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 * * * * *