77R11339 MI-D
By Bosse, Chisum, Counts H.B. No. 2912
Substitute the following for H.B. No. 2912:
By Bosse C.S.H.B. No. 2912
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation and functions of the Texas Natural
1-3 Resource Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. ADMINISTRATIVE PROVISIONS
1-6 SECTION 1.01. Section 5.014, Water Code, is amended to read
1-7 as follows:
1-8 Sec. 5.014. SUNSET PROVISION. The Texas Natural Resource
1-9 Conservation Commission is subject to Chapter 325, Government Code
1-10 (Texas Sunset Act). Unless continued in existence as provided by
1-11 that chapter, the commission is abolished and this chapter expires
1-12 September 1, 2013 [2001].
1-13 SECTION 1.02. Section 5.052(c), Water Code, is amended to
1-14 read as follows:
1-15 (c) Appointments to the commission shall be made without
1-16 regard to the race, color, disability [handicap], sex, religion,
1-17 age, or national origin of the appointees.
1-18 SECTION 1.03. Section 5.053(a), Water Code, is amended to
1-19 read as follows:
1-20 (a) A person may not be a member of [is not eligible to
1-21 serve on] the commission if the person or the person's spouse:
1-22 (1) is registered, certified, licensed, permitted, or
1-23 otherwise authorized by the commission;
1-24 (2) is employed by or participates in the management
2-1 of a business entity or other organization regulated by the
2-2 commission or receiving money [funds] from the commission;
2-3 (3) [(2)] owns or[,] controls, [or has,] directly or
2-4 indirectly, more than a 10 percent interest in a business entity or
2-5 other organization regulated by [the commission] or receiving funds
2-6 from the commission; or
2-7 (4) [(3)] uses or receives a substantial amount of
2-8 tangible goods, services, or money [funds] from the commission
2-9 other than compensation or reimbursement authorized by law for
2-10 commission membership, attendance, or expenses.
2-11 SECTION 1.04. Subchapter C, Chapter 5, Water Code, is amended
2-12 by adding Section 5.0535 to read as follows:
2-13 Sec. 5.0535. REQUIRED TRAINING PROGRAM FOR COMMISSION
2-14 MEMBERS. (a) A person who is appointed to and qualifies for office
2-15 as a member of the commission may not vote, deliberate, or be
2-16 counted as a member in attendance at a meeting of the commission
2-17 until the person completes a training program that complies with
2-18 this section.
2-19 (b) The training program must provide the person with
2-20 information regarding:
2-21 (1) the legislation that created the commission;
2-22 (2) the programs operated by the commission;
2-23 (3) the role and functions of the commission;
2-24 (4) the rules of the commission, with an emphasis on
2-25 the rules that relate to disciplinary and investigatory authority;
2-26 (5) the current budget for the commission;
2-27 (6) the results of recent significant internal and
3-1 external audits of the commission;
3-2 (7) the requirements of:
3-3 (A) the open meetings law, Chapter 551,
3-4 Government Code;
3-5 (B) the public information law, Chapter 552,
3-6 Government Code;
3-7 (C) the administrative procedure law, Chapter
3-8 2001, Government Code; and
3-9 (D) other laws relating to public officials,
3-10 including conflict-of-interest laws; and
3-11 (8) any applicable ethics policies adopted by the
3-12 commission or the Texas Ethics Commission.
3-13 (c) A person appointed to the commission is entitled to
3-14 reimbursement, as provided by the General Appropriations Act, for
3-15 the travel expenses incurred in attending the training program
3-16 regardless of whether the attendance at the program occurs before
3-17 or after the person qualifies for office.
3-18 SECTION 1.05. Section 5.054, Water Code, is amended to read
3-19 as follows:
3-20 Sec. 5.054. REMOVAL OF COMMISSION MEMBERS. (a) It is a
3-21 ground for removal from the commission that [if] a member:
3-22 (1) does not have at the time of taking office the
3-23 qualifications required by Section 5.053(b);
3-24 (2) does not maintain during the service on the
3-25 commission the qualifications required by Section 5.053(b) [for
3-26 appointment to the commission];
3-27 (3) is ineligible for membership under Section
4-1 5.053(a), 5.059, or 5.060 [(2) violates a prohibition established
4-2 by Sections 5.059 and 5.060 of this code];
4-3 (4) cannot, because of illness or disability, [(3) is
4-4 unable to] discharge the member's [his] duties for a substantial
4-5 part of the member's term [portion of the term for which he was
4-6 appointed because of illness or disability]; or
4-7 (5) [(4)] is absent from more than one-half of the
4-8 regularly scheduled commission meetings that the member is eligible
4-9 to attend during each calendar year without an excuse approved [,
4-10 except when the absence is excused] by a majority vote of the
4-11 commission.
4-12 (b) The validity of an action of the commission is not
4-13 affected by the fact that it is [was] taken when a ground for
4-14 removal of a member of the commission exists [existed].
4-15 (c) If the executive director or a member [of the
4-16 commission] has knowledge that a potential ground for removal
4-17 exists, the executive director or member [he] shall notify the
4-18 presiding officer [chairman] of the commission of the potential
4-19 [that] ground. The presiding officer [chairman of the commission]
4-20 shall then notify the governor and the attorney general that a
4-21 potential ground for removal exists. If the potential ground for
4-22 removal involves the presiding officer, the executive director or
4-23 another member of the commission shall notify the member of the
4-24 commission with the most seniority, who shall then notify the
4-25 governor and the attorney general that a potential ground for
4-26 removal exists.
4-27 SECTION 1.06. Sections 5.058(a)-(d), Water Code, are amended
5-1 to read as follows:
5-2 (a) The governor shall designate a member of the commission
5-3 as the presiding officer [the chairman] of the commission to serve
5-4 in that capacity at the pleasure of[. He shall serve as chairman
5-5 until] the governor [designates a different chairman].
5-6 (b) The presiding officer [chairman] may designate another
5-7 commissioner to act for the presiding officer [him] in the
5-8 presiding officer's [his] absence.
5-9 (c) The presiding officer [chairman] shall preside at the
5-10 meetings and hearings of the commission.
5-11 (d) The commission shall hold regular meetings and all
5-12 hearings at times specified by a commission order and entered in
5-13 its minutes. The commission may hold special meetings at the times
5-14 and places in the state that the commission decides are appropriate
5-15 for the performance of its duties. The presiding officer
5-16 [chairman] or acting presiding officer [chairman] shall give the
5-17 other members reasonable notice before holding a special meeting.
5-18 SECTION 1.07. Sections 5.059 and 5.060, Water Code, are
5-19 amended to read as follows:
5-20 Sec. 5.059. CONFLICT OF INTEREST. (a) In this section,
5-21 "Texas trade association" means a cooperative and voluntarily
5-22 joined association of business or professional competitors in this
5-23 state designed to assist its members and its industry or profession
5-24 in dealing with mutual business or professional problems and in
5-25 promoting their common interest.
5-26 (b) A person may not be a member of the commission and may
5-27 not be a commission employee employed in a "bona fide executive,
6-1 administrative, or professional capacity," as that phrase is used
6-2 for purposes of establishing an exemption to the overtime
6-3 provisions of the federal Fair Labor Standards Act of 1938 (29
6-4 U.S.C. Section 201 et seq.) and its subsequent amendments, if:
6-5 (1) the person is an officer, employee, or paid
6-6 consultant of a Texas trade association in an industry regulated by
6-7 the commission; or
6-8 (2) the person's spouse is an officer, manager, or
6-9 paid consultant of a Texas trade association in an industry
6-10 regulated by the commission [An officer, employee, or paid
6-11 consultant of a trade association in an industry regulated by the
6-12 commission may not be a member of the commission or employee of the
6-13 commission, nor may a person who cohabits with or is the spouse of
6-14 an officer, managerial employee, or paid consultant of a trade
6-15 association in an industry regulated by the commission be a member
6-16 of the commission or an employee of the commission grade 17 or
6-17 over, including exempt employees, according to the position
6-18 classification schedule under the General Appropriations Act].
6-19 Sec. 5.060. LOBBYIST PROHIBITION. A person may not be a
6-20 member of the commission or act as general counsel to the
6-21 commission if the person [who] is required to register as a
6-22 lobbyist under Chapter 305, Government Code, because [by virtue]
6-23 of the person's [his] activities for compensation [in or] on behalf
6-24 of a profession related to the operation of the commission [may not
6-25 serve as a member of the commission or act as the general counsel
6-26 to the commission].
6-27 SECTION 1.08. Subchapter D, Chapter 5, Water Code, is amended
7-1 by adding Section 5.1031 to read as follows:
7-2 Sec. 5.1031. RULES RESTRICTING ADVERTISING OR COMPETITIVE
7-3 BIDDING PROHIBITED. (a) The commission may not adopt rules
7-4 restricting advertising or competitive bidding by a license holder
7-5 except to prohibit false, misleading, or deceptive practices.
7-6 (b) In its rules to prohibit false, misleading, or deceptive
7-7 practices, the commission may not include a rule that:
7-8 (1) restricts the use of any medium for advertising;
7-9 (2) restricts the use of a license holder's personal
7-10 appearance or voice in an advertisement;
7-11 (3) relates to the size or duration of an
7-12 advertisement by the license holder; or
7-13 (4) restricts the license holder's advertisement under
7-14 a trade name.
7-15 SECTION 1.09. Section 5.107, Water Code, is amended to read
7-16 as follows:
7-17 Sec. 5.107. ADVISORY COMMITTEES, WORK GROUPS, AND TASK
7-18 FORCES [COUNCILS]. (a) The commission or the executive director
7-19 may create and consult with advisory committees, work groups, or
7-20 task forces [councils], including committees, work groups, or task
7-21 forces [councils] for the environment, [councils] for public
7-22 information, or for any other matter [councils] that the commission
7-23 or the executive director may consider appropriate.
7-24 (b) The commission shall identify affected groups of
7-25 interested persons for advisory committees, work groups, and task
7-26 forces and shall make reasonable attempts to have balanced
7-27 representation on all advisory committees, work groups, and task
8-1 forces. This subsection does not require the commission to ensure
8-2 that all representatives attend a scheduled meeting. A rule or
8-3 other action of the commission may not be challenged solely because
8-4 of the composition of an advisory committee, work group, or task
8-5 force.
8-6 (c) The commission shall monitor the composition and
8-7 activities of advisory committees, work groups, and task forces
8-8 appointed by the commission or formed at the staff level and shall
8-9 maintain that information in a form and location that is easily
8-10 accessible to the public.
8-11 SECTION 1.10. Subchapter D, Chapter 5, Water Code, is amended
8-12 by adding Section 5.1115 to read as follows:
8-13 Sec. 5.1115. RECORD OF OUTSIDE CONTACT BY COMMISSION MEMBER
8-14 OR STAFF. (a) Each commission member and each commission staff
8-15 member with discretionary authority over any aspect of a permit or
8-16 enforcement decision, rulemaking, or other regulatory matter
8-17 pending before or within the jurisdiction of the commission shall
8-18 keep a written record of each communication with any person other
8-19 than a commission member or commission employee regarding that
8-20 regulatory matter. A commission member or commission employee has
8-21 discretionary authority if the person has authority to make a
8-22 decision that is final regarding that regulatory matter.
8-23 (b) The written record must state:
8-24 (1) the name of the person with whom the communication
8-25 took place;
8-26 (2) the name of that person's employer;
8-27 (3) the name of the party or interest whom that person
9-1 is representing;
9-2 (4) the specific regulatory matter about which the
9-3 communication is made;
9-4 (5) the date, time, and location of the communication;
9-5 and
9-6 (6) the specific method of communication, whether in
9-7 person or by letter, telephone, e-mail, or other method.
9-8 (c) A written record prepared as required by this section is
9-9 subject to disclosure under the public information law, Chapter
9-10 552, Government Code.
9-11 (d) This section does not apply to an unplanned
9-12 communication that occurs outside commission offices.
9-13 (e) If the communication occurs as part of a presentation to
9-14 a group or association, the written record must include the name of
9-15 the group or association instead of the information required by
9-16 Subsections (b)(1)-(3).
9-17 SECTION 1.11. Subchapter D, Chapter 5, Water Code, is amended
9-18 by adding Sections 5.1191-5.1193 to read as follows:
9-19 Sec. 5.1191. RESEARCH COORDINATION; REPORT. (a) The
9-20 commission shall facilitate research regarding the commission's
9-21 practical regulatory needs by coordinating commission research
9-22 efforts and requirements with the state's scientific and academic
9-23 communities.
9-24 (b) The commission shall explore private and federal funding
9-25 opportunities for necessary or desirable research projects. The
9-26 commission may direct and facilitate research based on commission
9-27 research needs by administering grants or by contracting with state
10-1 universities if money is appropriated to the commission for those
10-2 purposes.
10-3 (c) The commission shall coordinate any research activity
10-4 with existing state initiatives and shall work with state
10-5 universities and the Texas Higher Education Coordinating Board to
10-6 help meet the goals of this section.
10-7 (d) To the greatest extent possible, the commission shall
10-8 use the research expertise of state universities, the United States
10-9 Department of Agriculture, and the Texas Department of Agriculture
10-10 and other appropriate state agencies.
10-11 (e) The commission shall include in the reports required by
10-12 Section 5.178 a description of cooperative research efforts, an
10-13 accounting of money spent on research, and a review of the purpose,
10-14 implementation, and results of particular research projects
10-15 conducted.
10-16 (f) This section does not authorize the commission to
10-17 initiate or direct the research efforts of other entities.
10-18 Sec. 5.1192. RESEARCH ADVISORY BOARD. The commission may
10-19 appoint a research advisory board to assist the commission in
10-20 providing appropriate incentives to encourage various interest
10-21 groups to participate and make recommendations regarding research
10-22 topics specific to this state. The research advisory board must
10-23 include representatives of the academic community, representatives
10-24 of the regulated community, and public representatives of the state
10-25 at large.
10-26 Sec. 5.1193. RESEARCH MODEL. The commission shall develop a
10-27 research model to identify the commission's research needs and to
11-1 obtain funding for research projects. The research model must
11-2 provide for commission staff to work with representatives of state
11-3 universities, the United States Department of Agriculture, the
11-4 Texas Department of Agriculture and other appropriate state
11-5 agencies, and the regulated community to develop long-range
11-6 research plans and to identify and pursue specific research
11-7 projects. Commission requests for proposals shall be developed
11-8 according to research needs identified through use of the model.
11-9 SECTION 1.12. Subchapter D, Chapter 5, Water Code, is amended
11-10 by adding Sections 5.127-5.129 to read as follows:
11-11 Sec. 5.127. USE OF ENVIRONMENTAL TESTING LABORATORY DATA AND
11-12 ANALYSIS. (a) The commission may accept environmental testing
11-13 laboratory data and analysis for use in commission decisions
11-14 regarding any matter under the commission's jurisdiction relating
11-15 to permits or other authorizations, compliance matters, enforcement
11-16 actions, or corrective actions only if the data and analysis is
11-17 prepared by an environmental testing laboratory accredited by the
11-18 commission under Subchapter R or an environmental testing
11-19 laboratory described in Subsection (b).
11-20 (b) The commission may accept for use in commission
11-21 decisions data and analysis prepared by:
11-22 (1) an on-site or in-house environmental testing
11-23 laboratory if the laboratory is periodically inspected by the
11-24 commission;
11-25 (2) an environmental testing laboratory that is
11-26 accredited under federal law; or
11-27 (3) if the data and analysis are necessary for
12-1 emergency response activities and the required data and analysis
12-2 are not otherwise available, an environmental testing laboratory
12-3 that is not accredited by the commission under Subchapter R or
12-4 under federal law.
12-5 (c) The commission by rule may require that data and
12-6 analysis used in other commission decisions be obtained from an
12-7 environmental testing laboratory accredited by the commission under
12-8 Subchapter R.
12-9 Sec. 5.128. ELECTRONIC REPORTING TO COMMISSION; REDUCTION OF
12-10 DUPLICATE REPORTING. (a) The commission shall encourage the use of
12-11 electronic reporting through the Internet, to the extent
12-12 practicable, for reports required by the commission. An electronic
12-13 report must be submitted in a format prescribed by the commission.
12-14 The commission may consult with the Department of Information
12-15 Resources on developing a simple format for use in implementing
12-16 this subsection.
12-17 (b) The commission shall strive to reduce duplication in
12-18 reporting requirements throughout the agency.
12-19 Sec. 5.129. SUMMARY FOR PUBLIC NOTICES. (a) The commission
12-20 by rule shall provide for each public notice issued or published by
12-21 the commission or by a person under the jurisdiction of the
12-22 commission as required by law or by commission rule to include at
12-23 the beginning of the notice a succinct statement of the subject of
12-24 the notice. The rules must provide that a summary statement must
12-25 be designed to inform the reader of the subject matter of the
12-26 notice without having to read the entire text of the notice.
12-27 (b) The summary statement may not be grounds for challenging
13-1 the validity of the proposed action for which the notice was
13-2 published.
13-3 SECTION 1.13. Subchapter E, Chapter 5, Water Code, is amended
13-4 by adding Section 5.1765 to read as follows:
13-5 Sec. 5.1765. PUBLICATION OF INFORMATION REGARDING COMPLAINT
13-6 PROCEDURES AND POLICIES. The commission shall establish a process
13-7 for educating the public regarding the commission's complaint
13-8 policies and procedures. As part of the public education process,
13-9 the commission shall make available to the public in pamphlet form
13-10 an explanation of the complaint policies and procedures, including
13-11 information regarding and standards applicable to the collection
13-12 and preservation of credible evidence of environmental problems by
13-13 members of the public.
13-14 SECTION 1.14. Sections 5.176 and 5.177, Water Code, are
13-15 amended to read as follows:
13-16 Sec. 5.176. COMPLAINT FILE. The commission shall maintain a
13-17 [keep an information] file on [about] each written complaint filed
13-18 with the commission about a matter within the commission's
13-19 regulatory jurisdiction [relating to an entity regulated by the
13-20 commission]. The file must include:
13-21 (1) the name of the person who filed the complaint;
13-22 (2) the date the complaint is received by the
13-23 commission;
13-24 (3) the subject matter of the complaint;
13-25 (4) the name of each person contacted in relation to
13-26 the complaint;
13-27 (5) a summary of the results of the review or
14-1 investigation of the complaint; and
14-2 (6) an explanation of the reason the file was closed,
14-3 if the agency closed the file without taking action other than to
14-4 investigate the complaint.
14-5 Sec. 5.177. NOTICE OF COMPLAINT PROCEDURES; NOTICE OF
14-6 INVESTIGATION STATUS. (a) The agency shall provide to the person
14-7 filing the complaint about a matter within the commission's
14-8 regulatory jurisdiction and to each person who is the subject of
14-9 the complaint a copy of the commission's policies and procedures
14-10 relating to complaint investigation and resolution.
14-11 (b) The [If a written complaint is filed with the commission
14-12 relating to an entity regulated by the commission, the] commission,
14-13 at least [as frequently as] quarterly [and] until final disposition
14-14 of the complaint, shall notify the person filing the complaint and
14-15 each person who is a subject of [parties to] the complaint of the
14-16 status of the investigation [complaint] unless the notice would
14-17 jeopardize an undercover investigation.
14-18 (c) The commission is not required to provide the
14-19 information described in Subsection (a) or (b) to a complainant who
14-20 files an anonymous complaint or provides inaccurate contact
14-21 information.
14-22 SECTION 1.15. Subchapter E, Chapter 5, Water Code, is amended
14-23 by adding Sections 5.1771 and 5.1772 to read as follows:
14-24 Sec. 5.1771. COORDINATION OF COMPLAINT INVESTIGATIONS WITH
14-25 LOCAL ENFORCEMENT OFFICIALS: TRAINING. (a) The commission shall
14-26 share information regarding a complaint about a matter within the
14-27 commission's regulatory jurisdiction made to the commission with
15-1 local officials with authority to act on the complaint in the
15-2 county or municipality in which the alleged action or omission that
15-3 is the subject of the complaint occurred or is threatening to
15-4 occur.
15-5 (b) On request, the commission shall provide training for
15-6 local enforcement officials in investigating complaints and
15-7 enforcing environmental laws relating to matters under the
15-8 commission's jurisdiction under this code or the Health and Safety
15-9 Code. The training must include, at a minimum:
15-10 (1) procedures for local enforcement officials to use
15-11 in addressing citizen complaints if the commission is unavailable
15-12 or unable to respond to the complaint; and
15-13 (2) an explanation of local government authority to
15-14 enforce state laws and commission rules relating to the
15-15 environment.
15-16 (c) The commission may charge a reasonable fee for providing
15-17 training to local enforcement officials as required by Subsection
15-18 (b) in an amount sufficient to recover the costs of the training.
15-19 Sec. 5.1772. AFTER-HOURS RESPONSE TO COMPLAINTS. (a) The
15-20 commission shall adopt and implement a policy to provide response
15-21 to complaints during periods outside regular business hours.
15-22 (b) This section does not:
15-23 (1) require availability of field inspectors for
15-24 response 24 hours a day, seven days a week, in all parts of the
15-25 state; or
15-26 (2) authorize additional use of overtime.
15-27 SECTION 1.16. Section 5.227, Water Code, is amended to read
16-1 as follows:
16-2 Sec. 5.227. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The
16-3 executive director or his designee shall prepare and maintain a
16-4 written policy statement that implements [to assure implementation
16-5 of] a program of equal employment opportunity to ensure that
16-6 [whereby] all personnel decisions [transactions] are made without
16-7 regard to race, color, disability [handicap], sex, religion, age,
16-8 or national origin.
16-9 (b) The policy statement must include:
16-10 (1) personnel policies, including policies relating to
16-11 recruitment, evaluation, selection, [appointment,] training, and
16-12 promotion of personnel, that show the intent of the commission to
16-13 avoid the unlawful employment practices described by Chapter 21,
16-14 Labor Code; and
16-15 (2) a comprehensive analysis of the extent to which
16-16 the composition of the commission's personnel is in accordance with
16-17 state and federal law and a description of reasonable methods to
16-18 achieve compliance with state and federal law [work force that
16-19 meets federal and state guidelines;]
16-20 [(3) procedures by which a determination can be made
16-21 of significant underutilization in the commission's work force of
16-22 all persons for whom federal or state guidelines encourage a more
16-23 equitable balance; and]
16-24 [(4) reasonable methods to address appropriately areas
16-25 of significant underutilization in the commission's work force of
16-26 all persons for whom federal or state guidelines encourage a more
16-27 equitable balance].
17-1 (c) [(b)] The policy statement must:
17-2 (1) [shall be filed with the governor's office before
17-3 November 1, 1985, cover an annual period, and] be updated [at
17-4 least] annually;
17-5 (2) be reviewed by the state Commission on Human
17-6 Rights for compliance with Subsection (b)(1); and
17-7 (3) be filed with the governor's office. [The
17-8 governor's office shall develop a biennial report to the
17-9 legislature based on the information submitted. This report may be
17-10 made individually or as a part of other biennial reports made to
17-11 the legislature.]
17-12 SECTION 1.17. Subchapter F, Chapter 5, Water Code, is amended
17-13 by adding Section 5.2275 to read as follows:
17-14 Sec. 5.2275. STATE EMPLOYEE INCENTIVE PROGRAM. The executive
17-15 director or the executive director's designee shall provide to
17-16 commission employees information and training on the benefits and
17-17 methods of participation in the state employee incentive program
17-18 under Subchapter B, Chapter 2108, Government Code.
17-19 SECTION 1.18. Section 5.228, Water Code, is amended to read
17-20 as follows:
17-21 Sec. 5.228. APPEARANCES AT HEARINGS. (a) The position of
17-22 and information developed by the commission shall be presented by
17-23 the executive director or his designated representative at hearings
17-24 of the commission and the hearings held by federal, state, and
17-25 local agencies on matters affecting the public's interest in the
17-26 state's environment and natural resources, including matters that
17-27 have been determined to be policies of the state.
18-1 (b) The executive director shall be named a party in
18-2 hearings before the commission on an enforcement matter under the
18-3 jurisdiction of the commission.
18-4 (c) The executive director may participate as a party in
18-5 permit hearings or contested case permit hearings before the
18-6 commission or the State Office of Administrative Hearings for the
18-7 sole purpose of providing information to complete the
18-8 administrative record. The commission by rule shall specify the
18-9 factors the executive director must consider in determining, case
18-10 by case, whether to participate as a party in a permit hearing or a
18-11 contested case permit hearing.
18-12 (d) In a contested case hearing relating to a permit
18-13 application, the executive director or the executive director's
18-14 designated representative may not rehabilitate the testimony of a
18-15 witness unless the witness is a commission employee testifying for
18-16 the sole purpose of providing information to complete the
18-17 administrative record.
18-18 (e) The executive director or the executive director's
18-19 designated representative may not assist a permit applicant in
18-20 meeting its burden of proof in a hearing before the commission or
18-21 the State Office of Administrative Hearings unless the permit
18-22 applicant fits a category of permit applicant that the commission
18-23 by rule has designated as eligible to receive assistance. The
18-24 commission shall adopt rules establishing categories of permit
18-25 applicants eligible to receive assistance.
18-26 SECTION 1.19. Section 5.234(b), Water Code, is amended to
18-27 read as follows:
19-1 (b) After an application, petition, or other document is
19-2 processed, it shall be presented to the commission for action as
19-3 required by law and rules of the commission. If, in the course of
19-4 reviewing an application and preparing a draft permit, the
19-5 executive director has required changes to be made to the
19-6 applicant's proposal, the executive director shall prepare a
19-7 summary of the changes that were made to increase protection of
19-8 public health and the environment.
19-9 SECTION 1.20. Sections 5.273 and 5.274, Water Code, are
19-10 amended to read as follows:
19-11 Sec. 5.273. DUTIES OF THE PUBLIC INTEREST COUNSEL. (a) The
19-12 counsel shall represent the public interest and be a party to all
19-13 proceedings before the commission.
19-14 (b) The counsel may recommend needed legislative and
19-15 regulatory changes.
19-16 Sec. 5.274. STAFF; OUTSIDE TECHNICAL SUPPORT. (a) The
19-17 office shall be adequately staffed to carry out its functions under
19-18 this code.
19-19 (b) The counsel may obtain and use outside technical support
19-20 to carry out its functions under this code.
19-21 SECTION 1.21. Subchapter A, Chapter 7, Water Code, is
19-22 amended by adding Section 7.0025 to read as follows:
19-23 Sec. 7.0025. INITIATION OF ENFORCEMENT ACTION USING EVIDENCE
19-24 PROVIDED BY PRIVATE INDIVIDUAL. (a) The commission may initiate an
19-25 enforcement action on a matter under its jurisdiction under this
19-26 code or the Health and Safety Code based on evidence it receives
19-27 from a private individual if that evidence, in the commission's
20-1 judgment, meets the requirements of the Texas Rules of Evidence.
20-2 (b) The executive director or the executive director's
20-3 designated representative may evaluate the value and credibility of
20-4 evidence received from a private individual and the merits of any
20-5 proposed enforcement action based on that evidence.
20-6 (c) The commission by rule may adopt criteria for the
20-7 executive director to use in evaluating the value and credibility
20-8 of evidence received from a private individual and for use of that
20-9 evidence in an enforcement action.
20-10 (d) A private individual who submits evidence on which the
20-11 commission relies for all or part of an enforcement case may be
20-12 called to testify in the enforcement proceedings and is subject to
20-13 all sanctions under law for falsifying evidence. If the commission
20-14 relies solely on the evidence submitted by a private individual to
20-15 prove an enforcement case, any physical or sampling data must have
20-16 been collected or gathered in accordance with commission protocols.
20-17 ARTICLE 2. NOTICE REQUIREMENTS
20-18 SECTION 2.01. Chapter 5, Water Code, is amended by adding a
20-19 heading for Subchapter O to read as follows:
20-20 SUBCHAPTER O. NOTICE REQUIREMENTS
20-21 SECTION 2.02. Section 5.115, Water Code, is transferred to
20-22 new Subchapter O, Chapter 5, Water Code, redesignated as Section
20-23 5.651, and amended to read as follows:
20-24 Sec. 5.651 [5.115]. PERSONS AFFECTED IN COMMISSION HEARINGS;
20-25 NOTICE OF APPLICATION FOR PERMIT OR LICENSE. (a) For the purpose
20-26 of an administrative hearing held by or for the commission
20-27 involving a contested case, "affected person," or "person
21-1 affected," or "person who may be affected" means a person who has a
21-2 personal justiciable interest related to a legal right, duty,
21-3 privilege, power, or economic interest affected by the
21-4 administrative hearing. An interest common to members of the
21-5 general public does not qualify as a personal justiciable interest.
21-6 The commission shall adopt rules specifying factors which must be
21-7 considered in determining whether a person is an affected person in
21-8 any contested case arising under the air, waste, or water programs
21-9 within the commission's jurisdiction and whether an affected
21-10 association is entitled to standing in contested case hearings.
21-11 (b) At the time an application for a permit or license under
21-12 this code is filed with the executive director and is
21-13 administratively complete, the commission shall give notice of the
21-14 application to any person who may be affected by the granting of
21-15 the permit or license.
21-16 (c) At the time an application for any formal action by the
21-17 commission that will affect lands dedicated to the permanent school
21-18 fund is filed with the executive director or the commission and is
21-19 administratively complete, the commission shall give notice of the
21-20 application to the School Land Board. Notice shall be delivered by
21-21 certified mail, return receipt requested, addressed to the deputy
21-22 commissioner of the asset management division of the General Land
21-23 Office. Delivery is not complete until the return receipt is
21-24 signed by the deputy commissioner of the asset management division
21-25 of the General Land Office and returned to the commission.
21-26 (d) The commission shall adopt rules for the notice required
21-27 by this section.
22-1 (e) The notice must state:
22-2 (1) the identifying number given the application by
22-3 the commission;
22-4 (2) the type of permit or license sought under the
22-5 application;
22-6 (3) the name and address of the applicant;
22-7 (4) the date on which the application was submitted;
22-8 and
22-9 (5) a brief summary of the information included in the
22-10 permit application.
22-11 (f) The notice to the School Land Board under this section
22-12 shall additionally:
22-13 (1) state the location of the permanent school fund
22-14 land to be affected; and
22-15 (2) describe any foreseeable impact or effect of the
22-16 commission's action on permanent school fund land.
22-17 (g) A formal action or ruling by the commission on an
22-18 application affecting permanent school fund land that is made
22-19 without the notice required by this section is voidable by the
22-20 School Land Board as to any permanent school fund lands affected by
22-21 the action or ruling.
22-22 SECTION 2.03. Sections 11.085(f)-(i), Water Code, are
22-23 transferred to new Subchapter O, Chapter 5, Water Code,
22-24 redesignated as Section 5.652, and amended to read as follows:
22-25 Sec. 5.652. NOTICE OF APPLICATION FOR INTERBASIN TRANSFER.
22-26 (a) [(f)] Notice of an application for an interbasin transfer
22-27 under Section 11.085 shall be mailed to the following:
23-1 (1) all holders of permits, certified filings, or
23-2 certificates of adjudication located in whole or in part in the
23-3 basin of origin;
23-4 (2) each county judge of a county located in whole or
23-5 in part in the basin of origin;
23-6 (3) each mayor of a city with a population of 1,000 or
23-7 more located in whole or in part in the basin of origin; [and]
23-8 (4) all groundwater conservation districts located in
23-9 whole or in part in the basin of origin; and
23-10 (5) each state legislator in both basins.
23-11 (b) [(g)] The applicant shall cause the notice of
23-12 application for an interbasin transfer to be published once a week
23-13 for two consecutive weeks in one or more newspapers having general
23-14 circulation in each county located in whole or in part in the basin
23-15 of origin or the receiving basin. The published notice may not be
23-16 smaller than 96.8 square centimeters or 15 square inches with the
23-17 shortest dimension at least 7.6 centimeters or three inches. The
23-18 notice of application and public meetings shall be combined in the
23-19 mailed and published notices.
23-20 (c) [(h)] The notice of application must state how a person
23-21 may obtain the information described by Section 11.085(b)
23-22 [Subsection (b) of this section].
23-23 (d) [(i)] The applicant shall pay the cost of notice
23-24 required to be provided under this section. The commission by rule
23-25 may establish procedures for payment of those costs.
23-26 SECTION 2.04. Sections 11.132(a)-(c), Water Code, are
23-27 transferred to new Subchapter O, Chapter 5, Water Code,
24-1 redesignated as Section 5.653, and amended to read as follows:
24-2 Sec. 5.653. NOTICE OF PROPOSED APPROPRIATION OF WATER. (a)
24-3 Notice shall be given to the persons who in the judgment of the
24-4 commission may be affected by an application for authorization to
24-5 appropriate unappropriated state water under Chapter 11, including
24-6 those persons listed in Section 5.654(b) [Subdivision (2),
24-7 Subsection (d), of this section. The commission, on the motion of
24-8 a commissioner or on the request of the executive director or any
24-9 affected person, shall hold a public hearing on the application].
24-10 (b) If the proposed use is for irrigation, the commission
24-11 shall include in the notice a general description of the location
24-12 and area of the land to be irrigated.
24-13 (c) In the notice, the commission shall:
24-14 (1) state the name and address of the applicant;
24-15 (2) state the date the application was filed;
24-16 (3) state the purpose and extent of the proposed
24-17 appropriation of water;
24-18 (4) identify the source of supply and the place where
24-19 the water is to be stored or taken or diverted from the source of
24-20 supply;
24-21 (5) specify the time and location where the commission
24-22 will consider the application; and
24-23 (6) give any additional information the commission
24-24 considers necessary.
24-25 SECTION 2.05. Sections 11.132(d) and (e), Water Code, are
24-26 transferred to new Subchapter O, Chapter 5, Water Code,
24-27 redesignated as Section 5.654, and amended to read as follows:
25-1 Sec. 5.654. NOTICE REQUIRED TO OBTAIN AUTHORIZATION TO
25-2 APPROPRIATE WATER WITHOUT HEARING. (a) Not later [(d) The
25-3 commission may act on the application without holding a public
25-4 hearing if:]
25-5 [(1) not less] than 30 days before the date of action
25-6 by the commission on an [the] application for authorization to
25-7 appropriate unappropriated state water under Chapter 11 [by the
25-8 commission], the applicant shall publish [has published] the
25-9 commission's notice of the application under Section 5.653 at least
25-10 once in a newspaper regularly published or circulated within the
25-11 section of the state where the source of water is located.[;]
25-12 (b) Not later [(2) not less] than 30 days before the date
25-13 of action on the application by the commission, the commission
25-14 shall mail [mails] a copy of the notice by first-class mail,
25-15 postage prepaid, to:
25-16 (1) [(A)] each claimant or appropriator of water from
25-17 the source of water supply, the record of whose claim or
25-18 appropriation has been filed with the commission; and
25-19 (2) [(B)] all navigation districts within the river
25-20 basin concerned[; and]
25-21 [(3) within 30 days after the date of the newspaper
25-22 publication of the commission's notice, a public hearing has not
25-23 been requested in writing by a commissioner, the executive
25-24 director, or an affected person who objects to the application].
25-25 (c) [(e)] The inadvertent failure of the commission to mail
25-26 a notice under [Subdivision (2),] Subsection (b) [(d), of this
25-27 section] to a navigation district that is not a claimant or
26-1 appropriator of water does not prevent the commission's
26-2 consideration of the application.
26-3 SECTION 2.06. Sections 11.143(e) and (f), Water Code, are
26-4 transferred to new Subchapter O, Chapter 5, Water Code,
26-5 redesignated as Section 5.655, and amended to read as follows:
26-6 Sec. 5.655. NOTICE OF APPLICATION AND OF HEARING ON
26-7 APPLICATION FOR PERMIT TO USE DOMESTIC AND LIVESTOCK RESERVOIR FOR
26-8 OTHER PURPOSES. (a) The commission shall give notice of an
26-9 application for a permit to use water from a dam or reservoir
26-10 exempted under Section 11.142 for a purpose other than domestic or
26-11 livestock use as provided by this section.
26-12 (b) [(e)] In the notice, the commission shall:
26-13 (1) state the name and post-office address of the
26-14 applicant;
26-15 (2) state the date the application was filed;
26-16 (3) state the purpose and extent of the proposed
26-17 appropriation of water;
26-18 (4) identify the source of supply and the place where
26-19 the water is stored; and
26-20 (5) specify the time and place of the hearing.
26-21 (c) [(f)] The notice shall be published only once, at least
26-22 20 days before the date stated in the notice for the hearing on the
26-23 application, in a newspaper having general circulation in the
26-24 county where the dam or reservoir is located. At least 15 days
26-25 before the date set for the hearing, the commission shall transmit
26-26 a copy of the notice by first-class mail to each person whose claim
26-27 or appropriation has been filed with the commission and whose
27-1 diversion point is downstream from that described in the
27-2 application.
27-3 SECTION 2.07. Section 11.143(d), Water Code, is transferred
27-4 to new Subchapter O, Chapter 5, Water Code, redesignated as Section
27-5 5.656, and amended to read as follows:
27-6 Sec. 5.656. NOTICE REQUIRED TO OBTAIN A PERMIT WITHOUT
27-7 HEARING TO USE DOMESTIC AND LIVESTOCK RESERVOIR FOR OTHER PURPOSES.
27-8 (a) Not later [(d) Except as otherwise specifically provided by
27-9 this subsection, before the commission may approve the application
27-10 and issue the permit, it shall give notice and hold a hearing as
27-11 prescribed by this section. The commission may act on the
27-12 application without holding a public hearing if:]
27-13 [(1) not less] than 30 days before the date of action
27-14 by the commission on an [the] application to obtain a permit under
27-15 Section 11.143 to use water from a dam or reservoir exempted under
27-16 Section 11.142 for a purpose other than domestic or livestock use
27-17 [by the commission], the applicant shall publish [has published]
27-18 the commission's notice of the application at least once in a
27-19 newspaper regularly published or circulated within the section of
27-20 the state where the source of water is located.[;]
27-21 (b) Not later [(2) not less] than 30 days before the date
27-22 of action on the application by the commission, the commission
27-23 shall mail [mails] a copy of the notice by first-class mail,
27-24 postage prepaid, to each person whose claim or appropriation has
27-25 been filed with the commission and whose diversion point is
27-26 downstream from that described in the application[; and]
27-27 [(3) within 30 days after the date of the newspaper
28-1 publication of the commission's notice, a public hearing is not
28-2 requested in writing by a commissioner, the executive director, or
28-3 an affected person who objects to the application].
28-4 SECTION 2.08. Section 11.175, Water Code, is transferred to
28-5 new Subchapter O, Chapter 5, Water Code, redesignated as Section
28-6 5.657, and amended to read as follows:
28-7 Sec. 5.657 [11.175]. NOTICE OF CANCELLATION PROCEEDING. (a)
28-8 At least 45 days before the date of a [the] hearing on the proposed
28-9 cancellation of a permit, certified filing, or certificate of
28-10 adjudication under Section 11.176, the commission shall send notice
28-11 of the hearing to the holder of the permit, certified filing, or
28-12 certificate of adjudication being considered for cancellation in
28-13 whole or in part. Notice shall be sent by certified mail, return
28-14 receipt requested, to the last address shown by the records of the
28-15 commission. The commission shall also send notice by regular mail
28-16 to all other holders of permits, certified filings, certificates of
28-17 adjudication, and claims of unadjudicated water rights filed
28-18 pursuant to Section 11.303 [of this code] in the same watershed.
28-19 (b) The commission shall also have the notice of the hearing
28-20 published once a week for two consecutive weeks, at least 30 days
28-21 before the date of the hearing, in a newspaper published in each
28-22 county in which diversion of water from the source of supply was
28-23 authorized or proposed to be made and in each county in which the
28-24 water was authorized or proposed to be used, as shown by the
28-25 records of the commission. If in any such county no newspaper is
28-26 published, then the notice may be published in a newspaper having
28-27 general circulation in the county.
29-1 SECTION 2.09. Sections 26.022(b) and (c), Water Code, are
29-2 transferred to new Subchapter O, Chapter 5, Water Code,
29-3 redesignated as Section 5.658, and amended to read as follows:
29-4 Sec. 5.658. NOTICE OF HEARINGS HELD UNDER CHAPTER 26.
29-5 (a) Except as otherwise provided by Sections 5.501, 5.504, 5.509,
29-6 and 26.176, notice [(b) Notice] of all hearings held under Chapter
29-7 26 [the hearing] shall be published at least once in a newspaper
29-8 regularly published or circulated in each county where, by virtue
29-9 of the county's geographical relation to the subject matter of the
29-10 hearing, the commission has reason to believe persons reside who
29-11 may be affected by the action that may be taken as a result of the
29-12 hearing. The date of the publication shall be not less than 20
29-13 days before the date set for the hearing.
29-14 (b) [(c)] If notice of the hearing is required by Chapter 26
29-15 [this chapter] to be given to a person, the notice shall be served
29-16 personally or mailed not less than 20 days before the date set for
29-17 the hearing to the person at his last address known to the
29-18 commission. If the party is not an individual, the notice may be
29-19 given to any officer, agent, or legal representative of the party.
29-20 SECTION 2.10. Sections 26.028(a), (b), and (e), Water Code,
29-21 are transferred to new Subchapter O, Water Code, redesignated as
29-22 Section 5.659, and amended to read as follows:
29-23 Sec. 5.659. NOTICE TO AFFECTED PERSONS OF APPLICATION FOR
29-24 PERMIT, PERMIT AMENDMENT, OR PERMIT RENEWAL UNDER CHAPTER 26. (a)
29-25 The commission shall give notice [Notice] of an application for a
29-26 permit, permit amendment, or permit renewal under Chapter 26 [shall
29-27 be given] to the persons who in the judgment of the commission may
30-1 be affected by the application, except as provided by this section.
30-2 (b) For any application involving an average daily discharge
30-3 of five million gallons or more, the notice shall be given:
30-4 (1) not later than 20 days before the date on which
30-5 the commission acts on the application; and
30-6 (2) to each county judge in the county or counties
30-7 located within 100 statute miles of the point of discharge who have
30-8 requested in writing that the commission give that notice and
30-9 through which water, into or adjacent to which waste or pollutants
30-10 are to be discharged under the permit, flows after the discharge.
30-11 (c) [(e)] Notice of an application under Section 26.028(c)
30-12 must [Subsection (d) shall] be mailed to the mayor and health
30-13 authorities for the city or town, and the county judge and health
30-14 authorities for the county in which the waste is or will be
30-15 discharged, at least 10 days before the commission meeting[, and
30-16 they may present information to the commission on the application].
30-17 SECTION 2.11. Section 26.028(g), Water Code, is transferred
30-18 to new Subsection O, Chapter 5, Water Code, redesignated as Section
30-19 5.660, and amended to read as follows:
30-20 Sec. 5.660. NOTICE REQUIRED TO OBTAIN PERMIT DECISION
30-21 WITHOUT HEARING UNDER SECTION 26.028(a). (a) Not later [(g) For
30-22 the purposes of Subsection (c), the commission may act on the
30-23 application without holding a public hearing if all of the
30-24 following conditions are met:]
30-25 [(1) not less] than 30 days before the date of action
30-26 by the commission on an [the] application for a permit, permit
30-27 amendment, or permit renewal under Chapter 26 [by the commission],
31-1 the applicant shall publish [has published] the commission's notice
31-2 of the application at least once in a newspaper regularly published
31-3 or circulated within each county where the proposed facility or
31-4 discharge is located and in each county affected by the
31-5 discharge.[;]
31-6 (b) Not later [(2) not less] than 30 days before the date
31-7 of action on the application by the commission, the applicant shall
31-8 serve or mail [has served or mailed] the commission's notice of the
31-9 application to persons who in the judgment of the commission may be
31-10 affected, including the county judges as required by Section
31-11 5.659(b) [Subsection (b) of this section]. As part of the [his]
31-12 application the applicant shall submit an affidavit which lists the
31-13 names and addresses of the persons who may be affected by the
31-14 application and includes the source of the list[;]
31-15 [(3) within 30 days after the date of the newspaper
31-16 publication of the commission's notice, neither a commissioner, the
31-17 executive director, nor an affected person who objects to the
31-18 application has requested a public hearing].
31-19 SECTION 2.12. Section 26.040(b), Water Code, is transferred
31-20 to new Subchapter O, Chapter 5, Water Code, redesignated as Section
31-21 5.661, and amended to read as follows:
31-22 Sec. 5.661. NOTICE OF PROPOSED GENERAL PERMIT TO DISCHARGE
31-23 WASTE INTO OR ADJACENT TO STATE WATERS. (a) [(b)] The commission
31-24 shall publish notice of a proposed general permit to discharge
31-25 waste into or adjacent to waters in the state under Section 26.040
31-26 in a daily or weekly newspaper of general circulation in the area
31-27 affected by the activity that is the subject of the proposed
32-1 general permit and in the Texas Register.
32-2 (b) For a statewide general permit, the commission shall
32-3 designate one or more newspapers of statewide or regional
32-4 circulation and shall publish notice of the proposed statewide
32-5 general permit in each designated newspaper in addition to the
32-6 Texas Register.
32-7 (c) The notice must include an invitation for written
32-8 comments by the public to the commission regarding the proposed
32-9 general permit and shall be published not later than the 30th day
32-10 before the commission adopts the general permit.
32-11 (d) The commission by rule may require additional notice to
32-12 be given.
32-13 SECTION 2.13. Section 27.018(b), Water Code, is transferred
32-14 to new Subchapter O, Chapter 5, Water Code, redesignated as Section
32-15 5.662, and amended to read as follows:
32-16 Sec. 5.662. NOTICE OF OPPORTUNITY FOR HEARING ON PERMIT
32-17 APPLICATION FOR INJECTION WELL TO DISPOSE OF INDUSTRIAL AND
32-18 MUNICIPAL WASTE. [(b)] The commission by rule shall provide for
32-19 giving notice of the opportunity to request a public hearing on a
32-20 permit application for an injection well to dispose of industrial
32-21 and municipal waste under Chapter 27. The rules for notice shall
32-22 include provisions for giving notice to local governments and
32-23 affected persons. The commission shall define "affected person" by
32-24 rule.
32-25 SECTION 2.14. Section 361.063(c), Health and Safety Code, is
32-26 transferred to new Subchapter O, Chapter 5, Water Code,
32-27 redesignated as Section 5.663, and amended to read as follows:
33-1 Sec. 5.663. NOTICE OF INTENT TO FILE APPLICATION FOR
33-2 HAZARDOUS WASTE PERMIT. [(c)] If an applicant for a permit for a
33-3 hazardous waste management facility decides to participate in a
33-4 local review committee process under Section 361.063, Health and
33-5 Safety Code, the applicant must file with the commission a notice
33-6 of intent to file an application, setting forth the proposed
33-7 location and type of hazardous waste management facility. A copy
33-8 of the notice shall be delivered to the county judge of the county
33-9 in which the facility is to be located. In addition, if the
33-10 proposed facility is to be located in a municipality or the
33-11 extraterritorial jurisdiction of a municipality, a copy of the
33-12 notice shall be delivered to the mayor of the municipality. [The
33-13 filing of the notice with the commission initiates the
33-14 preapplication review process.]
33-15 SECTION 2.15. Section 361.0665, Health and Safety Code, is
33-16 transferred to new Subchapter O, Chapter 5, Water Code,
33-17 redesignated as Section 5.664, and amended to read as follows:
33-18 Sec. 5.664 [361.0665]. NOTICE OF INTENT TO OBTAIN MUNICIPAL
33-19 SOLID WASTE PERMIT. (a) A person who applies for a municipal
33-20 solid waste permit shall publish notice of intent to obtain a
33-21 permit under Chapter 361, Health and Safety Code, [this chapter] at
33-22 least once in a newspaper of the largest general circulation that
33-23 is published in the county in which the facility is located or
33-24 proposed to be located.
33-25 (b) Notice must include:
33-26 (1) a description of the location or proposed location
33-27 of the facility;
34-1 (2) a statement that a person who may be affected by
34-2 the facility or proposed facility is entitled to request a hearing
34-3 from the commission;
34-4 (3) the manner in which the commission may be
34-5 contacted for further information; and
34-6 (4) any other information that the commission by rule
34-7 requires.
34-8 (c) If a newspaper is not published in the county, the
34-9 notice must be published in a newspaper of general circulation in
34-10 the county in which the facility is located or proposed to be
34-11 located and in a newspaper of circulation in the immediate vicinity
34-12 in which the facility is located or proposed to be located as
34-13 defined by commission rule.
34-14 (d) In addition, the commission shall publish notice in the
34-15 Texas Register.
34-16 SECTION 2.16. Sections 361.079(a) and (c), Health and Safety
34-17 Code, are transferred to new Subchapter O, Chapter 5, Water Code,
34-18 redesignated as Section 5.665, and amended to read as follows:
34-19 Sec. 5.665. NOTICE OF APPLICATION FOR SOLID WASTE OR
34-20 HAZARDOUS INDUSTRIAL SOLID WASTE PERMIT. (a) Except as provided by
34-21 Sections 361.080(b) and 361.081(c), Health and Safety Code, the
34-22 commission by rule shall establish procedures for public notice
34-23 [and a public hearing] under Section 361.080 or 361.081, Health and
34-24 Safety Code.
34-25 (b) [(c)] To improve the timeliness of notice to the public
34-26 of a public hearing under Section 361.080 or 361.081, Health and
34-27 Safety Code, public notice of receipt of the permit application
35-1 shall be provided at the time a permit application is submitted to
35-2 the commission.
35-3 SECTION 2.17. Sections 361.0791(e), (f), and (g), Health and
35-4 Safety Code, are transferred to new Subchapter O, Chapter 5, Water
35-5 Code, redesignated as Section 5.666, and amended to read as
35-6 follows:
35-7 Sec. 5.666. NOTICE OF REQUIRED PUBLIC MEETING ON APPLICATION
35-8 FOR PERMIT FOR NEW HAZARDOUS WASTE MANAGEMENT FACILITY. (a) [(e)]
35-9 If a meeting is required under Section 361.0791(a), Health and
35-10 Safety Code [Subsection (a)], not less than once each week during
35-11 the three weeks preceding a public meeting, the applicant shall
35-12 publish notice of the meeting in the newspaper of the largest
35-13 general circulation that is published in the county in which the
35-14 proposed facility is to be located or, if no newspaper is published
35-15 in the county, in a newspaper of general circulation in the county.
35-16 The applicant shall provide the commission an affidavit certifying
35-17 that the notice was given as required by this section. Acceptance
35-18 of the affidavit creates a rebuttable presumption that the
35-19 applicant has complied with this section.
35-20 (b) [(f)] The published notice may not be smaller than 96.8
35-21 square centimeters or 15 square inches with the shortest dimension
35-22 at least 7.6 centimeters or three inches and shall contain, at a
35-23 minimum, the following information:
35-24 (1) the permit application number;
35-25 (2) the applicant's name;
35-26 (3) the proposed location of the facility; and
35-27 (4) the location and availability of copies of the
36-1 permit application.
36-2 (c) [(g)] The applicant shall pay the cost of notice
36-3 required to be provided under this section. The commission by rule
36-4 may establish procedures for payment of those costs.
36-5 SECTION 2.18. Sections 361.081(a) and (b), Health and Safety
36-6 Code, are transferred to new Subchapter O, Chapter 5, Water Code,
36-7 redesignated as Section 5.667, and amended to read as follows:
36-8 Sec. 5.667. NOTICE OF HEARING ON APPLICATION FOR SOLID WASTE
36-9 FACILITY. (a) The [commission shall require the] applicant shall
36-10 [to] mail notice to each residential or business address located
36-11 within one-half mile of a new solid waste management facility and
36-12 to each owner of real property located within one-half mile of a
36-13 new solid waste management facility listed in the real property
36-14 appraisal records of the appraisal district in which the solid
36-15 waste management facility is sought to be permitted under Chapter
36-16 361, Health and Safety Code, as of the date the commission
36-17 determines the permit application is administratively complete. The
36-18 notice must be sent by mail and must be deposited with the United
36-19 States postal service not more than 45 days or less than 30 days
36-20 before the date of the hearing.
36-21 (b) The applicant must certify to the commission that the
36-22 mailings were deposited as required by Subsection (a). Acceptance
36-23 of the certification creates a rebuttable presumption that the
36-24 applicant has complied with this section. Substantial compliance
36-25 with the notice requirements of Subsection (a) is sufficient for
36-26 the commission to exercise jurisdiction over an application for a
36-27 solid waste facility.
37-1 SECTION 2.19. Section 361.082(c), Health and Safety Code, is
37-2 transferred to new Subchapter O, Chapter 5, Water Code,
37-3 redesignated as Section 5.668, and amended to read as follows:
37-4 Sec. 5.668. NOTICE OF PUBLIC HEARING ON APPLICATION FOR
37-5 HAZARDOUS WASTE PERMIT. [(c)] The commission by rule shall
37-6 establish procedures for public notice of a [and] public hearing on
37-7 an application for a hazardous waste permit under Section 361.082,
37-8 Health and Safety Code. At a minimum, the rules shall include the
37-9 public notice requirements set forth in Section 5.667 [361.081].
37-10 SECTION 2.20. Sections 361.089(b) and (c), Health and Safety
37-11 Code, are transferred to new Subchapter O, Chapter 5, Water Code,
37-12 redesignated as Section 5.669, and amended to read as follows:
37-13 Sec. 5.669. NOTICE REGARDING DENIAL OR AMENDMENT OF SOLID
37-14 WASTE PERMIT. (a) The [(b) Except as provided by Section 361.110,
37-15 the] commission shall notify each governmental entity listed under
37-16 Section 361.067, Health and Safety Code, regarding possible
37-17 commission action to deny or amend a solid waste permit under
37-18 Section 361.089, Health and Safety Code [and provide an opportunity
37-19 for a hearing to the permit holder or applicant and persons
37-20 affected. The commission may also hold a hearing on its own
37-21 motion].
37-22 (b) [(c)] The commission by rule shall establish procedures
37-23 for public notice of [and] any public hearing on the denial or
37-24 amendment of a solid waste permit under Section 361.089, Health and
37-25 Safety Code [this section].
37-26 SECTION 2.21. Section 382.017(b), Health and Safety Code, is
37-27 transferred to Subchapter O, Chapter 5, Water Code, redesignated as
38-1 Section 5.670, and amended to read as follows:
38-2 Sec. 5.670. NOTICE OF HEARING ON ADOPTION OF STATEWIDE RULE
38-3 RELATING TO AIR POLLUTION. [(b)] If a [the] rule adopted under
38-4 Section 382.017, Health and Safety Code, will have statewide
38-5 effect, notice of the date, time, place, and purpose of the hearing
38-6 shall be published one time at least 20 days before the scheduled
38-7 date of the hearing in at least three newspapers, the combined
38-8 circulation of which will, in the commission's judgment, give
38-9 reasonable circulation throughout the state. If the rule will have
38-10 effect in only a part of the state, the notice shall be published
38-11 one time at least 20 days before the scheduled date of the hearing
38-12 in a newspaper of general circulation in the area to be affected.
38-13 SECTION 2.22. Section 382.0516, Health and Safety Code, is
38-14 transferred to new Subchapter O, Chapter 5, Water Code,
38-15 redesignated as Section 5.671, and amended to read as follows:
38-16 Sec. 5.671 [382.0516]. NOTICE TO STATE SENATOR AND
38-17 REPRESENTATIVE OF RECEIPT OF PERMIT APPLICATION FOR A FACILITY THAT
38-18 MAY EMIT AIR CONTAMINANTS. On receiving an application under
38-19 Chapter 382, Health and Safety Code, for a construction permit, a
38-20 special permit, or an operating permit for a facility that may emit
38-21 air contaminants, the commission shall send notice of the
38-22 application to the state senator and representative who represent
38-23 the area in which the facility is or will be located.
38-24 SECTION 2.23. Section 382.055(c), Health and Safety Code, is
38-25 transferred to new Subchapter O, Chapter 5, Water Code,
38-26 redesignated as Section 5.672, and amended to read as follows:
38-27 Sec. 5.672. NOTICE TO PERMIT HOLDER OF REVIEW AND RENEWAL OF
39-1 PRECONSTRUCTION PERMIT. [(c)] Not less than 180 days before the
39-2 date on which an [the renewal] application for renewal of a
39-3 preconstruction permit is due under Section 382.055, Health and
39-4 Safety Code, the commission shall provide written notice to the
39-5 permit holder, by registered or certified mail, that the permit is
39-6 scheduled for review in accordance with this section. The notice
39-7 must include a description of the procedure for filing a renewal
39-8 application and the information to be included in the application.
39-9 SECTION 2.24. Sections 382.056(a)-(c), (g), and (i), Health
39-10 and Safety Code, are transferred to new Subchapter O, Chapter 5,
39-11 Water Code, redesignated as Section 5.673, and amended to read as
39-12 follows:
39-13 Sec. 5.673. NOTICE OF INTENT TO OBTAIN PRECONSTRUCTION
39-14 PERMIT OR PERMIT REVIEW. (a) An applicant for a permit under
39-15 Section 382.0518, Health and Safety Code, or a permit renewal
39-16 review under Section 382.055, Health and Safety Code, shall publish
39-17 notice of intent to obtain the permit or permit review not later
39-18 than the 30th day after the date the commission determines the
39-19 application to be administratively complete. The commission by
39-20 rule shall require an applicant for a federal operating permit
39-21 under Section 382.054, Health and Safety Code, to publish notice of
39-22 intent to obtain a permit or permit review consistent with federal
39-23 requirements and with the requirements of Subsection (b). The
39-24 applicant shall publish the notice at least once in a newspaper of
39-25 general circulation in the municipality in which the facility or
39-26 federal source is located or is proposed to be located or in the
39-27 municipality nearest to the location or proposed location of the
40-1 facility or federal source. If the elementary or middle school
40-2 nearest to the facility or proposed facility provides a bilingual
40-3 education program as required by Subchapter B, Chapter 29,
40-4 Education Code, the applicant shall also publish the notice at
40-5 least once in an additional publication of general circulation in
40-6 the municipality or county in which the facility is located or
40-7 proposed to be located that is published in the language taught in
40-8 the bilingual education program. This requirement is waived if
40-9 such a publication does not exist or if the publisher refuses to
40-10 publish the notice. The commission by rule shall prescribe the
40-11 form and content of the notice and when notice must be published.
40-12 The commission may require publication of additional notice. The
40-13 commission by rule shall prescribe alternative procedures for
40-14 publication of the notice in a newspaper if the applicant is a
40-15 small business stationary source as defined by Section 382.0365,
40-16 Health and Safety Code, and will not have a significant effect on
40-17 air quality. The alternative procedures must be cost-effective
40-18 while ensuring adequate notice. Notice required to be published
40-19 under this section shall only be required to be published in the
40-20 United States.
40-21 (b) The notice must include:
40-22 (1) a description of the location or proposed location
40-23 of the facility or federal source;
40-24 (2) the location at which a copy of the application is
40-25 available for review and copying as provided by Section 382.056(b),
40-26 Health and Safety Code [Subsection (d)];
40-27 (3) a description, including a telephone number, of
41-1 the manner in which the commission may be contacted for further
41-2 information;
41-3 (4) a description, including a telephone number, of
41-4 the manner in which the applicant may be contacted for further
41-5 information;
41-6 (5) a description of the procedural rights and
41-7 obligations of the public, printed in a font style or size that
41-8 clearly provides emphasis and distinguishes it from the remainder
41-9 of the notice, that includes a statement that a person who may be
41-10 affected by emissions of air contaminants from the facility,
41-11 proposed facility, or federal source is entitled to request a
41-12 hearing from the commission;
41-13 (6) a description of the procedure by which a person
41-14 may be placed on a mailing list in order to receive additional
41-15 information about the application;
41-16 (7) the time and location of any public meeting to be
41-17 held under Section 382.056(c), Health and Safety Code [Subsection
41-18 (e)]; and
41-19 (8) any other information the commission by rule
41-20 requires.
41-21 (c) At the site of a facility, proposed facility, or federal
41-22 source for which an applicant is required to publish notice under
41-23 this section, the applicant shall place a sign declaring the filing
41-24 of an application for a permit or permit review for a facility at
41-25 the site and stating the manner in which the commission may be
41-26 contacted for further information. The commission shall adopt any
41-27 rule necessary to carry out this subsection.
42-1 (d) [(g)] If, in response to the notice published under
42-2 Subsection (a) for a permit under Section 382.0518, Health and
42-3 Safety Code, or a permit renewal review under Section 382.055,
42-4 Health and Safety Code, a person requests during the period
42-5 provided by commission rule that the commission hold a public
42-6 hearing and the request is not withdrawn before the date the
42-7 preliminary decision is issued, the applicant shall publish notice
42-8 of the preliminary decision in a newspaper, and the commission
42-9 shall seek public comment on the preliminary decision[. The
42-10 commission shall consider the request for public hearing under the
42-11 procedures provided by Subsections (i)-(n). The commission may not
42-12 seek further public comment or hold a public hearing under the
42-13 procedures provided by Subsections (i)-(n) in response to a request
42-14 for a public hearing on an amendment, modification, or renewal that
42-15 would not result in an increase in allowable emissions and would
42-16 not result in the emission of an air contaminant not previously
42-17 emitted].
42-18 (e) [(i)] The commission by rule shall establish the form
42-19 and content of the notice, the manner of publication, and the
42-20 duration of the public comment period. The notice must include:
42-21 (1) the information required by Subsection (b);
42-22 (2) a summary of the preliminary decision;
42-23 (3) the location at which a copy of the preliminary
42-24 decision is available for review and copying as provided by Section
42-25 382.056(g), Health and Safety Code [Subsection (j)];
42-26 (4) a description of the manner in which comments
42-27 regarding the preliminary decision may be submitted; and
43-1 (5) any other information the commission by rule
43-2 requires.
43-3 (f) This section does not apply to:
43-4 (1) the relocation or change of location of a portable
43-5 facility to a site where a facility permitted by the commission is
43-6 located; or
43-7 (2) a facility located temporarily in the
43-8 right-of-way, or contiguous to the right-of-way, of a public works
43-9 project.
43-10 SECTION 2.25. Section 382.0561(f), Health and Safety Code, is
43-11 transferred to new Subchapter O, Chapter 5, Water Code,
43-12 redesignated as Section 5.674, and amended to read as follows:
43-13 Sec. 5.674. NOTICE OF COMMENT PERIOD AND HEARING ON FEDERAL
43-14 OPERATING PERMIT. [(f)] Notice of the public comment period and
43-15 opportunity for a hearing on an application for issuance, revision,
43-16 reopening, or renewal of a federal operating permit under Section
43-17 382.0561, Health and Safety Code, [this section] shall be published
43-18 in accordance with Section 5.673 [382.056].
43-19 SECTION 2.26. Section 382.0562, Health and Safety Code, is
43-20 transferred to new Subchapter O, Chapter 5, Water Code,
43-21 redesignated as Section 5.675, and amended to read as follows:
43-22 Sec. 5.675 [382.0562]. NOTICE OF DECISION ON FEDERAL
43-23 OPERATING PERMIT. (a) The commission or its designee shall send
43-24 notice of a proposed final action on a federal operating permit
43-25 under Section 382.0542, Health and Safety Code, by first-class mail
43-26 to the applicant and all persons who comment during the public
43-27 comment period or at the public hearing. The notice shall include
44-1 a response to any comment submitted during the public comment
44-2 period and shall identify any change in the conditions of the draft
44-3 permit and the reasons for the change.
44-4 (b) The notice required by Subsection (a) shall:
44-5 (1) state that any person affected by the decision of
44-6 the commission or its designee may petition the administrator in
44-7 accordance with Section 382.0563, Health and Safety Code, and rules
44-8 adopted under that section;
44-9 (2) state the date by which the petition must be
44-10 filed; and
44-11 (3) explain the petition process.
44-12 SECTION 2.27. New Subchapter O, Chapter 5, Water Code, is
44-13 amended by adding Sections 5.676 and 5.677 to read as follows:
44-14 Sec. 5.676. NOTICE OF HEARING ON ISSUANCE OR RENEWAL OF
44-15 LICENSE TO DISPOSE OF LOW-LEVEL RADIOACTIVE WASTE. (a) Notice of a
44-16 hearing on the issuance or renewal of a license to dispose of
44-17 low-level radioactive waste under Section 401.114, Health and
44-18 Safety Code, shall be given as provided by this section and Section
44-19 401.114, Health and Safety Code.
44-20 (b) In addition to other notice, the commission shall
44-21 publish notice of the hearing in the manner provided by Chapter
44-22 313, Government Code, in the county in which the proposed facility
44-23 is to be located. The notice shall state the subject and the time,
44-24 place, and date of the hearing.
44-25 (c) The commission shall mail, by certified mail in the
44-26 manner provided by the commission's rules, written notice to each
44-27 person who owns property adjacent to the proposed site. The notice
45-1 must be mailed not later than the 31st day before the date of the
45-2 hearing and must include the same information that is in the
45-3 published notice. If true, the commission or the applicant must
45-4 certify that the notice was mailed as required by this subsection,
45-5 and at the hearing the certificate is conclusive evidence of the
45-6 mailing.
45-7 Sec. 5.677. NOTICE OF AMENDMENT TO LICENSE TO DISPOSE OF
45-8 LOW-LEVEL RADIOACTIVE WASTE. (a) The commission shall publish
45-9 notice of an amendment to a license to dispose of low-level
45-10 radioactive waste under Section 401.116, Health and Safety Code,
45-11 once in the Texas Register and in a newspaper of general
45-12 circulation in the county in which the licensed activity is located
45-13 and shall give notice to any person who has notified the agency, in
45-14 advance, of the desire to receive notice of proposed amendment of
45-15 the license.
45-16 (b) Notice under this section must include:
45-17 (1) the identity of the license holder;
45-18 (2) identification of the license; and
45-19 (3) a short and plain statement of the license
45-20 amendment's substance.
45-21 ARTICLE 3. FEES
45-22 SECTION 3.01. Chapter 5, Water Code, is amended by adding a
45-23 heading for Subchapter P to read as follows:
45-24 SUBCHAPTER P. FEES
45-25 SECTION 3.02. Section 5.235, Water Code, is transferred to
45-26 new Subchapter P, Chapter 5, Water Code, and redesignated as
45-27 Section 5.701 to read as follows:
46-1 Sec. 5.701 [5.235]. FEES. (a) The executive director shall
46-2 charge and collect the fees prescribed by law. The executive
46-3 director shall make a record of fees prescribed when due and shall
46-4 render an account to the person charged with the fees. Each fee is
46-5 a separate charge and is in addition to other fees unless provided
46-6 otherwise. Except as otherwise provided, a fee assessed and
46-7 collected under this section shall be deposited to the credit of
46-8 the water resource management account.
46-9 (1) Notwithstanding other provisions, the commission
46-10 by rule may establish due dates, schedules, and procedures for
46-11 assessment, collection, and remittance of fees due the commission
46-12 to ensure the cost-effective administration of revenue collection
46-13 and cash management programs.
46-14 (2) Notwithstanding other provisions, the commission
46-15 by rule shall establish uniform and consistent requirements for the
46-16 assessment of penalties and interest for late payment of fees owed
46-17 the state under the commission's jurisdiction. Penalties and
46-18 interest established under this section shall not exceed rates
46-19 established for delinquent taxes under Sections 111.060 and
46-20 111.061, Tax Code.
46-21 (b) Except as otherwise provided by law, the fee for filing
46-22 an application or petition is $100 plus the cost of any required
46-23 notice. The fee for a by-pass permit shall be set by the
46-24 commission at a reasonable amount to recover costs, but not less
46-25 than $100.
46-26 (c) The fee for filing a water permit application is $100
46-27 plus the cost of required notice.
47-1 (d) The fee for filing an application for fixing or
47-2 adjusting rates is $100 plus the cost of required notice.
47-3 (e) A person who files with the commission a petition for
47-4 the creation of a water district or addition of sewage and drainage
47-5 powers or a resolution for a water district conversion must pay a
47-6 one-time nonrefundable application fee. The commission by rule may
47-7 set the application fee in an amount not to exceed the costs of
47-8 reviewing and processing the application, plus the cost of required
47-9 notice. This fee is the only fee that the commission may charge
47-10 with regard to the processing of an application for creation of a
47-11 water district, addition of sewage or drainage powers, or
47-12 conversion under this code.
47-13 (f) A person who files a bond issue application with the
47-14 commission must pay an application fee set by the commission. The
47-15 commission by rule may set the application fee in an amount not to
47-16 exceed the costs of reviewing and processing the application, plus
47-17 the cost of required notice. If the bonds are approved by the
47-18 commission, the seller shall pay to the commission a percentage of
47-19 the bond proceeds not later than the seventh business day after
47-20 receipt of the bond proceeds. The commission by rule may set the
47-21 percentage of the proceeds in an amount not to exceed 0.25 percent
47-22 of the principal amount of the bonds actually issued. Proceeds of
47-23 the fees shall be used to supplement any other funds available for
47-24 paying expenses of the commission in supervising the various bond
47-25 and construction activities of the districts filing the
47-26 applications.
47-27 (g) The fee for recording an instrument in the office of the
48-1 commission is $1.25 per page.
48-2 (h) The fee for the use of water for irrigation is 50 cents
48-3 per acre to be irrigated.
48-4 (i) The fee for impounding water, except under Section
48-5 11.142 of this code, is 50 cents per acre-foot of storage, based on
48-6 the total holding capacity of the reservoir at normal operating
48-7 level.
48-8 (j) The fee for other uses of water not specifically named
48-9 in this section is $1 per acre-foot, except that no political
48-10 subdivision may be required to pay fees to use water for recharge
48-11 of underground freshwater-bearing sands and aquifers or for
48-12 abatement of natural pollution.
48-13 (k) A fee charged under Subsections (h) through (j) of this
48-14 section for one use of water under a permit from the commission may
48-15 not exceed $50,000. The fee for each additional use of water under
48-16 a permit for which the maximum fee is paid may not exceed $10,000.
48-17 (l) The fees prescribed by Subsections (h) through (j) of
48-18 this section are one-time fees, payable when the application for an
48-19 appropriation is made. However, if the total fee for a permit
48-20 exceeds $1,000, the applicant shall pay one-half of the fee when
48-21 the application is filed and one-half within 180 days after notice
48-22 is mailed to him that the permit is granted. If the applicant does
48-23 not pay all of the amount owed before beginning to use water under
48-24 the permit, the permit is annulled.
48-25 (m) If a permit is annulled, the matter reverts to the
48-26 status of a pending, filed application and, on the payment of use
48-27 fees as provided by Subsections (h) through (l) of this section
49-1 together with sufficient postage fees for mailing notice of
49-2 hearing, the commission shall set the application for hearing and
49-3 proceed as provided by this code.
49-4 (n)(1) Each provider of potable water or sewer utility
49-5 service shall collect a regulatory assessment from each retail
49-6 customer as follows:
49-7 (A) A public utility as defined in Section
49-8 13.002 of this code shall collect from each retail customer a
49-9 regulatory assessment equal to one percent of the charge for retail
49-10 water or sewer service.
49-11 (B) A water supply or sewer service corporation
49-12 as defined in Section 13.002 of this code shall collect from each
49-13 retail customer a regulatory assessment equal to one-half of one
49-14 percent of the charge for retail water or sewer service.
49-15 (C) A district as defined in Section 49.001 of
49-16 this code that provides potable water or sewer utility service to
49-17 retail customers shall collect from each retail customer a
49-18 regulatory assessment equal to one-half of one percent of the
49-19 charge for retail water or sewer service.
49-20 (2) The regulatory assessment may be listed on the
49-21 customer's bill as a separate item and shall be collected in
49-22 addition to other charges for utility services.
49-23 (3) The commission shall use the assessments collected
49-24 under this subsection solely to pay costs and expenses incurred by
49-25 the commission in the regulation of districts, water supply or
49-26 sewer service corporations, and public utilities under Chapter 13,
49-27 Water Code.
50-1 (4) The commission shall annually use a portion of the
50-2 assessments to provide on-site technical assistance and training to
50-3 public utilities, water supply or sewer service corporations, and
50-4 districts. The commission shall contract with others to provide
50-5 the services.
50-6 (5) The commission by rule may establish due dates,
50-7 collection procedures, and penalties for late payment related to
50-8 regulatory assessments under this subsection. The executive
50-9 director shall collect all assessments from the utility service
50-10 providers.
50-11 (6) The commission shall assess a penalty against a
50-12 municipality with a population of more than 1.5 million that does
50-13 not provide municipal water and sewer services in an annexed area
50-14 in accordance with Section 43.0565, Local Government Code. A
50-15 penalty assessed under this paragraph shall be not more than $1,000
50-16 for each day the services are not provided after March 1, 1998, for
50-17 areas annexed before January 1, 1993, or not provided within 4 1/2
50-18 years after the effective date of the annexation for areas annexed
50-19 on or after January 1, 1993. A penalty collected under this
50-20 paragraph shall be deposited to the credit of the water resource
50-21 management account to be used to provide water and sewer service to
50-22 residents of the city.
50-23 (7) The regulatory assessment does not apply to water
50-24 that has not been treated for the purpose of human consumption.
50-25 (o) A fee imposed under Subsection (j) of this section for
50-26 the use of saline tidal water for industrial processes shall be $1
50-27 per acre-foot of water diverted for the industrial process, not to
51-1 exceed a total fee of $5,000.
51-2 SECTION 3.03. New Subchapter P, Chapter 5, Water Code, is
51-3 amended by adding Sections 5.702-5.707 to read as follows:
51-4 Sec. 5.702. PAYMENT OF FEES REQUIRED WHEN DUE. (a) A fee
51-5 due the commission under this code or the Health and Safety Code
51-6 shall be paid on the date the fee is due, regardless of whether the
51-7 fee is billed by the commission to the person required to pay the
51-8 fee or is calculated and paid to the commission by the person
51-9 required to pay the fee.
51-10 (b) A person required to pay a fee to the commission may not
51-11 dispute the assessment of or amount of a fee before the fee has
51-12 been paid in full.
51-13 Sec. 5.703. FEE ADJUSTMENTS. (a) The commission may not
51-14 consider adjusting the amount of a fee due the commission under
51-15 this code or the Health and Safety Code:
51-16 (1) before the fee has been paid in full; or
51-17 (2) if the request for adjustment is received after
51-18 the first anniversary of the date on which the fee was paid in
51-19 full.
51-20 (b) A person who pays an amount that exceeds the amount of
51-21 the fee due because the commission incorrectly calculated the fee
51-22 or the person made a duplicate payment may request a refund of the
51-23 excess amount paid before the fourth anniversary of the date on
51-24 which the excess amount was paid.
51-25 (c) A request for a refund or credit in an amount that
51-26 exceeds $5,000 shall be forwarded for approval to the commission
51-27 fee audit staff, together with an explanation of the grounds for
52-1 the requested refund or credit. Approval of a refund or credit
52-2 does not prevent the fee audit staff from conducting a subsequent
52-3 audit of the person for whom the refund or credit was approved.
52-4 Sec. 5.704. NOTICE OF CHANGE IN PAYMENT PROCEDURE. The
52-5 commission shall promptly notify each person required to pay a
52-6 commission fee under this code or the Health and Safety Code of any
52-7 change in fee payment procedures.
52-8 Sec. 5.705. NOTICE OF VIOLATION. (a) The commission may
52-9 issue a notice of violation to a person required to pay a
52-10 commission fee under this code or the Health and Safety Code for
52-11 knowingly violating reporting requirements or knowingly calculating
52-12 the fee in an amount less than the amount actually due.
52-13 (b) The executive director may modify audit findings
52-14 reported by a commission fee auditor only if the executive director
52-15 provides a written explanation showing good cause for the
52-16 modification.
52-17 Sec. 5.706. PENALTIES AND INTEREST ON DELINQUENT FEES. (a)
52-18 Except as otherwise provided by law, the commission may collect,
52-19 for a delinquent fee due the commission under this code or the
52-20 Health and Safety Code:
52-21 (1) a penalty in an amount equal to five percent of
52-22 the amount of the fee due, if the fee is not paid on or before the
52-23 day on which the fee is due; and
52-24 (2) an additional penalty in an amount equal to five
52-25 percent of the amount due, if the fee is not paid on or before the
52-26 30th day after the date on which the fee was due.
52-27 (b) Unless otherwise required by law interest accrues,
53-1 beginning on the 61st day after the date on which the fee was due,
53-2 on the total amount of fee and penalties that have not been paid on
53-3 or before the 61st day after the date on which the fee was due.
53-4 The yearly interest rate is the rate of interest established for
53-5 delinquent taxes under Section 111.060, Tax Code.
53-6 (c) The executive director may modify a penalty or interest
53-7 on a fee and penalties authorized by this section if the executive
53-8 director provides a written explanation showing good cause for the
53-9 modification.
53-10 (d) Penalties and interest collected by the commission under
53-11 this section or under other law, unless that law otherwise
53-12 provides, shall be deposited to the credit of the fund or account
53-13 to which the fee is required to be deposited.
53-14 Sec. 5.707. TRANSFERABILITY OF FUNDS DERIVED FROM FEES.
53-15 Notwithstanding any law restricting the use of a fee collected by
53-16 the commission and to the extent consistent with federal law and
53-17 authorized by the General Appropriations Act, the commission may
53-18 transfer a percentage of fee revenue dedicated to one commission
53-19 activity to one or more other commission activities.
53-20 ARTICLE 4. PERFORMANCE-BASED REGULATION
53-21 SECTION 4.01. Chapter 5, Water Code, is amended by adding
53-22 Subchapter Q to read as follows:
53-23 SUBCHAPTER Q. PERFORMANCE-BASED REGULATION
53-24 Sec. 5.751. DEFINITIONS. In this subchapter:
53-25 (1) "Flexible permitting" means the issuance of a
53-26 flexible permit that allows for physical or operational changes as
53-27 provided by commission rule.
54-1 (2) "Innovative regulatory program" includes a program
54-2 required by statute or developed by commission rule.
54-3 (3) "Permit" includes a license, certificate,
54-4 registration, approval, or other form of authorization issued by
54-5 the commission under this code or the Health and Safety Code.
54-6 Sec. 5.752. REGULATORY TIERS AND PERFORMANCE INCENTIVES. (a)
54-7 In this section, "environmental regulations" include:
54-8 (1) federal and state laws that regulate environmental
54-9 matters;
54-10 (2) rules adopted or orders issued under federal or
54-11 state law; and
54-12 (3) terms of a permit or other authorization issued by
54-13 the commission or another agency with environmental regulatory
54-14 authority.
54-15 (b) The commission shall develop a strategically directed
54-16 regulatory structure based on incentives and compliance
54-17 performance. To implement this regulatory structure, the
54-18 commission by rule shall establish regulatory tiers and performance
54-19 incentives in which relative levels of compliance with
54-20 environmental regulations are used to determine eligibility for
54-21 participation in innovative regulatory programs.
54-22 (c) The rules must define the regulatory tiers in a manner
54-23 adequate to distinguish among:
54-24 (1) poor performers, or regulated entities with a
54-25 continual or pervasive disregard of environmental regulations;
54-26 (2) average performers, or regulated entities that
54-27 generally comply with environmental regulations; and
55-1 (3) high performers, or regulated entities that have
55-2 an above-average compliance record and in addition voluntarily
55-3 implement environmentally sound practices beyond those required by
55-4 environmental regulations.
55-5 (d) The rules must prescribe the programs and incentives
55-6 available to regulated entities within each regulatory tier and
55-7 must be revised as necessary to include new programs or incentives
55-8 as they are developed.
55-9 (e) The commission shall determine a regulated entity's
55-10 compliance history, for purposes of eligibility to participate in
55-11 an innovative regulatory program or incentive, according to the
55-12 method developed under Section 5.754.
55-13 Sec. 5.753. COORDINATION OF INNOVATIVE REGULATORY PROGRAMS
55-14 AND INCENTIVES. (a) The commission shall designate a single point
55-15 of contact within the agency to coordinate all innovative
55-16 regulatory programs and incentives.
55-17 (b) The designated coordinator shall:
55-18 (1) inventory, coordinate, and market all innovative
55-19 regulatory programs and incentives;
55-20 (2) provide information and technical assistance to
55-21 regulated entities participating in or interested in participating
55-22 in those programs and incentives; and
55-23 (3) work with the pollution prevention advisory
55-24 committee to assist the commission in integrating the concepts of
55-25 regulatory innovation and incentive- and performance-based
55-26 regulation into its daily operations, including:
55-27 (A) program administration;
56-1 (B) strategic planning; and
56-2 (C) staff training.
56-3 Sec. 5.754. COMPONENTS OF AND STANDARDS FOR EVALUATING
56-4 COMPLIANCE HISTORY. (a) The commission by rule shall develop a
56-5 single set of components of and standards for evaluating the
56-6 compliance history of an applicant or permit holder and shall
56-7 consistently apply those components and standards in evaluating
56-8 compliance history in all permitting and enforcement matters under
56-9 the commission's jurisdiction.
56-10 (b) In developing the components and standards required by
56-11 Subsection (a), the commission:
56-12 (1) shall include, among other factors to be
56-13 considered:
56-14 (A) notices of violations and enforcement
56-15 actions, enforcement orders, orders issued under Section 7.070,
56-16 court judgments, and criminal convictions of this state and the
56-17 federal government relating to compliance with an environmental
56-18 law, regulation, permit, order, consent decree, or other regulation
56-19 within the jurisdiction of the commission or the United States
56-20 Environmental Protection Agency;
56-21 (B) a determination of whether a violation is
56-22 significant or minor, according to commission rules;
56-23 (C) the period to be considered when determining
56-24 a regulated entity's compliance history; and
56-25 (D) enforcement orders, court judgments, and
56-26 criminal convictions under environmental laws in other states, to
56-27 the extent readily available to the commission; and
57-1 (2) shall specify that a repeat violator is an entity
57-2 that has more than one violation of the same or similar type within
57-3 the period established by the commission under Subdivision (1)(C).
57-4 (c) The commission shall consider changes in ownership when
57-5 tracking the compliance history of a regulated entity.
57-6 Sec. 5.755. REPORTS. (a) The commission shall collect data
57-7 on:
57-8 (1) the results of inspections conducted by the
57-9 commission;
57-10 (2) the number and percentage of all violations
57-11 committed by repeat offenders;
57-12 (3) the number and percentage of enforcement orders
57-13 issued by the commission that are issued to entities that have been
57-14 the subject of a previous enforcement order; and
57-15 (4) whether the violations are significant or minor,
57-16 as defined by commission rule.
57-17 (b) The commission annually shall prepare a comparative
57-18 analysis of data evaluating the performance, over time, of the
57-19 commission and of entities regulated by the commission.
57-20 (c) The commission must include in the annual enforcement
57-21 report required by Section 5.123, as added by Chapters 304 and
57-22 1082, Acts of the 75th Legislature, Regular Session, 1997, the
57-23 comparative performance analysis required by Subsection (b),
57-24 organized by region and by regulated medium.
57-25 Sec. 5.756. PERFORMANCE ASSESSMENT FOR PROGRAM ELIGIBILITY.
57-26 (a) The commission by rule shall develop a method of performance
57-27 assessment that differentiates persons regulated by the commission
58-1 according to their compliance histories.
58-2 (b) The commission shall use the method of performance
58-3 assessment developed under Subsection (a) in conjunction with the
58-4 regulatory structure developed under Section 5.752 to determine
58-5 eligibility for participation in incentive-based programs and other
58-6 innovative regulatory programs developed by the commission.
58-7 (c) The commission by rule shall establish methods of
58-8 assessing the performance of regulated entities not routinely
58-9 inspected for compliance. The methods may include requiring a
58-10 compliance inspection to determine an entity's eligibility for
58-11 participation in a program or incentive that requires an
58-12 above-average degree of compliance.
58-13 (d) Commission rules shall provide that a regulated person
58-14 with a compliance history that is unacceptable under this section
58-15 and Section 5.752 is not eligible to participate in innovative
58-16 regulatory programs or incentives.
58-17 Sec. 5.757. PERFORMANCE ASSESSMENT FOR PERMITTING AND
58-18 ENFORCEMENT DECISIONS. The commission by rule shall develop
58-19 guidelines for the use of compliance history in commission
58-20 decisions regarding:
58-21 (1) the issuance, renewal, or denial of a permit or
58-22 other authorization issued by the commission; and
58-23 (2) enforcement matters under the commission's
58-24 jurisdiction.
58-25 Sec. 5.758. ANNOUNCED INSPECTIONS. (a) The commission may
58-26 not announce an inspection of a facility owned or operated by a
58-27 person regulated by the commission unless the person has
59-1 established a good compliance history that qualifies the person for
59-2 announced inspections under the procedures and standards developed
59-3 under Sections 5.752 and 5.756.
59-4 (b) The commission shall track whether inspections are
59-5 announced or unannounced and shall include the information in the
59-6 report required by Section 5.123, as added by Chapters 304 and
59-7 1082, Acts of the 75th Legislature, Regular Session, 1997.
59-8 Sec. 5.759. ELIGIBILITY FOR FLEXIBLE PERMITTING. A regulated
59-9 entity is not eligible for flexible permitting unless the entity
59-10 has established a better than average compliance history in
59-11 comparison with entities operating under an ordinary permit.
59-12 SECTION 4.02. Section 5.123, Water Code, as added by Chapter
59-13 1203, Acts of the 75th Legislature, Regular Session, 1997, is
59-14 transferred to new Subchapter Q, Chapter 5, Water Code,
59-15 redesignated as Section 5.760, and amended to read as follows:
59-16 Sec. 5.760 [5.123]. REGULATORY FLEXIBILITY. (a) The
59-17 commission by order may exempt an applicant from a requirement of a
59-18 statute or commission rule regarding the control or abatement of
59-19 pollution if the applicant proposes to control or abate pollution
59-20 by an alternative method or by applying an alternative standard
59-21 that is:
59-22 (1) more [at least as] protective of the environment
59-23 and the public health than [as] the method or standard prescribed
59-24 by the statute or commission rule that would otherwise apply; and
59-25 (2) not inconsistent with federal law.
59-26 (b) The commission may not exempt an applicant under this
59-27 section unless the applicant can present to the commission
60-1 documented evidence of benefits to environmental quality that will
60-2 result from the project the applicant proposes.
60-3 (c) The commission by rule shall specify the procedure for
60-4 obtaining an exemption under this section. The rules must provide
60-5 for public notice and for public participation in a proceeding
60-6 involving an application for an exemption under this section.
60-7 (d) [(c)] The commission's order must provide a specific
60-8 description of the alternative method or standard and condition the
60-9 exemption on compliance with the method or standard as the order
60-10 prescribes.
60-11 (e) [(d)] The commission by rule may establish a reasonable
60-12 fee for applying for an exemption under this section.
60-13 (f) [(e)] A violation of an order issued under this section
60-14 is punishable as if it were a violation of the statute or rule from
60-15 which the order grants an exemption.
60-16 (g) [(f)] A permit may satisfy a requirement to demonstrate
60-17 need by showing need on a regional basis considering economic
60-18 impacts.
60-19 (h) [(g)] This section does not authorize exemptions to
60-20 statutes or regulations for storing, handling, processing, or
60-21 disposing of low-level radioactive materials.
60-22 (i) [(h)] In implementing the program of regulatory
60-23 flexibility authorized by this section, the commission shall:
60-24 (1) market the program to businesses in the state
60-25 through all available appropriate media;
60-26 (2) endorse alternative methods that will clearly
60-27 benefit the environment and impose the least onerous restrictions
61-1 on business;
61-2 (3) fix and enforce environmental standards, allowing
61-3 businesses flexibility in meeting the standards in a manner that
61-4 clearly enhances environmental outcomes; and
61-5 (4) work to achieve consistent and predictable results
61-6 for the regulated community and shorter waits for permit issuance.
61-7 SECTION 4.03. Section 7.067(a), Water Code, is amended to
61-8 read as follows:
61-9 (a) The commission may compromise, modify, or remit, with or
61-10 without conditions, an administrative penalty imposed under this
61-11 subchapter. In determining the appropriate amount of a penalty for
61-12 settlement of an administrative enforcement matter, the commission
61-13 may consider a respondent's willingness to contribute to
61-14 supplemental environmental projects that are approved by the
61-15 commission, giving preference to projects that benefit the
61-16 community in which the alleged violation occurred. The commission
61-17 may approve a supplemental environmental project with activities in
61-18 territory of the United Mexican States if the project substantially
61-19 benefits territory in this state in a manner described by
61-20 Subsection (b). The commission may not approve a project that is
61-21 necessary to bring a respondent into compliance with environmental
61-22 laws, [or] that is necessary to remediate environmental harm caused
61-23 by the respondent's alleged violation, or that the respondent has
61-24 already agreed to perform under a preexisting agreement with a
61-25 governmental agency.
61-26 SECTION 4.04. Section 361.0215, Health and Safety Code, is
61-27 amended to read as follows:
62-1 Sec. 361.0215. POLLUTION PREVENTION [WASTE REDUCTION]
62-2 ADVISORY COMMITTEE. (a) The pollution prevention [waste reduction]
62-3 advisory committee is composed of nine members with a balanced
62-4 representation of environmental and public interest groups and the
62-5 regulated community.
62-6 (b) The committee shall advise the commission and
62-7 interagency coordination council on:
62-8 (1) the appropriate organization of state agencies and
62-9 the financial and technical resources required to aid the state in
62-10 its efforts to promote waste reduction and minimization;
62-11 (2) the development of public awareness programs to
62-12 educate citizens about hazardous waste and the appropriate disposal
62-13 of hazardous waste and hazardous materials that are used and
62-14 collected by households;
62-15 (3) the provision of technical assistance to local
62-16 governments for the development of waste management strategies
62-17 designed to assist small quantity generators of hazardous waste;
62-18 and
62-19 (4) other possible programs to more effectively
62-20 implement the state's hierarchy of preferred waste management
62-21 technologies as set forth in Section 361.023(a).
62-22 (c) The committee shall advise the commission on the
62-23 creation and implementation of an incentive- and performance-based
62-24 structure for the regulation of air and water quality and solid
62-25 waste management as set out in Section 5.752, Water Code.
62-26 (d) The committee shall report quarterly to the commission
62-27 on its activities, including suggestions or proposals for future
63-1 activities and other matters the committee considers important.
63-2 SECTION 4.05. Section 361.088, Health and Safety Code, is
63-3 amended by adding Subsection (g) to read as follows:
63-4 (g) The commission shall review a permit issued under this
63-5 chapter every five to seven years to assess the license holder's
63-6 compliance history.
63-7 SECTION 4.06. Subchapter B, Chapter 382, Health and Safety
63-8 Code, is amended by adding Sections 382.0215 and 382.0216 to read
63-9 as follows:
63-10 Sec. 382.0215. ASSESSMENT OF EMISSIONS DUE TO EMISSIONS
63-11 EVENTS. (a) In this section, "emissions event" includes an upset,
63-12 maintenance, startup, or shutdown activity that results in the
63-13 unauthorized emissions of air contaminants.
63-14 (b) The commission shall require the owner or operator of a
63-15 facility that experiences an emissions event to report to the
63-16 commission all information necessary to evaluate the emissions
63-17 event, including:
63-18 (1) the name of the owner or operator of the reporting
63-19 facility;
63-20 (2) the location of the reporting facility;
63-21 (3) the date and time the emissions began;
63-22 (4) the duration of the emissions;
63-23 (5) the nature and volume of air contaminants emitted,
63-24 including the method of calculation of, or other basis for
63-25 determining, the volume of air contaminants emitted;
63-26 (6) the cause of the emissions; and
63-27 (7) any additional information necessary to evaluate
64-1 the emissions event.
64-2 (c) The commission shall centrally track emissions events
64-3 and collect information relating to:
64-4 (1) inspections or enforcement actions taken by the
64-5 commission in response to emissions events; and
64-6 (2) the number of emissions events occurring in each
64-7 commission region.
64-8 (d) The commission annually shall assess the information
64-9 received under this section, including actions taken by the
64-10 commission in response to the emissions events, and shall include
64-11 the assessment in the report required by Section 5.123, Water Code,
64-12 as added by Chapters 304 and 1082, Acts of the 75th Legislature,
64-13 Regular Session, 1997.
64-14 Sec. 382.0216. REGULATION OF EMISSIONS EVENTS. (a) The
64-15 commission shall establish criteria for determining when emissions
64-16 events are excessive. The criteria must include consideration of:
64-17 (1) the frequency of the facility's emissions events;
64-18 (2) the cause of the emissions event;
64-19 (3) the volume and toxicity of the emissions event;
64-20 (4) the duration of the emissions event;
64-21 (5) the percentage of a facility's total annual
64-22 operating hours during which emissions events occur; and
64-23 (6) the need for startup and shutdown activities.
64-24 (b) The executive director may require a facility to take
64-25 action to reduce emissions from excessive emissions events.
64-26 Consistent with commission rules, a facility required to take
64-27 action under this subsection must either file a corrective action
65-1 plan to reduce emissions from emissions events or apply for a
65-2 permit from the commission.
65-3 (c) A corrective action plan filed under Subsection (b) must
65-4 identify the cause or causes of each emissions event, specify the
65-5 control devices or other measures that will prevent or minimize
65-6 similar emissions events in the future, and specify a time within
65-7 which the corrective action plan will be implemented. A corrective
65-8 action plan must be approved by the commission. An approved
65-9 corrective action plan shall be made available to the public. The
65-10 commission shall establish reasonable schedules for the
65-11 implementation of corrective action plans and procedures for
65-12 revision of a corrective action plan if the commission finds the
65-13 plan, after implementation begins, to be inadequate to meet the
65-14 goal of preventing or minimizing emissions and emissions events.
65-15 (d) The commission by rule may establish an affirmative
65-16 defense to a commission enforcement action if the emissions event
65-17 meets criteria defined by commission rule. In establishing rules
65-18 under this subsection, the commission at a minimum must require
65-19 consideration of the factors listed in Subsections (a)(1)-(6).
65-20 (e) The burden of proof in any claim of a defense to
65-21 commission enforcement action under this section is on the person
65-22 claiming the defense. This section does not limit the commission's
65-23 authority to take enforcement action or the authority or right of
65-24 any person to seek injunctive relief in relation to any emissions
65-25 event.
65-26 (f) A person may not claim a defense to a commission
65-27 enforcement action under Subsection (d) if the person failed to
66-1 take corrective action under a corrective action plan approved by
66-2 the commission within the time prescribed by the commission and an
66-3 emissions event recurs.
66-4 ARTICLE 5. ACCREDITATION OF ENVIRONMENTAL TESTING LABORATORIES
66-5 SECTION 5.01. Chapter 421, Health and Safety Code, as added
66-6 by Chapter 447, Acts of the 76th Legislature, Regular Session,
66-7 1999, is transferred to Chapter 5, Water Code, redesignated as
66-8 Subchapter R, and amended to read as follows:
66-9 SUBCHAPTER R [CHAPTER 421]. ACCREDITATION OF
66-10 ENVIRONMENTAL TESTING LABORATORIES
66-11 Sec. 5.801 [421.001]. DEFINITION [DEFINITIONS]. In this
66-12 subchapter, "environmental [chapter:]
66-13 [(1) "Board" means the Texas Board of Health.]
66-14 [(2) "Department" means the Texas Department of
66-15 Health.]
66-16 [(3) "Environmental] testing laboratory" means a
66-17 scientific laboratory that[:]
66-18 [(A)] performs analyses to determine the
66-19 chemical, molecular, or pathogenic components of environmental
66-20 media [drinking water, wastewater, hazardous wastes, soil, or air]
66-21 for regulatory compliance purposes[; and]
66-22 [(B) is either a commercial laboratory or an
66-23 environmental laboratory that is required to be accredited under
66-24 federal law].
66-25 Sec. 5.802 [421.002]. ADMINISTRATION BY COMMISSION
66-26 [DEPARTMENT]. The commission [department] shall adopt rules for the
66-27 administration of [administer] the voluntary environmental testing
67-1 laboratory accreditation program established by this chapter. The
67-2 program must be consistent with national accreditation standards
67-3 approved by the National Environmental Laboratory Accreditation
67-4 Conference.
67-5 Sec. 5.803 [421.003]. APPLICATION; FEE. (a) To be
67-6 accredited under the accreditation program adopted under this
67-7 subchapter [chapter], an environmental testing laboratory must
67-8 submit an application to the commission [department] on a form
67-9 prescribed by the commission [department], accompanied by the
67-10 accreditation fee. The application must contain the information
67-11 that the commission [department] requires.
67-12 (b) The commission by rule [board] shall establish a
67-13 schedule of reasonable [an] accreditation fees designed to recover
67-14 the costs of the accreditation program, including the costs
67-15 associated with:
67-16 (1) application review;
67-17 (2) initial, routine, and follow-up inspections by the
67-18 commission; and
67-19 (3) preparation of reports [fee in an amount
67-20 sufficient to defray the cost of administering this chapter].
67-21 Sec. 5.804 [421.004]. ISSUANCE OF ACCREDITATION;
67-22 RECIPROCITY. (a) The commission [department] may accredit an
67-23 environmental testing laboratory that complies with the commission
67-24 requirements established under this subchapter [chapter].
67-25 (b) The commission [board] by rule may provide for the
67-26 accreditation of an environmental testing laboratory that is
67-27 accredited or licensed in [by] another state by an authority that
68-1 is approved by the National Environmental Laboratory Accreditation
68-2 Conference.
68-3 Sec. 5.805 [421.005]. RULES; MINIMUM STANDARDS. The
68-4 commission [board] shall adopt rules to implement this subchapter
68-5 [chapter] and minimum performance and quality assurance standards
68-6 for accreditation of an environmental testing laboratory.
68-7 Sec. 5.806 [421.006]. DISCIPLINE. After notice and an
68-8 opportunity for hearing, the commission [department] may suspend or
68-9 revoke the accreditation of an environmental testing laboratory
68-10 that does not comply with the minimum performance and quality
68-11 assurance standards established under this subchapter [chapter].
68-12 Sec. 5.807. ENVIRONMENTAL TESTING LABORATORY ACCREDITATION
68-13 ACCOUNT. (a) All fees collected under this subchapter shall be
68-14 deposited to the credit of the environmental testing laboratory
68-15 accreditation account and may be appropriated to the commission
68-16 only for paying the costs of the accreditation program.
68-17 (b) Any balance in the account in excess of $1,000 at the
68-18 end of a fiscal year reverts to the general revenue fund.
68-19 ARTICLE 6. CERTIFICATION OF WATER TREATMENT SPECIALISTS
68-20 SECTION 6.01. Section 3A, The Plumbing License Law (Article
68-21 6243-101, Vernon's Texas Civil Statutes), is transferred to Chapter
68-22 341, Health and Safety Code, redesignated as Subchapter G, Chapter
68-23 341, and amended to read as follows:
68-24 SUBCHAPTER G. CERTIFICATION OF WATER TREATMENT SPECIALISTS
68-25 Sec. 341.101 [Sec. 3A. CERTIFICATION RELATING TO RESIDENTIAL
68-26 WATER TREATMENT FACILITIES]. DEFINITIONS. In this subchapter:
68-27 (1) "Commission" means the Texas Natural Resource
69-1 Conservation Commission.
69-2 (2) "Installation of water treatment appliances"
69-3 includes connecting the appliances to all necessary utility
69-4 connections in residential, commercial, or industrial facilities.
69-5 (3) "Water treatment" means a business conducted under
69-6 contract that requires experience in the analysis of water,
69-7 including the ability to determine how to treat influent and
69-8 effluent water, to alter or purify water, and to add or remove a
69-9 mineral, chemical, or bacterial content or substance. The term
69-10 also includes the installation and service of potable water
69-11 treatment equipment in public or private water systems and making
69-12 connections necessary to complete installation of a water treatment
69-13 system.
69-14 (4) "Water treatment equipment" includes appliances
69-15 used to alter or purify water or to alter a mineral, chemical, or
69-16 bacterial content or substance.
69-17 Sec. 341.102. WATER TREATMENT SPECIALIST CERTIFICATION
69-18 PROGRAM. (a) The commission by rule [Commissioner of Health or his
69-19 designee] shall establish a program to certify persons [as being]
69-20 qualified to install, exchange, service [for the installation,
69-21 exchange, servicing], and repair [of] residential, commercial, or
69-22 industrial water treatment equipment and appliances [facilities as
69-23 defined by Subsection (g) of Section 2 of this Act].
69-24 (b) The rules must establish:
69-25 (1) [Texas Board of Health shall set] standards for
69-26 certification to ensure the public health and to protect the public
69-27 from unqualified persons engaging in activities relating to water
70-1 treatment;
70-2 (2) classes of certification;
70-3 (3) duration of certification; and
70-4 (4) reasonable annual certification fees in an amount
70-5 sufficient to pay the administrative costs of the certification
70-6 program, but not to exceed $150 a year for any class of
70-7 certification.
70-8 Sec. 341.103. CERTIFICATION REQUIRED. A person may not
70-9 engage in water treatment unless the person first obtains a
70-10 certificate from the commission under the program established under
70-11 this subchapter.
70-12 Sec. 341.104. APPLICATION FOR CERTIFICATION. A person
70-13 desiring to obtain certification under the program established
70-14 under this subchapter shall file with the commission:
70-15 (1) an application in the form prescribed by the
70-16 commission and containing the information required by the
70-17 commission; and
70-18 (2) the appropriate certification fee.
70-19 Sec. 341.105. ISSUANCE OF CERTIFICATE. (a) [Nothing in this
70-20 section shall be construed to require that persons licensed
70-21 pursuant to this Act are subject to certification under this
70-22 section.]
70-23 [(b) Before a certificate is issued or renewed under this
70-24 section, an applicant or holder of a certificate shall be required
70-25 to pay a fee of $10 a year.] On receipt of an application that
70-26 meets commission requirements and the required fee, the commission
70-27 [Texas Department of Health] shall issue to a [qualified] person
71-1 who meets commission standards for certification a certificate
71-2 stating that the person is qualified to install, exchange, service
71-3 [for the installation, exchange, servicing], and repair [of]
71-4 residential, commercial, or industrial water treatment facilities.
71-5 (b) [The Texas Board of Health shall adopt rules
71-6 establishing classes of certificates, duration of certificates, and
71-7 fees.]
71-8 [(c)] All fees received by the commission [Texas Department
71-9 of Health] under this section shall be deposited in the State
71-10 Treasury to the credit of the General Revenue Fund.
71-11 ARTICLE 7. REGISTRATION OF IRRIGATORS AND ON-SITE
71-12 SEWAGE DISPOSAL SYSTEM INSTALLERS
71-13 SECTION 7.01. Section 34.008(a), Water Code, is amended to
71-14 read as follows:
71-15 (a) The commission may waive any prerequisite [certify] for
71-16 obtaining registration for [without examination] an applicant who
71-17 is registered as a licensed irrigator or licensed installer by [in]
71-18 another jurisdiction with which this state has a reciprocity
71-19 agreement. The commission may make an agreement, subject to the
71-20 approval of the governor, with another state to allow for
71-21 registration by reciprocity [state or country that has requirements
71-22 for registration that are at least substantially equivalent to the
71-23 requirements of this state and that extends the same privilege of
71-24 reciprocity to licensed irrigators or licensed installers
71-25 registered in this state].
71-26 SECTION 7.02. Section 34.009(f), Water Code, is amended to
71-27 read as follows:
72-1 (f) The commission by rule may adopt a system under which
72-2 certificates of registration expire on various dates during the
72-3 year. For the year in which the expiration date is changed, the
72-4 commission shall prorate registration [renewal] fees [payable on
72-5 August 31 shall be prorated] on a monthly basis so that each
72-6 registrant pays [will pay] only that portion of the registration
72-7 fee that is allocable to the number of months during which the
72-8 registration is valid. On renewal of the registration on the new
72-9 expiration date, the total registration renewal fee is due.
72-10 SECTION 7.03. Section 366.076, Health and Safety Code, is
72-11 amended to read as follows:
72-12 Sec. 366.076. REGISTRATION RENEWAL. The commission by rule
72-13 may adopt a system under which registrations expire on various
72-14 dates during the year. For each year in which the registration
72-15 expiration date is changed, the commission shall prorate
72-16 registration fees on a monthly basis so that each registrant pays
72-17 only that portion of the registration fee that is allocable to the
72-18 number of months during which the registration is valid. On
72-19 renewal of the registration on the new expiration date, the total
72-20 registration renewal fee is payable [provide for periodic renewal
72-21 of registrations].
72-22 ARTICLE 8. REGULATION OF CERTAIN SOLID WASTE
72-23 FACILITIES
72-24 SECTION 8.01. Subchapter C, Chapter 361, Health and Safety
72-25 Code, is amended by adding Section 361.119 to read as follows:
72-26 Sec. 361.119. REGULATION OF CERTAIN FACILITIES AS SOLID
72-27 WASTE FACILITIES. (a) The commission by rule shall ensure that a
73-1 solid waste processing facility the primary function of which is
73-2 the transfer of solid waste is regulated as a solid waste facility
73-3 under this chapter and is not allowed to operate unregulated as a
73-4 recycling facility.
73-5 (b) A facility and the operations conducted and materials
73-6 handled at the facility are not subject to regulation under rules
73-7 adopted under this section if the owner or operator of the facility
73-8 demonstrates that:
73-9 (1) the primary function of the facility is to process
73-10 materials that have a resale value greater than the cost of
73-11 processing the materials for subsequent beneficial use; and
73-12 (2) the solid waste generated from processing the
73-13 materials is disposed of in a solid waste facility authorized under
73-14 this chapter, with the exception of small amounts of solid waste,
73-15 as specified by commission rule, that may be inadvertently and
73-16 unintentionally disposed of in another manner.
73-17 ARTICLE 9. CONFORMING AMENDMENTS
73-18 SECTION 9.01. Section 5.174(a), Water Code, is amended to
73-19 read as follows:
73-20 (a) Except as otherwise specifically provided by this code
73-21 and subject to the specific limitations provided by this code, on
73-22 application of any person the commission shall furnish certified or
73-23 other copies of any proceeding or other official record or of any
73-24 map, paper, or document filed with the commission. A certified
73-25 copy with the seal of the commission and the signature of the
73-26 presiding officer [chairman] of the commission or the executive
73-27 director or chief clerk is admissible as evidence in any court or
74-1 administrative proceeding.
74-2 SECTION 9.02. Section 11.085, Water Code, as it exists after
74-3 the transfer and redesignation of Subsections (f)-(i) by this Act,
74-4 is amended by amending Subsection (d) and relettering Subsections
74-5 (j)-(v) as Subsections (f)-(r) to read as follows:
74-6 (d) Prior to taking action on an application for an
74-7 interbasin transfer, the commission shall conduct at least one
74-8 public meeting to receive comments in both the basin of origin of
74-9 the water proposed for transfer and the basin receiving water from
74-10 the proposed transfer. Notice shall be provided pursuant to
74-11 Section 5.652 [Subsection (g) of this section]. Any person may
74-12 present relevant information and data at the meeting on the
74-13 criteria which the commission is to consider related to the
74-14 interbasin transfer.
74-15 (f) [(j)] In addition to other requirements of this code
74-16 relating to the review of and action on an application for a new
74-17 water right or amended permit, certified filing, or certificate of
74-18 adjudication, the commission shall:
74-19 (1) request review and comment on an application for
74-20 an interbasin transfer from each county judge of a county located
74-21 in whole or in part in the basin of origin. A county judge should
74-22 make comment only after seeking advice from the county
74-23 commissioners court; and
74-24 (2) give consideration to the comments of each county
74-25 judge of a county located in whole or in part in the basin of
74-26 origin prior to taking action on an application for an interbasin
74-27 transfer.
75-1 (g) [(k)] In addition to other requirements of this code
75-2 relating to the review of and action on an application for a new
75-3 water right or amended permit, certified filing, or certificate of
75-4 adjudication, the commission shall weigh the effects of the
75-5 proposed transfer by considering:
75-6 (1) the need for the water in the basin of origin and
75-7 in the proposed receiving basin based on the period for which the
75-8 water supply is requested, but not to exceed 50 years;
75-9 (2) factors identified in the applicable approved
75-10 regional water plans which address the following:
75-11 (A) the availability of feasible and practicable
75-12 alternative supplies in the receiving basin to the water proposed
75-13 for transfer;
75-14 (B) the amount and purposes of use in the
75-15 receiving basin for which water is needed;
75-16 (C) proposed methods and efforts by the
75-17 receiving basin to avoid waste and implement water conservation and
75-18 drought contingency measures;
75-19 (D) proposed methods and efforts by the
75-20 receiving basin to put the water proposed for transfer to
75-21 beneficial use;
75-22 (E) the projected economic impact that is
75-23 reasonably expected to occur in each basin as a result of the
75-24 transfer; and
75-25 (F) the projected impacts of the proposed
75-26 transfer that are reasonably expected to occur on existing water
75-27 rights, instream uses, water quality, aquatic and riparian habitat,
76-1 and bays and estuaries that must be assessed under Sections 11.147,
76-2 11.150, and 11.152 of this code in each basin. If the water sought
76-3 to be transferred is currently authorized to be used under an
76-4 existing permit, certified filing, or certificate of adjudication,
76-5 such impacts shall only be considered in relation to that portion
76-6 of the permit, certified filing, or certificate of adjudication
76-7 proposed for transfer and shall be based on historical uses of the
76-8 permit, certified filing, or certificate of adjudication for which
76-9 amendment is sought;
76-10 (3) proposed mitigation or compensation, if any, to
76-11 the basin of origin by the applicant;
76-12 (4) the continued need to use the water for the
76-13 purposes authorized under the existing permit, certified filing, or
76-14 certificate of adjudication, if an amendment to an existing water
76-15 right is sought; and
76-16 (5) the information required to be submitted by the
76-17 applicant.
76-18 (h) [(l)] The commission may grant, in whole or in part, an
76-19 application for an interbasin transfer only to the extent that:
76-20 (1) the detriments to the basin of origin during the
76-21 proposed transfer period are less than the benefits to the
76-22 receiving basin during the proposed transfer period; and
76-23 (2) the applicant for the interbasin transfer has
76-24 prepared a drought contingency plan and has developed and
76-25 implemented a water conservation plan that will result in the
76-26 highest practicable levels of water conservation and efficiency
76-27 achievable within the jurisdiction of the applicant.
77-1 (i) [(m)] The commission may grant new or amended water
77-2 rights under this section with or without specific terms or periods
77-3 of use and with specific conditions under which a transfer of water
77-4 may occur.
77-5 (j) [(n)] If the transfer of water is based on a contractual
77-6 sale of water, the new water right or amended permit, certified
77-7 filing, or certificate of adjudication authorizing the transfer
77-8 shall contain a condition for a term or period not greater than the
77-9 contract term.
77-10 (k) [(o)] The parties to a contract for an interbasin
77-11 transfer may include provisions for compensation and mitigation.
77-12 If the party from the basin of origin is a government entity, each
77-13 county judge of a county located in whole or in part in the basin
77-14 of origin may provide input on the appropriate compensation and
77-15 mitigation for the interbasin transfer.
77-16 (l) [(p)] For the purposes of this section, a basin is
77-17 designated as provided in accordance with Section 16.051 of this
77-18 code. A basin may not be redesignated in order to allow a transfer
77-19 or diversion of water otherwise in violation of this section.
77-20 (m) [(q)] A person who takes or diverts water in violation
77-21 of this section is guilty of a misdemeanor and upon conviction is
77-22 punishable by a fine of not more than $1,000 or by confinement in
77-23 the county jail for not more than six months.
77-24 (n) [(r)] A person commits a separate offense each day he
77-25 continues to take or divert water in violation of this section.
77-26 (o) [(s)] Any proposed transfer of all or a portion of a
77-27 water right under this section is junior in priority to water
78-1 rights granted before the time application for transfer is accepted
78-2 for filing.
78-3 (p) [(t)] Any proposed transfer of all or a portion of a
78-4 water right under this section from a river basin in which two or
78-5 more river authorities or water districts created under Section 59,
78-6 Article XVI, Texas Constitution, have written agreements or permits
78-7 that provide for the coordinated operation of their respective
78-8 reservoirs to maximize the amount of water for beneficial use
78-9 within their respective water services areas shall be junior in
78-10 priority to water rights granted before the time application for
78-11 transfer is accepted for filing.
78-12 (q) [(u)] An appropriator of water for municipal purposes in
78-13 the basin of origin may, at the appropriator's option, be a party
78-14 in any hearings under this section.
78-15 (r) [(v)] The provisions of this section, except Subsection
78-16 (a), do not apply to:
78-17 (1) a proposed transfer which in combination with any
78-18 existing transfers totals less than 3,000 acre-feet of water per
78-19 annum from the same permit, certified filing, or certificate of
78-20 adjudication;
78-21 (2) a request for an emergency transfer of water;
78-22 (3) a proposed transfer from a basin to its adjoining
78-23 coastal basin; or
78-24 (4) a proposed transfer from a basin to a county or
78-25 municipality or the municipality's retail service area that is
78-26 partially within the basin for use in that part of the county or
78-27 municipality and the municipality's retail service area not within
79-1 the basin.
79-2 SECTION 9.03. Section 11.132, Water Code, as it exists after
79-3 the transfer and redesignation of Subsections (a)-(c) by this Act,
79-4 is amended by adding new Subsections (a) and (b), relettering
79-5 existing Subsection (f) as Subsection (c), and amending existing
79-6 Subsection (f) to read as follows:
79-7 (a) Notice shall be given of an application for
79-8 authorization to appropriate unappropriated state water as
79-9 prescribed by Section 5.653. The commission, on the motion of a
79-10 commissioner or on the request of the executive director or any
79-11 affected person, shall hold a public hearing on the application.
79-12 (b) The commission may act on the application without
79-13 holding a public hearing if notice has been given as provided by
79-14 Section 5.654 and, within 30 days after the date notice is
79-15 published under Section 5.654(a), a public hearing has not been
79-16 requested in writing by a commissioner, the executive director, or
79-17 an affected person who objects to the application.
79-18 (c) [(f)] If, on the date specified in the notice prescribed
79-19 by Section 5.653(c) [Subsection (c) of this section], the
79-20 commission determines that a public hearing must be held, the
79-21 matter shall be remanded for hearing without the necessity of
79-22 issuing further notice other than advising all parties of the time
79-23 and place where the hearing is to convene.
79-24 SECTION 9.04. Section 11.139(g), Water Code, is amended to
79-25 read as follows:
79-26 (g) The requirements of Sections 5.653 and 5.654 [Section
79-27 11.132 of this code] relating to the time for notice, newspaper
80-1 notice, and method of giving a person notice do not apply to a
80-2 hearing held on an application for an emergency authorization under
80-3 this section, but such general notice of the hearing shall be given
80-4 as the commission, under Subsections (c) and (e) [of this section],
80-5 considers practicable under the circumstances.
80-6 SECTION 9.05. Section 11.143, Water Code, as it exists after
80-7 the transfer and redesignation of Subsections (d)-(f) by this Act,
80-8 is amended by adding a new Subsection (d), relettering existing
80-9 Subsections (g)-(i) as Subsections (e)-(g), and amending existing
80-10 Subsection (g) to read as follows:
80-11 (d) Except as otherwise specifically provided by this
80-12 subsection, before the commission may approve an application and
80-13 issue a permit to use water from a dam or reservoir exempted under
80-14 Section 11.142 for a purpose other than domestic or livestock use,
80-15 it shall give notice as prescribed by Section 5.655 and hold a
80-16 hearing as prescribed by this section. The commission may act on
80-17 the application without holding a public hearing if the applicant
80-18 publishes the commission's notice as required by Section 5.656.
80-19 (e) [(g)] If on the date specified in the notice prescribed
80-20 by Section 5.656 [Subsection (d) of this section,] the commission
80-21 determines that a public hearing must be held, the matter shall be
80-22 remanded for hearing without the necessity of issuing further
80-23 notice other than advising all parties of the time and place where
80-24 the hearing is to convene.
80-25 (f) [(h)] The applicant shall pay the filing fee prescribed
80-26 by Section 12.111(b) of this code at the time he files the
80-27 application.
81-1 (g) [(i)] The commission shall approve the application and
81-2 issue the permit as applied for in whole or part if it determines
81-3 that:
81-4 (1) there is unappropriated water in the source of
81-5 supply;
81-6 (2) the applicant has met the requirements of this
81-7 section;
81-8 (3) the water is to be used for a beneficial purpose;
81-9 (4) the proposed use is not detrimental to the public
81-10 welfare or to the welfare of the locality; and
81-11 (5) the proposed use will not impair existing water
81-12 rights.
81-13 SECTION 9.06. Section 11.323(a), Water Code, is amended to
81-14 read as follows:
81-15 (a) When a final determination of the rights to the waters
81-16 of a stream has been made in accordance with the procedure provided
81-17 in this subchapter and the time for a rehearing has expired, the
81-18 commission shall issue to each person adjudicated a water right a
81-19 certificate of adjudication, signed by the presiding officer of the
81-20 commission [chairman] and bearing the seal of the commission.
81-21 SECTION 9.07. Section 26.022, Water Code, as it exists after
81-22 the transfer and redesignation of Subsections (b) and (c) by this
81-23 Act, is amended by amending Subsection (a), relettering existing
81-24 Subsections (d) and (e) as Subsections (b) and (c), and amending
81-25 existing Subsections (d) and (e) to read as follows:
81-26 (a) Except as otherwise provided in Sections 5.501, 5.504,
81-27 5.509, and 26.176, the provisions of this section and of Section
82-1 5.658 apply to all hearings conducted in compliance with this
82-2 chapter.
82-3 (b) [(d)] The individual or individuals holding the hearing,
82-4 called the hearing body, shall conduct the hearing at the time and
82-5 place stated in the notice given under Section 5.655. The hearing
82-6 body may continue the hearing from time to time and from place to
82-7 place without the necessity of publishing, serving, mailing, or
82-8 otherwise issuing a new notice.
82-9 (c) [(e)] If a hearing is continued and a time and place for
82-10 the hearing to reconvene are not publicly announced by the person
82-11 conducting the hearing at the hearing before it is recessed, a
82-12 notice of any further setting of the hearing shall be served
82-13 personally or mailed in the manner prescribed by Section 5.658(b)
82-14 [in Subsection (c) of this section] at a reasonable time before the
82-15 new setting, but it is not necessary to publish a newspaper notice
82-16 of the new setting.
82-17 SECTION 9.08. Section 26.028, Water Code, as it exists after
82-18 the transfer and redesignation of Subsections (a), (b), (e), and
82-19 (g) by this Act, is amended by adding a new Subsection (a),
82-20 relettering existing Subsections (c) and (d) as Subsections (b) and
82-21 (c), amending existing Subsection (d), adding a new Subsection (d),
82-22 relettering existing Subsection (f) as Subsection (e), and adding a
82-23 new Subsection (f) to read as follows:
82-24 (a) Notice of an application for and a hearing on an
82-25 application for a permit, permit amendment, or permit renewal shall
82-26 be given as required by Section 5.659.
82-27 (b) [(c)] Except as otherwise provided by this section, the
83-1 commission, on the motion of a commissioner, or on the request of
83-2 the executive director or any affected person, shall hold a public
83-3 hearing on the application for a permit, permit amendment, or
83-4 renewal of a permit.
83-5 (c) [(d)] Notwithstanding any other provision of this
83-6 chapter, the commission, at a regular meeting without the necessity
83-7 of holding a public hearing, may approve an application to renew or
83-8 amend a permit if:
83-9 (1) the applicant is not applying to:
83-10 (A) increase significantly the quantity of waste
83-11 authorized to be discharged; or
83-12 (B) change materially the pattern or place of
83-13 discharge;
83-14 (2) the activities to be authorized by the renewed or
83-15 amended permit will maintain or improve the quality of waste
83-16 authorized to be discharged;
83-17 (3) for NPDES permits, notice and the opportunity to
83-18 request a public meeting shall be given in compliance with NPDES
83-19 program requirements, and the commission shall consider and respond
83-20 to all timely received and significant public comment; and
83-21 (4) the commission determines that an applicant's
83-22 compliance history during [for] the period established by the
83-23 commission under Section 5.754 for consideration of compliance
83-24 history [preceding five years] raises no issues regarding the
83-25 applicant's ability to comply with a material term of its permit.
83-26 (d) Notice of an application under Subsection (c) shall be
83-27 given as provided by Section 5.659(c) and the persons notified
84-1 under that section may present information to the commission on the
84-2 application.
84-3 (e) [(f)] An application to renew a permit for a confined
84-4 animal feeding operation which was issued between July 1, 1974, and
84-5 December 31, 1977, may be set for consideration and may be acted on
84-6 by the commission at a regular meeting without the necessity of
84-7 holding a public hearing if the applicant does not seek to
84-8 discharge into or adjacent to water in the state and does not seek
84-9 to change materially the pattern or place of disposal.
84-10 (f) For the purposes of Subsection (a), the commission may
84-11 act on an application without holding a public hearing if notice is
84-12 given as provided by Section 5.660 and, within 30 days after the
84-13 date of the publication of notice under Section 5.660(a), neither a
84-14 commissioner, the executive director, nor an affected person who
84-15 objects to the application has requested a public hearing.
84-16 SECTION 9.09. Section 26.0281, Water Code, is amended to read
84-17 as follows:
84-18 Sec. 26.0281. CONSIDERATION OF [PAST PERFORMANCE AND]
84-19 COMPLIANCE HISTORY. In considering the issuance, amendment, or
84-20 renewal of a permit to discharge effluent comprised primarily of
84-21 sewage or municipal waste, the commission shall consider the [any
84-22 adjudicated decision on or] compliance history [proceeding
84-23 addressing past performance and compliance] of the applicant and
84-24 its operator under the method for evaluating compliance history
84-25 developed by the commission under Section 5.754 [with the laws of
84-26 this state governing waste discharge, waste treatment, or waste
84-27 disposal facilities and with the terms of any permit or order
85-1 issued by the commission].
85-2 SECTION 9.10. Section 26.040, Water Code, as it exists after
85-3 the transfer and redesignation of Subsection (b) by this Act, is
85-4 amended by relettering Subsections (c)-(m) as Subsections (b)-(l)
85-5 and amending existing Subsections (h) and (i) to read as follows:
85-6 (b) [(c)] The commission may hold a public meeting to
85-7 provide an additional opportunity for public comment. The
85-8 commission shall give notice of a public meeting under this
85-9 subsection by publication in the Texas Register not later than the
85-10 30th day before the date of the meeting.
85-11 (c) [(d)] If the commission receives public comment relating
85-12 to issuance of a general permit, the commission may issue the
85-13 general permit only after responding in writing to the comments.
85-14 The commission shall issue a written response to comments on the
85-15 permit at the same time the commission issues or denies the permit.
85-16 The response is available to the public and shall be mailed to each
85-17 person who made a comment.
85-18 (d) [(e)] A general permit may provide that a discharger who
85-19 is not covered by an individual permit may obtain authorization to
85-20 discharge waste under a general permit by submitting to the
85-21 commission written notice of intent to be covered by the general
85-22 permit. A general permit shall specify the deadline for submitting
85-23 and the information required to be included in a notice of intent.
85-24 A general permit may authorize a discharger to begin discharging
85-25 under the general permit immediately on filing a complete and
85-26 accurate notice of intent, or it may specify a date or period of
85-27 time after the commission receives the discharger's notice of
86-1 intent on which the discharger may begin discharging unless the
86-2 executive director before that time notifies the discharger that it
86-3 is not eligible for authorization under the general permit.
86-4 (e) [(f)] A general permit may authorize a discharger to
86-5 discharge without submitting a notice of intent if the commission
86-6 finds that a notice of intent requirement would be inappropriate.
86-7 (f) [(g)] Authorization to discharge under a general permit
86-8 does not confer a vested right. After written notice to the
86-9 discharger, the executive director may suspend a discharger's
86-10 authority to discharge under a general permit and may require a
86-11 person discharging under a general permit to obtain authorization
86-12 to discharge under an individual permit as required by Section
86-13 26.027 or other law.
86-14 (g) [(h)] Notwithstanding other provisions of this chapter,
86-15 the commission, after hearing, shall deny or suspend a discharger's
86-16 authority to discharge under a general permit if the commission
86-17 determines that the [discharger operates any facility for which
86-18 the] discharger's compliance history is unacceptable under the
86-19 method of evaluating compliance history developed by the
86-20 commission under Section 5.754 during the period established by the
86-21 commission under that section for consideration of compliance
86-22 history [contains violations constituting a recurring pattern of
86-23 egregious conduct that demonstrates a consistent disregard for the
86-24 regulatory process, including a failure to make a timely and
86-25 substantial attempt to correct the violations]. A hearing under
86-26 this subsection is not subject to Chapter 2001, Government Code.
86-27 (h) [(i)] A general permit may be issued for a term not to
87-1 exceed five years. After notice and comment as provided by Section
87-2 5.661 and Subsections (b) and (c) [(b)-(d)], a general permit may
87-3 be amended, revoked, or canceled by the commission or renewed by
87-4 the commission for an additional term or terms not to exceed five
87-5 years each. A general permit remains in effect until amended,
87-6 revoked, or canceled by the commission or, unless renewed by the
87-7 commission, until expired. If before a general permit expires the
87-8 commission proposes to renew that general permit, that general
87-9 permit remains in effect until the date on which the commission
87-10 takes final action on the proposed renewal.
87-11 (i) [(j)] The commission may through a renewal or amendment
87-12 process for a general permit add or delete requirements or
87-13 limitations to the permit. The commission shall provide a
87-14 reasonable time to allow a discharger covered by the general permit
87-15 to make the changes necessary to comply with the additional
87-16 requirements.
87-17 (j) [(k)] The commission may impose a reasonable and
87-18 necessary fee under Section 26.0291 on a discharger covered by a
87-19 general permit.
87-20 (k) [(l)] The issuance, amendment, renewal, suspension,
87-21 revocation, or cancellation of a general permit or of authority to
87-22 discharge under a general permit is not subject to Subchapters C-F,
87-23 Chapter 2001, Government Code.
87-24 (l) [(m)] The commission may adopt rules as necessary to
87-25 implement and administer this section.
87-26 SECTION 9.11. Section 27.018, Water Code, as it exists after
87-27 the transfer and redesignation of Subsection (b) by this Act, is
88-1 amended by adding a new Subsection (b) and amending Subsection (c)
88-2 to read as follows:
88-3 (b) Notice of the opportunity to request a public hearing on
88-4 a permit application shall be given as provided by Section 5.662.
88-5 (c) Before the commission begins to hear testimony in a
88-6 contested case as defined by Chapter 2001, Government Code,
88-7 evidence must be placed in the record to demonstrate that proper
88-8 notice regarding the hearing was given to affected persons as
88-9 required by commission rules adopted under Section 5.662. If
88-10 mailed notice to an affected person is required, the commission or
88-11 other party to the hearing shall place evidence in the record that
88-12 notice was mailed to the address of the affected person included in
88-13 the appropriate county tax rolls at the time of mailing. For the
88-14 purposes of this subsection, the affidavit of the commission
88-15 employee responsible for the mailing of the notice, attesting to
88-16 the fact that notice was mailed to the address included in the tax
88-17 rolls at the time of mailing, shall be prima facie evidence of
88-18 proper mailing. The commission may not proceed with receipt of
88-19 testimony in a contested case until there is compliance with this
88-20 subsection.
88-21 SECTION 9.12. Sections 27.051(d) and (e), Water Code, are
88-22 amended to read as follows:
88-23 (d) The commission, in determining if the use or
88-24 installation of an injection well for the disposal of hazardous
88-25 waste is in the public interest under Subsection (a)(1) [of this
88-26 section], shall consider, but shall not be limited to the
88-27 consideration of:
89-1 (1) compliance history of the applicant under the
89-2 method for evaluating compliance history developed by the
89-3 commission under Section 5.754 and in accordance with the
89-4 provisions of Subsection (e) [of this section];
89-5 (2) whether there is a practical, economic, and
89-6 feasible alternative to an injection well reasonably available to
89-7 manage the types and classes of hazardous waste; and
89-8 (3) whether the applicant will maintain sufficient
89-9 public liability insurance for bodily injury and property damage to
89-10 third parties that is caused by sudden and non-sudden accidents or
89-11 will otherwise demonstrate financial responsibility in a manner
89-12 adopted by the commission in lieu of public liability insurance. A
89-13 liability insurance policy which satisfies the policy limits
89-14 required by the hazardous waste management regulations of the
89-15 commission for the applicant's proposed pre-injection facilities
89-16 shall be deemed "sufficient" under this subdivision if the policy:
89-17 (A) covers the injection well; and
89-18 (B) is issued by a company that is authorized to
89-19 do business and to write that kind of insurance in this state and
89-20 is solvent and not currently under supervision or in
89-21 conservatorship or receivership in this state or any other state.
89-22 (e) The commission shall establish a procedure by rule for
89-23 its preparation of compliance summaries relating to the compliance
89-24 history of [compliance and noncompliance by] the applicant in
89-25 accordance with the method for evaluating compliance history
89-26 developed by the commission under Section 5.754 [with the rules
89-27 adopted or orders or permits issued by the commission under this
90-1 chapter for any injection well for which a permit has been issued
90-2 under this chapter]. The compliance summaries shall be made
90-3 available to the applicant and any interested person after the
90-4 commission has completed its technical review of the permit
90-5 application and prior to the promulgation of the public notice
90-6 relating to the issuance of the permit. Evidence of compliance or
90-7 noncompliance by an applicant for an injection well for the
90-8 disposal of hazardous waste with the rules adopted or orders or
90-9 permits issued by the commission under this chapter may be offered
90-10 by any party at a hearing on the applicant's application and
90-11 admitted into evidence subject to applicable rules of evidence.
90-12 All evidence admitted, including compliance history, shall be
90-13 considered by the commission in determining whether to issue,
90-14 amend, extend or renew a permit.
90-15 SECTION 9.13. Section 361.020(d), Health and Safety Code, is
90-16 amended to read as follows:
90-17 (d) The commission in developing a comprehensive statewide
90-18 strategic plan shall:
90-19 (1) consult with:
90-20 (A) the agency's waste minimization, recycling,
90-21 or reduction division;
90-22 (B) the municipal solid waste management and
90-23 resource recovery advisory council;
90-24 (C) the pollution prevention [waste reduction]
90-25 advisory committee;
90-26 (D) the interagency coordinating council; and
90-27 (E) local governments, appropriate regional and
91-1 state agencies, businesses, citizen groups, and private waste
91-2 management firms;
91-3 (2) hold public hearings in different regions of the
91-4 state; and
91-5 (3) publish the proposed plan in the Texas Register.
91-6 SECTION 9.14. Section 361.063, Health and Safety Code, as it
91-7 exists after the transfer and redesignation of Subsection (c) by
91-8 this Act, is amended by adding a new Subsection (c) to read as
91-9 follows:
91-10 (c) Filing notice with the commission as required by Section
91-11 5.663, Water Code, initiates the preapplication review process.
91-12 SECTION 9.15. Section 361.079, Health and Safety Code, is
91-13 amended by amending the heading to read as follows:
91-14 Sec. 361.079. [NOTICE CONCERNING RECEIPT OF PERMIT
91-15 APPLICATION;] HEARING PROCEDURES.
91-16 SECTION 9.16. Section 361.079, Health and Safety Code, as it
91-17 exists after the transfer and redesignation of Subsections (a) and
91-18 (c) by this Act, is amended by adding a new Subsection (a) to read
91-19 as follows:
91-20 (a) Notice for a hearing under Section 361.080 or 361.081 is
91-21 given as provided by Section 5.665, Water Code. The commission by
91-22 rule shall establish procedures for a public hearing under Section
91-23 361.080 or 361.081.
91-24 SECTION 9.17. Section 361.0791, Health and Safety Code, as it
91-25 exists after the transfer and redesignation of Subsections (e),
91-26 (f), and (g) by this Act, is amended by adding a new Subsection (e)
91-27 to read as follows:
92-1 (e) If a meeting is required under Subsection (a), notice of
92-2 the meeting shall be given as provided by Section 5.666, Water
92-3 Code.
92-4 SECTION 9.18. Section 361.080(b), Health and Safety Code, is
92-5 amended to read as follows:
92-6 (b) Notice for a hearing session held under this section
92-7 shall be provided in accordance with Section 5.666, Water Code
92-8 [361.0791].
92-9 SECTION 9.19. Section 361.081, Health and Safety Code, as it
92-10 exists after the transfer and redesignation of Subsections (a) and
92-11 (b) by this Act, is amended by amending the heading, adding a new
92-12 Subsection (a), and relettering and amending Subsection (c) to
92-13 read as follows:
92-14 Sec. 361.081. [NOTICE OF] HEARING CONCERNING APPLICATION FOR
92-15 A SOLID WASTE FACILITY. (a) The commission shall require the
92-16 applicant to provide notice of the hearing as provided by Section
92-17 5.667, Water Code.
92-18 (b) [(c)] In addition to the requirements of Subsection (a),
92-19 the commission shall hold a public meeting and the applicant shall
92-20 give notice concerning the application for a permit for a new
92-21 hazardous waste management facility as provided by Section 5.666,
92-22 Water Code [361.0791].
92-23 SECTION 9.20. Section 361.082, Health and Safety Code, as it
92-24 exists after the transfer and redesignation of Subsection (c) by
92-25 this Act, is amended by adding a new Subsection (c) and amending
92-26 Subsection (d) to read as follows:
92-27 (c) The commission by rule shall establish procedures for a
93-1 public hearing on an application for a permit under this section.
93-2 Notice of the hearing shall be given as provided by Section 5.668,
93-3 Water Code.
93-4 (d) In addition to the hearing held under this section, the
93-5 commission shall hold a public meeting and the applicant shall give
93-6 notice as provided by Section 5.666, Water Code [361.0791].
93-7 SECTION 9.21. Sections 361.084(a) and (c), Health and Safety
93-8 Code, are amended to read as follows:
93-9 (a) The commission by rule shall establish a procedure to
93-10 prepare compliance summaries relating to the applicant's solid
93-11 waste management activities in accordance with the method for
93-12 evaluating compliance history developed by the commission under
93-13 Section 5.754, Water Code.
93-14 (c) Evidence of compliance or noncompliance by an applicant
93-15 for a solid waste management facility permit with agency rules,
93-16 permits, other orders, or evidence of a final determination of
93-17 noncompliance with federal statutes or statutes of any state during
93-18 [in] the period adopted under Section 5.754, Water Code, for the
93-19 consideration of compliance history [preceding five years]
93-20 concerning solid waste management may be:
93-21 (1) offered by a party at a hearing concerning the
93-22 application; and
93-23 (2) admitted into evidence subject to applicable rules
93-24 of evidence.
93-25 SECTION 9.22. Sections 361.088(d) and (f), Health and Safety
93-26 Code, are amended to read as follows:
93-27 (d) In addition to providing an opportunity for a hearing
94-1 held under this section, the commission shall hold a public meeting
94-2 and give notice as provided by Section 5.666, Water Code
94-3 [361.0791].
94-4 (f) Notwithstanding Subsection (e), if the commission
94-5 determines that an applicant's compliance history for the period
94-6 adopted under Section 5.754, Water Code, for the consideration of
94-7 compliance history [preceding five years] raises an issue regarding
94-8 the applicant's ability to comply with a material term of its
94-9 permit, the commission shall provide an opportunity to request a
94-10 contested case hearing.
94-11 SECTION 9.23. Section 361.089, Health and Safety Code, as it
94-12 exists after the transfer and redesignation of Subsections (b) and
94-13 (c) by this Act, is amended by adding new Subsections (b) and (c)
94-14 and amending Subsections (a), (e), and (f) to read as follows:
94-15 (a) The commission may, for good cause, deny or amend a
94-16 permit it issues or has authority to issue for reasons pertaining
94-17 to public health, air or water pollution, or land use, or for
94-18 having a compliance history that is unacceptable under the method
94-19 of evaluating compliance history developed by the commission under
94-20 Section 5.754, Water Code, during the period established by the
94-21 commission under that section for consideration of compliance
94-22 history [a violation of this chapter or other applicable laws or
94-23 rules controlling the management of solid waste].
94-24 (b) The commission shall provide notice under Section 5.669,
94-25 Water Code, and an opportunity for a hearing to the permit holder
94-26 or applicant and persons affected. The commission may also hold a
94-27 hearing on its own motion.
95-1 (c) The commission by rule shall establish procedures for
95-2 any public hearing under this section.
95-3 (e) The commission may deny an original or renewal permit if
95-4 it is found, after notice and hearing, that:
95-5 (1) the permit holder has a compliance history that is
95-6 unacceptable under the method of evaluating compliance history
95-7 developed by the commission under Section 5.754, Water Code, during
95-8 the period established by the commission under that section for
95-9 consideration of compliance history [record of environmental
95-10 violations in the preceding five years at the permitted site;]
95-11 [(2) the applicant has a record of environmental
95-12 violations in the preceding five years at any site owned, operated,
95-13 or controlled by the applicant];
95-14 (2) [(3)] the permit holder or applicant made a false
95-15 or misleading statement in connection with an original or renewal
95-16 application, either in the formal application or in any other
95-17 written instrument relating to the application submitted to the
95-18 commission, its officers, or its employees;
95-19 (3) [(4)] the permit holder or applicant is indebted
95-20 to the state for fees, payment of penalties, or taxes imposed by
95-21 this title or by a rule of the commission; or
95-22 (4) [(5)] the permit holder or applicant is unable to
95-23 ensure that the management of the hazardous waste management
95-24 facility conforms or will conform to this title and the rules of
95-25 the commission.
95-26 (f) Before denying a permit under this section, the
95-27 commission must find:
96-1 (1) that the applicant has a compliance history that
96-2 is unacceptable under the method of evaluating compliance history
96-3 developed by the commission under Section 5.754, Water Code, during
96-4 the period established by the commission under that section for
96-5 consideration of compliance history [a violation or violations are
96-6 significant and that the permit holder or applicant has not made a
96-7 substantial attempt to correct the violations]; or
96-8 (2) that the permit holder or applicant is indebted to
96-9 the state for fees, payment of penalties, or taxes imposed by this
96-10 title or by a rule of the commission.
96-11 SECTION 9.24. Section 382.017, Health and Safety Code, as it
96-12 exists after the transfer and redesignation of Subsection (b) by
96-13 this Act, is amended by adding a new Subsection (b) to read as
96-14 follows:
96-15 (b) Notice of a public hearing on a proposed rule under this
96-16 section must be given as provided by Section 5.670, Water Code.
96-17 SECTION 9.25. Section 382.0518(c), Health and Safety Code, is
96-18 amended to read as follows:
96-19 (c) In considering the issuance, amendment, or renewal of a
96-20 permit, the commission may consider the applicant's compliance
96-21 history, in accordance with the method for evaluating compliance
96-22 history developed by the commission under Section 5.754, Water
96-23 Code, during the period established by the commission under Section
96-24 5.754, Water Code, for the consideration of compliance history [any
96-25 adjudicated decision or compliance proceeding within the five years
96-26 before the date on which the application was filed that addressed
96-27 the applicant's past performance and compliance with the laws of
97-1 this state, another state, or the United States governing air
97-2 contaminants or with the terms of any permit or order issued by the
97-3 commission].
97-4 SECTION 9.26. Section 382.05191(a), Health and Safety Code,
97-5 is amended to read as follows:
97-6 (a) An applicant for a permit under Section 382.0519 shall
97-7 publish notice of intent to obtain the permit in accordance with
97-8 Section 5.673, Water Code [382.056].
97-9 SECTION 9.27. Section 382.055, Health and Safety Code, as it
97-10 exists after the transfer and redesignation of Subsection (c) by
97-11 this Act, is amended by adding a new Subsection (c) and amending
97-12 Subsection (d) to read as follows:
97-13 (c) The commission shall provide notice to the permit
97-14 holder, as provided by Section 5.672, Water Code, that the permit
97-15 is scheduled for review.
97-16 (d) In determining whether and under which conditions a
97-17 preconstruction permit should be renewed, the commission shall
97-18 consider, at a minimum:
97-19 (1) [whether] the compliance history of the facility
97-20 according to the method developed by the commission under Section
97-21 5.754, Water Code, for the consideration of compliance history [is
97-22 or has been in substantial compliance with this chapter and the
97-23 terms of the existing permit]; and
97-24 (2) the condition and effectiveness of existing
97-25 emission control equipment and practices.
97-26 SECTION 9.28. Section 382.056, Health and Safety Code, as it
97-27 exists after the transfer and redesignation of Subsections (a)-(c),
98-1 (g), and (i) by this Act, is amended by adding a new Subsection
98-2 (a), relettering Subsections (d)-(f) as Subsections (b)-(d), adding
98-3 a new Subsection (e), relettering Subsections (h) and (j)-(p) as
98-4 Subsections (f)-(m), and amending existing Subsections (h) and (o)
98-5 to read as follows:
98-6 (a) An applicant for a permit under Section 382.0518 or a
98-7 permit renewal review under Section 382.055 shall publish notice of
98-8 intent to obtain the permit or permit review as provided by Section
98-9 5.673, Water Code.
98-10 (b) [(d)] The applicant shall make a copy of the application
98-11 available for review and copying at a public place in the county in
98-12 which the facility or federal source is located or proposed to be
98-13 located.
98-14 (c) [(e)] The applicant, in cooperation with the executive
98-15 director, may hold a public meeting in the county in which the
98-16 facility or federal source is located or proposed to be located in
98-17 order to inform the public about the application and obtain public
98-18 input.
98-19 (d) [(f)] The executive director shall conduct a technical
98-20 review of and issue a preliminary decision on the application.
98-21 (e) If, in response to the notice published under Subsection
98-22 (a) for a permit under Section 382.0518 or a permit renewal review
98-23 under Section 382.055, a person requests during the period provided
98-24 by commission rule that the commission hold a public hearing and
98-25 the request is not withdrawn before the date the preliminary
98-26 decision is issued, the applicant shall publish notice of the
98-27 preliminary decision as provided by Section 5.673(d), Water Code,
99-1 and the commission shall seek public comment on the preliminary
99-2 decision. The commission shall consider the request for public
99-3 hearing under the procedures provided by Section 5.673(e), Water
99-4 Code, and Subsections (g)-(k). The commission may not seek further
99-5 public comment or hold a public hearing under the procedures
99-6 provided by Section 5.673(e), Water Code, and Subsections (g)-(k)
99-7 in response to a request for a public hearing on an amendment,
99-8 modification, or renewal that would not result in an increase in
99-9 allowable emissions and would not result in the emission of an air
99-10 contaminant not previously emitted.
99-11 (f) [(h)] If, in response to the notice published under
99-12 Section 5.673(a), Water Code, [Subsection (a)] for a permit under
99-13 Section 382.054, a person requests during the public comment period
99-14 provided by commission rule that the commission hold a public
99-15 hearing, the commission shall consider the request under the
99-16 procedures provided by Section 382.0561 and not under the
99-17 procedures provided by Section 5.673(e), Water Code, and
99-18 Subsections (g)-(k) [(i)-(n)].
99-19 (g) [(j)] The applicant shall make a copy of the preliminary
99-20 decision available for review and copying at a public place in the
99-21 county in which the facility is located or proposed to be located.
99-22 (h) [(k)] During the public comment period, the executive
99-23 director may hold one or more public meetings in the county in
99-24 which the facility is located or proposed to be located. The
99-25 executive director shall hold a public meeting:
99-26 (1) on the request of a member of the legislature who
99-27 represents the general area in which the facility is located or
100-1 proposed to be located; or
100-2 (2) if the executive director determines that there is
100-3 substantial public interest in the proposed activity.
100-4 (i) [(l)] The executive director, in accordance with
100-5 procedures adopted by the commission by rule, shall file with the
100-6 chief clerk of the commission a response to each relevant and
100-7 material public comment on the preliminary decision filed during
100-8 the public comment period.
100-9 (j) [(m)] The chief clerk of the commission shall transmit
100-10 the executive director's decision, the executive director's
100-11 response to public comments, and instructions for requesting that
100-12 the commission reconsider the executive director's decision or hold
100-13 a contested case hearing to:
100-14 (1) the applicant;
100-15 (2) any person who submitted comments during the
100-16 public comment period;
100-17 (3) any person who requested to be on the mailing list
100-18 for the permit action; and
100-19 (4) any person who timely filed a request for a public
100-20 hearing in response to the notice published under Subsection (a).
100-21 (k) [(n)] Except as provided by Section 382.0561, the
100-22 commission shall consider a request that the commission reconsider
100-23 the executive director's decision or hold a public hearing in
100-24 accordance with the procedures provided by Section 5.556, Water
100-25 Code.
100-26 (l) [(o)] Notwithstanding other provisions of this chapter,
100-27 the commission may hold a hearing on a permit amendment,
101-1 modification, or renewal if the commission determines that the
101-2 application involves a facility for which the applicant's
101-3 compliance history is unacceptable under the method of evaluating
101-4 compliance history developed by the commission under Section 5.754,
101-5 Water Code, during the period established by the commission under
101-6 that section for consideration of compliance history [contains
101-7 violations which are unresolved and which constitute a recurring
101-8 pattern of egregious conduct which demonstrates a consistent
101-9 disregard for the regulatory process, including the failure to make
101-10 a timely and substantial attempt to correct the violations].
101-11 (m) [(p)] The commission by rule shall provide for
101-12 additional notice, opportunity for public comment, or opportunity
101-13 for public hearing to the extent necessary to satisfy a requirement
101-14 to obtain or maintain delegation or approval of a federal program.
101-15 SECTION 9.29. Section 382.0561, Health and Safety Code, as it
101-16 exists after the transfer and redesignation of Subsection (f) by
101-17 this Act, is amended by adding a new Subsection (f) to read as
101-18 follows:
101-19 (f) Notice of the public comment period and opportunity for
101-20 a hearing under this section shall be published in accordance with
101-21 Section 5.674, Water Code.
101-22 SECTION 9.30. Section 382.058, Health and Safety Code, as
101-23 amended by Chapters 391 and 406, Acts of the 76th Legislature,
101-24 Regular Session, 1999, is reenacted and amended to read as follows:
101-25 Sec. 382.058. NOTICE OF AND HEARING ON CONSTRUCTION OF
101-26 CONCRETE PLANT UNDER PERMIT BY RULE, STANDARD PERMIT, OR EXEMPTION
101-27 [PROVISIONS RELATING TO PERMITS BY RULE OR STANDARD PERMITS FOR
102-1 COMMISSION EXEMPTION FOR CONSTRUCTION OF CERTAIN CONCRETE PLANTS].
102-2 (a) A person may not begin construction on any concrete plant that
102-3 performs wet batching, dry batching, or central mixing under a
102-4 standard permit under Section 382.05195 or a permit by rule adopted
102-5 by the commission under Section 382.05196 unless the person has
102-6 complied with the notice and opportunity for hearing provisions
102-7 under Section 5.673, Water Code, and Section 382.056.
102-8 (b) This section does not apply to a concrete plant located
102-9 temporarily in the right-of-way, or contiguous to the right-of-way,
102-10 of a public works project.
102-11 (c) For purposes of this section, only those persons
102-12 actually residing in a permanent residence within 440 yards of the
102-13 proposed plant may request a hearing under Section 382.056
102-14 [382.056(d)] as a person who may be affected.
102-15 (d) If the commission considers air dispersion modeling
102-16 information in the course of adopting an exemption under Section
102-17 382.057 for a concrete plant that performs wet batching, dry
102-18 batching, or central mixing, the commission may not require that a
102-19 person who qualifies for the exemption conduct air dispersion
102-20 modeling before beginning construction of a concrete plant, and
102-21 evidence regarding air dispersion modeling may not be submitted at
102-22 a hearing under Section 382.056.
102-23 SECTION 9.31. Section 401.110, Health and Safety Code, is
102-24 amended to read as follows:
102-25 Sec. 401.110. DETERMINATION ON LICENSE. In making a
102-26 determination whether to grant, deny, amend, revoke, suspend, or
102-27 restrict a license or registration, the department or commission
103-1 may consider [those aspects of] an applicant's or license holder's
103-2 [background that bear materially on the ability to fulfill the
103-3 obligations of licensure, including] technical competence and
103-4 compliance history under the method for evaluation of compliance
103-5 history developed by the commission under Section 5.754, Water Code
103-6 [the applicant's or license holder's record in areas involving
103-7 radiation].
103-8 SECTION 9.32. Section 401.112(a), Health and Safety Code, is
103-9 amended to read as follows:
103-10 (a) The department or commission, within its jurisdiction,
103-11 in making a licensing decision on a specific license application to
103-12 process or dispose of low-level radioactive waste from other
103-13 persons, shall consider:
103-14 (1) site suitability, geological, hydrological, and
103-15 meteorological factors, and natural hazards;
103-16 (2) compatibility with present uses of land near the
103-17 site;
103-18 (3) socioeconomic effects on surrounding communities
103-19 of operation of the licensed activity and of associated
103-20 transportation of low-level radioactive waste;
103-21 (4) the need for and alternatives to the proposed
103-22 activity, including an alternative siting analysis prepared by the
103-23 applicant;
103-24 (5) the applicant's qualifications, including
103-25 financial and[,] technical qualifications[,] and compliance history
103-26 under the method for evaluation of compliance history developed by
103-27 the commission under Section 5.754, Water Code [past operating
104-1 practices];
104-2 (6) background monitoring plans for the proposed site;
104-3 (7) suitability of facilities associated with the
104-4 proposed activities;
104-5 (8) chemical, radiological, and biological
104-6 characteristics of the low-level radioactive waste and waste
104-7 classification under Section 401.053;
104-8 (9) adequate insurance of the applicant to cover
104-9 potential injury to any property or person, including potential
104-10 injury from risks relating to transportation;
104-11 (10) training programs for the applicant's employees;
104-12 (11) a monitoring, record-keeping, and reporting
104-13 program;
104-14 (12) spill detection and cleanup plans for the
104-15 licensed site and related to associated transportation of low-level
104-16 radioactive waste;
104-17 (13) decommissioning and postclosure care plans;
104-18 (14) security plans;
104-19 (15) worker monitoring and protection plans;
104-20 (16) emergency plans; and
104-21 (17) a monitoring program for applicants that includes
104-22 prelicense and postlicense monitoring of background radioactive and
104-23 chemical characteristics of the soils, groundwater, and vegetation.
104-24 SECTION 9.33. Section 401.114, Health and Safety Code, is
104-25 amended to read as follows:
104-26 Sec. 401.114. NOTICE AND HEARING. (a) Before the department
104-27 [or commission], within its jurisdiction, grants or renews a
105-1 license to process [or dispose of] low-level radioactive waste from
105-2 other persons, the department [agency] shall give notice and shall
105-3 provide an opportunity for a public hearing in the manner provided
105-4 by the department's [agency's] formal hearing procedure and Chapter
105-5 2001, Government Code.
105-6 (b) Before the commission, within its jurisdiction, grants
105-7 or renews a license to dispose of low-level radioactive waste from
105-8 other persons, the commission shall give notice and shall provide
105-9 an opportunity for a public hearing in the manner provided by
105-10 Section 5.676, Water Code, the commission's formal hearing
105-11 procedure, and Chapter 2001, Government Code.
105-12 (c) In addition to other notice, the department [agency]
105-13 shall publish notice of the hearing in the manner provided by
105-14 Chapter 313, Government Code, in the county in which the proposed
105-15 facility is to be located. The notice shall state the subject and
105-16 the time, place, and date of the hearing.
105-17 (d) [(c)] The department [agency] shall mail, by certified
105-18 mail in the manner provided by board [the agency's] rules, written
105-19 notice to each person who owns property adjacent to the proposed
105-20 site. The notice must be mailed not later than the 31st day before
105-21 the date of the hearing and must include the same information that
105-22 is in the published notice. If true, the department [agency] or
105-23 the applicant must certify that the notice was mailed as required
105-24 by this subsection, and at the hearing the certificate is
105-25 conclusive evidence of the mailing.
105-26 SECTION 9.34. Section 401.116, Health and Safety Code, is
105-27 amended by amending Subsection (b), adding a new Subsection (c),
106-1 relettering existing Subsections (c) and (d) as Subsections (d) and
106-2 (e), and amending existing Subsection (d) to read as follows:
106-3 (b) The department [or commission, as appropriate,] shall
106-4 publish notice of an [the license] amendment to a license to
106-5 process low-level radioactive waste once in the Texas Register and
106-6 in a newspaper of general circulation in the county in which the
106-7 licensed activity is located and shall give notice to any person
106-8 who has notified the department [agency], in advance, of the desire
106-9 to receive notice of proposed amendment of the license.
106-10 (c) The commission shall publish notice of an amendment to a
106-11 license to dispose of low-level radioactive waste as provided by
106-12 Section 5.677, Water Code.
106-13 (d) Notice under Subsection (b) [this section] must include:
106-14 (1) the identity of the license holder;
106-15 (2) identification of the license; and
106-16 (3) a short and plain statement of the license
106-17 amendment's substance.
106-18 (e) [(d)] The agency shall give notice and hold a hearing to
106-19 consider the license amendment if a person affected files a written
106-20 complaint with the agency before the 31st day after the date on
106-21 which notice is published under Subsection (b) or Section 5.677,
106-22 Water Code, as appropriate. The agency shall give notice of the
106-23 hearing as provided by Section 401.114 or by Section 5.676, Water
106-24 Code.
106-25 ARTICLE 10. TRANSITIONS; EFFECTIVE DATE
106-26 SECTION 10.01. CHANGE OF AGENCY NAME. (a) Effective January
106-27 1, 2004:
107-1 (1) the name of the Texas Natural Resource
107-2 Conservation Commission is changed to the Texas Department of
107-3 Environmental Quality, and all powers, duties, rights, and
107-4 obligations of the Texas Natural Resource Conservation Commission
107-5 are the powers, duties, rights, and obligations of the Texas
107-6 Department of Environmental Quality;
107-7 (2) a member of the Texas Natural Resource
107-8 Conservation Commission is a member of the board of the Texas
107-9 Department of Environmental Quality;
107-10 (3) all personnel, equipment, data, documents,
107-11 facilities, and other items of the Texas Natural Resource
107-12 Conservation Commission are transferred to the agency under its new
107-13 name; and
107-14 (4) any appropriation to the Texas Natural Resource
107-15 Conservation Commission is automatically an appropriation to the
107-16 Texas Department of Environmental Quality.
107-17 (b) Effective January 1, 2004, a reference in law to the
107-18 Texas Natural Resource Conservation Commission is a reference to
107-19 the Texas Department of Environmental Quality.
107-20 (c) The Texas Natural Resource Conservation Commission shall
107-21 adopt a timetable for phasing in the change of the agency's name so
107-22 as to minimize the fiscal impact of the name change. Until January
107-23 1, 2004, to allow for phasing in the change of the agency's name
107-24 and in accordance with the timetable established as required by
107-25 this section, the agency may perform any act authorized by law for
107-26 the Texas Natural Resource Conservation Commission as the Texas
107-27 Natural Resource Conservation Commission or as the Texas Department
108-1 of Environmental Quality. Any act of the Texas Natural Resource
108-2 Conservation Commission acting as the Texas Department of
108-3 Environmental Quality after the effective date of this Act and
108-4 before January 1, 2004, is an act of the Texas Natural Resource
108-5 Conservation Commission.
108-6 SECTION 10.02. TRANSFER OF SAFE DRINKING WATER LABORATORY
108-7 CERTIFICATION PROGRAM. (a) On the effective date of this Act, the
108-8 following are transferred to the Texas Natural Resource
108-9 Conservation Commission:
108-10 (1) all powers, duties, rights, and obligations of the
108-11 Texas Department of Health relating to the safe drinking water
108-12 laboratory certification program administered by the Texas
108-13 Department of Health's bureau of laboratories;
108-14 (2) all personnel, equipment, data, documents,
108-15 facilities, and other items of the Texas Department of Health
108-16 relating to the safe drinking water laboratory certification
108-17 program; and
108-18 (3) all appropriations to the Texas Department of
108-19 Health pertaining to the safe drinking water laboratory
108-20 certification program, and all other state or federal money
108-21 available to the Texas Department of Health for that program.
108-22 (b) On the effective date of this Act, Texas Department of
108-23 Health rules relating to the safe drinking water laboratory
108-24 certification program administered by the Texas Department of
108-25 Health's bureau of laboratories are the rules of the Texas Natural
108-26 Resource Conservation Commission until the commission adopts rules
108-27 to govern that program.
109-1 (c) A certification issued by the Texas Department of Health
109-2 for a safe drinking water laboratory before September 1, 2001,
109-3 remains in effect until the date it expires or is revoked,
109-4 notwithstanding the change in law made by this section.
109-5 SECTION 10.03. TRANSFER OF ENVIRONMENTAL TESTING LABORATORY
109-6 CERTIFICATION PROGRAM. (a) On the effective date of this Act, the
109-7 following are transferred to the Texas Natural Resource
109-8 Conservation Commission:
109-9 (1) all powers, duties, rights, and obligations of the
109-10 Texas Department of Health relating to the environmental testing
109-11 laboratory certification program administered by the Texas
109-12 Department of Health under Chapter 421, Health and Safety Code;
109-13 (2) all personnel, equipment, data, documents,
109-14 facilities, and other items of the Texas Department of Health
109-15 relating to the environmental testing laboratory certification
109-16 program; and
109-17 (3) all appropriations to the Texas Department of
109-18 Health pertaining to the environmental laboratory certification
109-19 program, and all other state or federal money available to the
109-20 Texas Department of Health for that program.
109-21 (b) On the effective date of this Act, Texas Department of
109-22 Health rules relating to the environmental testing laboratory
109-23 certification program administered by the Texas Department of
109-24 Health under Chapter 421, Health and Safety Code, are the rules of
109-25 the Texas Natural Resource Conservation Commission until the
109-26 commission adopts rules to govern that program.
109-27 (c) A certification issued by the Texas Department of Health
110-1 before September 1, 2001, remains in effect until the date it
110-2 expires or is revoked, notwithstanding the change in law made by
110-3 this section and by this Act to Chapter 421, Health and Safety
110-4 Code.
110-5 (d) The change in law made by the addition by this Act of
110-6 Section 5.127, Water Code, relating to the acceptance of
110-7 environmental testing laboratory results by the Texas Natural
110-8 Resource Conservation Commission, applies only to environmental
110-9 testing laboratory results submitted to the commission on or after
110-10 the third anniversary of the date on which the commission publishes
110-11 notice in the Texas Register that the commission's environmental
110-12 laboratory testing program established under Subchapter R, Chapter
110-13 5, Water Code, as added by this Act, has met the standards of the
110-14 National Environmental Laboratory Accreditation Conference.
110-15 SECTION 10.04. CERTIFICATION OF WATER TREATMENT SPECIALISTS.
110-16 (a) On the effective date of this Act, the following are
110-17 transferred to the Texas Natural Resource Conservation Commission:
110-18 (1) all powers, duties, rights, and obligations of the
110-19 Texas Department of Health relating to the certification of water
110-20 treatment specialists administered by the Texas Department of
110-21 Health under Section 3A, The Plumbing License Law (Article
110-22 6243-101, Vernon's Texas Civil Statutes);
110-23 (2) all equipment, data, documents, facilities, and
110-24 other items of the Texas Department of Health relating to the
110-25 certification of water treatment specialists; and
110-26 (3) all appropriations to the Texas Department of
110-27 Health pertaining to the certification of water treatment
111-1 specialists, and all other state or federal money available to the
111-2 Texas Department of Health for that program.
111-3 (b) On the effective date of this Act, Texas Department of
111-4 Health rules relating to the certification of water treatment
111-5 specialists are the rules of the Texas Natural Resource
111-6 Conservation Commission until the commission adopts rules to govern
111-7 that program.
111-8 SECTION 10.05. PERFORMANCE-BASED REGULATION. (a) Not later
111-9 than March 1, 2002, the Texas Natural Resource Conservation
111-10 Commission by rule shall establish the components of and standards
111-11 for evaluating compliance history, as required by Section 5.754,
111-12 Water Code, as added by this Act.
111-13 (b) Not later than September 1, 2002, the Texas Natural
111-14 Resource Conservation Commission shall begin tracking compliance
111-15 for use in establishing the regulatory structure authorized by
111-16 Subchapter Q, Chapter 5, Water Code, as added by this Act.
111-17 (c) As soon as practicable, but not later than September 1,
111-18 2005, the Texas Natural Resource Conservation Commission shall
111-19 adopt rules governing and shall implement the tiered regulatory
111-20 structure required by Section 5.752, Water Code, as added by this
111-21 Act. The commission shall adopt the rules and implement the tiered
111-22 regulatory structure in stages over the three-year period.
111-23 (d) The changes made by this Act in the consideration of
111-24 compliance history in decisions by the Texas Natural Resource
111-25 Conservation Commission relating to the issuance, amendment,
111-26 modification, or renewal of permits under the following sections
111-27 apply only to an application for the issuance, amendment,
112-1 modification, or renewal of a permit submitted to the Texas Natural
112-2 Resource Conservation Commission on or after March 1, 2002:
112-3 (1) Sections 5.757, 26.028, 26.0281, 26.040, and
112-4 27.018, Water Code; and
112-5 (2) Sections 361.084, 361.088, 361.089, 382.0518,
112-6 382.055, 382.056, 401.110, and 401.112, Health and Safety Code.
112-7 (e) The changes made by this Act in the consideration of
112-8 compliance history in decisions by the Texas Natural Resource
112-9 Conservation Commission relating to inspections and flexible
112-10 permitting under Sections 5.758 and 5.759, Water Code, apply,
112-11 effective March 1, 2002, to a person who holds a permit issued by
112-12 the Texas Natural Resource Conservation Commission that is subject
112-13 to those sections.
112-14 (f) The changes made by this Act in the consideration of
112-15 compliance history in decisions of the Texas Natural Resource
112-16 Conservation Commission relating to the suspension or revocation of
112-17 a permit or the imposition of a penalty in a matter under the
112-18 jurisdiction of the commission applies only to a proceeding that is
112-19 initiated or an action that is brought on or after March 1, 2002.
112-20 (g) For the period between March 1, 2002, and September 1,
112-21 2005, the commission by rule may temporarily modify specific
112-22 compliance history requirements to implement the regulatory
112-23 structure being developed under Subchapter Q, Chapter 5, Water
112-24 Code. This section does not authorize the commission to modify
112-25 existing statutory requirements relating to the use of compliance
112-26 history in any enforcement proceeding.
112-27 SECTION 10.06. FEES. The changes in law made by Sections
113-1 5.702 and 5.703, Water Code, as added by this Act, relating to the
113-2 timely payment and adjustment of fees due the Texas Natural
113-3 Resource Conservation Commission, and by Section 5.706, Water Code,
113-4 as added by this Act, relating to penalties and interest for
113-5 delinquent fees, apply only to fees that are due on or after
113-6 September 1, 2001.
113-7 SECTION 10.07. REGULATORY FLEXIBILITY. The change in law
113-8 made by Section 5.123, Water Code, as added by Chapter 1203, Acts
113-9 of the 75th Legislature, Regular Session, 1997, relating to
113-10 regulatory flexibility, as transferred, redesignated, and amended
113-11 by this Act, applies only to an application for regulatory
113-12 flexibility that is submitted to the Texas Natural Resource
113-13 Conservation Commission on or after September 1, 2001.
113-14 SECTION 10.08. COMMISSIONER TRAINING. (a) As soon as
113-15 practicable after September 1, 2001, but not later than December 1,
113-16 2001, the Texas Natural Resource Conservation Commission shall
113-17 adopt rules to implement the training program for commission
113-18 members required by Section 5.0535, Water Code, as added by this
113-19 Act.
113-20 (b) The training requirements of Section 5.0535, Water Code,
113-21 as added by this Act, apply only to a member of the commission who
113-22 is appointed on or after January 1, 2002.
113-23 SECTION 10.09. EXECUTIVE DIRECTOR. The change in law made by
113-24 this Act to Section 5.228, Water Code, relating to hearing
113-25 appearances by the executive director of the Texas Natural Resource
113-26 Conservation Commission, applies only to a hearing in which the
113-27 executive director is named a party on or after September 1, 2001.
114-1 SECTION 10.10. INITIATION OF ACTION ON CITIZEN EVIDENCE. (a)
114-2 Not later than December 1, 2001, the Texas Natural Resource
114-3 Conservation Commission shall adopt rules to implement the
114-4 requirements of Section 7.0025, Water Code, as added by this Act,
114-5 relating to the initiation of enforcement action by the commission
114-6 based on evidence of an environmental problem submitted by a
114-7 private individual.
114-8 (b) The change in law made by Section 7.0025, Water Code, as
114-9 added by this Act, applies only to evidence of an environmental
114-10 problem submitted to the Texas Natural Resource Conservation
114-11 Commission on or after January 1, 2002.
114-12 SECTION 10.11. ADOPTION OF RULES REGARDING REGULATION OF
114-13 CERTAIN FACILITIES AS SOLID WASTE FACILITIES. As soon as
114-14 practicable after the effective date of this Act, the Texas Natural
114-15 Resource Conservation Commission shall adopt rules as necessary to
114-16 implement Section 361.119, Health and Safety Code, as added by this
114-17 Act.
114-18 SECTION 10.12. EFFECTIVE DATE. Except as otherwise provided
114-19 by this Act, this Act takes effect September 1, 2001.