a term not to exceed one year, if the
 4-4     diversion of water will not affect existing water right holders and
 4-5     the user of the water registers the use with the commission in the
 4-6     manner required by the commission.
 4-7           SECTION 4.  Subsection (a), Section 11.142, Water Code, is
 4-8     amended to read as follows:
 4-9           (a)  Without obtaining a permit, a person may construct on
4-10     his own property a dam or reservoir with normal storage of not more
4-11     than 200 acre-feet of water for domestic and livestock purposes.
4-12     Normal storage may involve the temporary storage of greater than
4-13     200 acre-feet if the owner of the structure maintains records which
4-14     can demonstrate that throughout a 12-month period an average of not
4-15     more than 200 acre-feet of water is impounded in such a structure.
4-16           SECTION 5.  Subchapter B, Chapter 26, Water Code, is amended
4-17     by adding Section 26.0286 to read as follows:
4-18           Sec. 26.0286.  PROCEDURES APPLICABLE TO PERMITS FOR CERTAIN
4-19     CONCENTRATED ANIMAL FEEDING OPERATIONS.  (a)  In this section,
4-20     "sole-source surface drinking water supply" means a body of surface
4-21     water that:
4-22                 (1)  is designated as a public water supply in rules
4-23     adopted by the commission under Section 26.023; and
4-24                 (2)  is the single source of supply of a public water
4-25     supply system, exclusive of emergency water interconnections.
4-26           (b)  The commission shall process an application for
4-27     authorization to construct or operate a concentrated animal feeding
4-28     operation as a specific permit under Section 26.028 subject to the
4-29     procedures provided by Subchapter M, Chapter 5, if the concentrated
4-30     animal feeding operation is located or proposed to be located:
4-31                 (1)  in the watershed of a sole-source surface drinking
4-32     water supply; and
4-33                 (2)  sufficiently close, as determined by the
4-34     commission by rule, to an intake of a public water supply system in
4-35     the sole-source surface drinking water supply that contaminants
4-36     discharged from the concentrated animal feeding operation could
4-37     potentially affect the public drinking water supply.
4-38           SECTION 6.  Section 361.066, Health and Safety Code, is
4-39     amended by amending Subsection (a) and adding Subsection (c) to
4-40     read as follows:
4-41           (a)  An applicant must submit any portion of an application
4-42     that the commission determines is necessary to make the application
4-43     administratively complete not later than the deadline set by the
4-44     commission under Subsection (c) [270th day after the applicant
4-45     receives notice from the commission that the additional information
4-46     or material is needed].
4-47           (c)  The commission by rule shall establish a deadline for
4-48     the submission of additional information or material after the
4-49     applicant receives notice from the commission that the information
4-50     or material is needed to make the application administratively
4-51     complete.
4-52           SECTION 7.  Section 361.088, Health and Safety Code, is
4-53     amended by amending Subsection (c) and by adding Subsections (e)
4-54     and (f) to read as follows:
4-55           (c)  Except as provided by Subsection (e), before [Before] a
4-56     permit is issued, amended, extended, or renewed, the commission
4-57     shall provide an opportunity for a hearing to the applicant and
4-58     persons affected.  The commission may also hold a hearing on its
4-59     own motion.
4-60           (e)  After complying with Sections 5.552-5.555, Water Code,
4-61     the commission, without providing an opportunity for a contested
4-62     case hearing, may act on an application to renew a permit for:
4-63                 (1)  storage of hazardous waste in containers, tanks,
4-64     or other closed vessels if the waste:
4-65                       (A)  was generated on-site; and
4-66                       (B)  does not include waste generated from other
4-67     waste transported to the site; and
4-68                 (2)  processing of hazardous waste if:
4-69                       (A)  the waste was generated on-site;
 5-1                       (B)  the waste does not include waste generated
 5-2     from other waste transported to the site; and
 5-3                       (C)  the processing does not include thermal
 5-4     processing.
 5-5           (f)  Notwithstanding Subsection (e), if the commission
 5-6     determines that an applicant's compliance history for the preceding
 5-7     five years raises an issue regarding the applicant's ability to
 5-8     comply with a material term of its permit, the commission shall
 5-9     provide an opportunity to request a contested case hearing.
5-10           SECTION 8.  Section 361.152, Health and Safety Code, is
5-11     amended to read as follows:
5-12           Sec. 361.152.  Limitation on County Powers Concerning
5-13     Industrial Solid Waste.  The powers specified by Sections
5-14     361.154-361.162 and Section [Sections] 364.011 [and 364.012]
5-15     (County Solid Waste Control Act) may not be exercised by a county
5-16     with respect to the industrial solid waste disposal practices and
5-17     areas to which Section 361.090 applies.
5-18           SECTION 9.  Section 363.112, Health and Safety Code, is
5-19     amended by amending Subsections (a) and (c) and adding Subsections
5-20     (d) and (e) to read as follows:
5-21           (a)  To prohibit the processing or disposal of municipal or
5-22     industrial solid waste in certain areas of a municipality or
5-23     county, the governing body of the municipality or county must by
5-24     ordinance or order specifically designate the area of the
5-25     municipality or county, as appropriate, in which the disposal of
5-26     municipal or industrial solid waste will not be prohibited.
5-27           (c)  The governing body of a municipality or county may not
5-28     prohibit the processing or disposal of municipal or industrial
5-29     solid waste in an area of that municipality or county for which:
5-30                 (1)  an application for a permit or other authorization
5-31     under Chapter 361 has been filed with and is pending before the
5-32     commission; or
5-33                 (2)  a permit or other authorization under Chapter 361
5-34     has been issued by the commission.
5-35           (d)  The commission may not grant an application for a permit
5-36     to process or dispose of municipal or industrial solid waste in an
5-37     area in which the processing or disposal of municipal or industrial
5-38     solid waste is prohibited by an ordinance or order authorized by
5-39     Subsection (a), unless the governing body of the municipality or
5-40     county violated Subsection (c) in passing the ordinance or order.
5-41     The commission by rule may establish procedures for determining
5-42     whether an application is for the processing or disposal of
5-43     municipal or industrial solid waste in an area for which that
5-44     processing or disposal is prohibited by an ordinance or order.
5-45           (e)  The powers specified by this section may not be
5-46     exercised by the governing body of a municipality or county with
5-47     respect to areas to which Section 361.090 applies [This section
5-48     does not apply to a municipality or county that has adopted solid
5-49     waste management plans approved by the commission under Section
5-50     363.063].
5-51           SECTION 10.  Section 364.012, Health and Safety Code, is
5-52     amended by amending Subsections (a) and (b) and adding Subsections
5-53     (e), (f), and (g) to read as follows:
5-54           (a)  The county may prohibit the disposal of municipal or
5-55     industrial solid waste in the county if the disposal of the
5-56     municipal or industrial solid waste is a threat to the public
5-57     health, safety, and welfare.
5-58           (b)  To prohibit the disposal of municipal or industrial
5-59     solid waste in a county, the commissioners court must adopt an
5-60     ordinance in the general form prescribed for municipal ordinances
5-61     specifically designating the area of the county in which municipal
5-62     or industrial solid waste disposal is not prohibited.  [The
5-63     requirement in this subsection does not apply if the county has
5-64     adopted solid waste disposal guidelines approved by the Texas
5-65     Natural Resource Conservation Commission.]
5-66           (e)  The commissioners court of a county may not prohibit the
5-67     processing or disposal of municipal or industrial solid waste in an
5-68     area of that county for which:
5-69                 (1)  an application for a permit or other authorization
 6-1     under Chapter 361 has been filed with and is pending before the
 6-2     commission; or
 6-3                 (2)  a permit or other authorization under Chapter 361
 6-4     has been issued by the commission.
 6-5           (f)  The commission may not grant an application for a permit
 6-6     to process or dispose of municipal or industrial solid waste in an
 6-7     area in which the processing or disposal of municipal or industrial
 6-8     solid waste is prohibited by an ordinance, unless the county
 6-9     violated Subsection (e) in passing the ordinance.  The commission
6-10     by rule may specify the procedures for determining whether an
6-11     application is for the processing or disposal of municipal or
6-12     industrial solid waste in an area for which that processing or
6-13     disposal is prohibited by an ordinance.
6-14           (g)  The powers specified by this section may not be
6-15     exercised by a county with respect to areas to which Section
6-16     361.090 applies.
6-17           SECTION 11.  Subdivision (9), Section 382.003, Health and
6-18     Safety Code, is amended to read as follows:
6-19                 (9)  "Modification of existing facility" means any
6-20     physical change in, or change in the method of operation of, a
6-21     facility in a manner that increases the amount of any air
6-22     contaminant emitted by the facility into the atmosphere or that
6-23     results in the emission of any air contaminant not previously
6-24     emitted.  The term does not include:
6-25                       (A)  insignificant increases in the amount of any
6-26     air contaminant emitted that is authorized by one or more
6-27     commission exemptions;
6-28                       (B)  insignificant increases at a permitted
6-29     facility;
6-30                       (C)  maintenance or replacement of equipment
6-31     components that do not increase or tend to increase the amount or
6-32     change the characteristics of the air contaminants emitted into the
6-33     atmosphere;
6-34                       (D)  an increase in the annual hours of operation
6-35     unless the existing facility has received a preconstruction permit
6-36     or has been exempted, pursuant to Section 382.057, from
6-37     preconstruction permit requirements;
6-38                       (E)  a physical change in, or change in the
6-39     method of operation of, a facility that does not result in a net
6-40     increase in allowable emissions of any air contaminant and that
6-41     does not result in the emission of any air contaminant not
6-42     previously emitted, provided that the facility:
6-43                             (i)  has received a preconstruction permit
6-44     or permit amendment or has been exempted pursuant to Section
6-45     382.057 from preconstruction permit requirements no earlier than
6-46     120 months before the change will occur; or
6-47                             (ii)  uses, regardless of whether the
6-48     facility has received a permit, an air pollution control method
6-49     that is at least as effective as the best available control
6-50     technology, considering technical practicability and economic
6-51     reasonableness, that the board required or would have required for
6-52     a facility of the same class or type as a condition of issuing a
6-53     permit or permit amendment 120 months before the change will occur;
6-54                       (F)  a physical change in, or change in the
6-55     method of operation of, a facility where the change is within the
6-56     scope of a flexible permit or a multiple plant permit; or
6-57                       (G)  a change in the method of operation of a
6-58     natural gas processing, treating, or compression facility connected
6-59     to or part of a natural gas gathering or transmission pipeline
6-60     which does not result in an annual emission rate of a pollutant in
6-61     excess of the volume emitted at the maximum designed capacity,
6-62     provided that the facility is one for which:
6-63                             (i)  construction or operation started on
6-64     or before September 1, 1971, and at which either no modification
6-65     has occurred after September 1, 1971, or at which modifications
6-66     have occurred only pursuant to standard exemptions; or
6-67                             (ii)  construction started after September
6-68     1, 1971, and before March 1, 1972, and which registered in
6-69     accordance with Section 382.060 as that section existed prior to
 7-1     September 1, 1991.
 7-2           SECTION 12.  Subsections (a) and (b), Section 382.051, Health
 7-3     and Safety Code, are amended to read as follows:
 7-4           (a)  The commission may issue a permit:
 7-5                 (1)  to construct a new facility or modify an existing
 7-6     facility that may emit air contaminants; [or]
 7-7                 (2)  to operate an existing facility pursuant to a
 7-8     voluntary emissions reduction permit; or
 7-9                 (3)  to operate a federal source.
7-10           (b)  To assist in fulfilling its authorization provided by
7-11     Subsection (a), the commission may issue:
7-12                 (1)  special permits for certain facilities;
7-13                 (2)  a general permit [developed by rule] for numerous
7-14     similar sources subject to Section 382.054;
7-15                 (3)  a standard permit [developed by rule] for
7-16     [numerous] similar facilities [subject to Section 382.0518];
7-17                 (4)  a permit by rule for types of facilities that will
7-18     not significantly contribute air contaminants to the atmosphere;
7-19                 (5)  a single federal operating permit or
7-20     preconstruction permit for multiple federal sources or facilities
7-21     located at the same site;
7-22                 (6)  a multiple plant permit for existing facilities at
7-23     multiple locations subject to Section 382.0518 or 382.0519; or
7-24                 (7) [(5)]  other permits as necessary.
7-25           SECTION 13.  Subchapter C, Chapter 382, Health and Safety
7-26     Code, is amended by adding Section 382.05101 to read as follows:
7-27           Sec. 382.05101.  DE MINIMIS AIR CONTAMINANTS.  The commission
7-28     may develop by rule the criteria to establish a de minimis level of
7-29     air contaminants for facilities or groups of facilities below which
7-30     no permit under Section 382.0518 or 382.0519, standard permit under
7-31     Section 382.05194, or permit by rule under Section 382.05195 will
7-32     be required.
7-33           SECTION 14.  Subsections (a) and (c), Section 382.0511,
7-34     Health and Safety Code, are amended to read as follows:
7-35           (a)  The commission may consolidate into a single permit[:]
7-36                 [(1)]  any permits, special permits, standard permits,
7-37     permits by rule, or exemptions for a facility or federal source
7-38     [issued by the commission before December 1, 1991; or]
7-39                 [(2)  any permit issued by the commission on or after
7-40     December 1, 1991, with any permits, special permits, or exemptions
7-41     issued or qualified for by that date].
7-42           (c)  The commission [by rule] may authorize changes in a
7-43     federal source to proceed before the owner or operator obtains a
7-44     federal operating permit or revisions to a federal operating permit
7-45     if the changes are de minimis under Section 382.05101 or the owner
7-46     or operator has obtained a preconstruction permit or permit
7-47     amendment required by Section 382.0518, or is operating under a
7-48     standard permit under Section 382.05194, a permit by rule under
7-49     Section 382.05195, or an exemption allowed under Section 382.057.
7-50           SECTION 15.  Subchapter C, Chapter 382, Health and Safety
7-51     Code, is amended by adding Sections 382.0519, 382.05191, 382.05192,
7-52     382.05193, 382.05194, and 382.05195 to read as follows:
7-53           Sec. 382.0519.  VOLUNTARY EMISSION REDUCTION PERMIT.
7-54     (a)  Prior to September 1, 2001, the owner or operator of an
7-55     existing, unpermitted facility not subject to the requirement to
7-56     obtain a permit under Section 382.0518(g) may apply for a permit to
7-57     operate that facility under this section.
7-58           (b)  The commission shall grant within a reasonable time a
7-59     permit under this section if, from the information available to the
7-60     commission, including information presented at any public hearing
7-61     or through written comment, the commission finds that the facility
7-62     will use an air pollution control method at least as beneficial as
7-63     that described in Section 382.003(9)(E)(ii), considering the age
7-64     and remaining useful life of the facility.
7-65           (c)  If the commission finds that the emissions from the
7-66     facility will contravene the standards under Subsection (b) or the
7-67     intent of this chapter, including protection of the public's health
7-68     and physical property, the commission may not grant the permit
7-69     under this section.
 8-1           (d)  A person planning the modification of a facility
 8-2     previously permitted under this section must comply with Section
 8-3     382.0518 prior to commencement of the construction of the
 8-4     modification.
 8-5           (e)  A permit issued by the commission under this section may
 8-6     defer the implementation of the requirement of reductions in the
 8-7     emissions of certain air contaminants provided that the applicant
 8-8     will make substantial emission reductions in other specific air
 8-9     contaminants.  Such deferral shall be based upon a prioritization
8-10     of air contaminants by the commission as necessary to meet local,
8-11     regional and statewide air quality needs.
8-12           Sec. 382.05191.  VOLUNTARY EMISSION REDUCTION PERMIT:  NOTICE
8-13     AND HEARING.  (a)  An applicant for a permit under Section 382.0519
8-14     shall publish notice of intent to obtain the permit in accordance
8-15     with Section 382.056.
8-16           (b)  The commission may authorize an applicant for a permit
8-17     for a facility which constitutes or is part of a small business
8-18     stationary source as defined in Section 382.0365(g)(2) to provide
8-19     notice using an alternative means if the commission finds that the
8-20     proposed method will result in equal or better communication with
8-21     the public, considering the effectiveness of the notice in reaching
8-22     potentially affected persons, cost, and consistency with federal
8-23     requirements.
8-24           (c)  The commission shall afford an opportunity for a public
8-25     hearing and the submission of public comment and send notice of a
8-26     decision on an application for a permit under Section 382.0519 in
8-27     the same manner as provided by Sections 382.0561 and 382.0562.
8-28           (d)  A person affected by a decision of the commission to
8-29     issue or deny a voluntary emission reduction permit may move for
8-30     rehearing and is entitled to judicial review under Section 382.032.
8-31           Sec. 382.05192.  VOLUNTARY EMISSION REDUCTION PERMITS:
8-32     REVIEW AND RENEWAL.  Review and renewal of permits issued under
8-33     Section 382.0519 shall be conducted in accordance with Section
8-34     382.055.
8-35           Sec. 382.05193.  MULTIPLE PLANT PERMIT.  (a)  The commission
8-36     may issue a multiple plant permit for multiple plant sites which
8-37     are owned or operated by the same person or persons under common
8-38     control if the commission finds that:
8-39                 (1)  the aggregate rate of emission of air contaminants
8-40     to be authorized under the permit does not exceed the total of:
8-41                       (A)  for previously permitted facilities, the
8-42     rates authorized in the existing permits; and
8-43                       (B)  for existing unpermitted facilities not
8-44     subject to the requirement to obtain a preconstruction
8-45     authorization under Section 382.0518(g) or for facilities
8-46     authorized under Section 382.0519, the rates that would be
8-47     authorized under Section 382.0519; and
8-48                 (2)  there is no indication that the emissions from the
8-49     facilities will contravene the intent of this chapter, including
8-50     protection of the public's health and physical property.
8-51           (b)  A permit issued under this section shall not authorize
8-52     emissions from any of the facilities authorized under the permit
8-53     that exceed that facility's highest historic annual rate or the
8-54     levels authorized in the facility's most recent permit.  In the
8-55     absence of records extending back to the original construction of
8-56     the facility, best engineering judgment shall be used to
8-57     demonstrate the facility's highest historic annual rate to the
8-58     commission.
8-59           (c)  Emissions control equipment previously installed at a
8-60     facility permitted under this section may not be removed or
8-61     disabled unless the action is undertaken to maintain or upgrade the
8-62     control equipment or to otherwise reduce the impact of emissions
8-63     authorized by the commission.
8-64           (d)  The commission shall publish notice of a proposed
8-65     multiple plant permit for existing facilities in the Texas Register
8-66     and in one or more statewide or regional newspapers, designated by
8-67     the commission by rule, that will, in the commission's judgment,
8-68     provide reasonable notice throughout the state.  If the multiple
8-69     plant permit for existing facilities will be effective for only
 9-1     part of the state, the notice shall be published in a newspaper of
 9-2     general circulation in the area to be affected.  The commission may
 9-3     by rule require additional notice to be given.  The notice must
 9-4     include an invitation for written comments by the public to the
 9-5     commission regarding the proposed multiple plant permit and shall
 9-6     be published not later than the 30th day before the commission
 9-7     issues the multiple plant permit.
 9-8           (e)  For existing facilities, the commission shall hold a
 9-9     public meeting to provide an additional opportunity for public
9-10     comment.  The commission shall give notice of a public meeting
9-11     under this subsection as part of the notice described in Subsection
9-12     (d) not later than the 30th day before the date of the meeting.
9-13           (f)  If the commission receives public comment relating to
9-14     issuance of a multiple plant permit for existing facilities, the
9-15     commission shall issue a written response to comments on the permit
9-16     at the same time that the commission issues or denies the permit.
9-17     The response is available to the public and shall be mailed to each
9-18     person who made a comment.
9-19           (g)  The commission shall establish, by rule, the procedures
9-20     for application and approval for the use of a multiple plant
9-21     permit.
9-22           (h)  For a multiple plant permit that applies only to
9-23     existing facilities for which an application is filed prior to
9-24     September 1, 2001, the issuance, amendment, or revocation by the
9-25     commission of the permit is not subject to Chapter 2001, Government
9-26     Code.
9-27           (i)  The commission may adopt rules as necessary to implement
9-28     and administer this section and may delegate to the executive
9-29     director under Section 382.061 the authority to issue, amend, or
9-30     revoke a multiple plant permit.
9-31           Sec. 382.05194.  STANDARD PERMIT.  (a)  The commission may
9-32     issue a standard permit for new or existing similar facilities if
9-33     the commission finds that:
9-34                 (1)  the standard permit can be enforceable;
9-35                 (2)  the commission can adequately monitor compliance
9-36     with the terms of the standard permit; and
9-37                 (3)  for permit applications for facilities subject to
9-38     Section 382.0518(a)-(d) filed prior to September 1, 2001, the
9-39     facilities will use control technology at least as effective as
9-40     that described in Section 382.0518(b).  For permit applications
9-41     filed after August 31, 2001, all facilities permitted under this
9-42     section will use control technology at least as effective as that
9-43     described in Section 382.0518(b).
9-44           (b)  The commission shall publish notice of a proposed
9-45     standard permit in the Texas Register and in one or more statewide
9-46     or regional newspapers, designated by the commission by rule, that
9-47     will, in the commission's judgment, provide reasonable notice
9-48     throughout the state.  If the standard permit will be effective for
9-49     only part of the state, the notice shall be published in a
9-50     newspaper of general circulation in the area to be affected.  The
9-51     commission may by rule require additional notice to be given.  The
9-52     notice must include an invitation for written comments by the
9-53     public to the commission regarding the proposed standard permit and
9-54     shall be published not later than the 30th day before the
9-55     commission issues the standard permit.
9-56           (c)  The commission shall hold a public meeting to provide an
9-57     additional opportunity for public comment.  The commission shall
9-58     give notice of a public meeting under this subsection as part of
9-59     the notice described in Subsection (b) not later than the 30th day
9-60     before the date of the meeting.
9-61           (d)  If the commission receives public comment relating to
9-62     issuance of a standard permit, the commission shall issue a written
9-63     response to comments on the permit at the same time that the
9-64     commission issues or denies the permit.  The response is available
9-65     to the public and shall be mailed to each person who made a
9-66     comment.
9-67           (e)  The commission shall establish, by rule, the procedures
9-68     for application and approval for the use of a standard permit.
9-69           (f)  The issuance, amendment, or revocation of a standard
 10-1    permit by the commission is not subject to Chapter 2001, Government
 10-2    Code.
 10-3          (g)  The commission may adopt rules as necessary to implement
 10-4    and administer this section and may delegate to the executive
 10-5    director under Section 382.061 the authority to issue, amend, or
 10-6    revoke a standard permit.
 10-7          Sec. 382.05195.  PERMITS BY RULE.  (a)  Consistent with
 10-8    Section 382.051, the commission may adopt permits by rule for
 10-9    certain types of facilities if it is found on investigation that
10-10    such types of facilities will not make a significant contribution
10-11    of air contaminants to the atmosphere.  The commission may not
10-12    adopt a permit by rule authorizing any facility defined as a "major
10-13    source" under the federal Clean Air Act (42 U.S.C. Section 7401 et
10-14    seq.) or regulations adopted under that Act.  Nothing in this
10-15    subsection shall be construed to limit the commission's general
10-16    power to control the state's air quality under Section 382.011(a).
10-17          (b)  The commission shall adopt rules specifically defining
10-18    the terms and conditions for a permit by rule under this section.
10-19          SECTION 16.  Section 382.056, Health and Safety Code, is
10-20    amended by amending Subsections (a), (b), (d), and (e) and adding
10-21    Subsections (f)-(p) to read as follows:
10-22          (a)  An applicant for a permit under Section 382.0518 or
10-23    [382.054 or] a permit renewal review under Section 382.055 shall
10-24    publish notice of intent to obtain the permit or permit review not
10-25    later than the 30th day after the date the commission determines
10-26    the application to be administratively complete.  The commission by
10-27    rule shall [may] require an applicant for a federal operating
10-28    permit under Section 382.054 to publish notice of intent to obtain
10-29    a permit or permit review consistent with federal requirements and
10-30    with the requirements of Subsection (b) [this section].  The
10-31    applicant shall publish the notice at least once in a newspaper of
10-32    general circulation in the municipality in which the facility or
10-33    federal source is located or is proposed to be located or in the
10-34    municipality nearest to the location or proposed location of the
10-35    facility or federal source.  If the elementary or middle school
10-36    nearest to the facility or proposed facility provides a bilingual
10-37    education program as required by Subchapter B, Chapter 29,
10-38    Education Code, the applicant shall also publish the notice at
10-39    least once in an additional publication of general circulation in
10-40    the municipality or county in which the facility is located or
10-41    proposed to be located that is published in the language taught in
10-42    the bilingual education program.  This requirement is waived if
10-43    such a publication does not exist or if the publisher refuses to
10-44    publish the notice.  The commission by rule shall prescribe the
10-45    form and content of the notice and when notice must be published.
10-46    The commission [and] may require publication of additional notice.
10-47    The commission by rule shall prescribe alternative procedures for
10-48    publication of the notice in a newspaper if the applicant is a
10-49    small business stationary source as defined by Section 382.0365 and
10-50    will not have a significant effect on air quality.  The alternative
10-51    procedures must be cost-effective while ensuring adequate notice.
10-52    Notice required to be published under this section shall only be
10-53    required to be published in the United States.
10-54          (b)  The notice must include:
10-55                (1)  a description of the location or proposed location
10-56    of the facility or federal source;
10-57                (2)  the location at which a copy of the application is
10-58    available for review and copying as provided by Subsection (d) [a
10-59    statement that a person who may be affected by emissions of air
10-60    contaminants from the facility, proposed facility, or federal
10-61    source is entitled to request a hearing from the commission];
10-62                (3)  a description, including a telephone number, of
10-63    the manner in which the commission may be contacted for further
10-64    information; [and]
10-65                (4)  a description, including a telephone number, of
10-66    the manner in which the applicant may be contacted for further
10-67    information;
10-68                (5)  a description of the procedural rights and
10-69    obligations of the public, printed in a font style or size that
 11-1    clearly provides emphasis and distinguishes it from the remainder
 11-2    of the notice, that includes a statement that a person who may be
 11-3    affected by emissions of air contaminants from the facility,
 11-4    proposed facility, or federal source is entitled to request a
 11-5    hearing from the commission;
 11-6                (6)  a description of the procedure by which a person
 11-7    may be placed on a mailing list in order to receive additional
 11-8    information about the application;
 11-9                (7)  the time and location of any public meeting to be
11-10    held under Subsection (e); and
11-11                (8)  any other information the commission by rule
11-12    requires.
11-13          (d)  The applicant shall make a copy of the application
11-14    available for review and copying at a public place in the county in
11-15    which the facility or federal source is located or proposed to be
11-16    located.
11-17          (e)  The applicant, in cooperation with the executive
11-18    director, may hold a public meeting in the county in which the
11-19    facility or federal source is located or proposed to be located in
11-20    order to inform the public about the application and obtain public
11-21    input.
11-22          (f)  The executive director shall conduct a technical review
11-23    of and issue a preliminary decision on the application.
11-24          (g)  If, in response to the notice published under Subsection
11-25    (a) for a permit under Section 382.0518 or a permit renewal review
11-26    under Section 382.055, a person requests during the period provided
11-27    by commission rule that the commission hold a public hearing and
11-28    the request is not withdrawn before the date the preliminary
11-29    decision is issued, the applicant shall publish notice of the
11-30    preliminary decision in a newspaper, and the commission shall seek
11-31    public comment on the preliminary decision.  The commission shall
11-32    consider the request for public hearing under the procedures
11-33    provided by Subsections (i)-(n).  The commission may not seek
11-34    further public comment or hold a public hearing under the
11-35    procedures provided by Subsections (i)-(n) in response to a request
11-36    for a public hearing on [Except as provided by Section 382.0561 or
11-37    Subsection (e), the commission or its delegate shall hold a public
11-38    hearing on the permit application or permit renewal application
11-39    before granting the permit or renewal if a person who may be
11-40    affected by the emissions, or a member of the legislature from the
11-41    general area in which the facility or proposed facility is located,
11-42    requests a hearing within the period set by commission rule.  The
11-43    commission shall not hold a hearing if the basis of a request by a
11-44    person who may be affected is determined to be unreasonable.
11-45    Reasons for which a request for a hearing on a permit amendment,
11-46    modification, or renewal shall be considered to be unreasonable
11-47    include, but are not limited to,] an amendment, modification, or
11-48    renewal that would not result in an increase in allowable emissions
11-49    and would not result in the emission of an air contaminant not
11-50    previously emitted.
11-51          (h)  If, in response to the notice published under Subsection
11-52    (a) for a permit under Section 382.054, a person requests during
11-53    the public comment period provided by commission rule that the
11-54    commission hold a public hearing, the commission shall consider the
11-55    request under the procedures provided by Section 382.0561 and not
11-56    under the procedures provided by Subsections (i)-(n).
11-57          (i)  The commission by rule shall establish the form and
11-58    content of the notice, the manner of publication, and the duration
11-59    of the public comment period.  The notice must include:
11-60                (1)  the information required by Subsection (b);
11-61                (2)  a summary of the preliminary decision;
11-62                (3)  the location at which a copy of the preliminary
11-63    decision is available for review and copying as provided by
11-64    Subsection (j);
11-65                (4)  a description of the manner in which comments
11-66    regarding the preliminary decision may be submitted; and
11-67                (5)  any other information the commission by rule
11-68    requires.
11-69          (j)  The applicant shall make a copy of the preliminary
 12-1    decision available for review and copying at a public place in the
 12-2    county in which the facility is located or proposed to be located.
 12-3          (k)  During the public comment period, the executive director
 12-4    may hold one or more public meetings in the county in which the
 12-5    facility is located or proprosed to be located.  The executive
 12-6    director shall hold a public meeting:
 12-7                (1)  on the request of a member of the legislature who
 12-8    represents the general area in which the facility is located or
 12-9    proposed to be located; or
12-10                (2)  if the executive director determines that there is
12-11    substantial public interest in the proposed activity.
12-12          (l)  The executive director, in accordance with procedures
12-13    adopted by the commission by rule, shall file with the chief clerk
12-14    of the commission a response to each relevant and material public
12-15    comment on the preliminary decision filed during the public comment
12-16    period.
12-17          (m)  The chief clerk of the commission shall transmit the
12-18    executive director's decision, the executive director's response to
12-19    public comments, and instructions for requesting that the
12-20    commission reconsider the executive director's decision or hold a
12-21    contested case hearing to:
12-22                (1)  the applicant;
12-23                (2)  any person who submitted comments during the
12-24    public comment period;
12-25                (3)  any person who requested to be on the mailing list
12-26    for the permit action; and
12-27                (4)  any person who timely filed a request for a public
12-28    hearing in response to the notice published under Subsection (a).
12-29          (n)  Except as provided by Section 382.0561, the commission
12-30    shall consider a request that the commission reconsider the
12-31    executive director's decision or hold a public hearing in
12-32    accordance with the procedures provided by Section 5.556, Water
12-33    Code.
12-34          (o) [e]  Notwithstanding other provisions of this chapter,
12-35    the commission may hold a hearing on a permit amendment,
12-36    modification, or renewal if the commission [board] determines that
12-37    the application involves a facility for which the applicant's
12-38    compliance history contains violations which are unresolved and
12-39    which constitute a recurring pattern of egregious conduct which
12-40    demonstrates a consistent disregard for the regulatory process,
12-41    including the failure to make a timely and substantial attempt to
12-42    correct the violations.
12-43          (p)  The commission by rule shall provide for additional
12-44    notice, opportunity for public comment, or opportunity for public
12-45    hearing to the extent necessary to satisfy a requirement to obtain
12-46    or maintain delegation or approval of a federal program.
12-47          SECTION 17.  Subsection (a), Section 382.057, Health and
12-48    Safety Code, is amended to read as follows:
12-49          (a)  Consistent with Section 382.0511, the commission by rule
12-50    may exempt from the requirements of Section 382.0518 changes within
12-51    any facility [and certain types of facilities] if it is found on
12-52    investigation that such changes [or types of facilities] will not
12-53    make a significant contribution of air contaminants to the
12-54    atmosphere.  The commission by rule shall exempt from the
12-55    requirements of Section 382.0518 or issue a standard permit for the
12-56    installation of emission control equipment that constitutes a
12-57    modification or a new facility, subject to such conditions
12-58    restricting the applicability of such exemption or standard permit
12-59    that the commission deems necessary to accomplish the intent of
12-60    this chapter.  The commission may not exempt [any facility or] any
12-61    modification of an existing facility defined as "major" under the
12-62    federal Clean Air Act or regulations adopted under that Act.
12-63    Nothing in this subsection shall be construed to limit the
12-64    commission's general power to control the state's air quality under
12-65    Section 382.011(a).
12-66          SECTION 18.  Section 382.058, Health and Safety Code, is
12-67    amended to read as follows:
12-68          Sec. 382.058.  PROVISIONS RELATING TO [LIMITATION ON]
12-69    COMMISSION PERMITS BY RULE, STANDARD PERMITS OR EXEMPTION FOR
 13-1    CONSTRUCTION OF CERTAIN CONCRETE PLANTS.  (a)  A person may not
 13-2    begin construction on any concrete plant that performs wet
 13-3    batching, dry batching, or central mixing under a standard permit
 13-4    under Section 382.05194 or a permit by rule [an exemption] adopted
 13-5    by the commission under Section 382.05195 [382.057] unless the
 13-6    person has complied with the notice and opportunity for hearing
 13-7    provisions under Section 382.056.
 13-8          (b)  This section does not apply to a concrete plant located
 13-9    temporarily in the right-of-way, or contiguous to the right-of-way,
13-10    of a public works project.
13-11          (c)  For purposes of this section, only those persons
13-12    actually residing in a permanent residence within 440 yards of the
13-13    proposed plant may request a hearing under Section 382.056(d) as a
13-14    person who may be affected.
13-15          (d)  If the commission considers air dispersion modeling
13-16    information in the course of adopting a standard permit under
13-17    Section 382.05194 or a permit by rule under Section 382.05195 for a
13-18    concrete plant that performs wet batching, dry batching, or central
13-19    mixing, the commission may not require that a person who qualifies
13-20    for the exemption conduct air dispersion modeling before beginning
13-21    construction of a concrete plant, and evidence regarding air
13-22    dispersion modeling may not be submitted at a hearing under Section
13-23    382.056.
13-24          SECTION 19.  Subsection (b), Section 382.062, Health and
13-25    Safety Code, is amended to read as follows:
13-26          (b)  The commission may adopt rules relating to charging and
13-27    collecting a fee for an exemption, for [from] a permit, for a
13-28    permit by rule, for a voluntary emission reduction permit, for a
13-29    multiple plant permit, or for a standard permit [authorized by
13-30    commission rule] and for a variance.
13-31          SECTION 20.  Section 2003.047, Government Code, is amended by
13-32    amending Subsections (e)-(j) and adding Subsections (k)-(0) to read
13-33    as follows:
13-34          (e)  In referring a matter for hearing [When the office
13-35    receives jurisdiction of a proceeding], the commission shall
13-36    provide to the administrative law judge a list of disputed issues.
13-37    The commission shall specify the date by which the administrative
13-38    law judge is expected to complete the proceeding and provide a
13-39    proposal for decision to the commission.  The administrative law
13-40    judge may extend the proceeding if the administrative law judge
13-41    determines that failure to grant an extension would deprive a party
13-42    of due process or another constitutional right.  The administrative
13-43    law judge shall establish a docket control order designed to
13-44    complete the proceeding by the date specified by the commission.
13-45          (f)  Except as otherwise provided by this subsection, the
13-46    scope of the hearing is limited to the issues referred by the
13-47    commission.  On the request of a party, the administrative law
13-48    judge may consider an issue that was not referred by the commission
13-49    if the administrative law judge determines that:
13-50                (1)  the issue is material;
13-51                (2)  the issue is supported by evidence; and
13-52                (3)  there are good reasons for the failure to supply
13-53    available information regarding the issue during the public comment
13-54    period.
13-55          (g)  The scope of permissible discovery is limited to:
13-56                (1)  any matter reasonably calculated to lead to the
13-57    discovery of admissible evidence regarding any issue referred to
13-58    the administrative law judge by the commission or that the
13-59    administrative law judge has agreed to consider; and
13-60                (2)  the production of documents;
13-61                      (A)  reviewed or relied on in preparing
13-62    application materials or selecting the site of the proposed
13-63    facility; or
13-64                      (B)  relating to the ownership of the applicant
13-65    or the owner or operator of the facility or proposed facility.
13-66          (h)  The commission by rule shall:
13-67                (1)  provide for subpoenas and commissions for
13-68    depositions; and
13-69                (2)  require that discovery be conducted in accordance
 14-1    with the Texas Rules of Civil Procedure, except that the commission
 14-2    by rule shall determine the level of discovery under rule 190,
 14-3    Texas Rules of Civil Procedure, appropriate for each type of case
 14-4    considered by the commission, taking into account the nature and
 14-5    complexity of the case.
 14-6          (i)  [or areas that must be addressed.  In addition, the
 14-7    commission may identify and provide to the administrative law judge
 14-8    at any time additional issues or areas that must be addressed.]
 14-9          [(f)]  The office and the commission jointly shall adopt
14-10    rules providing for certification to the commission of an issue
14-11    that involves an ultimate finding of compliance with or
14-12    satisfaction of a statutory standard the determination of which is
14-13    committed to the discretion or judgment of the commission by law.
14-14    The rules must address, at a minimum, the issues that are
14-15    appropriate for certification and the procedure to be used in
14-16    certifying the issue.  Each agency shall publish the jointly
14-17    adopted rules.
14-18          (j) [(g)]  An administrative law judge hearing a case on
14-19    behalf of the commission, on the judge's own motion or on motion of
14-20    a party and after notice and an opportunity for a hearing, may
14-21    impose appropriate sanctions as provided by Subsection (k) [(h)]
14-22    against a party or its representative for:
14-23                (1)  filing a motion or pleading that is groundless and
14-24    brought:
14-25                      (A)  in bad faith;
14-26                      (B)  for the purpose of harassment; or
14-27                      (C)  for any other improper purpose, such as to
14-28    cause unnecessary delay or needless increase in the cost of the
14-29    proceeding;
14-30                (2)  abuse of the discovery process in seeking, making,
14-31    or resisting discovery; or
14-32                (3)  failure to obey an order of the administrative law
14-33    judge or the commission.
14-34          (k) [(h)]  A sanction imposed under Subsection (j) [(g)] may
14-35    include, as appropriate and justified, issuance of an order:
14-36                (1)  disallowing further discovery of any kind or of a
14-37    particular kind by the offending party;
14-38                (2)  charging all or any part of the expenses of
14-39    discovery against the offending party or its representatives;
14-40                (3)  holding that designated facts be considered
14-41    admitted for purposes of the proceeding;
14-42                (4)  refusing to allow the offending party to support
14-43    or oppose a designated claim or defense or prohibiting the party
14-44    from introducing designated matters in evidence;
14-45                (5)  disallowing in whole or in part requests for
14-46    relief by the offending party and excluding evidence in support of
14-47    those requests; and
14-48                (6)  striking pleadings or testimony, or both, in whole
14-49    or in part.
14-50          (l) [(i)(1)]  After hearing evidence and receiving legal
14-51    argument, an administrative law judge shall make findings of fact,
14-52    conclusions of law, and any ultimate findings required by statute,
14-53    all of which shall be separately stated.  The administrative law
14-54    judge shall make a proposal for decision to the commission and
14-55    shall serve the proposal for decision on all parties.  An
14-56    opportunity shall be given to each party to file exceptions to the
14-57    proposal for decision and briefs related to the issues addressed in
14-58    the proposal for decision.  The commission shall consider and act
14-59    on the proposal for decision.
14-60          (m) [(2)]  Except as provided in Section 361.0832, Health and
14-61    Safety Code, the commission shall consider the proposal for
14-62    decision prepared by the administrative law judge, the exceptions
14-63    of the parties, and the briefs and argument of the parties.  The
14-64    commission may amend the proposal for decision, including any
14-65    finding of fact, but any such amendment thereto and order shall be
14-66    based solely on the record made before the administrative law
14-67    judge.  Any such amendment by the commission shall be accompanied
14-68    by an explanation of the basis of the amendment.  The commission
14-69    may also refer the matter back to the administrative law judge to
 15-1    reconsider any findings and conclusions set forth in the proposal
 15-2    for decision or take additional evidence or to make additional
 15-3    findings of fact or conclusions of law.  The commission shall serve
 15-4    a copy of the commission's order, including its finding of facts
 15-5    and conclusions of law, on each party.
 15-6          (n) [(3)]  The provisions of Chapter 2001[,] shall apply to
 15-7    contested case hearings for the commission to the extent not
 15-8    inconsistent with this section.
 15-9          (o) [(j)]  An administrative law judge hearing a case on
15-10    behalf of the commission may not, without the agreement of all
15-11    parties, issue an order referring the case to an alternative
15-12    dispute resolution procedure if the commission has already
15-13    conducted an unsuccessful alternative dispute resolution procedure.
15-14    If the commission has not already conducted an alternative dispute
15-15    resolution procedure, the administrative law judge shall consider
15-16    the commission's recommendation in determining whether to issue an
15-17    order referring the case to the procedure.
15-18          SECTION 21.  The Texas Natural Resource Conservation
15-19    Commission shall adopt as soon as practicable after the effective
15-20    date of this Act, any rules necessary to implement the changes in
15-21    law made by this Act.
15-22          SECTION 22.  Not later than January 15, 2001, the Texas
15-23    Natural Resource Conservation Commission shall prepare and
15-24    distribute to the governor, the lieutenant governor, the speaker of
15-25    the house of representatives, the chairman of the Senate Committee
15-26    on Natural Resources, and the chairman of the House Committee on
15-27    Environmental Regulation a report on the number of companies that
15-28    have obtained or applied for a permit under Section 382.0519,
15-29    Health and Safety Code, as added by this Act, and the reductions in
15-30    emissions anticipated to result from issuance of such permits.
15-31          SECTION 23.  (a)  The commission may not initiate an
15-32    enforcement action against a person for the failure to obtain a
15-33    preconstruction permit under Section 382.0518, Health and Safety
15-34    Code, or a rule adopted or order issued by the commission under
15-35    that section, that is related to the modification of a facility
15-36    that may emit air contaminants if, on or before August 31, 2001,
15-37    the person files an application for a permit for the facility under
15-38    Section 382.0519, Health and Safety Code, as added by this Act.
15-39          (b)  This section does not apply to an act related to the
15-40    modification of a facility that occurs after March 1, 1999.
15-41          SECTION 24.  The changes in law made by Section 16 of this
15-42    Act do not expand or restrict the types of actions of the Texas
15-43    Natural Resource Conservation Commission for which public notice,
15-44    an opportunity for public comment, and an opportunity for public
15-45    hearing under Subchapters C-H, Chapter 2001, Government Code, are
15-46    provided under Chapter 382, Health and Safety Code.
15-47          SECTION 25.  (a)  This Act takes effect September 1, 1999.
15-48          (b)  Except as provided in Subsection (c), Subsection (d),
15-49    and Subsection (e) of this section, the changes in law made by this
15-50    Act apply only to an application to issue, amend, or renew a permit
15-51    that is declared to be administratively complete on or after the
15-52    effective date of this Act.  An application to issue, amend, or
15-53    renew a permit that was declared to be administratively complete
15-54    before the effective date of this Act is governed by the former
15-55    law, and that law is continued in effect for that purpose.
15-56          (c)  Sections 361.066(a) and (c), Health and Safety Code, as
15-57    amended and added by this Act, apply only to an application
15-58    submitted on or after the effective date of this Act.
15-59          (d)  Except as provided by Subsection (e), Sections 361.152,
15-60    363.112, and 364.012, Health and Safety Code, as amended by this
15-61    Act, apply to an application pending before the commission as of
15-62    the effective date of this Act.
15-63          (e)  SECTIONS 361.152, 363.112, and 364.012, Health and
15-64    Safety Code, as amended by this Act, do not apply until January 1,
15-65    2000, to any application submitted after September 1, 1998, for a
15-66    facility proposed to be located in a county in which the
15-67    commissioners court has provided notice by September 1, 1999 in
15-68    accordance with any applicable notice provisions in Chapter 551,
15-69    Government Code, of intent to enact an ordinance pursuant to this
 16-1    Act.
 16-2          SECTION 26.  The importance of this legislation and the
 16-3    crowded condition of the calendars in both houses create an
 16-4    emergency and an imperative public necessity that the
 16-5    constitutional rule requiring bills to be read on three several
 16-6    days in each house be suspended, and this rule is hereby suspended.
 16-7                                 * * * * *