By Bosse H.B. No. 2912
77R1054 MI-D
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 the most recent formal audit of the
3-1 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 may create and consult with
7-19 advisory committees, work groups, or task forces [councils],
7-20 including committees, work groups, or task forces [councils] for
7-21 the environment, [councils] for public information, or for any
7-22 other matter [councils] that the commission may consider
7-23 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 appointed advisory committees, work groups,
8-1 and task forces. This subsection does not require the commission
8-2 to ensure that all representatives attend a scheduled meeting. A
8-3 rule or other action of the commission may not be challenged solely
8-4 because of the composition of an appointed advisory committee, work
8-5 group, or task 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 a
8-20 regulatory matter.
8-21 (b) The written record must state:
8-22 (1) the name of the person with whom the communication
8-23 took place;
8-24 (2) the name of that person's employer;
8-25 (3) the name of the party or interest whom that person
8-26 is representing;
8-27 (4) the specific regulatory matter about which the
9-1 communication is made;
9-2 (5) the date, time, and location of the communication;
9-3 or
9-4 (6) the specific method of communication, whether in
9-5 person or by letter, telephone, e-mail, or other method.
9-6 (c) A written record prepared as required by this section is
9-7 subject to disclosure under the public information law, Chapter
9-8 552, Government Code.
9-9 (d) This section does not apply to an unplanned
9-10 communication that occurs outside commission offices.
9-11 SECTION 1.11. Subchapter D, Chapter 5, Water Code, is amended
9-12 by adding Sections 5.1191-5.1193 to read as follows:
9-13 Sec. 5.1191. RESEARCH COORDINATION; REPORT. (a) The
9-14 commission shall facilitate research regarding the commission's
9-15 practical regulatory needs by coordinating commission research
9-16 efforts and requirements with the state's scientific and academic
9-17 communities.
9-18 (b) The commission shall explore private and federal funding
9-19 opportunities for necessary or desirable research projects. The
9-20 commission may direct and facilitate research based on commission
9-21 research needs by administering grants or by contracting with state
9-22 universities if money is appropriated to the commission for those
9-23 purposes.
9-24 (c) The commission shall coordinate any research activity
9-25 with existing state initiatives and shall work with state
9-26 universities and the Texas Higher Education Coordinating Board to
9-27 help meet the goals of this section.
10-1 (d) To the greatest extent possible, the commission shall
10-2 use the research expertise of state universities, the U.S.
10-3 Department of Agriculture, and the Texas Department of Agriculture
10-4 and other appropriate state agencies.
10-5 (e) The commission shall include in the reports required by
10-6 Section 5.178 a description of cooperative research efforts, an
10-7 accounting of money spent on research, and a review of the purpose,
10-8 implementation, and results of particular research projects
10-9 conducted.
10-10 (f) This section does not authorize the commission to
10-11 initiate or direct the research efforts of other entities.
10-12 Sec. 5.1192. RESEARCH ADVISORY BOARD. The commission may
10-13 appoint a research advisory board to assist the commission in
10-14 providing appropriate incentives to encourage various interest
10-15 groups to participate and make recommendations regarding research
10-16 topics specific to this state. The research advisory board must
10-17 include representatives of the academic community, representatives
10-18 of the regulated community, and public representatives of the state
10-19 at large.
10-20 Sec. 5.1193. RESEARCH MODEL. The commission shall develop a
10-21 research model to identify the commission's research needs and to
10-22 obtain funding for research projects. The research model must
10-23 provide for commission staff to work with representatives of state
10-24 universities, the U.S. Department of Agriculture, the Texas
10-25 Department of Agriculture and other appropriate state agencies, and
10-26 the regulated community to develop long-range research plans and to
10-27 identify and pursue specific research projects. Commission
11-1 requests for proposals shall be developed according to research
11-2 needs identified through use of the model.
11-3 SECTION 1.12. Subchapter D, Chapter 5, Water Code, is amended
11-4 by adding Section 5.127 to read as follows:
11-5 Sec. 5.127. USE OF ENVIRONMENTAL TESTING LABORATORY DATA AND
11-6 ANALYSIS. (a) Except as provided by Subsection (b), the commission
11-7 may accept environmental testing laboratory data and analysis for
11-8 use in commission decisions regarding any matter under the
11-9 commission's jurisdiction relating to permits or other
11-10 authorizations, compliance matters, enforcement actions, or
11-11 corrective actions only if the data and analysis is prepared by an
11-12 environmental testing laboratory accredited by the commission under
11-13 Subchapter R.
11-14 (b) The commission by rule may exempt from the accreditation
11-15 requirement of Subsection (a) an on-site or in-house environmental
11-16 testing laboratory if the laboratory is inspected as part of a
11-17 regulated entity's general inspection process.
11-18 SECTION 1.13. Subchapter E, Chapter 5, Water Code, is amended
11-19 by adding Section 5.1765 to read as follows:
11-20 Sec. 5.1765. PUBLICATION OF INFORMATION REGARDING COMPLAINT
11-21 PROCEDURES AND POLICIES. The commission shall establish a process
11-22 for educating the public regarding the commission's complaint
11-23 policies and procedures. As part of the public education process,
11-24 the commission shall make available to the public in pamphlet form
11-25 an explanation of the complaint policies and procedures, including
11-26 information regarding and standards applicable to the collection
11-27 and preservation of credible evidence of environmental problems by
12-1 members of the public.
12-2 SECTION 1.14. Sections 5.176 and 5.177, Water Code, are
12-3 amended to read as follows:
12-4 Sec. 5.176. COMPLAINT FILE. The commission shall maintain a
12-5 [keep an information] file on [about] each written complaint filed
12-6 with the commission [relating to an entity regulated by the
12-7 commission]. The file must include:
12-8 (1) the name of the person who filed the complaint;
12-9 (2) the date the complaint is received by the
12-10 commission;
12-11 (3) the subject matter of the complaint;
12-12 (4) the name of each person contacted in relation to
12-13 the complaint;
12-14 (5) a summary of the results of the review or
12-15 investigation of the complaint; and
12-16 (6) an explanation of the reason the file was closed,
12-17 if the agency closed the file without taking action other than to
12-18 investigate the complaint.
12-19 Sec. 5.177. NOTICE OF COMPLAINT PROCEDURES; NOTICE OF
12-20 INVESTIGATION STATUS. (a) The agency shall provide to the person
12-21 filing the complaint and to each person who is the subject of the
12-22 complaint a copy of the commission's policies and procedures
12-23 relating to complaint investigation and resolution.
12-24 (b) The [If a written complaint is filed with the commission
12-25 relating to an entity regulated by the commission, the] commission,
12-26 at least [as frequently as] quarterly [and] until final disposition
12-27 of the complaint, shall notify the person filing the complaint and
13-1 each person who is a subject of [parties to] the complaint of the
13-2 status of the investigation [complaint] unless the notice would
13-3 jeopardize an undercover investigation.
13-4 SECTION 1.15. Subchapter E, Chapter 5, Water Code, is amended
13-5 by adding Sections 5.1771 and 5.1772 to read as follows:
13-6 Sec. 5.1771. COORDINATION OF COMPLAINT INVESTIGATIONS WITH
13-7 LOCAL ENFORCEMENT OFFICIALS: TRAINING. (a) The commission shall
13-8 share information regarding a complaint made to the commission with
13-9 local enforcement officials in the county or municipality in which
13-10 the alleged action or omission that is the subject of the complaint
13-11 occurred or is threatening to occur.
13-12 (b) The commission shall provide training for local
13-13 enforcement officials in investigating complaints and enforcing
13-14 environmental laws relating to matters under the commission's
13-15 jurisdiction under this code or the Health and Safety Code. The
13-16 training must include, at a minimum:
13-17 (1) procedures for local enforcement officials to use
13-18 in addressing citizen complaints if the commission is unavailable
13-19 or unable to respond to the complaint; and
13-20 (2) an explanation of local government authority to
13-21 enforce state laws and commission rules relating to the
13-22 environment.
13-23 (c) The commission may charge a reasonable fee for providing
13-24 training to local enforcement officials as required by Subsection
13-25 (b) in an amount sufficient to recover the costs of the training.
13-26 Sec. 5.1772. AFTER-HOURS RESPONSE TO COMPLAINTS. (a) The
13-27 commission shall adopt and implement a policy that allows field
14-1 inspectors to work flexible hours in order to provide response to
14-2 complaints during periods outside regular business hours.
14-3 (b) This section does not:
14-4 (1) require availability of field inspectors for
14-5 response 24 hours a day, seven days a week, in all parts of the
14-6 state; or
14-7 (2) authorize additional use of overtime.
14-8 SECTION 1.16. Section 5.227, Water Code, is amended to read
14-9 as follows:
14-10 Sec. 5.227. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The
14-11 executive director or his designee shall prepare and maintain a
14-12 written policy statement that implements [to assure implementation
14-13 of] a program of equal employment opportunity to ensure that
14-14 [whereby] all personnel decisions [transactions] are made without
14-15 regard to race, color, disability [handicap], sex, religion, age,
14-16 or national origin.
14-17 (b) The policy statement must include:
14-18 (1) personnel policies, including policies relating to
14-19 recruitment, evaluation, selection, [appointment,] training, and
14-20 promotion of personnel, that show the intent of the commission to
14-21 avoid the unlawful employment practices described by Chapter 21,
14-22 Labor Code; and
14-23 (2) a comprehensive analysis of the extent to which
14-24 the composition of the commission's personnel is in accordance with
14-25 state and federal law and a description of reasonable methods to
14-26 achieve compliance with state and federal law [work force that
14-27 meets federal and state guidelines;]
15-1 [(3) procedures by which a determination can be made
15-2 of significant underutilization in the commission's work force of
15-3 all persons for whom federal or state guidelines encourage a more
15-4 equitable balance; and]
15-5 [(4) reasonable methods to address appropriately areas
15-6 of significant underutilization in the commission's work force of
15-7 all persons for whom federal or state guidelines encourage a more
15-8 equitable balance].
15-9 (c) [(b)] The policy statement must:
15-10 (1) [shall be filed with the governor's office before
15-11 November 1, 1985, cover an annual period, and] be updated [at
15-12 least] annually;
15-13 (2) be reviewed by the state Commission on Human
15-14 Rights for compliance with Subsection (b)(1); and
15-15 (3) be filed with the governor's office. [The
15-16 governor's office shall develop a biennial report to the
15-17 legislature based on the information submitted. This report may be
15-18 made individually or as a part of other biennial reports made to
15-19 the legislature.]
15-20 SECTION 1.17. Subchapter F, Chapter 5, Water Code, is amended
15-21 by adding Section 5.2275 to read as follows:
15-22 Sec. 5.2275. STATE EMPLOYEE INCENTIVE PROGRAM. The executive
15-23 director or the executive director's designee shall provide to
15-24 commission employees information and training on the benefits and
15-25 methods of participation in the state employee incentive program
15-26 under Subchapter B, Chapter 2108, Government Code.
15-27 SECTION 1.18. Section 5.228, Water Code, is amended to read
16-1 as follows:
16-2 Sec. 5.228. APPEARANCES AT HEARINGS. (a) The position of
16-3 and information developed by the commission shall be presented by
16-4 the executive director or his designated representative at hearings
16-5 of the commission and the hearings held by federal, state, and
16-6 local agencies on matters affecting the public's interest in the
16-7 state's environment and natural resources, including matters that
16-8 have been determined to be policies of the state.
16-9 (b) The executive director may [shall] be named a party in
16-10 hearings before the commission or the State Office of
16-11 Administrative Hearings for the sole purpose of providing
16-12 information to complete the administrative record. The commission
16-13 by rule shall specify the factors the executive director must
16-14 consider in determining, case by case, whether to be a party in a
16-15 contested case.
16-16 (c) The executive director or the executive director's
16-17 designated representative may not rehabilitate the testimony of a
16-18 witness unless the witness is a commission employee testifying for
16-19 the sole purpose of providing information to complete the
16-20 administrative record.
16-21 (d) The executive director or the executive director's
16-22 designated representative may not assist a permit applicant in
16-23 meeting its burden of proof in a hearing before the commission or
16-24 the State Office of Administrative Hearings unless the permit
16-25 applicant fits a category of permit applicant that the commission
16-26 by rule has designated as eligible to receive assistance. The
16-27 commission shall adopt rules establishing categories of permit
17-1 applicants eligible to receive assistance.
17-2 SECTION 1.19. Sections 5.273 and 5.274, Water Code, are
17-3 amended to read as follows:
17-4 Sec. 5.273. DUTIES OF THE PUBLIC INTEREST COUNSEL. (a) The
17-5 counsel shall represent the public interest and be a party to all
17-6 proceedings before the commission.
17-7 (b) The counsel may recommend needed legislative and
17-8 regulatory changes.
17-9 Sec. 5.274. STAFF; OUTSIDE TECHNICAL SUPPORT. (a) The
17-10 office shall be adequately staffed to carry out its functions under
17-11 this code.
17-12 (b) The counsel may obtain and use outside technical support
17-13 to carry out its functions under this code.
17-14 SECTION 1.20. Subchapter A, Chapter 7, Water Code, is
17-15 amended by adding Section 7.0025 to read as follows:
17-16 Sec. 7.0025. INITIATION OF ENFORCEMENT ACTION USING EVIDENCE
17-17 PROVIDED BY PRIVATE INDIVIDUAL. (a) The commission may initiate an
17-18 enforcement action on a matter under its jurisdiction under this
17-19 code or the Health and Safety Code based on evidence it receives
17-20 from a private individual if that evidence, in the commission's
17-21 judgment, meets the requirements of the Texas Rules of Evidence.
17-22 (b) The executive director or the executive director's
17-23 designated representative may evaluate the value and credibility of
17-24 evidence received from a private individual and the merits of any
17-25 proposed enforcement action based on that evidence.
17-26 (c) The commission by rule may adopt criteria for the
17-27 executive director to use in evaluating the value and credibility
18-1 of evidence received from a private individual and for use of that
18-2 evidence in an enforcement action.
18-3 (d) A private individual who submits evidence on which the
18-4 commission relies for all or part of an enforcement case may be
18-5 called to testify in the enforcement proceedings and is subject to
18-6 all sanctions under law for falsifying evidence.
18-7 ARTICLE 2. NOTICE REQUIREMENTS
18-8 SECTION 2.01. Chapter 5, Water Code, is amended by adding a
18-9 heading for Subchapter O to read as follows:
18-10 SUBCHAPTER O. NOTICE REQUIREMENTS
18-11 SECTION 2.02. Section 5.115, Water Code, is transferred to
18-12 new Subchapter O, Chapter 5, Water Code, redesignated as Section
18-13 5.651, and amended to read as follows:
18-14 Sec. 5.651 [5.115]. PERSONS AFFECTED IN COMMISSION HEARINGS;
18-15 NOTICE OF APPLICATION FOR PERMIT OR LICENSE. (a) For the purpose
18-16 of an administrative hearing held by or for the commission
18-17 involving a contested case, "affected person," or "person
18-18 affected," or "person who may be affected" means a person who has a
18-19 personal justiciable interest related to a legal right, duty,
18-20 privilege, power, or economic interest affected by the
18-21 administrative hearing. An interest common to members of the
18-22 general public does not qualify as a personal justiciable interest.
18-23 The commission shall adopt rules specifying factors which must be
18-24 considered in determining whether a person is an affected person in
18-25 any contested case arising under the air, waste, or water programs
18-26 within the commission's jurisdiction and whether an affected
18-27 association is entitled to standing in contested case hearings.
19-1 (b) At the time an application for a permit or license under
19-2 this code is filed with the executive director and is
19-3 administratively complete, the commission shall give notice of the
19-4 application to any person who may be affected by the granting of
19-5 the permit or license.
19-6 (c) At the time an application for any formal action by the
19-7 commission that will affect lands dedicated to the permanent school
19-8 fund is filed with the executive director or the commission and is
19-9 administratively complete, the commission shall give notice of the
19-10 application to the School Land Board. Notice shall be delivered by
19-11 certified mail, return receipt requested, addressed to the deputy
19-12 commissioner of the asset management division of the General Land
19-13 Office. Delivery is not complete until the return receipt is
19-14 signed by the deputy commissioner of the asset management division
19-15 of the General Land Office and returned to the commission.
19-16 (d) The commission shall adopt rules for the notice required
19-17 by this section.
19-18 (e) The notice must state:
19-19 (1) the identifying number given the application by
19-20 the commission;
19-21 (2) the type of permit or license sought under the
19-22 application;
19-23 (3) the name and address of the applicant;
19-24 (4) the date on which the application was submitted;
19-25 and
19-26 (5) a brief summary of the information included in the
19-27 permit application.
20-1 (f) The notice to the School Land Board under this section
20-2 shall additionally:
20-3 (1) state the location of the permanent school fund
20-4 land to be affected; and
20-5 (2) describe any foreseeable impact or effect of the
20-6 commission's action on permanent school fund land.
20-7 (g) A formal action or ruling by the commission on an
20-8 application affecting permanent school fund land that is made
20-9 without the notice required by this section is voidable by the
20-10 School Land Board as to any permanent school fund lands affected by
20-11 the action or ruling.
20-12 SECTION 2.03. Sections 11.085(f)-(i), Water Code, are
20-13 transferred to new Subchapter O, Chapter 5, Water Code,
20-14 redesignated as Section 5.652, and amended to read as follows:
20-15 Sec. 5.652. NOTICE OF APPLICATION FOR INTERBASIN TRANSFER.
20-16 (a) [(f)] Notice of an application for an interbasin transfer
20-17 under Section 11.085 shall be mailed to the following:
20-18 (1) all holders of permits, certified filings, or
20-19 certificates of adjudication located in whole or in part in the
20-20 basin of origin;
20-21 (2) each county judge of a county located in whole or
20-22 in part in the basin of origin;
20-23 (3) each mayor of a city with a population of 1,000 or
20-24 more located in whole or in part in the basin of origin; [and]
20-25 (4) all groundwater conservation districts located in
20-26 whole or in part in the basin of origin; and
20-27 (5) each state legislator in both basins.
21-1 (b) [(g)] The applicant shall cause the notice of
21-2 application for an interbasin transfer to be published once a week
21-3 for two consecutive weeks in one or more newspapers having general
21-4 circulation in each county located in whole or in part in the basin
21-5 of origin or the receiving basin. The published notice may not be
21-6 smaller than 96.8 square centimeters or 15 square inches with the
21-7 shortest dimension at least 7.6 centimeters or three inches. The
21-8 notice of application and public meetings shall be combined in the
21-9 mailed and published notices.
21-10 (c) [(h)] The notice of application must state how a person
21-11 may obtain the information described by Section 11.085(b)
21-12 [Subsection (b) of this section].
21-13 (d) [(i)] The applicant shall pay the cost of notice
21-14 required to be provided under this section. The commission by rule
21-15 may establish procedures for payment of those costs.
21-16 SECTION 2.04. Sections 11.132(a)-(c), Water Code, are
21-17 transferred to new Subchapter O, Chapter 5, Water Code,
21-18 redesignated as Section 5.653, and amended to read as follows:
21-19 Sec. 5.653. NOTICE OF PROPOSED APPROPRIATION OF WATER. (a)
21-20 Notice shall be given to the persons who in the judgment of the
21-21 commission may be affected by an application for authorization to
21-22 appropriate unappropriated state water under Chapter 11, including
21-23 those persons listed in Section 5.654(b) [Subdivision (2),
21-24 Subsection (d), of this section. The commission, on the motion of
21-25 a commissioner or on the request of the executive director or any
21-26 affected person, shall hold a public hearing on the application].
21-27 (b) If the proposed use is for irrigation, the commission
22-1 shall include in the notice a general description of the location
22-2 and area of the land to be irrigated.
22-3 (c) In the notice, the commission shall:
22-4 (1) state the name and address of the applicant;
22-5 (2) state the date the application was filed;
22-6 (3) state the purpose and extent of the proposed
22-7 appropriation of water;
22-8 (4) identify the source of supply and the place where
22-9 the water is to be stored or taken or diverted from the source of
22-10 supply;
22-11 (5) specify the time and location where the commission
22-12 will consider the application; and
22-13 (6) give any additional information the commission
22-14 considers necessary.
22-15 SECTION 2.05. Sections 11.132(d) and (e), Water Code, are
22-16 transferred to new Subchapter O, Chapter 5, Water Code,
22-17 redesignated as Section 5.654, and amended to read as follows:
22-18 Sec. 5.654. NOTICE REQUIRED TO OBTAIN AUTHORIZATION TO
22-19 APPROPRIATE WATER WITHOUT HEARING. (a) Not later [(d) The
22-20 commission may act on the application without holding a public
22-21 hearing if:]
22-22 [(1) not less] than 30 days before the date of action
22-23 by the commission on an [the] application for authorization to
22-24 appropriate unappropriated state water under Chapter 11 [by the
22-25 commission], the applicant shall publish [has published] the
22-26 commission's notice of the application under Section 5.653 at least
22-27 once in a newspaper regularly published or circulated within the
23-1 section of the state where the source of water is located.[;]
23-2 (b) Not later [(2) not less] than 30 days before the date
23-3 of action on the application by the commission, the commission
23-4 shall mail [mails] a copy of the notice by first-class mail,
23-5 postage prepaid, to:
23-6 (1) [(A)] each claimant or appropriator of water from
23-7 the source of water supply, the record of whose claim or
23-8 appropriation has been filed with the commission; and
23-9 (2) [(B)] all navigation districts within the river
23-10 basin concerned[; and]
23-11 [(3) within 30 days after the date of the newspaper
23-12 publication of the commission's notice, a public hearing has not
23-13 been requested in writing by a commissioner, the executive
23-14 director, or an affected person who objects to the application].
23-15 (c) [(e)] The inadvertent failure of the commission to mail
23-16 a notice under [Subdivision (2),] Subsection (b) [(d), of this
23-17 section] to a navigation district that is not a claimant or
23-18 appropriator of water does not prevent the commission's
23-19 consideration of the application.
23-20 SECTION 2.06. Sections 11.143(e) and (f), Water Code, are
23-21 transferred to new Subchapter O, Chapter 5, Water Code,
23-22 redesignated as Section 5.655, and amended to read as follows:
23-23 Sec. 5.655. NOTICE OF APPLICATION AND OF HEARING ON
23-24 APPLICATION FOR PERMIT TO USE DOMESTIC AND LIVESTOCK RESERVOIR FOR
23-25 OTHER PURPOSES. (a) The commission shall give notice of an
23-26 application for a permit to use water from a dam or reservoir
23-27 exempted under Section 11.142 for a purpose other than domestic or
24-1 livestock use as provided by this section.
24-2 (b) [(e)] In the notice, the commission shall:
24-3 (1) state the name and post-office address of the
24-4 applicant;
24-5 (2) state the date the application was filed;
24-6 (3) state the purpose and extent of the proposed
24-7 appropriation of water;
24-8 (4) identify the source of supply and the place where
24-9 the water is stored; and
24-10 (5) specify the time and place of the hearing.
24-11 (c) [(f)] The notice shall be published only once, at least
24-12 20 days before the date stated in the notice for the hearing on the
24-13 application, in a newspaper having general circulation in the
24-14 county where the dam or reservoir is located. At least 15 days
24-15 before the date set for the hearing, the commission shall transmit
24-16 a copy of the notice by first-class mail to each person whose claim
24-17 or appropriation has been filed with the commission and whose
24-18 diversion point is downstream from that described in the
24-19 application.
24-20 SECTION 2.07. Section 11.143(d), Water Code, is transferred
24-21 to new Subchapter O, Chapter 5, Water Code, redesignated as Section
24-22 5.656, and amended to read as follows:
24-23 Sec. 5.656. NOTICE REQUIRED TO OBTAIN A PERMIT WITHOUT
24-24 HEARING TO USE DOMESTIC AND LIVESTOCK RESERVOIR FOR OTHER PURPOSES.
24-25 (a) Not later [(d) Except as otherwise specifically provided by
24-26 this subsection, before the commission may approve the application
24-27 and issue the permit, it shall give notice and hold a hearing as
25-1 prescribed by this section. The commission may act on the
25-2 application without holding a public hearing if:]
25-3 [(1) not less] than 30 days before the date of action
25-4 by the commission on an [the] application to obtain a permit under
25-5 Section 11.143 to use water from a dam or reservoir exempted under
25-6 Section 11.142 for a purpose other than domestic or livestock use
25-7 [by the commission], the applicant shall publish [has published]
25-8 the commission's notice of the application at least once in a
25-9 newspaper regularly published or circulated within the section of
25-10 the state where the source of water is located.[;]
25-11 (b) Not later [(2) not less] than 30 days before the date
25-12 of action on the application by the commission, the commission
25-13 shall mail [mails] a copy of the notice by first-class mail,
25-14 postage prepaid, to each person whose claim or appropriation has
25-15 been filed with the commission and whose diversion point is
25-16 downstream from that described in the application[; and]
25-17 [(3) within 30 days after the date of the newspaper
25-18 publication of the commission's notice, a public hearing is not
25-19 requested in writing by a commissioner, the executive director, or
25-20 an affected person who objects to the application].
25-21 SECTION 2.08. Section 11.175, Water Code, is transferred to
25-22 new Subchapter O, Chapter 5, Water Code, redesignated as Section
25-23 5.657, and amended to read as follows:
25-24 Sec. 5.657 [11.175]. NOTICE OF CANCELLATION PROCEEDING. (a)
25-25 At least 45 days before the date of a [the] hearing on the proposed
25-26 cancellation of a permit, certified filing, or certificate of
25-27 adjudication under Section 11.176, the commission shall send notice
26-1 of the hearing to the holder of the permit, certified filing, or
26-2 certificate of adjudication being considered for cancellation in
26-3 whole or in part. Notice shall be sent by certified mail, return
26-4 receipt requested, to the last address shown by the records of the
26-5 commission. The commission shall also send notice by regular mail
26-6 to all other holders of permits, certified filings, certificates of
26-7 adjudication, and claims of unadjudicated water rights filed
26-8 pursuant to Section 11.303 [of this code] in the same watershed.
26-9 (b) The commission shall also have the notice of the hearing
26-10 published once a week for two consecutive weeks, at least 30 days
26-11 before the date of the hearing, in a newspaper published in each
26-12 county in which diversion of water from the source of supply was
26-13 authorized or proposed to be made and in each county in which the
26-14 water was authorized or proposed to be used, as shown by the
26-15 records of the commission. If in any such county no newspaper is
26-16 published, then the notice may be published in a newspaper having
26-17 general circulation in the county.
26-18 SECTION 2.09. Sections 26.022(b) and (c), Water Code, are
26-19 transferred to new Subchapter O, Chapter 5, Water Code,
26-20 redesignated as Section 5.658, and amended to read as follows:
26-21 Sec. 5.658. NOTICE OF HEARINGS HELD UNDER CHAPTER 26.
26-22 (a) Except as otherwise provided by Sections 5.501, 5.504, 5.509,
26-23 and 26.176, notice [(b) Notice] of all hearings held under Chapter
26-24 26 [the hearing] shall be published at least once in a newspaper
26-25 regularly published or circulated in each county where, by virtue
26-26 of the county's geographical relation to the subject matter of the
26-27 hearing, the commission has reason to believe persons reside who
27-1 may be affected by the action that may be taken as a result of the
27-2 hearing. The date of the publication shall be not less than 20
27-3 days before the date set for the hearing.
27-4 (b) [(c)] If notice of the hearing is required by Chapter 26
27-5 [this chapter] to be given to a person, the notice shall be served
27-6 personally or mailed not less than 20 days before the date set for
27-7 the hearing to the person at his last address known to the
27-8 commission. If the party is not an individual, the notice may be
27-9 given to any officer, agent, or legal representative of the party.
27-10 SECTION 2.10. Sections 26.028(a), (b), and (e), Water Code,
27-11 are transferred to new Subchapter O, Water Code, redesignated as
27-12 Section 5.659, and amended to read as follows:
27-13 Sec. 5.659. NOTICE TO AFFECTED PERSONS OF APPLICATION FOR
27-14 PERMIT, PERMIT AMENDMENT, OR PERMIT RENEWAL UNDER CHAPTER 26. (a)
27-15 The commission shall give notice [Notice] of an application for a
27-16 permit, permit amendment, or permit renewal under Chapter 26 [shall
27-17 be given] to the persons who in the judgment of the commission may
27-18 be affected by the application, except as provided by this section.
27-19 (b) For any application involving an average daily discharge
27-20 of five million gallons or more, the notice shall be given:
27-21 (1) not later than 20 days before the date on which
27-22 the commission acts on the application; and
27-23 (2) to each county judge in the county or counties
27-24 located within 100 statute miles of the point of discharge who have
27-25 requested in writing that the commission give that notice and
27-26 through which water, into or adjacent to which waste or pollutants
27-27 are to be discharged under the permit, flows after the discharge.
28-1 (c) [(e)] Notice of an application under Section 26.028(c)
28-2 must [Subsection (d) shall] be mailed to the mayor and health
28-3 authorities for the city or town, and the county judge and health
28-4 authorities for the county in which the waste is or will be
28-5 discharged, at least 10 days before the commission meeting[, and
28-6 they may present information to the commission on the application].
28-7 SECTION 2.11. Section 26.028(g), Water Code, is transferred
28-8 to new Subsection O, Chapter 5, Water Code, redesignated as Section
28-9 5.660, and amended to read as follows:
28-10 Sec. 5.660. NOTICE REQUIRED TO OBTAIN PERMIT DECISION
28-11 WITHOUT HEARING UNDER SECTION 26.028(a). (a) Not later [(g) For
28-12 the purposes of Subsection(c), the commission may act on the
28-13 application without holding a public hearing if all of the
28-14 following conditions are met:]
28-15 [(1) not less] than 30 days before the date of action
28-16 by the commission on an [the] application for a permit, permit
28-17 amendment, or permit renewal under Chapter 26 [by the commission],
28-18 the applicant shall publish [has published] the commission's notice
28-19 of the application at least once in a newspaper regularly published
28-20 or circulated within each county where the proposed facility or
28-21 discharge is located and in each county affected by the
28-22 discharge.[;]
28-23 (b) Not later [(2) not less] than 30 days before the date
28-24 of action on the application by the commission, the applicant shall
28-25 serve or mail [has served or mailed] the commission's notice of the
28-26 application to persons who in the judgment of the commission may be
28-27 affected, including the county judges as required by Section
29-1 5.659(b) [Subsection (b) of this section]. As part of the [his]
29-2 application the applicant shall submit an affidavit which lists the
29-3 names and addresses of the persons who may be affected by the
29-4 application and includes the source of the list[;]
29-5 [(3) within 30 days after the date of the newspaper
29-6 publication of the commission's notice, neither a commissioner, the
29-7 executive director, nor an affected person who objects to the
29-8 application has requested a public hearing].
29-9 SECTION 2.12. Section 26.040(b), Water Code, is transferred
29-10 to new Subchapter O, Chapter 5, Water Code, redesignated as Section
29-11 5.661, and amended to read as follows:
29-12 Sec. 5.661. NOTICE OF PROPOSED GENERAL PERMIT TO DISCHARGE
29-13 WASTE INTO OR ADJACENT TO STATE WATERS. (a) [(b)] The commission
29-14 shall publish notice of a proposed general permit to discharge
29-15 waste into or adjacent to waters in the state under Section 26.040
29-16 in a daily or weekly newspaper of general circulation in the area
29-17 affected by the activity that is the subject of the proposed
29-18 general permit and in the Texas Register.
29-19 (b) For a statewide general permit, the commission shall
29-20 designate one or more newspapers of statewide or regional
29-21 circulation and shall publish notice of the proposed statewide
29-22 general permit in each designated newspaper in addition to the
29-23 Texas Register.
29-24 (c) The notice must include an invitation for written
29-25 comments by the public to the commission regarding the proposed
29-26 general permit and shall be published not later than the 30th day
29-27 before the commission adopts the general permit.
30-1 (d) The commission by rule may require additional notice to
30-2 be given.
30-3 SECTION 2.13. Section 27.018(b), Water Code, is transferred
30-4 to new Subchapter O, Chapter 5, Water Code, redesignated as Section
30-5 5.662, and amended to read as follows:
30-6 Sec. 5.662. NOTICE OF OPPORTUNITY FOR HEARING ON PERMIT
30-7 APPLICATION FOR INJECTION WELL TO DISPOSE OF INDUSTRIAL AND
30-8 MUNICIPAL WASTE. [(b)] The commission by rule shall provide for
30-9 giving notice of the opportunity to request a public hearing on a
30-10 permit application for an injection well to dispose of industrial
30-11 and municipal waste under Chapter 27. The rules for notice shall
30-12 include provisions for giving notice to local governments and
30-13 affected persons. The commission shall define "affected person" by
30-14 rule.
30-15 SECTION 2.14. Section 361.063(c), Health and Safety Code, is
30-16 transferred to new Subchapter O, Chapter 5, Water Code,
30-17 redesignated as Section 5.663, and amended to read as follows:
30-18 Sec. 5.663. NOTICE OF INTENT TO FILE APPLICATION FOR
30-19 HAZARDOUS WASTE PERMIT. [(c)] If an applicant for a permit for a
30-20 hazardous waste management facility decides to participate in a
30-21 local review committee process under Section 361.063, Health and
30-22 Safety Code, the applicant must file with the commission a notice
30-23 of intent to file an application, setting forth the proposed
30-24 location and type of hazardous waste management facility. A copy
30-25 of the notice shall be delivered to the county judge of the county
30-26 in which the facility is to be located. In addition, if the
30-27 proposed facility is to be located in a municipality or the
31-1 extraterritorial jurisdiction of a municipality, a copy of the
31-2 notice shall be delivered to the mayor of the municipality. [The
31-3 filing of the notice with the commission initiates the
31-4 preapplication review process.]
31-5 SECTION 2.15. Section 361.0665, Health and Safety Code, is
31-6 transferred to new Subchapter O, Chapter 5, Water Code,
31-7 redesignated as Section 5.664, and amended to read as follows:
31-8 Sec. 5.664 [361.0665]. NOTICE OF INTENT TO OBTAIN MUNICIPAL
31-9 SOLID WASTE PERMIT. (a) A person who applies for a municipal
31-10 solid waste permit shall publish notice of intent to obtain a
31-11 permit under Chapter 361, Health and Safety Code, [this chapter] at
31-12 least once in a newspaper of the largest general circulation that
31-13 is published in the county in which the facility is located or
31-14 proposed to be located.
31-15 (b) Notice must include:
31-16 (1) a description of the location or proposed location
31-17 of the facility;
31-18 (2) a statement that a person who may be affected by
31-19 the facility or proposed facility is entitled to request a hearing
31-20 from the commission;
31-21 (3) the manner in which the commission may be
31-22 contacted for further information; and
31-23 (4) any other information that the commission by rule
31-24 requires.
31-25 (c) If a newspaper is not published in the county, the
31-26 notice must be published in a newspaper of general circulation in
31-27 the county in which the facility is located or proposed to be
32-1 located and in a newspaper of circulation in the immediate vicinity
32-2 in which the facility is located or proposed to be located as
32-3 defined by commission rule.
32-4 (d) In addition, the commission shall publish notice in the
32-5 Texas Register.
32-6 SECTION 2.16. Sections 361.079(a) and (c), Health and Safety
32-7 Code, are transferred to new Subchapter O, Chapter 5, Water Code,
32-8 redesignated as Section 5.665, and amended to read as follows:
32-9 Sec. 5.665. NOTICE OF APPLICATION FOR SOLID WASTE OR
32-10 HAZARDOUS INDUSTRIAL SOLID WASTE PERMIT. (a) Except as provided by
32-11 Sections 361.080(b) and 361.081(c), Health and Safety Code, the
32-12 commission by rule shall establish procedures for public notice
32-13 [and a public hearing] under Section 361.080 or 361.081, Health and
32-14 Safety Code.
32-15 (b) [(c)] To improve the timeliness of notice to the public
32-16 of a public hearing under Section 361.080 or 361.081, Health and
32-17 Safety Code, public notice of receipt of the permit application
32-18 shall be provided at the time a permit application is submitted to
32-19 the commission.
32-20 SECTION 2.17. Sections 361.0791(e), (f), and (g), Health and
32-21 Safety Code, are transferred to new Subchapter O, Chapter 5, Water
32-22 Code, redesignated as Section 5.666, and amended to read as
32-23 follows:
32-24 Sec. 5.666. NOTICE OF REQUIRED PUBLIC MEETING ON APPLICATION
32-25 FOR PERMIT FOR NEW HAZARDOUS WASTE MANAGEMENT FACILITY. (a) [(e)]
32-26 If a meeting is required under Section 361.0791(a), Health and
32-27 Safety Code [Subsection (a)], not less than once each week during
33-1 the three weeks preceding a public meeting, the applicant shall
33-2 publish notice of the meeting in the newspaper of the largest
33-3 general circulation that is published in the county in which the
33-4 proposed facility is to be located or, if no newspaper is published
33-5 in the county, in a newspaper of general circulation in the county.
33-6 The applicant shall provide the commission an affidavit certifying
33-7 that the notice was given as required by this section. Acceptance
33-8 of the affidavit creates a rebuttable presumption that the
33-9 applicant has complied with this section.
33-10 (b) [(f)] The published notice may not be smaller than 96.8
33-11 square centimeters or 15 square inches with the shortest dimension
33-12 at least 7.6 centimeters or three inches and shall contain, at a
33-13 minimum, the following information:
33-14 (1) the permit application number;
33-15 (2) the applicant's name;
33-16 (3) the proposed location of the facility; and
33-17 (4) the location and availability of copies of the
33-18 permit application.
33-19 (c) [(g)] The applicant shall pay the cost of notice
33-20 required to be provided under this section. The commission by rule
33-21 may establish procedures for payment of those costs.
33-22 SECTION 2.18. Sections 361.081(a) and (b), Health and Safety
33-23 Code, are transferred to new Subchapter O, Chapter 5, Water Code,
33-24 redesignated as Section 5.667, and amended to read as follows:
33-25 Sec. 5.667. NOTICE OF HEARING ON APPLICATION FOR SOLID WASTE
33-26 FACILITY. (a) The [commission shall require the] applicant shall
33-27 [to] mail notice to each residential or business address located
34-1 within one-half mile of a new solid waste management facility and
34-2 to each owner of real property located within one-half mile of a
34-3 new solid waste management facility listed in the real property
34-4 appraisal records of the appraisal district in which the solid
34-5 waste management facility is sought to be permitted under Chapter
34-6 361, Health and Safety Code, as of the date the commission
34-7 determines the permit application is administratively complete. The
34-8 notice must be sent by mail and must be deposited with the United
34-9 States postal service not more than 45 days or less than 30 days
34-10 before the date of the hearing.
34-11 (b) The applicant must certify to the commission that the
34-12 mailings were deposited as required by Subsection (a). Acceptance
34-13 of the certification creates a rebuttable presumption that the
34-14 applicant has complied with this section. Substantial compliance
34-15 with the notice requirements of Subsection (a) is sufficient for
34-16 the commission to exercise jurisdiction over an application for a
34-17 solid waste facility.
34-18 SECTION 2.19. Section 361.082(c), Health and Safety Code, is
34-19 transferred to new Subchapter O, Chapter 5, Water Code,
34-20 redesignated as Section 5.668, and amended to read as follows:
34-21 Sec. 5.668. NOTICE OF PUBLIC HEARING ON APPLICATION FOR
34-22 HAZARDOUS WASTE PERMIT. [(c)] The commission by rule shall
34-23 establish procedures for public notice of a [and] public hearing on
34-24 an application for a hazardous waste permit under Section 361.082,
34-25 Health and Safety Code. At a minimum, the rules shall include the
34-26 public notice requirements set forth in Section 5.667 [361.081].
34-27 SECTION 2.20. Sections 361.089(b) and (c), Health and Safety
35-1 Code, are transferred to new Subchapter O, Chapter 5, Water Code,
35-2 redesignated as Section 5.669, and amended to read as follows:
35-3 Sec. 5.669. NOTICE REGARDING DENIAL OR AMENDMENT OF SOLID
35-4 WASTE PERMIT. (a) The [(b) Except as provided by Section 361.110,
35-5 the] commission shall notify each governmental entity listed under
35-6 Section 361.067, Health and Safety Code, regarding possible
35-7 commission action to deny or amend a solid waste permit under
35-8 Section 361.089, Health and Safety Code [and provide an opportunity
35-9 for a hearing to the permit holder or applicant and persons
35-10 affected. The commission may also hold a hearing on its own
35-11 motion].
35-12 (b) [(c)] The commission by rule shall establish procedures
35-13 for public notice of [and] any public hearing on the denial or
35-14 amendment of a solid waste permit under Section 361.089, Health and
35-15 Safety Code [this section].
35-16 SECTION 2.21. Section 382.017(b), Health and Safety Code, is
35-17 transferred to Subchapter O, Chapter 5, Water Code, redesignated as
35-18 Section 5.670, and amended to read as follows:
35-19 Sec. 5.670. NOTICE OF HEARING ON ADOPTION OF STATEWIDE RULE
35-20 RELATING TO AIR POLLUTION. [(b)] If a [the] rule adopted under
35-21 Section 382.017, Health and Safety Code, will have statewide
35-22 effect, notice of the date, time, place, and purpose of the hearing
35-23 shall be published one time at least 20 days before the scheduled
35-24 date of the hearing in at least three newspapers, the combined
35-25 circulation of which will, in the commission's judgment, give
35-26 reasonable circulation throughout the state. If the rule will have
35-27 effect in only a part of the state, the notice shall be published
36-1 one time at least 20 days before the scheduled date of the hearing
36-2 in a newspaper of general circulation in the area to be affected.
36-3 SECTION 2.22. Section 382.0516, Health and Safety Code, is
36-4 transferred to new Subchapter O, Chapter 5, Water Code,
36-5 redesignated as Section 5.671, and amended to read as follows:
36-6 Sec. 5.671 [382.0516]. NOTICE TO STATE SENATOR AND
36-7 REPRESENTATIVE OF RECEIPT OF PERMIT APPLICATION FOR A FACILITY THAT
36-8 MAY EMIT AIR CONTAMINANTS. On receiving an application under
36-9 Chapter 382, Health and Safety Code, for a construction permit, a
36-10 special permit, or an operating permit for a facility that may emit
36-11 air contaminants, the commission shall send notice of the
36-12 application to the state senator and representative who represent
36-13 the area in which the facility is or will be located.
36-14 SECTION 2.23. Section 382.055(c), Health and Safety Code, is
36-15 transferred to new Subchapter O, Chapter 5, Water Code,
36-16 redesignated as Section 5.672, and amended to read as follows:
36-17 Sec. 5.672. NOTICE TO PERMIT HOLDER OF REVIEW AND RENEWAL OF
36-18 PRECONSTRUCTION PERMIT. [(c)] Not less than 180 days before the
36-19 date on which an [the renewal] application for renewal of a
36-20 preconstruction permit is due under Section 382.055, Health and
36-21 Safety Code, the commission shall provide written notice to the
36-22 permit holder, by registered or certified mail, that the permit is
36-23 scheduled for review in accordance with this section. The notice
36-24 must include a description of the procedure for filing a renewal
36-25 application and the information to be included in the application.
36-26 SECTION 2.24. Sections 382.056(a)-(c), (g), and (i), Health
36-27 and Safety Code, are transferred to new Subchapter O, Chapter 5,
37-1 Water Code, redesignated as Section 5.673, and amended to read as
37-2 follows:
37-3 Sec. 5.673. NOTICE OF INTENT TO OBTAIN PRECONSTRUCTION
37-4 PERMIT OR PERMIT REVIEW. (a) An applicant for a permit under
37-5 Section 382.0518, Health and Safety Code, or a permit renewal
37-6 review under Section 382.055, Health and Safety Code, shall publish
37-7 notice of intent to obtain the permit or permit review not later
37-8 than the 30th day after the date the commission determines the
37-9 application to be administratively complete. The commission by
37-10 rule shall require an applicant for a federal operating permit
37-11 under Section 382.054, Health and Safety Code, to publish notice of
37-12 intent to obtain a permit or permit review consistent with federal
37-13 requirements and with the requirements of Subsection (b). The
37-14 applicant shall publish the notice at least once in a newspaper of
37-15 general circulation in the municipality in which the facility or
37-16 federal source is located or is proposed to be located or in the
37-17 municipality nearest to the location or proposed location of the
37-18 facility or federal source. If the elementary or middle school
37-19 nearest to the facility or proposed facility provides a bilingual
37-20 education program as required by Subchapter B, Chapter 29,
37-21 Education Code, the applicant shall also publish the notice at
37-22 least once in an additional publication of general circulation in
37-23 the municipality or county in which the facility is located or
37-24 proposed to be located that is published in the language taught in
37-25 the bilingual education program. This requirement is waived if
37-26 such a publication does not exist or if the publisher refuses to
37-27 publish the notice. The commission by rule shall prescribe the
38-1 form and content of the notice and when notice must be published.
38-2 The commission may require publication of additional notice. The
38-3 commission by rule shall prescribe alternative procedures for
38-4 publication of the notice in a newspaper if the applicant is a
38-5 small business stationary source as defined by Section 382.0365,
38-6 Health and Safety Code, and will not have a significant effect on
38-7 air quality. The alternative procedures must be cost-effective
38-8 while ensuring adequate notice. Notice required to be published
38-9 under this section shall only be required to be published in the
38-10 United States.
38-11 (b) The notice must include:
38-12 (1) a description of the location or proposed location
38-13 of the facility or federal source;
38-14 (2) the location at which a copy of the application is
38-15 available for review and copying as provided by Section 382.056(b),
38-16 Health and Safety Code [Subsection (d)];
38-17 (3) a description, including a telephone number, of
38-18 the manner in which the commission may be contacted for further
38-19 information;
38-20 (4) a description, including a telephone number, of
38-21 the manner in which the applicant may be contacted for further
38-22 information;
38-23 (5) a description of the procedural rights and
38-24 obligations of the public, printed in a font style or size that
38-25 clearly provides emphasis and distinguishes it from the remainder
38-26 of the notice, that includes a statement that a person who may be
38-27 affected by emissions of air contaminants from the facility,
39-1 proposed facility, or federal source is entitled to request a
39-2 hearing from the commission;
39-3 (6) a description of the procedure by which a person
39-4 may be placed on a mailing list in order to receive additional
39-5 information about the application;
39-6 (7) the time and location of any public meeting to be
39-7 held under Section 382.056(c), Health and Safety Code [Subsection
39-8 (e)]; and
39-9 (8) any other information the commission by rule
39-10 requires.
39-11 (c) At the site of a facility, proposed facility, or federal
39-12 source for which an applicant is required to publish notice under
39-13 this section, the applicant shall place a sign declaring the filing
39-14 of an application for a permit or permit review for a facility at
39-15 the site and stating the manner in which the commission may be
39-16 contacted for further information. The commission shall adopt any
39-17 rule necessary to carry out this subsection.
39-18 (d) [(g)] If, in response to the notice published under
39-19 Subsection (a) for a permit under Section 382.0518, Health and
39-20 Safety Code, or a permit renewal review under Section 382.055,
39-21 Health and Safety Code, a person requests during the period
39-22 provided by commission rule that the commission hold a public
39-23 hearing and the request is not withdrawn before the date the
39-24 preliminary decision is issued, the applicant shall publish notice
39-25 of the preliminary decision in a newspaper, and the commission
39-26 shall seek public comment on the preliminary decision. [The
39-27 commission shall consider the request for public hearing under the
40-1 procedures provided by Subsections (i)-(n). The commission may not
40-2 seek further public comment or hold a public hearing under the
40-3 procedures provided by Subsections (i)-(n) in response to a request
40-4 for a public hearing on an amendment, modification, or renewal that
40-5 would not result in an increase in allowable emissions and would
40-6 not result in the emission of an air contaminant not previously
40-7 emitted.]
40-8 (e) [(i)] The commission by rule shall establish the form
40-9 and content of the notice, the manner of publication, and the
40-10 duration of the public comment period. The notice must include:
40-11 (1) the information required by Subsection (b);
40-12 (2) a summary of the preliminary decision;
40-13 (3) the location at which a copy of the preliminary
40-14 decision is available for review and copying as provided by Section
40-15 382.056(g), Health and Safety Code [Subsection (j)];
40-16 (4) a description of the manner in which comments
40-17 regarding the preliminary decision may be submitted; and
40-18 (5) any other information the commission by rule
40-19 requires.
40-20 SECTION 2.25. Section 382.0561(f), Health and Safety Code, is
40-21 transferred to new Subchapter O, Chapter 5, Water Code,
40-22 redesignated as Section 5.674, and amended to read as follows:
40-23 Sec. 5.674. NOTICE OF COMMENT PERIOD AND HEARING ON FEDERAL
40-24 OPERATING PERMIT. [(f)] Notice of the public comment period and
40-25 opportunity for a hearing on an application for issuance, revision,
40-26 reopening, or renewal of a federal operating permit under Section
40-27 382.0561, Health and Safety Code, [this section] shall be published
41-1 in accordance with Section 5.673 [382.056].
41-2 SECTION 2.26. Section 382.0562, Health and Safety Code, is
41-3 transferred to new Subchapter O, Chapter 5, Water Code,
41-4 redesignated as Section 5.675, and amended to read as follows:
41-5 Sec. 5.675 [382.0562]. NOTICE OF DECISION ON FEDERAL
41-6 OPERATING PERMIT. (a) The commission or its designee shall send
41-7 notice of a proposed final action on a federal operating permit
41-8 under Section 382.0542, Health and Safety Code, by first-class mail
41-9 to the applicant and all persons who comment during the public
41-10 comment period or at the public hearing. The notice shall include
41-11 a response to any comment submitted during the public comment
41-12 period and shall identify any change in the conditions of the draft
41-13 permit and the reasons for the change.
41-14 (b) The notice required by Subsection (a) shall:
41-15 (1) state that any person affected by the decision of
41-16 the commission or its designee may petition the administrator in
41-17 accordance with Section 382.0563, Health and Safety Code, and rules
41-18 adopted under that section;
41-19 (2) state the date by which the petition must be
41-20 filed; and
41-21 (3) explain the petition process.
41-22 SECTION 2.27. New Subchapter O, Chapter 5, Water Code, is
41-23 amended by adding Sections 5.676 and 5.677 to read as follows:
41-24 Sec. 5.676. NOTICE OF HEARING ON ISSUANCE OR RENEWAL OF
41-25 LICENSE TO DISPOSE OF LOW-LEVEL RADIOACTIVE WASTE. (a) Notice of a
41-26 hearing on the issuance or renewal of a license to dispose of
41-27 low-level radioactive waste under Section 401.114, Health and
42-1 Safety Code, shall be given as provided by this section and Section
42-2 401.114, Health and Safety Code.
42-3 (b) In addition to other notice, the commission shall
42-4 publish notice of the hearing in the manner provided by Chapter
42-5 313, Government Code, in the county in which the proposed facility
42-6 is to be located. The notice shall state the subject and the time,
42-7 place, and date of the hearing.
42-8 (c) The commission shall mail, by certified mail in the
42-9 manner provided by the commission's rules, written notice to each
42-10 person who owns property adjacent to the proposed site. The notice
42-11 must be mailed not later than the 31st day before the date of the
42-12 hearing and must include the same information that is in the
42-13 published notice. If true, the commission or the applicant must
42-14 certify that the notice was mailed as required by this subsection,
42-15 and at the hearing the certificate is conclusive evidence of the
42-16 mailing.
42-17 Sec. 5.677. NOTICE OF AMENDMENT TO LICENSE TO DISPOSE OF
42-18 LOW-LEVEL RADIOACTIVE WASTE. (a) The commission shall publish
42-19 notice of an amendment to a license to dispose of low-level
42-20 radioactive waste under Section 401.116, Health and Safety Code,
42-21 once in the Texas Register and in a newspaper of general
42-22 circulation in the county in which the licensed activity is located
42-23 and shall give notice to any person who has notified the agency, in
42-24 advance, of the desire to receive notice of proposed amendment of
42-25 the license.
42-26 (b) Notice under this section must include:
42-27 (1) the identity of the license holder;
43-1 (2) identification of the license; and
43-2 (3) a short and plain statement of the license
43-3 amendment's substance.
43-4 ARTICLE 3. FEES
43-5 SECTION 3.01. Chapter 5, Water Code, is amended by adding a
43-6 heading for Subchapter P to read as follows:
43-7 SUBCHAPTER P. FEES
43-8 SECTION 3.02. Section 5.235, Water Code, is transferred to
43-9 new Subchapter P, Chapter 5, Water Code, and redesignated as
43-10 Section 5.701 to read as follows:
43-11 Sec. 5.701 [5.235]. FEES. (a) The executive director shall
43-12 charge and collect the fees prescribed by law. The executive
43-13 director shall make a record of fees prescribed when due and shall
43-14 render an account to the person charged with the fees. Each fee is
43-15 a separate charge and is in addition to other fees unless provided
43-16 otherwise. Except as otherwise provided, a fee assessed and
43-17 collected under this section shall be deposited to the credit of
43-18 the water resource management account.
43-19 (1) Notwithstanding other provisions, the commission
43-20 by rule may establish due dates, schedules, and procedures for
43-21 assessment, collection, and remittance of fees due the commission
43-22 to ensure the cost-effective administration of revenue collection
43-23 and cash management programs.
43-24 (2) Notwithstanding other provisions, the commission
43-25 by rule shall establish uniform and consistent requirements for the
43-26 assessment of penalties and interest for late payment of fees owed
43-27 the state under the commission's jurisdiction. Penalties and
44-1 interest established under this section shall not exceed rates
44-2 established for delinquent taxes under Sections 111.060 and
44-3 111.061, Tax Code.
44-4 (b) Except as otherwise provided by law, the fee for filing
44-5 an application or petition is $100 plus the cost of any required
44-6 notice. The fee for a by-pass permit shall be set by the
44-7 commission at a reasonable amount to recover costs, but not less
44-8 than $100.
44-9 (c) The fee for filing a water permit application is $100
44-10 plus the cost of required notice.
44-11 (d) The fee for filing an application for fixing or
44-12 adjusting rates is $100 plus the cost of required notice.
44-13 (e) A person who files with the commission a petition for
44-14 the creation of a water district or addition of sewage and drainage
44-15 powers or a resolution for a water district conversion must pay a
44-16 one-time nonrefundable application fee. The commission by rule may
44-17 set the application fee in an amount not to exceed the costs of
44-18 reviewing and processing the application, plus the cost of required
44-19 notice. This fee is the only fee that the commission may charge
44-20 with regard to the processing of an application for creation of a
44-21 water district, addition of sewage or drainage powers, or
44-22 conversion under this code.
44-23 (f) A person who files a bond issue application with the
44-24 commission must pay an application fee set by the commission. The
44-25 commission by rule may set the application fee in an amount not to
44-26 exceed the costs of reviewing and processing the application, plus
44-27 the cost of required notice. If the bonds are approved by the
45-1 commission, the seller shall pay to the commission a percentage of
45-2 the bond proceeds not later than the seventh business day after
45-3 receipt of the bond proceeds. The commission by rule may set the
45-4 percentage of the proceeds in an amount not to exceed 0.25 percent
45-5 of the principal amount of the bonds actually issued. Proceeds of
45-6 the fees shall be used to supplement any other funds available for
45-7 paying expenses of the commission in supervising the various bond
45-8 and construction activities of the districts filing the
45-9 applications.
45-10 (g) The fee for recording an instrument in the office of the
45-11 commission is $1.25 per page.
45-12 (h) The fee for the use of water for irrigation is 50 cents
45-13 per acre to be irrigated.
45-14 (i) The fee for impounding water, except under Section
45-15 11.142 of this code, is 50 cents per acre-foot of storage, based on
45-16 the total holding capacity of the reservoir at normal operating
45-17 level.
45-18 (j) The fee for other uses of water not specifically named
45-19 in this section is $1 per acre-foot, except that no political
45-20 subdivision may be required to pay fees to use water for recharge
45-21 of underground freshwater-bearing sands and aquifers or for
45-22 abatement of natural pollution.
45-23 (k) A fee charged under Subsections (h) through (j) of this
45-24 section for one use of water under a permit from the commission may
45-25 not exceed $50,000. The fee for each additional use of water under
45-26 a permit for which the maximum fee is paid may not exceed $10,000.
45-27 (l) The fees prescribed by Subsections (h) through (j) of
46-1 this section are one-time fees, payable when the application for an
46-2 appropriation is made. However, if the total fee for a permit
46-3 exceeds $1,000, the applicant shall pay one-half of the fee when
46-4 the application is filed and one-half within 180 days after notice
46-5 is mailed to him that the permit is granted. If the applicant does
46-6 not pay all of the amount owed before beginning to use water under
46-7 the permit, the permit is annulled.
46-8 (m) If a permit is annulled, the matter reverts to the
46-9 status of a pending, filed application and, on the payment of use
46-10 fees as provided by Subsections (h) through (l) of this section
46-11 together with sufficient postage fees for mailing notice of
46-12 hearing, the commission shall set the application for hearing and
46-13 proceed as provided by this code.
46-14 (n)(1) Each provider of potable water or sewer utility
46-15 service shall collect a regulatory assessment from each retail
46-16 customer as follows:
46-17 (A) A public utility as defined in Section
46-18 13.002 of this code shall collect from each retail customer a
46-19 regulatory assessment equal to one percent of the charge for retail
46-20 water or sewer service.
46-21 (B) A water supply or sewer service corporation
46-22 as defined in Section 13.002 of this code shall collect from each
46-23 retail customer a regulatory assessment equal to one-half of one
46-24 percent of the charge for retail water or sewer service.
46-25 (C) A district as defined in Section 49.001 of
46-26 this code that provides potable water or sewer utility service to
46-27 retail customers shall collect from each retail customer a
47-1 regulatory assessment equal to one-half of one percent of the
47-2 charge for retail water or sewer service.
47-3 (2) The regulatory assessment may be listed on the
47-4 customer's bill as a separate item and shall be collected in
47-5 addition to other charges for utility services.
47-6 (3) The commission shall use the assessments collected
47-7 under this subsection solely to pay costs and expenses incurred by
47-8 the commission in the regulation of districts, water supply or
47-9 sewer service corporations, and public utilities under Chapter 13,
47-10 Water Code.
47-11 (4) The commission shall annually use a portion of the
47-12 assessments to provide on-site technical assistance and training to
47-13 public utilities, water supply or sewer service corporations, and
47-14 districts. The commission shall contract with others to provide
47-15 the services.
47-16 (5) The commission by rule may establish due dates,
47-17 collection procedures, and penalties for late payment related to
47-18 regulatory assessments under this subsection. The executive
47-19 director shall collect all assessments from the utility service
47-20 providers.
47-21 (6) The commission shall assess a penalty against a
47-22 municipality with a population of more than 1.5 million that does
47-23 not provide municipal water and sewer services in an annexed area
47-24 in accordance with Section 43.0565, Local Government Code. A
47-25 penalty assessed under this paragraph shall be not more than $1,000
47-26 for each day the services are not provided after March 1, 1998, for
47-27 areas annexed before January 1, 1993, or not provided within 4 1/2
48-1 years after the effective date of the annexation for areas annexed
48-2 on or after January 1, 1993. A penalty collected under this
48-3 paragraph shall be deposited to the credit of the water resource
48-4 management account to be used to provide water and sewer service to
48-5 residents of the city.
48-6 (7) The regulatory assessment does not apply to water
48-7 that has not been treated for the purpose of human consumption.
48-8 (o) A fee imposed under Subsection (j) of this section for
48-9 the use of saline tidal water for industrial processes shall be $1
48-10 per acre-foot of water diverted for the industrial process, not to
48-11 exceed a total fee of $5,000.
48-12 SECTION 3.03. New Subchapter P, Chapter 5, Water Code, is
48-13 amended by adding Sections 5.702-5.707 to read as follows:
48-14 Sec. 5.702. PAYMENT OF FEES REQUIRED WHEN DUE. (a) A fee
48-15 due the commission under this code or the Health and Safety Code
48-16 shall be paid on the date the fee is due, regardless of whether the
48-17 fee is billed by the commission to the person required to pay the
48-18 fee or is calculated and paid to the commission by the person
48-19 required to pay the fee.
48-20 (b) A person required to pay a fee to the commission may not
48-21 dispute the assessment of or amount of a fee before the fee has
48-22 been paid in full.
48-23 Sec. 5.703. FEE ADJUSTMENTS. (a) The commission may not
48-24 consider adjusting the amount of a fee due the commission under
48-25 this code or the Health and Safety Code:
48-26 (1) before the fee has been paid in full; or
48-27 (2) if the request for adjustment is received after
49-1 the first anniversary of the date on which the fee was paid in
49-2 full.
49-3 (b) A person who pays an amount that exceeds the amount of
49-4 the fee due because the commission incorrectly calculated the fee
49-5 or the person made a duplicate payment may request a refund of the
49-6 excess amount paid before the fourth anniversary of the date on
49-7 which the excess amount was paid.
49-8 (c) A request for a refund or credit in an amount that
49-9 exceeds $5,000 shall be forwarded for approval to the commission
49-10 fee audit staff, together with an explanation of the grounds for
49-11 the requested refund or credit. Approval of a refund or credit
49-12 does not prevent the fee audit staff from conducting a subsequent
49-13 audit of the person for whom the refund or credit was approved.
49-14 Sec. 5.704. NOTICE OF CHANGE IN PAYMENT PROCEDURE. The
49-15 commission shall promptly notify each person required to pay a
49-16 commission fee under this code or the Health and Safety Code of any
49-17 change in fee payment procedures.
49-18 Sec. 5.705. NOTICE OF VIOLATION. (a) The commission may
49-19 issue a notice of violation to a person required to pay a
49-20 commission fee under this code or the Health and Safety Code for
49-21 knowingly violating reporting requirements or calculating the fee
49-22 in an amount less than the amount actually due.
49-23 (b) The executive director may not modify audit findings
49-24 reported by a commission fee auditor.
49-25 Sec. 5.706. PENALTIES AND INTEREST ON DELINQUENT FEES. (a)
49-26 Except as otherwise provided by law, the commission may collect,
49-27 for a delinquent fee due the commission under this code or the
50-1 Health and Safety Code:
50-2 (1) a penalty in an amount equal to five percent of
50-3 the amount of the fee due, if the fee is not paid on or before the
50-4 day on which the fee is due; and
50-5 (2) an additional penalty in an amount equal to five
50-6 percent of the amount due, if the fee is not paid on or before the
50-7 30th day after the day on which the fee was due.
50-8 (b) Unless otherwise required by law interest accrues,
50-9 beginning on the 61st day after the date on which the fee was due,
50-10 on the total amount of fee and penalties that have not been paid on
50-11 or before the 61st day after the date on which the fee was due.
50-12 The yearly interest rate is the rate of interest established for
50-13 delinquent taxes under Section 111.060, Tax Code.
50-14 (c) The executive director may modify a penalty or interest
50-15 on a fee and penalties authorized by this section if the executive
50-16 director provides a written explanation showing good cause for the
50-17 modification.
50-18 (d) Penalties and interest collected by the commission under
50-19 this section or under other law, unless that law otherwise
50-20 provides, shall be deposited to the credit of the fund or account
50-21 to which the fee is required to be deposited.
50-22 Sec. 5.707. TRANSFERABILITY OF FUNDS DERIVED FROM FEES.
50-23 Notwithstanding any law restricting the use of a fee collected by
50-24 the commission and to the extent consistent with federal law and
50-25 authorized by the General Appropriations Act, the commission may
50-26 transfer a percentage of fee revenue dedicated to one commission
50-27 activity to one or more other commission activities.
51-1 ARTICLE 4. PERFORMANCE-BASED REGULATION
51-2 SECTION 4.01. Chapter 5, Water Code, is amended by adding
51-3 Subchapter Q to read as follows:
51-4 SUBCHAPTER Q. PERFORMANCE-BASED REGULATION
51-5 Sec. 5.751. DEFINITIONS. In this subchapter:
51-6 (1) "Flexible permitting" means the issuance of a
51-7 flexible permit that allows for physical or operational changes as
51-8 provided by commission rule.
51-9 (2) "Innovative regulatory program" includes a program
51-10 required by statute or developed by commission rule.
51-11 (3) "Permit" includes a license, certificate,
51-12 registration, approval, or other form of authorization issued by
51-13 the commission under this code or the Health and Safety Code.
51-14 Sec. 5.752. REGULATORY TIERS AND PERFORMANCE INCENTIVES. (a)
51-15 In this section, "environmental regulations" include:
51-16 (1) federal and state laws that regulate environmental
51-17 matters;
51-18 (2) rules adopted or orders issued under federal or
51-19 state law; and
51-20 (3) terms of a permit or other authorization issued by
51-21 the commission or another agency with environmental regulatory
51-22 authority.
51-23 (b) The commission shall develop a strategically directed
51-24 regulatory structure based on incentives and compliance
51-25 performance. To implement this regulatory structure, the
51-26 commission by rule shall establish regulatory tiers and performance
51-27 incentives in which relative levels of compliance with
52-1 environmental regulations are used to determine eligibility for
52-2 participation in innovative regulatory programs.
52-3 (c) The rules must define the regulatory tiers in a manner
52-4 adequate to distinguish among:
52-5 (1) poor performers, or regulated entities with a
52-6 continual or pervasive disregard of environmental regulations;
52-7 (2) average performers, or regulated entities that
52-8 generally comply with environmental regulations; and
52-9 (3) high performers, or regulated entities that have
52-10 an above-average compliance record and in addition voluntarily
52-11 implement environmentally sound practices beyond those required by
52-12 environmental regulations.
52-13 (d) The rules must prescribe the programs and incentives
52-14 available to regulated entities within each regulatory tier and
52-15 must be revised as necessary to include new programs or incentives
52-16 as they are developed.
52-17 (e) The commission shall determine a regulated entity's
52-18 compliance history, for purposes of eligibility to participate in
52-19 an innovative regulatory program or incentive, according to the
52-20 method developed under Section 5.754.
52-21 Sec. 5.753. COORDINATION OF INNOVATIVE REGULATORY PROGRAMS
52-22 AND INCENTIVES. (a) The commission shall designate a single point
52-23 of contact within the agency to coordinate all innovative
52-24 regulatory programs and incentives.
52-25 (b) The designated coordinator shall:
52-26 (1) inventory, coordinate, and market all innovative
52-27 regulatory programs and incentives;
53-1 (2) provide information and technical assistance to
53-2 regulated entities participating in or interested in participating
53-3 in those programs and incentives; and
53-4 (3) work with the pollution prevention advisory
53-5 committee to assist the commission in integrating the concepts of
53-6 regulatory innovation and incentive- and performance-based
53-7 regulation into its daily operations, including:
53-8 (A) program administration;
53-9 (B) strategic planning; and
53-10 (C) staff training.
53-11 Sec. 5.754. COMPONENTS OF AND STANDARDS FOR EVALUATING
53-12 COMPLIANCE HISTORY. (a) The commission by rule shall develop a
53-13 single set of components of and standards for evaluating the
53-14 compliance history of an applicant or permit holder and shall
53-15 consistently apply those components and standards in evaluating
53-16 compliance history in all permitting and enforcement matters under
53-17 the commission's jurisdiction.
53-18 (b) In developing the components and standards required by
53-19 Subsection (a), the commission:
53-20 (1) shall include, among other factors to be
53-21 considered:
53-22 (A) notices of violations and enforcement
53-23 actions, state and federal enforcement orders, court judgments, and
53-24 criminal convictions;
53-25 (B) a determination of whether a violation is
53-26 significant or minor, according to commission rules;
53-27 (C) the period to be considered when determining
54-1 a regulated entity's compliance history; and
54-2 (D) inclusion of a regulated entity's compliance
54-3 history for similar operations in other jurisdictions, in addition
54-4 to the entity's past performance in this state; and
54-5 (2) shall specify that a repeat violator is an entity
54-6 that has more than one violation of the same or similar type within
54-7 the period established by the commission under Subsection
54-8 (b)(1)(C).
54-9 (c) The commission shall consider changes in ownership when
54-10 tracking the compliance history of a regulated entity.
54-11 Sec. 5.755. REPORTS. (a) The commission shall collect data
54-12 on:
54-13 (1) the results of inspections conducted by the
54-14 commission;
54-15 (2) the number and percentage of all violations
54-16 committed by repeat offenders;
54-17 (3) the number and percentage of enforcement orders
54-18 issued by the commission that are issued to entities that have been
54-19 the subject of a previous enforcement order; and
54-20 (4) whether the violations are significant or minor,
54-21 as defined by commission rule.
54-22 (b) The commission annually shall prepare a comparative
54-23 analysis of data evaluating the performance, over time, of the
54-24 commission and of entities regulated by the commission.
54-25 (c) The commission must include in the annual enforcement
54-26 report required by Section 5.123, as added by Chapters 304 and
54-27 1082, Acts of the 75th Legislature, Regular Session, 1997, the
55-1 comparative performance analysis required by Subsection (b),
55-2 organized by region and by regulated medium.
55-3 Sec. 5.756. PERFORMANCE ASSESSMENT FOR PROGRAM ELIGIBILITY.
55-4 (a) The commission by rule shall develop a method of performance
55-5 assessment that differentiates persons regulated by the commission
55-6 according to their compliance histories.
55-7 (b) The commission shall use the method of performance
55-8 assessment developed under Subsection (a) in conjunction with the
55-9 regulatory structure developed under Section 5.752 to determine
55-10 eligibility for participation in incentive-based programs and other
55-11 innovative regulatory programs developed by the commission.
55-12 (c) The commission by rule shall establish methods of
55-13 assessing the performance of regulated entities not routinely
55-14 inspected for compliance. The methods may include requiring a
55-15 compliance inspection to determine an entity's eligibility for
55-16 participation in a program or incentive that requires an
55-17 above-average degree of compliance.
55-18 (d) Commission rules shall provide that a regulated person
55-19 with a compliance history that is unacceptable under this section
55-20 and Section 5.752 is not eligible to participate in innovative
55-21 regulatory programs or incentives.
55-22 Sec. 5.757. PERFORMANCE ASSESSMENT FOR PERMITTING AND
55-23 ENFORCEMENT DECISIONS. The commission by rule shall develop
55-24 guidelines for the use of compliance history in commission
55-25 decisions regarding:
55-26 (1) the issuance, renewal, or denial of a permit or
55-27 other authorization issued by the commission; and
56-1 (2) enforcement matters under the commission's
56-2 jurisdiction.
56-3 Sec. 5.758. ANNOUNCED INSPECTIONS. (a) The commission may
56-4 not announce an inspection of a facility owned or operated by a
56-5 person regulated by the commission unless the person has
56-6 established a good compliance history that qualifies the person for
56-7 announced inspections under the procedures and standards developed
56-8 under Sections 5.752 and 5.756.
56-9 (b) The commission shall track whether inspections are
56-10 announced or unannounced and shall include the information in the
56-11 report required by Section 5.123, as added by Chapters 304 and
56-12 1082, Acts of the 75th Legislature, Regular Session, 1997.
56-13 Sec. 5.759. ELIGIBILITY FOR FLEXIBLE PERMITTING. A regulated
56-14 entity is not eligible for flexible permitting unless the entity
56-15 has established a better than average compliance history in
56-16 comparison with entities operating under an ordinary permit.
56-17 SECTION 4.02. Section 5.123, Water Code, as added by Chapter
56-18 1203, Acts of the 75th Legislature, Regular Session, 1997, is
56-19 transferred to new Subchapter Q, Chapter 5, Water Code,
56-20 redesignated as Section 5.760, and amended to read as follows:
56-21 Sec. 5.760 [5.123]. REGULATORY FLEXIBILITY. (a) The
56-22 commission by order may exempt an applicant from a requirement of a
56-23 statute or commission rule regarding the control or abatement of
56-24 pollution if the applicant proposes to control or abate pollution
56-25 by an alternative method or by applying an alternative standard
56-26 that is:
56-27 (1) more [at least as] protective of the environment
57-1 and the public health than [as] the method or standard prescribed
57-2 by the statute or commission rule that would otherwise apply; and
57-3 (2) not inconsistent with federal law.
57-4 (b) The commission may not exempt an applicant under this
57-5 section unless the applicant can present to the commission
57-6 documented evidence of benefits to environmental quality that will
57-7 result from the project the applicant proposes.
57-8 (c) The commission by rule shall specify the procedure for
57-9 obtaining an exemption under this section. The rules must provide
57-10 for public notice and for public participation in a proceeding
57-11 involving an application for an exemption under this section.
57-12 (d) [(c)] The commission's order must provide a specific
57-13 description of the alternative method or standard and condition the
57-14 exemption on compliance with the method or standard as the order
57-15 prescribes.
57-16 (e) [(d)] The commission by rule may establish a reasonable
57-17 fee for applying for an exemption under this section.
57-18 (f) [(e)] A violation of an order issued under this section
57-19 is punishable as if it were a violation of the statute or rule from
57-20 which the order grants an exemption.
57-21 (g) [(f)] A permit may satisfy a requirement to demonstrate
57-22 need by showing need on a regional basis considering economic
57-23 impacts.
57-24 (h) [(g)] This section does not authorize exemptions to
57-25 statutes or regulations for storing, handling, processing, or
57-26 disposing of low-level radioactive materials.
57-27 (i) [(h)] In implementing the program of regulatory
58-1 flexibility authorized by this section, the commission shall:
58-2 (1) market the program to businesses in the state
58-3 through all available appropriate media;
58-4 (2) endorse alternative methods that will clearly
58-5 benefit the environment and impose the least onerous restrictions
58-6 on business;
58-7 (3) fix and enforce environmental standards, allowing
58-8 businesses flexibility in meeting the standards in a manner that
58-9 clearly enhances environmental outcomes; and
58-10 (4) work to achieve consistent and predictable results
58-11 for the regulated community and shorter waits for permit issuance.
58-12 SECTION 4.03. Section 7.067(a), Water Code, is amended to
58-13 read as follows:
58-14 (a) The commission may compromise, modify, or remit, with or
58-15 without conditions, an administrative penalty imposed under this
58-16 subchapter. In determining the appropriate amount of a penalty for
58-17 settlement of an administrative enforcement matter, the commission
58-18 may consider a respondent's willingness to contribute to
58-19 supplemental environmental projects that are approved by the
58-20 commission, giving preference to projects that benefit the
58-21 community in which the alleged violation occurred. The commission
58-22 may approve a supplemental environmental project with activities in
58-23 territory of the United Mexican States if the project substantially
58-24 benefits territory in this state in a manner described by
58-25 Subsection (b). The commission may not approve a project that is
58-26 necessary to bring a respondent into compliance with environmental
58-27 laws, [or] that is necessary to remediate environmental harm caused
59-1 by the respondent's alleged violation, or that the respondent has
59-2 already agreed to perform under a preexisting agreement with a
59-3 governmental agency.
59-4 SECTION 4.04. Section 361.0215, Health and Safety Code, is
59-5 amended to read as follows:
59-6 Sec. 361.0215. POLLUTION PREVENTION [WASTE REDUCTION]
59-7 ADVISORY COMMITTEE. (a) The pollution prevention [waste reduction]
59-8 advisory committee is composed of nine members with a balanced
59-9 representation of environmental and public interest groups and the
59-10 regulated community.
59-11 (b) The committee shall advise the commission and
59-12 interagency coordination council on:
59-13 (1) the appropriate organization of state agencies and
59-14 the financial and technical resources required to aid the state in
59-15 its efforts to promote waste reduction and minimization;
59-16 (2) the development of public awareness programs to
59-17 educate citizens about hazardous waste and the appropriate disposal
59-18 of hazardous waste and hazardous materials that are used and
59-19 collected by households;
59-20 (3) the provision of technical assistance to local
59-21 governments for the development of waste management strategies
59-22 designed to assist small quantity generators of hazardous waste;
59-23 and
59-24 (4) other possible programs to more effectively
59-25 implement the state's hierarchy of preferred waste management
59-26 technologies as set forth in Section 361.023(a).
59-27 (c) The committee shall advise the commission on the
60-1 creation and implementation of an incentive- and performance-based
60-2 structure for the regulation of air and water quality and solid
60-3 waste management as set out in Section 5.752, Water Code.
60-4 (d) The committee shall report quarterly to the commission
60-5 on its activities, including suggestions or proposals for future
60-6 activities and other matters the committee considers important.
60-7 SECTION 4.05. Section 361.088, Health and Safety Code, is
60-8 amended by adding Subsection (g) to read as follows:
60-9 (g) The commission shall review a permit issued under this
60-10 chapter every five to seven years to assess the license holder's
60-11 compliance history.
60-12 SECTION 4.06. Subchapter B, Chapter 382, Health and Safety
60-13 Code, is amended by adding Sections 382.0215 and 382.0216 to read
60-14 as follows:
60-15 Sec. 382.0215. ASSESSMENT OF EMISSIONS DUE TO ACCIDENTS,
60-16 UPSETS, OR MAINTENANCE. (a) In this section, "emissions event"
60-17 means an emission or series of emissions of air pollutants
60-18 resulting from accident, upset, or maintenance.
60-19 (b) The commission shall centrally track all emissions
60-20 events. Information collected shall include:
60-21 (1) the name of the license holder for the reporting
60-22 facility;
60-23 (2) the date and time the emissions event occurred;
60-24 (3) the duration of the emissions event;
60-25 (4) the type and estimated amount of pollutants
60-26 emitted as a result of the emissions event;
60-27 (5) the reason for the emissions event;
61-1 (6) any exemptions, inspections, or enforcement
61-2 actions taken by the commission in response to the emissions event;
61-3 and
61-4 (7) the number of emissions events occurring in each
61-5 commission region.
61-6 (c) The commission annually shall assess the information
61-7 collected under this section and shall include the assessment in
61-8 the report required by Section 5.123, Water Code, as added by
61-9 Chapters 304 and 1082, Acts of the 75th Legislature, Regular
61-10 Session, 1997.
61-11 Sec. 382.0216. REGULATION OF EMISSIONS EVENTS. (a) The
61-12 commission shall evaluate persons regulated under this chapter that
61-13 have high numbers of emissions events and by rule shall limit the
61-14 number of emissions events that may be exempted from enforcement
61-15 action.
61-16 (b) The rules shall:
61-17 (1) set the allowable number of emissions events for
61-18 each category of regulated facility that may occur annually; and
61-19 (2) establish exemptions for emissions events that
61-20 occur for bona fide safety reasons.
61-21 (c) In adopting rules under this section, the commission
61-22 shall consider, among other matters:
61-23 (1) the frequency of emissions events;
61-24 (2) the exact source of an emissions event at the
61-25 facility at which it occurred;
61-26 (3) the magnitude of the emissions event; and
61-27 (4) the volume and toxicity of the emissions resulting
62-1 from the emissions event.
62-2 (d) The commission may enforce rules adopted under this
62-3 section by emergency order under Subchapter L, Chapter 5, Water
62-4 Code, and may take or may order the owner or operator of the
62-5 regulated facility that is the source of the emissions event to
62-6 take any necessary corrective action.
62-7 ARTICLE 5. ACCREDITATION OF ENVIRONMENTAL TESTING LABORATORIES
62-8 SECTION 5.01. Chapter 421, Health and Safety Code, as added
62-9 by Chapter 447, Acts of the 76th Legislature, Regular Session,
62-10 1999, is transferred to Chapter 5, Water Code, redesignated as
62-11 Subchapter R, and amended to read as follows:
62-12 SUBCHAPTER R [CHAPTER 421]. ACCREDITATION OF
62-13 ENVIRONMENTAL TESTING LABORATORIES
62-14 Sec. 5.801 [421.001]. DEFINITIONS. In this subchapter,
62-15 "environmental [chapter:]
62-16 [(1) "Board" means the Texas Board of Health.]
62-17 [(2) "Department" means the Texas Department of
62-18 Health.]
62-19 [(3) "Environmental] testing laboratory" means a
62-20 scientific laboratory that:
62-21 (1) [(A)] performs analyses to determine the chemical,
62-22 molecular, or pathogenic components of drinking water, wastewater,
62-23 hazardous wastes, soil, or air for regulatory compliance purposes;
62-24 and
62-25 (2) [(B)] is [either] a commercial laboratory, [or] an
62-26 environmental laboratory operated by the commission, or an
62-27 environmental laboratory that is required to be accredited under
63-1 federal law.
63-2 Sec. 5.802 [421.002]. ADMINISTRATION BY COMMISSION
63-3 [DEPARTMENT]. The commission [department] shall adopt rules for the
63-4 administration of [administer] the voluntary environmental testing
63-5 laboratory accreditation program established by this chapter. The
63-6 program must be consistent with national accreditation standards
63-7 approved by the National Environmental Laboratory Accreditation
63-8 Conference.
63-9 Sec. 5.803 [421.003]. APPLICATION; FEE. (a) To be
63-10 accredited under the accreditation program adopted under this
63-11 subchapter [chapter], an environmental testing laboratory must
63-12 submit an application to the commission [department] on a form
63-13 prescribed by the commission [department], accompanied by the
63-14 accreditation fee. The application must contain the information
63-15 that the commission [department] requires.
63-16 (b) The commission by rule [board] shall establish a
63-17 schedule of reasonable [an] accreditation fees designed to recover
63-18 the costs of the accreditation program, including the costs
63-19 associated with:
63-20 (1) application review;
63-21 (2) initial, routine, and follow-up inspections by the
63-22 commission; and
63-23 (3) preparation of reports [fee in an amount
63-24 sufficient to defray the cost of administering this chapter].
63-25 Sec. 5.804 [421.004]. ISSUANCE OF ACCREDITATION;
63-26 RECIPROCITY. (a) The commission [department] may accredit an
63-27 environmental testing laboratory that complies with the commission
64-1 requirements established under this subchapter [chapter].
64-2 (b) The commission [board] by rule may provide for the
64-3 accreditation of an environmental testing laboratory that is
64-4 accredited or licensed in [by] another state by an authority that
64-5 is approved by the National Environmental Laboratory Accreditation
64-6 Conference.
64-7 Sec. 5.805 [421.005]. RULES; MINIMUM STANDARDS. The
64-8 commission [board] shall adopt rules to implement this subchapter
64-9 [chapter] and minimum performance and quality assurance standards
64-10 for accreditation of an environmental testing laboratory.
64-11 Sec. 5.806 [421.006]. DISCIPLINE. After notice and an
64-12 opportunity for hearing, the commission [department] may suspend or
64-13 revoke the accreditation of an environmental testing laboratory
64-14 that does not comply with the minimum performance and quality
64-15 assurance standards established under this subchapter [chapter].
64-16 Sec. 5.807. ENVIRONMENTAL TESTING LABORATORY ACCREDITATION
64-17 ACCOUNT. (a) All fees collected under this subchapter shall be
64-18 deposited to the credit of the environmental testing laboratory
64-19 accreditation account and may be appropriated to the commission
64-20 only for paying the costs of the accreditation program.
64-21 (b) Any balance in the account in excess of $1,000 at the
64-22 end of a fiscal year reverts to the general revenue fund.
64-23 ARTICLE 6. CERTIFICATION OF WATER TREATMENT SPECIALISTS
64-24 SECTION 6.01. Section 3A, The Plumbing License Law (Article
64-25 6243-101, Vernon's Texas Civil Statutes), is transferred to Chapter
64-26 341, Health and Safety Code, redesignated as Subchapter G, Chapter
64-27 341, and amended to read as follows:
65-1 SUBCHAPTER G. CERTIFICATION OF WATER TREATMENT SPECIALISTS
65-2 Sec. 341.101 [Sec. 3A. CERTIFICATION RELATING TO RESIDENTIAL
65-3 WATER TREATMENT FACILITIES]. DEFINITIONS. In this subchapter:
65-4 (1) "Commission" means the Texas Natural Resource
65-5 Conservation Commission.
65-6 (2) "Installation of water treatment appliances"
65-7 includes connecting the appliances to all necessary utility
65-8 connections in residential, commercial, or industrial facilities.
65-9 (3) "Water treatment" means a business conducted under
65-10 contract that requires experience in the analysis of water,
65-11 including the ability to determine how to treat influent and
65-12 effluent water, to alter or purify water, and to add or remove a
65-13 mineral, chemical, or bacterial content or substance. The term
65-14 also includes the installation and service of potable water
65-15 treatment equipment in public or private water systems and making
65-16 connections necessary to complete installation of a water treatment
65-17 system.
65-18 (4) "Water treatment equipment" includes appliances
65-19 used to alter or purify water or to alter a mineral, chemical, or
65-20 bacterial content or substance.
65-21 Sec. 341.102. WATER TREATMENT SPECIALIST CERTIFICATION
65-22 PROGRAM. (a) The commission by rule [Commissioner of Health or his
65-23 designee] shall establish a program to certify persons [as being]
65-24 qualified to install, exchange, service [for the installation,
65-25 exchange, servicing], and repair [of] residential, commercial, or
65-26 industrial water treatment equipment and appliances [facilities as
65-27 defined by Subsection (g) of Section 2 of this Act].
66-1 (b) The rules must establish:
66-2 (1) [Texas Board of Health shall set] standards for
66-3 certification to ensure the public health and to protect the public
66-4 from unqualified persons engaging in activities relating to water
66-5 treatment;
66-6 (2) classes of certification;
66-7 (3) duration of certification; and
66-8 (4) reasonable annual certification fees in an amount
66-9 sufficient to pay the administrative costs of the certification
66-10 program, but not to exceed $150 a year for any class of
66-11 certification.
66-12 Sec. 341.103. CERTIFICATION REQUIRED. A person may not
66-13 engage in water treatment unless the person first obtains a
66-14 certificate from the commission under the program established under
66-15 this subchapter.
66-16 Sec. 341.104. APPLICATION FOR CERTIFICATION. A person
66-17 desiring to obtain certification under the program established
66-18 under this subchapter shall file with the commission:
66-19 (1) an application in the form prescribed by the
66-20 commission and containing the information required by the
66-21 commission; and
66-22 (2) the appropriate certification fee.
66-23 Sec. 341.105. ISSUANCE OF CERTIFICATE. (a) [Nothing in this
66-24 section shall be construed to require that persons licensed
66-25 pursuant to this Act are subject to certification under this
66-26 section.]
66-27 [(b) Before a certificate is issued or renewed under this
67-1 section, an applicant or holder of a certificate shall be required
67-2 to pay a fee of $10 a year.] On receipt of an application that
67-3 meets commission requirements and the required fee, the commission
67-4 [Texas Department of Health] shall issue to a [qualified] person
67-5 who meets commission standards for certification a certificate
67-6 stating that the person is qualified to install, exchange, service
67-7 [for the installation, exchange, servicing], and repair [of]
67-8 residential, commercial, or industrial water treatment facilities.
67-9 (b) [The Texas Board of Health shall adopt rules
67-10 establishing classes of certificates, duration of certificates, and
67-11 fees.]
67-12 [(c)] All fees received by the commission [Texas Department
67-13 of Health] under this section shall be deposited in the State
67-14 Treasury to the credit of the General Revenue Fund.
67-15 ARTICLE 7. REGISTRATION OF IRRIGATORS AND ON-SITE
67-16 SEWAGE DISPOSAL SYSTEM INSTALLERS
67-17 SECTION 7.01. Section 34.008(a), Water Code, is amended to
67-18 read as follows:
67-19 (a) The commission may waive any prerequisite [certify] for
67-20 obtaining registration for [without examination] an applicant who
67-21 is registered as a licensed irrigator or licensed installer by [in]
67-22 another jurisdiction with which this state has a reciprocity
67-23 agreement. The commission may make an agreement, subject to the
67-24 approval of the governor, with another state to allow for
67-25 registration by reciprocity [state or country that has requirements
67-26 for registration that are at least substantially equivalent to the
67-27 requirements of this state and that extends the same privilege of
68-1 reciprocity to licensed irrigators or licensed installers
68-2 registered in this state].
68-3 SECTION 7.02. Section 34.009(f), Water Code, is amended to
68-4 read as follows:
68-5 (f) The commission by rule may adopt a system under which
68-6 certificates of registration expire on various dates during the
68-7 year. For the year in which the expiration date is changed, the
68-8 commission shall prorate registration [renewal] fees [payable on
68-9 August 31 shall be prorated] on a monthly basis so that each
68-10 registrant pays [will pay] only that portion of the registration
68-11 fee that is allocable to the number of months during which the
68-12 registration is valid. On renewal of the registration on the new
68-13 expiration date, the total registration renewal fee is due.
68-14 SECTION 7.03. Section 366.076, Health and Safety Code, is
68-15 amended to read as follows:
68-16 Sec. 366.076. REGISTRATION RENEWAL. The commission by rule
68-17 may adopt a system under which registrations expire on various
68-18 dates during the year. For each year in which the registration
68-19 expiration date is changed, the commission shall prorate
68-20 registration fees on a monthly basis so that each registrant pays
68-21 only that portion of the registration fee that is allocable to the
68-22 number of months during which the registration is valid. On
68-23 renewal of the registration on the new expiration date, the total
68-24 registration renewal fee is payable [provide for periodic renewal
68-25 of registrations].
68-26 ARTICLE 8. CONFORMING AMENDMENTS
68-27 SECTION 8.01. Section 5.174(a), Water Code, is amended to
69-1 read as follows:
69-2 (a) Except as otherwise specifically provided by this code
69-3 and subject to the specific limitations provided by this code, on
69-4 application of any person the commission shall furnish certified or
69-5 other copies of any proceeding or other official record or of any
69-6 map, paper, or document filed with the commission. A certified
69-7 copy with the seal of the commission and the signature of the
69-8 presiding officer [chairman] of the commission or the executive
69-9 director or chief clerk is admissible as evidence in any court or
69-10 administrative proceeding.
69-11 SECTION 8.02. Section 11.085, Water Code, as it exists after
69-12 the transfer and redesignation of Subsections (f)-(i) by this Act,
69-13 is amended by amending Subsection (d) and relettering Subsections
69-14 (j)-(v) as Subsections (f)-(r) to read as follows:
69-15 (d) Prior to taking action on an application for an
69-16 interbasin transfer, the commission shall conduct at least one
69-17 public meeting to receive comments in both the basin of origin of
69-18 the water proposed for transfer and the basin receiving water from
69-19 the proposed transfer. Notice shall be provided pursuant to
69-20 Section 5.652 [Subsection (g) of this section]. Any person may
69-21 present relevant information and data at the meeting on the
69-22 criteria which the commission is to consider related to the
69-23 interbasin transfer.
69-24 (f) [(j)] In addition to other requirements of this code
69-25 relating to the review of and action on an application for a new
69-26 water right or amended permit, certified filing, or certificate of
69-27 adjudication, the commission shall:
70-1 (1) request review and comment on an application for
70-2 an interbasin transfer from each county judge of a county located
70-3 in whole or in part in the basin of origin. A county judge should
70-4 make comment only after seeking advice from the county
70-5 commissioners court; and
70-6 (2) give consideration to the comments of each county
70-7 judge of a county located in whole or in part in the basin of
70-8 origin prior to taking action on an application for an interbasin
70-9 transfer.
70-10 (g) [(k)] In addition to other requirements of this code
70-11 relating to the review of and action on an application for a new
70-12 water right or amended permit, certified filing, or certificate of
70-13 adjudication, the commission shall weigh the effects of the
70-14 proposed transfer by considering:
70-15 (1) the need for the water in the basin of origin and
70-16 in the proposed receiving basin based on the period for which the
70-17 water supply is requested, but not to exceed 50 years;
70-18 (2) factors identified in the applicable approved
70-19 regional water plans which address the following:
70-20 (A) the availability of feasible and practicable
70-21 alternative supplies in the receiving basin to the water proposed
70-22 for transfer;
70-23 (B) the amount and purposes of use in the
70-24 receiving basin for which water is needed;
70-25 (C) proposed methods and efforts by the
70-26 receiving basin to avoid waste and implement water conservation and
70-27 drought contingency measures;
71-1 (D) proposed methods and efforts by the
71-2 receiving basin to put the water proposed for transfer to
71-3 beneficial use;
71-4 (E) the projected economic impact that is
71-5 reasonably expected to occur in each basin as a result of the
71-6 transfer; and
71-7 (F) the projected impacts of the proposed
71-8 transfer that are reasonably expected to occur on existing water
71-9 rights, instream uses, water quality, aquatic and riparian habitat,
71-10 and bays and estuaries that must be assessed under Sections 11.147,
71-11 11.150, and 11.152 of this code in each basin. If the water sought
71-12 to be transferred is currently authorized to be used under an
71-13 existing permit, certified filing, or certificate of adjudication,
71-14 such impacts shall only be considered in relation to that portion
71-15 of the permit, certified filing, or certificate of adjudication
71-16 proposed for transfer and shall be based on historical uses of the
71-17 permit, certified filing, or certificate of adjudication for which
71-18 amendment is sought;
71-19 (3) proposed mitigation or compensation, if any, to
71-20 the basin of origin by the applicant;
71-21 (4) the continued need to use the water for the
71-22 purposes authorized under the existing permit, certified filing, or
71-23 certificate of adjudication, if an amendment to an existing water
71-24 right is sought; and
71-25 (5) the information required to be submitted by the
71-26 applicant.
71-27 (h) [(l)] The commission may grant, in whole or in part, an
72-1 application for an interbasin transfer only to the extent that:
72-2 (1) the detriments to the basin of origin during the
72-3 proposed transfer period are less than the benefits to the
72-4 receiving basin during the proposed transfer period; and
72-5 (2) the applicant for the interbasin transfer has
72-6 prepared a drought contingency plan and has developed and
72-7 implemented a water conservation plan that will result in the
72-8 highest practicable levels of water conservation and efficiency
72-9 achievable within the jurisdiction of the applicant.
72-10 (i) [(m)] The commission may grant new or amended water
72-11 rights under this section with or without specific terms or periods
72-12 of use and with specific conditions under which a transfer of water
72-13 may occur.
72-14 (j) [(n)] If the transfer of water is based on a contractual
72-15 sale of water, the new water right or amended permit, certified
72-16 filing, or certificate of adjudication authorizing the transfer
72-17 shall contain a condition for a term or period not greater than the
72-18 contract term.
72-19 (k) [(o)] The parties to a contract for an interbasin
72-20 transfer may include provisions for compensation and mitigation.
72-21 If the party from the basin of origin is a government entity, each
72-22 county judge of a county located in whole or in part in the basin
72-23 of origin may provide input on the appropriate compensation and
72-24 mitigation for the interbasin transfer.
72-25 (l) [(p)] For the purposes of this section, a basin is
72-26 designated as provided in accordance with Section 16.051 of this
72-27 code. A basin may not be redesignated in order to allow a transfer
73-1 or diversion of water otherwise in violation of this section.
73-2 (m) [(q)] A person who takes or diverts water in violation
73-3 of this section is guilty of a misdemeanor and upon conviction is
73-4 punishable by a fine of not more than $1,000 or by confinement in
73-5 the county jail for not more than six months.
73-6 (n) [(r)] A person commits a separate offense each day he
73-7 continues to take or divert water in violation of this section.
73-8 (o) [(s)] Any proposed transfer of all or a portion of a
73-9 water right under this section is junior in priority to water
73-10 rights granted before the time application for transfer is accepted
73-11 for filing.
73-12 (p) [(t)] Any proposed transfer of all or a portion of a
73-13 water right under this section from a river basin in which two or
73-14 more river authorities or water districts created under Section 59,
73-15 Article XVI, Texas Constitution, have written agreements or permits
73-16 that provide for the coordinated operation of their respective
73-17 reservoirs to maximize the amount of water for beneficial use
73-18 within their respective water services areas shall be junior in
73-19 priority to water rights granted before the time application for
73-20 transfer is accepted for filing.
73-21 (q) [(u)] An appropriator of water for municipal purposes in
73-22 the basin of origin may, at the appropriator's option, be a party
73-23 in any hearings under this section.
73-24 (r) [(v)] The provisions of this section, except Subsection
73-25 (a), do not apply to:
73-26 (1) a proposed transfer which in combination with any
73-27 existing transfers totals less than 3,000 acre-feet of water per
74-1 annum from the same permit, certified filing, or certificate of
74-2 adjudication;
74-3 (2) a request for an emergency transfer of water;
74-4 (3) a proposed transfer from a basin to its adjoining
74-5 coastal basin; or
74-6 (4) a proposed transfer from a basin to a county or
74-7 municipality or the municipality's retail service area that is
74-8 partially within the basin for use in that part of the county or
74-9 municipality and the municipality's retail service area not within
74-10 the basin.
74-11 SECTION 8.03. Section 11.132, Water Code, as it exists after
74-12 the transfer and redesignation of Subsections (a)-(c) by this Act,
74-13 is amended by adding new Subsections (a) and (b), relettering
74-14 existing Subsection (f) as Subsection (c), and amending existing
74-15 Subsection (f) to read as follows:
74-16 (a) Notice shall be given of an application for
74-17 authorization to appropriate unappropriated state water as
74-18 prescribed by Section 5.653. The commission, on the motion of a
74-19 commissioner or on the request of the executive director or any
74-20 affected person, shall hold a public hearing on the application.
74-21 (b) The commission may act on the application without
74-22 holding a public hearing if notice has been given as provided by
74-23 Section 5.654 and, within 30 days after the date notice is
74-24 published under Section 5.654(a), a public hearing has not been
74-25 requested in writing by a commissioner, the executive director, or
74-26 an affected person who objects to the application.
74-27 (c) [(f)] If, on the date specified in the notice prescribed
75-1 by Section 5.653(c) [Subsection (c) of this section], the
75-2 commission determines that a public hearing must be held, the
75-3 matter shall be remanded for hearing without the necessity of
75-4 issuing further notice other than advising all parties of the time
75-5 and place where the hearing is to convene.
75-6 SECTION 8.04. Section 11.139(g), Water Code, is amended to
75-7 read as follows:
75-8 (g) The requirements of Sections 5.653 and 5.654 [Section
75-9 11.132 of this code] relating to the time for notice, newspaper
75-10 notice, and method of giving a person notice do not apply to a
75-11 hearing held on an application for an emergency authorization under
75-12 this section, but such general notice of the hearing shall be given
75-13 as the commission, under Subsections (c) and (e) of this section,
75-14 considers practicable under the circumstances.
75-15 SECTION 8.05. Section 11.143, Water Code, as it exists after
75-16 the transfer and redesignation of Subsections (d)-(f) by this Act,
75-17 is amended by adding a new Subsection (d), relettering existing
75-18 Subsections (g)-(i) as Subsections (e)-(g), and amending existing
75-19 Subsection (g) to read as follows:
75-20 (d) Except as otherwise specifically provided by this
75-21 subsection, before the commission may approve an application and
75-22 issue a permit to use water from a dam or reservoir exempted under
75-23 Section 11.142 for a purpose other than domestic or livestock use,
75-24 it shall give notice as prescribed by Section 5.655 and hold a
75-25 hearing as prescribed by this section. The commission may act on
75-26 the application without holding a public hearing if the applicant
75-27 publishes the commission's notice as required by Section 5.656.
76-1 (e) [(g)] If on the date specified in the notice prescribed
76-2 by Section 5.656 [Subsection (d) of this section], the commission
76-3 determines that a public hearing must be held, the matter shall be
76-4 remanded for hearing without the necessity of issuing further
76-5 notice other than advising all parties of the time and place where
76-6 the hearing is to convene.
76-7 (f) [(h)] The applicant shall pay the filing fee prescribed
76-8 by Section 12.111(b) of this code at the time he files the
76-9 application.
76-10 (g) [(i)] The commission shall approve the application and
76-11 issue the permit as applied for in whole or part if it determines
76-12 that:
76-13 (1) there is unappropriated water in the source of
76-14 supply;
76-15 (2) the applicant has met the requirements of this
76-16 section;
76-17 (3) the water is to be used for a beneficial purpose;
76-18 (4) the proposed use is not detrimental to the public
76-19 welfare or to the welfare of the locality; and
76-20 (5) the proposed use will not impair existing water
76-21 rights.
76-22 SECTION 8.06. Section 11.323(a), Water Code, is amended to
76-23 read as follows:
76-24 (a) When a final determination of the rights to the waters
76-25 of a stream has been made in accordance with the procedure provided
76-26 in this subchapter and the time for a rehearing has expired, the
76-27 commission shall issue to each person adjudicated a water right a
77-1 certificate of adjudication, signed by the presiding officer of the
77-2 commission [chairman] and bearing the seal of the commission.
77-3 SECTION 8.07. Section 26.022, Water Code, as it exists after
77-4 the transfer and redesignation of Subsections (b) and (c) by this
77-5 Act, is amended by amending Subsection (a), relettering existing
77-6 Subsections (d) and (e) as Subsections (b) and (c), and amending
77-7 existing Subsections (d) and (e) to read as follows:
77-8 (a) Except as otherwise provided in Sections 5.501, 5.504,
77-9 5.509, and 26.176, the provisions of this section and of Section
77-10 5.658 apply to all hearings conducted in compliance with this
77-11 chapter.
77-12 (b) [(d)] The individual or individuals holding the hearing,
77-13 called the hearing body, shall conduct the hearing at the time and
77-14 place stated in the notice given under Section 5.655. The hearing
77-15 body may continue the hearing from time to time and from place to
77-16 place without the necessity of publishing, serving, mailing, or
77-17 otherwise issuing a new notice.
77-18 (c) [(e)] If a hearing is continued and a time and place for
77-19 the hearing to reconvene are not publicly announced by the person
77-20 conducting the hearing at the hearing before it is recessed, a
77-21 notice of any further setting of the hearing shall be served
77-22 personally or mailed in the manner prescribed by Section 5.658(b)
77-23 [in Subsection (c) of this section] at a reasonable time before the
77-24 new setting, but it is not necessary to publish a newspaper notice
77-25 of the new setting.
77-26 SECTION 8.08. Section 26.028, Water Code, as it exists after
77-27 the transfer and redesignation of Subsections (a), (b), (e), and
78-1 (g) by this Act, is amended by adding a new Subsection (a),
78-2 relettering existing Subsections (c) and (d) as Subsections (b) and
78-3 (c), adding a new Subsection (d), relettering existing Subsection
78-4 (f) as Subsection (e), and adding a new Subsection (f) to read as
78-5 follows:
78-6 (a) Notice of an application for and a hearing on an
78-7 application for a permit, permit amendment, or permit renewal shall
78-8 be given as required by Section 5.659.
78-9 (b) [(c)] Except as otherwise provided by this section, the
78-10 commission, on the motion of a commissioner, or on the request of
78-11 the executive director or any affected person, shall hold a public
78-12 hearing on the application for a permit, permit amendment, or
78-13 renewal of a permit.
78-14 (c) [(d)] Notwithstanding any other provision of this
78-15 chapter, the commission, at a regular meeting without the necessity
78-16 of holding a public hearing, may approve an application to renew or
78-17 amend a permit if:
78-18 (1) the applicant is not applying to:
78-19 (A) increase significantly the quantity of waste
78-20 authorized to be discharged; or
78-21 (B) change materially the pattern or place of
78-22 discharge;
78-23 (2) the activities to be authorized by the renewed or
78-24 amended permit will maintain or improve the quality of waste
78-25 authorized to be discharged;
78-26 (3) for NPDES permits, notice and the opportunity to
78-27 request a public meeting shall be given in compliance with NPDES
79-1 program requirements, and the commission shall consider and respond
79-2 to all timely received and significant public comment; and
79-3 (4) the commission determines that an applicant's
79-4 compliance history during [for] the period established by the
79-5 commission under Section 5.754 for consideration of compliance
79-6 history [preceding five years] raises no issues regarding the
79-7 applicant's ability to comply with a material term of its permit.
79-8 (d) Notice of an application under Subsection (c) shall be
79-9 given as provided by Section 5.659(c) and the persons notified
79-10 under that section may present information to the commission on the
79-11 application.
79-12 (e) [(f)] An application to renew a permit for a confined
79-13 animal feeding operation which was issued between July 1, 1974, and
79-14 December 31, 1977, may be set for consideration and may be acted on
79-15 by the commission at a regular meeting without the necessity of
79-16 holding a public hearing if the applicant does not seek to
79-17 discharge into or adjacent to water in the state and does not seek
79-18 to change materially the pattern or place of disposal.
79-19 (f) For the purposes of Subsection (a), the commission may
79-20 act on an application without holding a public hearing if notice is
79-21 given as provided by Section 5.660 and, within 30 days after the
79-22 date of the publication of notice under Section 5.660(a), neither a
79-23 commissioner, the executive director, nor an affected person who
79-24 objects to the application has requested a public hearing.
79-25 SECTION 8.09. Section 26.0281, Water Code, is amended to read
79-26 as follows:
79-27 Sec. 26.0281. CONSIDERATION OF [PAST PERFORMANCE AND]
80-1 COMPLIANCE HISTORY. In considering the issuance, amendment, or
80-2 renewal of a permit to discharge effluent comprised primarily of
80-3 sewage or municipal waste, the commission shall consider the [any
80-4 adjudicated decision on or] compliance history [proceeding
80-5 addressing past performance and compliance] of the applicant and
80-6 its operator under the method for evaluating compliance history
80-7 developed by the commission under Section 5.754 [with the laws of
80-8 this state governing waste discharge, waste treatment, or waste
80-9 disposal facilities and with the terms of any permit or order
80-10 issued by the commission].
80-11 SECTION 8.10. Section 26.040, Water Code, as it exists after
80-12 the transfer and redesignation of Subsection (b) by this Act, is
80-13 amended by relettering Subsections (c)-(m) as Subsections (b)-(l)
80-14 and amending existing Subsections (h) and (i) to read as follows:
80-15 (b) [(c)] The commission may hold a public meeting to
80-16 provide an additional opportunity for public comment. The
80-17 commission shall give notice of a public meeting under this
80-18 subsection by publication in the Texas Register not later than the
80-19 30th day before the date of the meeting.
80-20 (c) [(d)] If the commission receives public comment relating
80-21 to issuance of a general permit, the commission may issue the
80-22 general permit only after responding in writing to the comments.
80-23 The commission shall issue a written response to comments on the
80-24 permit at the same time the commission issues or denies the permit.
80-25 The response is available to the public and shall be mailed to each
80-26 person who made a comment.
80-27 (d) [(e)] A general permit may provide that a discharger who
81-1 is not covered by an individual permit may obtain authorization to
81-2 discharge waste under a general permit by submitting to the
81-3 commission written notice of intent to be covered by the general
81-4 permit. A general permit shall specify the deadline for submitting
81-5 and the information required to be included in a notice of intent.
81-6 A general permit may authorize a discharger to begin discharging
81-7 under the general permit immediately on filing a complete and
81-8 accurate notice of intent, or it may specify a date or period of
81-9 time after the commission receives the discharger's notice of
81-10 intent on which the discharger may begin discharging unless the
81-11 executive director before that time notifies the discharger that it
81-12 is not eligible for authorization under the general permit.
81-13 (e) [(f)] A general permit may authorize a discharger to
81-14 discharge without submitting a notice of intent if the commission
81-15 finds that a notice of intent requirement would be inappropriate.
81-16 (f) [(g)] Authorization to discharge under a general permit
81-17 does not confer a vested right. After written notice to the
81-18 discharger, the executive director may suspend a discharger's
81-19 authority to discharge under a general permit and may require a
81-20 person discharging under a general permit to obtain authorization
81-21 to discharge under an individual permit as required by Section
81-22 26.027 or other law.
81-23 (g) [(h)] Notwithstanding other provisions of this chapter,
81-24 the commission, after hearing, shall deny or suspend a discharger's
81-25 authority to discharge under a general permit if the commission
81-26 determines that the [discharger operates any facility for which
81-27 the] discharger's compliance history is unacceptable under the
82-1 method of evaluating compliance history developed by the
82-2 commission under Section 5.754 during the period established by the
82-3 commission under that section for consideration of compliance
82-4 history [contains violations constituting a recurring pattern of
82-5 egregious conduct that demonstrates a consistent disregard for the
82-6 regulatory process, including a failure to make a timely and
82-7 substantial attempt to correct the violations]. A hearing under
82-8 this subsection is not subject to Chapter 2001, Government Code.
82-9 (h) [(i)] A general permit may be issued for a term not to
82-10 exceed five years. After notice and comment as provided by Section
82-11 5.661 and Subsections (b) and (c) [(b)-(d)], a general permit may
82-12 be amended, revoked, or canceled by the commission or renewed by
82-13 the commission for an additional term or terms not to exceed five
82-14 years each. A general permit remains in effect until amended,
82-15 revoked, or canceled by the commission or, unless renewed by the
82-16 commission, until expired. If before a general permit expires the
82-17 commission proposes to renew that general permit, that general
82-18 permit remains in effect until the date on which the commission
82-19 takes final action on the proposed renewal.
82-20 (i) [(j)] The commission may through a renewal or amendment
82-21 process for a general permit add or delete requirements or
82-22 limitations to the permit. The commission shall provide a
82-23 reasonable time to allow a discharger covered by the general permit
82-24 to make the changes necessary to comply with the additional
82-25 requirements.
82-26 (j) [(k)] The commission may impose a reasonable and
82-27 necessary fee under Section 26.0291 on a discharger covered by a
83-1 general permit.
83-2 (k) [(l)] The issuance, amendment, renewal, suspension,
83-3 revocation, or cancellation of a general permit or of authority to
83-4 discharge under a general permit is not subject to Subchapters C-F,
83-5 Chapter 2001, Government Code.
83-6 (l) [(m)] The commission may adopt rules as necessary to
83-7 implement and administer this section.
83-8 SECTION 8.11. Section 27.018, Water Code, as it exists after
83-9 the transfer and redesignation of Subsection (b) by this Act, is
83-10 amended by adding a new Subsection (b) and amending Subsection (c)
83-11 to read as follows:
83-12 (b) Notice of the opportunity to request a public hearing on
83-13 a permit application shall be given as provided by Section 5.662.
83-14 (c) Before the commission begins to hear testimony in a
83-15 contested case as defined by Chapter 2001, Government Code,
83-16 evidence must be placed in the record to demonstrate that proper
83-17 notice regarding the hearing was given to affected persons as
83-18 required by commission rules adopted under Section 5.662. If
83-19 mailed notice to an affected person is required, the commission or
83-20 other party to the hearing shall place evidence in the record that
83-21 notice was mailed to the address of the affected person included in
83-22 the appropriate county tax rolls at the time of mailing. For the
83-23 purposes of this subsection, the affidavit of the commission
83-24 employee responsible for the mailing of the notice, attesting to
83-25 the fact that notice was mailed to the address included in the tax
83-26 rolls at the time of mailing, shall be prima facie evidence of
83-27 proper mailing. The commission may not proceed with receipt of
84-1 testimony in a contested case until there is compliance with this
84-2 subsection.
84-3 SECTION 8.12. Sections 27.051(d) and (e), Water Code, are
84-4 amended to read as follows:
84-5 (d) The commission, in determining if the use or
84-6 installation of an injection well for the disposal of hazardous
84-7 waste is in the public interest under Subsection (a)(1) [of this
84-8 section], shall consider, but shall not be limited to the
84-9 consideration of:
84-10 (1) compliance history of the applicant under the
84-11 method for evaluating compliance history developed by the
84-12 commission under Section 5.754 and in accordance with the
84-13 provisions of Subsection (e) [of this section];
84-14 (2) whether there is a practical, economic, and
84-15 feasible alternative to an injection well reasonably available to
84-16 manage the types and classes of hazardous waste; and
84-17 (3) whether the applicant will maintain sufficient
84-18 public liability insurance for bodily injury and property damage to
84-19 third parties that is caused by sudden and non-sudden accidents or
84-20 will otherwise demonstrate financial responsibility in a manner
84-21 adopted by the commission in lieu of public liability insurance. A
84-22 liability insurance policy which satisfies the policy limits
84-23 required by the hazardous waste management regulations of the
84-24 commission for the applicant's proposed pre-injection facilities
84-25 shall be deemed "sufficient" under this subdivision if the policy:
84-26 (A) covers the injection well; and
84-27 (B) is issued by a company that is authorized to
85-1 do business and to write that kind of insurance in this state and
85-2 is solvent and not currently under supervision or in
85-3 conservatorship or receivership in this state or any other state.
85-4 (e) The commission shall establish a procedure by rule for
85-5 its preparation of compliance summaries relating to the compliance
85-6 history of [compliance and noncompliance by] the applicant in
85-7 accordance with the method for evaluating compliance history
85-8 developed by the commission under Section 5.754 [with the rules
85-9 adopted or orders or permits issued by the commission under this
85-10 chapter for any injection well for which a permit has been issued
85-11 under this chapter]. The compliance summaries shall be made
85-12 available to the applicant and any interested person after the
85-13 commission has completed its technical review of the permit
85-14 application and prior to the promulgation of the public notice
85-15 relating to the issuance of the permit. Evidence of compliance or
85-16 noncompliance by an applicant for an injection well for the
85-17 disposal of hazardous waste with the rules adopted or orders or
85-18 permits issued by the commission under this chapter may be offered
85-19 by any party at a hearing on the applicant's application and
85-20 admitted into evidence subject to applicable rules of evidence.
85-21 All evidence admitted, including compliance history, shall be
85-22 considered by the commission in determining whether to issue,
85-23 amend, extend or renew a permit.
85-24 SECTION 8.13. Section 361.020(d), Health and Safety Code, is
85-25 amended to read as follows:
85-26 (d) The commission in developing a comprehensive statewide
85-27 strategic plan shall:
86-1 (1) consult with:
86-2 (A) the agency's waste minimization, recycling,
86-3 or reduction division;
86-4 (B) the municipal solid waste management and
86-5 resource recovery advisory council;
86-6 (C) the pollution prevention [waste reduction]
86-7 advisory committee;
86-8 (D) the interagency coordinating council; and
86-9 (E) local governments, appropriate regional and
86-10 state agencies, businesses, citizen groups, and private waste
86-11 management firms;
86-12 (2) hold public hearings in different regions of the
86-13 state; and
86-14 (3) publish the proposed plan in the Texas Register.
86-15 SECTION 8.14. Section 361.063, Health and Safety Code, as it
86-16 exists after the transfer and redesignation of Subsection (c) by
86-17 this Act, is amended by adding a new Subsection (c) to read as
86-18 follows:
86-19 (c) Filing notice with the commission as required by Section
86-20 5.663, Water Code, initiates the preapplication review process.
86-21 SECTION 8.15. Section 361.079, Health and Safety Code, is
86-22 amended by amending the heading to read as follows:
86-23 Sec. 361.079. [NOTICE CONCERNING RECEIPT OF PERMIT
86-24 APPLICATION;] HEARING PROCEDURES.
86-25 SECTION 8.16. Section 361.079, Health and Safety Code, as it
86-26 exists after the transfer and redesignation of Subsections (a) and
86-27 (c) by this Act, is amended by adding a new Subsection (a) to read
87-1 as follows:
87-2 (a) Notice for a hearing under Section 361.080 or 361.081 is
87-3 given as provided by Section 5.665, Water Code. The commission by
87-4 rule shall establish procedures for a public hearing under Section
87-5 361.080 or 361.081.
87-6 SECTION 8.17. Section 361.0791, Health and Safety Code, as it
87-7 exists after the transfer and redesignation of Subsections (e),
87-8 (f), and (g) by this Act, is amended by adding a new Subsection (e)
87-9 to read as follows:
87-10 (e) If a meeting is required under Subsection (a), notice of
87-11 the meeting shall be given as provided by Section 5.666, Water
87-12 Code.
87-13 SECTION 8.18. Section 361.080(b), Health and Safety Code, is
87-14 amended to read as follows:
87-15 (b) Notice for a hearing session held under this section
87-16 shall be provided in accordance with Section 5.666, Water Code
87-17 [361.0791].
87-18 SECTION 8.19. Section 361.081, Health and Safety Code, as it
87-19 exists after the transfer and redesignation of Subsections (a) and
87-20 (b) by this Act, is amended by amending the heading, adding a new
87-21 Subsection (a), and relettering and amending Subsection (c) to
87-22 read as follows:
87-23 Sec. 361.081. [NOTICE OF] HEARING CONCERNING APPLICATION FOR
87-24 A SOLID WASTE FACILITY. (a) The commission shall require the
87-25 applicant to provide notice of the hearing as provided by Section
87-26 5.667, Water Code.
87-27 (b) [(c)] In addition to the requirements of Subsection (a),
88-1 the commission shall hold a public meeting and the applicant shall
88-2 give notice concerning the application for a permit for a new
88-3 hazardous waste management facility as provided by Section 5.666,
88-4 Water Code [361.0791].
88-5 SECTION 8.20. Section 361.082, Health and Safety Code, as it
88-6 exists after the transfer and redesignation of Subsection (c) by
88-7 this Act, is amended by adding a new Subsection (c) and amending
88-8 Subsection (d) to read as follows:
88-9 (c) The commission by rule shall establish procedures for a
88-10 public hearing on an application for a permit under this section.
88-11 Notice of the hearing shall be given as provided by Section 5.668,
88-12 Water Code.
88-13 (d) In addition to the hearing held under this section, the
88-14 commission shall hold a public meeting and the applicant shall give
88-15 notice as provided by Section 5.666, Water Code [361.0791].
88-16 SECTION 8.21. Sections 361.084(a) and (c), Health and Safety
88-17 Code, are amended to read as follows:
88-18 (a) The commission by rule shall establish a procedure to
88-19 prepare compliance summaries relating to the applicant's solid
88-20 waste management activities in accordance with the method for
88-21 evaluating compliance history developed by the commission under
88-22 Section 5.754, Water Code.
88-23 (c) Evidence of compliance or noncompliance by an applicant
88-24 for a solid waste management facility permit with agency rules,
88-25 permits, other orders, or evidence of a final determination of
88-26 noncompliance with federal statutes or statutes of any state during
88-27 [in] the period adopted under Section 5.754, Water Code, for the
89-1 consideration of compliance history [preceding five years]
89-2 concerning solid waste management may be:
89-3 (1) offered by a party at a hearing concerning the
89-4 application; and
89-5 (2) admitted into evidence subject to applicable rules
89-6 of evidence.
89-7 SECTION 8.22. Sections 361.088(d) and (f), Health and Safety
89-8 Code, are amended to read as follows:
89-9 (d) In addition to providing an opportunity for a hearing
89-10 held under this section, the commission shall hold a public meeting
89-11 and give notice as provided by Section 5.666, Water Code
89-12 [361.0791].
89-13 (f) Notwithstanding Subsection (e), if the commission
89-14 determines that an applicant's compliance history for the period
89-15 adopted under Section 5.754, Water Code, for the consideration of
89-16 compliance history [preceding five years] raises an issue regarding
89-17 the applicant's ability to comply with a material term of its
89-18 permit, the commission shall provide an opportunity to request a
89-19 contested case hearing.
89-20 SECTION 8.23. Section 361.089, Health and Safety Code, as it
89-21 exists after the transfer and redesignation of Subsections (b) and
89-22 (c) by this Act, is amended by adding new Subsections (b) and (c)
89-23 and amending Subsections (a), (e), and (f) to read as follows:
89-24 (a) The commission may, for good cause, deny or amend a
89-25 permit it issues or has authority to issue for reasons pertaining
89-26 to public health, air or water pollution, or land use, or for
89-27 having a compliance history that is unacceptable under the method
90-1 of evaluating compliance history developed by the commission under
90-2 Section 5.754, Water Code, during the period established by the
90-3 commission under that section for consideration of compliance
90-4 history [a violation of this chapter or other applicable laws or
90-5 rules controlling the management of solid waste].
90-6 (b) The commission shall provide notice under Section 5.669,
90-7 Water Code, and an opportunity for a hearing to the permit holder
90-8 or applicant and persons affected. The commission may also hold a
90-9 hearing on its own motion.
90-10 (c) The commission by rule shall establish procedures for
90-11 any public hearing under this section.
90-12 (e) The commission may deny an original or renewal permit if
90-13 it is found, after notice and hearing, that:
90-14 (1) the permit holder has a compliance history that is
90-15 unacceptable under the method of evaluating compliance history
90-16 developed by the commission under Section 5.754, Water Code, during
90-17 the period established by the commission under that section for
90-18 consideration of compliance history [record of environmental
90-19 violations in the preceding five years at the permitted site;]
90-20 [(2) the applicant has a record of environmental
90-21 violations in the preceding five years at any site owned, operated,
90-22 or controlled by the applicant];
90-23 (2) [(3)] the permit holder or applicant made a false
90-24 or misleading statement in connection with an original or renewal
90-25 application, either in the formal application or in any other
90-26 written instrument relating to the application submitted to the
90-27 commission, its officers, or its employees;
91-1 (3) [(4)] the permit holder or applicant is indebted
91-2 to the state for fees, payment of penalties, or taxes imposed by
91-3 this title or by a rule of the commission; or
91-4 (4) [(5)] the permit holder or applicant is unable to
91-5 ensure that the management of the hazardous waste management
91-6 facility conforms or will conform to this title and the rules of
91-7 the commission.
91-8 (f) Before denying a permit under this section, the
91-9 commission must find:
91-10 (1) that the applicant has a compliance history that
91-11 is unacceptable under the method of evaluating compliance history
91-12 developed by the commission under Section 5.754, Water Code, during
91-13 the period established by the commission under that section for
91-14 consideration of compliance history [a violation or violations are
91-15 significant and that the permit holder or applicant has not made a
91-16 substantial attempt to correct the violations]; or
91-17 (2) that the permit holder or applicant is indebted to
91-18 the state for fees, payment of penalties, or taxes imposed by this
91-19 title or by a rule of the commission.
91-20 SECTION 8.24. Section 382.017, Health and Safety Code, as it
91-21 exists after the transfer and redesignation of Subsection (b) by
91-22 this Act, is amended by adding a new Subsection (b) to read as
91-23 follows:
91-24 (b) Notice of a public hearing on a proposed rule under this
91-25 section must be given as provided by Section 5.670, Water Code.
91-26 SECTION 8.25. Section 382.0518(c), Health and Safety Code, is
91-27 amended to read as follows:
92-1 (c) In considering the issuance, amendment, or renewal of a
92-2 permit, the commission may consider the applicant's compliance
92-3 history, in accordance with the method for evaluating compliance
92-4 history developed by the commission under Section 5.754, Water
92-5 Code, during the period established by the commission under Section
92-6 5.754, Water Code, for the consideration of compliance history [any
92-7 adjudicated decision or compliance proceeding within the five years
92-8 before the date on which the application was filed that addressed
92-9 the applicant's past performance and compliance with the laws of
92-10 this state, another state, or the United States governing air
92-11 contaminants or with the terms of any permit or order issued by the
92-12 commission].
92-13 SECTION 8.26. Section 382.05191(a), Health and Safety Code,
92-14 is amended to read as follows:
92-15 (a) An applicant for a permit under Section 382.0519 shall
92-16 publish notice of intent to obtain the permit in accordance with
92-17 Section 5.673, Water Code [382.056].
92-18 SECTION 8.27. Section 382.055, Health and Safety Code, as it
92-19 exists after the transfer and redesignation of Subsection (c) by
92-20 this Act, is amended by adding a new Subsection (c) and amending
92-21 Subsection (d) to read as follows:
92-22 (c) The commission shall provide notice to the permit
92-23 holder, as provided by Section 5.672, Water Code, that the permit
92-24 is scheduled for review.
92-25 (d) In determining whether and under which conditions a
92-26 preconstruction permit should be renewed, the commission shall
92-27 consider, at a minimum:
93-1 (1) [whether] the compliance history of the facility
93-2 according to the method developed by the commission under Section
93-3 5.754, Water Code, for the consideration of compliance history [is
93-4 or has been in substantial compliance with this chapter and the
93-5 terms of the existing permit]; and
93-6 (2) the condition and effectiveness of existing
93-7 emission control equipment and practices.
93-8 SECTION 8.28. Section 382.056, Health and Safety Code, as it
93-9 exists after the transfer and redesignation of Subsections (a)-(c),
93-10 (g), and (i) by this Act, is amended by adding a new Subsection
93-11 (a), relettering Subsections (d)-(f) as Subsections (b)-(d), adding
93-12 a new Subsection (e), relettering Subsections (h) and (j)-(p) as
93-13 Subsections (f)-(m), and amending existing Subsection (h) to read
93-14 as follows:
93-15 (a) An applicant for a permit under Section 382.0518 or a
93-16 permit renewal review under Section 382.055 shall publish notice of
93-17 intent to obtain the permit or permit review as provided by Section
93-18 5.673, Water Code.
93-19 (b) [(d)] The applicant shall make a copy of the application
93-20 available for review and copying at a public place in the county in
93-21 which the facility or federal source is located or proposed to be
93-22 located.
93-23 (c) [(e)] The applicant, in cooperation with the executive
93-24 director, may hold a public meeting in the county in which the
93-25 facility or federal source is located or proposed to be located in
93-26 order to inform the public about the application and obtain public
93-27 input.
94-1 (d) [(f)] The executive director shall conduct a technical
94-2 review of and issue a preliminary decision on the application.
94-3 (e) If, in response to the notice published under Subsection
94-4 (a) for a permit under Section 382.0518 or a permit renewal review
94-5 under Section 382.055, a person requests during the period provided
94-6 by commission rule that the commission hold a public hearing and
94-7 the request is not withdrawn before the date the preliminary
94-8 decision is issued, the applicant shall publish notice of the
94-9 preliminary decision as provided by Section 5.673(d), Water Code,
94-10 and the commission shall seek public comment on the preliminary
94-11 decision. The commission shall consider the request for public
94-12 hearing under the procedures provided by Section 5.673(e), Water
94-13 Code, and Subsections (g)-(k). The commission may not seek further
94-14 public comment or hold a public hearing under the procedures
94-15 provided by Section 5.673(e), Water Code, and Subsections (g)-(k)
94-16 in response to a request for a public hearing on an amendment,
94-17 modification, or renewal that would not result in an increase in
94-18 allowable emissions and would not result in the emission of an air
94-19 contaminant not previously emitted.
94-20 (f) [(h)] If, in response to the notice published under
94-21 Section 5.673(a), Water Code, [Subsection (a)] for a permit under
94-22 Section 382.054, a person requests during the public comment period
94-23 provided by commission rule that the commission hold a public
94-24 hearing, the commission shall consider the request under the
94-25 procedures provided by Section 382.0561 and not under the
94-26 procedures provided by Section 5.673(e), Water Code, and
94-27 Subsections (g)-(k) [(i)-(n)].
95-1 (g) [(j)] The applicant shall make a copy of the preliminary
95-2 decision available for review and copying at a public place in the
95-3 county in which the facility is located or proposed to be located.
95-4 (h) [(k)] During the public comment period, the executive
95-5 director may hold one or more public meetings in the county in
95-6 which the facility is located or proposed to be located. The
95-7 executive director shall hold a public meeting:
95-8 (1) on the request of a member of the legislature who
95-9 represents the general area in which the facility is located or
95-10 proposed to be located; or
95-11 (2) if the executive director determines that there is
95-12 substantial public interest in the proposed activity.
95-13 (i) [(l)] The executive director, in accordance with
95-14 procedures adopted by the commission by rule, shall file with the
95-15 chief clerk of the commission a response to each relevant and
95-16 material public comment on the preliminary decision filed during
95-17 the public comment period.
95-18 (j) [(m)] The chief clerk of the commission shall transmit
95-19 the executive director's decision, the executive director's
95-20 response to public comments, and instructions for requesting that
95-21 the commission reconsider the executive director's decision or hold
95-22 a contested case hearing to:
95-23 (1) the applicant;
95-24 (2) any person who submitted comments during the
95-25 public comment period;
95-26 (3) any person who requested to be on the mailing list
95-27 for the permit action; and
96-1 (4) any person who timely filed a request for a public
96-2 hearing in response to the notice published under Subsection (a).
96-3 (k) [(n)] Except as provided by Section 382.0561, the
96-4 commission shall consider a request that the commission reconsider
96-5 the executive director's decision or hold a public hearing in
96-6 accordance with the procedures provided by Section 5.556, Water
96-7 Code.
96-8 (l) [(o)] Notwithstanding other provisions of this chapter,
96-9 the commission may hold a hearing on a permit amendment,
96-10 modification, or renewal if the commission determines that the
96-11 application involves a facility for which the applicant's
96-12 compliance history is unacceptable under the method of evaluating
96-13 compliance history developed by the commission under Section 5.754,
96-14 Water Code, during the period established by the commission under
96-15 that section for consideration of compliance history [contains
96-16 violations which are unresolved and which constitute a recurring
96-17 pattern of egregious conduct which demonstrates a consistent
96-18 disregard for the regulatory process, including the failure to make
96-19 a timely and substantial attempt to correct the violations].
96-20 (m) [(p)] The commission by rule shall provide for
96-21 additional notice, opportunity for public comment, or opportunity
96-22 for public hearing to the extent necessary to satisfy a requirement
96-23 to obtain or maintain delegation or approval of a federal program.
96-24 SECTION 8.29. Section 382.0561, Health and Safety Code, as it
96-25 exists after the transfer and redesignation of Subsection (f) by
96-26 this Act, is amended by adding a new Subsection (f) to read as
96-27 follows:
97-1 (f) Notice of the public comment period and opportunity for
97-2 a hearing under this section shall be published in accordance with
97-3 Section 5.674, Water Code.
97-4 SECTION 8.30. Section 382.058, Health and Safety Code, as
97-5 amended by Chapters 391 and 406, Acts of the 76th Legislature,
97-6 Regular Session, 1999, is reenacted and amended to read as follows:
97-7 Sec. 382.058. NOTICE OF AND HEARING ON CONSTRUCTION OF
97-8 CONCRETE PLANT UNDER PERMIT BY RULE, STANDARD PERMIT, OR EXEMPTION
97-9 [PROVISIONS RELATING TO PERMITS BY RULE OR STANDARD PERMITS FOR
97-10 COMMISSION EXEMPTION FOR CONSTRUCTION OF CERTAIN CONCRETE PLANTS].
97-11 (a) A person may not begin construction on any concrete plant that
97-12 performs wet batching, dry batching, or central mixing under a
97-13 standard permit under Section 382.05195 or a permit by rule adopted
97-14 by the commission under Section 382.05196 unless the person has
97-15 complied with the notice and opportunity for hearing provisions
97-16 under Section 5.673, Water Code, and Section 382.056.
97-17 (b) This section does not apply to a concrete plant located
97-18 temporarily in the right-of-way, or contiguous to the right-of-way,
97-19 of a public works project.
97-20 (c) For purposes of this section, only those persons
97-21 actually residing in a permanent residence within 440 yards of the
97-22 proposed plant may request a hearing under Section 382.056
97-23 [382.056(d)] as a person who may be affected.
97-24 (d) If the commission considers air dispersion modeling
97-25 information in the course of adopting an exemption under Section
97-26 382.057 for a concrete plant that performs wet batching, dry
97-27 batching, or central mixing, the commission may not require that a
98-1 person who qualifies for the exemption conduct air dispersion
98-2 modeling before beginning construction of a concrete plant, and
98-3 evidence regarding air dispersion modeling may not be submitted at
98-4 a hearing under Section 382.056.
98-5 SECTION 8.31. Section 401.110, Health and Safety Code, is
98-6 amended to read as follows:
98-7 Sec. 401.110. DETERMINATION ON LICENSE. In making a
98-8 determination whether to grant, deny, amend, revoke, suspend, or
98-9 restrict a license or registration, the department or commission
98-10 may consider [those aspects of] an applicant's or license holder's
98-11 [background that bear materially on the ability to fulfill the
98-12 obligations of licensure, including] technical competence and
98-13 compliance history under the method for evaluation of compliance
98-14 history developed by the commission under Section 5.754, Water Code
98-15 [the applicant's or license holder's record in areas involving
98-16 radiation].
98-17 SECTION 8.32. Section 401.112(a), Health and Safety Code, is
98-18 amended to read as follows:
98-19 (a) The department or commission, within its jurisdiction,
98-20 in making a licensing decision on a specific license application to
98-21 process or dispose of low-level radioactive waste from other
98-22 persons, shall consider:
98-23 (1) site suitability, geological, hydrological, and
98-24 meteorological factors, and natural hazards;
98-25 (2) compatibility with present uses of land near the
98-26 site;
98-27 (3) socioeconomic effects on surrounding communities
99-1 of operation of the licensed activity and of associated
99-2 transportation of low-level radioactive waste;
99-3 (4) the need for and alternatives to the proposed
99-4 activity, including an alternative siting analysis prepared by the
99-5 applicant;
99-6 (5) the applicant's qualifications, including
99-7 financial and [,] technical qualifications[,] and compliance
99-8 history under the method for evaluation of compliance history
99-9 developed by the commission under Section 5.754, Water Code [past
99-10 operating practices];
99-11 (6) background monitoring plans for the proposed site;
99-12 (7) suitability of facilities associated with the
99-13 proposed activities;
99-14 (8) chemical, radiological, and biological
99-15 characteristics of the low-level radioactive waste and waste
99-16 classification under Section 401.053;
99-17 (9) adequate insurance of the applicant to cover
99-18 potential injury to any property or person, including potential
99-19 injury from risks relating to transportation;
99-20 (10) training programs for the applicant's employees;
99-21 (11) a monitoring, record-keeping, and reporting
99-22 program;
99-23 (12) spill detection and cleanup plans for the
99-24 licensed site and related to associated transportation of low-level
99-25 radioactive waste;
99-26 (13) decommissioning and postclosure care plans;
99-27 (14) security plans;
100-1 (15) worker monitoring and protection plans;
100-2 (16) emergency plans; and
100-3 (17) a monitoring program for applicants that includes
100-4 prelicense and postlicense monitoring of background radioactive and
100-5 chemical characteristics of the soils, groundwater, and vegetation.
100-6 SECTION 8.33. Section 401.114, Health and Safety Code, is
100-7 amended to read as follows:
100-8 Sec. 401.114. NOTICE AND HEARING. (a) Before the department
100-9 [or commission], within its jurisdiction, grants or renews a
100-10 license to process [or dispose of] low-level radioactive waste from
100-11 other persons, the department [agency] shall give notice and shall
100-12 provide an opportunity for a public hearing in the manner provided
100-13 by the department's [agency's] formal hearing procedure and Chapter
100-14 2001, Government Code.
100-15 (b) Before the commission, within its jurisdiction, grants
100-16 or renews a license to dispose of low-level radioactive waste from
100-17 other persons, the commission shall give notice and shall provide
100-18 an opportunity for a public hearing in the manner provided by
100-19 Section 5.676, Water Code, the commission's formal hearing
100-20 procedure, and Chapter 2001, Government Code.
100-21 (c) In addition to other notice, the department [agency]
100-22 shall publish notice of the hearing in the manner provided by
100-23 Chapter 313, Government Code, in the county in which the proposed
100-24 facility is to be located. The notice shall state the subject and
100-25 the time, place, and date of the hearing.
100-26 (d) [(c)] The department [agency] shall mail, by certified
100-27 mail in the manner provided by board [the agency's] rules, written
101-1 notice to each person who owns property adjacent to the proposed
101-2 site. The notice must be mailed not later than the 31st day before
101-3 the date of the hearing and must include the same information that
101-4 is in the published notice. If true, the department [agency] or
101-5 the applicant must certify that the notice was mailed as required
101-6 by this subsection, and at the hearing the certificate is
101-7 conclusive evidence of the mailing.
101-8 SECTION 8.34. Section 401.116, Health and Safety Code, is
101-9 amended by amending Subsection (b), adding a new Subsection (c),
101-10 relettering existing Subsections (c) and (d) as Subsections (d) and
101-11 (e), and amending existing Subsection (d) to read as follows:
101-12 (b) The department [or commission, as appropriate,] shall
101-13 publish notice of an [the license] amendment to a license to
101-14 process low-level radioactive waste once in the Texas Register and
101-15 in a newspaper of general circulation in the county in which the
101-16 licensed activity is located and shall give notice to any person
101-17 who has notified the agency, in advance, of the desire to receive
101-18 notice of proposed amendment of the license.
101-19 (c) The commission shall publish notice of an amendment to a
101-20 license to dispose of low-level radioactive waste as provided by
101-21 Section 5.677, Water Code.
101-22 (d) Notice under Subsection (b) [this section] must include:
101-23 (1) the identity of the license holder;
101-24 (2) identification of the license; and
101-25 (3) a short and plain statement of the license
101-26 amendment's substance.
101-27 (e) [(d)] The agency shall give notice and hold a hearing to
102-1 consider the license amendment if a person affected files a written
102-2 complaint with the agency before the 31st day after the date on
102-3 which notice is published under Subsection (b) or Section 5.677,
102-4 Water Code, as appropriate. The agency shall give notice of the
102-5 hearing as provided by Section 401.114 or by Section 5.676, Water
102-6 Code.
102-7 ARTICLE 9. TRANSITIONS; EFFECTIVE DATE
102-8 SECTION 9.01. TRANSFER OF SAFE DRINKING WATER LABORATORY
102-9 CERTIFICATION PROGRAM. (a) On the effective date of this Act, the
102-10 following are transferred to the Texas Natural Resource
102-11 Conservation Commission:
102-12 (1) all powers, duties, rights, and obligations of the
102-13 Texas Department of Health relating to the safe drinking water
102-14 laboratory certification program administered by the Texas
102-15 Department of Health's bureau of laboratories;
102-16 (2) all personnel, equipment, data, documents,
102-17 facilities, and other items of the Texas Department of Health
102-18 relating to the safe drinking water laboratory certification
102-19 program; and
102-20 (3) all appropriations to the Texas Department of
102-21 Health pertaining to the safe drinking water laboratory
102-22 certification program, and all other state or federal money
102-23 available to the Texas Department of Health for that program.
102-24 (b) On the effective date of this Act, Texas Department of
102-25 Health rules relating to the safe drinking water laboratory
102-26 certification program administered by the Texas Department of
102-27 Health's bureau of laboratories are the rules of the Texas Natural
103-1 Resource Conservation Commission until the commission adopts rules
103-2 to govern that program.
103-3 (c) A certification issued by the Texas Department of Health
103-4 for a safe drinking water laboratory before September 1, 2001,
103-5 remains in effect until the date it expires or is revoked,
103-6 notwithstanding the change in law made by this section.
103-7 SECTION 9.02. TRANSFER OF ENVIRONMENTAL TESTING LABORATORY
103-8 CERTIFICATION PROGRAM. (a) On the effective date of this Act, the
103-9 following are transferred to the Texas Natural Resource
103-10 Conservation Commission:
103-11 (1) all powers, duties, rights, and obligations of the
103-12 Texas Department of Health relating to the environmental testing
103-13 laboratory certification program administered by the Texas
103-14 Department of Health under Chapter 421, Health and Safety Code;
103-15 (2) all personnel, equipment, data, documents,
103-16 facilities, and other items of the Texas Department of Health
103-17 relating to the environmental testing laboratory certification
103-18 program; and
103-19 (3) all appropriations to the Texas Department of
103-20 Health pertaining to the environmental laboratory certification
103-21 program, and all other state or federal money available to the
103-22 Texas Department of Health for that program.
103-23 (b) On the effective date of this Act, Texas Department of
103-24 Health rules relating to the environmental testing laboratory
103-25 certification program administered by the Texas Department of
103-26 Health under Chapter 421, Health and Safety Code, are the rules of
103-27 the Texas Natural Resource Conservation Commission until the
104-1 commission adopts rules to govern that program.
104-2 (c) A certification issued by the Texas Department of Health
104-3 before September 1, 2001, remains in effect until the date it
104-4 expires or is revoked, notwithstanding the change in law made by
104-5 this section and by this Act to Chapter 421, Health and Safety
104-6 Code.
104-7 (d) The change in law made by the addition by this Act of
104-8 Section 5.127, Water Code, relating to the acceptance of
104-9 environmental testing laboratory results by the Texas Natural
104-10 Resource Conservation Commission, applies only to environmental
104-11 testing laboratory results submitted to the commission on or after
104-12 the third anniversary of the date on which the commission publishes
104-13 notice in the Texas Register that the commission's environmental
104-14 laboratory testing program established under Subchapter R, Chapter
104-15 5, Water Code, as added by this Act, has met the standards of the
104-16 National Environmental Laboratory Accreditation Conference.
104-17 SECTION 9.03. CERTIFICATION OF WATER TREATMENT SPECIALISTS.
104-18 (a) On the effective date of this Act, the following are
104-19 transferred to the Texas Natural Resource Conservation Commission:
104-20 (1) all powers, duties, rights, and obligations of the
104-21 Texas Department of Health relating to the certification of water
104-22 treatment specialists administered by the Texas Department of
104-23 Health under Section 3A, The Plumbing License Law (Article
104-24 6243-101, Vernon's Texas Civil Statutes);
104-25 (2) all equipment, data, documents, facilities, and
104-26 other items of the Texas Department of Health relating to the
104-27 certification of water treatment specialists; and
105-1 (3) all appropriations to the Texas Department of
105-2 Health pertaining to the certification of water treatment
105-3 specialists, and all other state or federal money available to the
105-4 Texas Department of Health for that program.
105-5 (b) On the effective date of this Act, Texas Department of
105-6 Health rules relating to the certification of water treatment
105-7 specialists are the rules of the Texas Natural Resource
105-8 Conservation Commission until the commission adopts rules to govern
105-9 that program.
105-10 SECTION 9.04. PERFORMANCE-BASED REGULATION. (a) Not later
105-11 than March 1, 2002, the Texas Natural Resource Conservation
105-12 Commission by rule shall establish the components of and standards
105-13 for evaluating compliance history, as required by Section 5.754,
105-14 Water Code, as added by this Act.
105-15 (b) Not later than September 1, 2002, the Texas Natural
105-16 Resource Conservation Commission shall begin tracking compliance
105-17 for use in establishing the regulatory structure authorized by
105-18 Subchapter Q, Chapter 5, Water Code, as added by this Act.
105-19 (c) As soon as practicable, but not later than September 1,
105-20 2005, the Texas Natural Resource Conservation Commission shall
105-21 adopt rules governing and shall implement the tiered regulatory
105-22 structure required by Section 5.752, Water Code, as added by this
105-23 Act. The commission shall adopt the rules and implement the tiered
105-24 regulatory structure in stages over the three-year period.
105-25 (d) The changes made by this Act in the consideration of
105-26 compliance history in decisions by the Texas Natural Resource
105-27 Conservation Commission relating to the issuance, amendment,
106-1 modification, or renewal of permits under the following sections
106-2 apply only to an application for the issuance, amendment,
106-3 modification, or renewal of a permit submitted to the Texas Natural
106-4 Resource Conservation Commission on or after March 1, 2002:
106-5 (1) Sections 5.757, 26.028, 26.0281, 26.040, and
106-6 27.018, Water Code; and
106-7 (2) Sections 361.084, 361.088, 361.089, 382.0518,
106-8 382.055, 382.056, 401.110, and 401.112, Health and Safety Code.
106-9 (e) The changes made by this Act in the consideration of
106-10 compliance history in decisions by the Texas Natural Resource
106-11 Conservation Commission relating to inspections and flexible
106-12 permitting under Sections 5.758 and 5.759, Water Code, apply,
106-13 effective March 1, 2002, to a person who holds a permit issued by
106-14 the Texas Natural Resource Conservation Commission that is subject
106-15 to those sections.
106-16 (f) The changes made by this Act in the consideration of
106-17 compliance history in decisions of the Texas Natural Resource
106-18 Conservation Commission relating to the suspension or revocation of
106-19 a permit or the imposition of a penalty in a matter under the
106-20 jurisdiction of the commission applies only to a proceeding that is
106-21 initiated or an action that is brought on or after March 1, 2002.
106-22 (g) For the period between March 1, 2002, and September 1,
106-23 2005, the commission by rule may temporarily modify specific
106-24 compliance history requirements to implement the regulatory
106-25 structure being developed under Subchapter Q, Chapter 5, Water
106-26 Code. This section does not authorize the commission to modify
106-27 existing statutory requirements relating to the use of compliance
107-1 history in any enforcement proceeding.
107-2 SECTION 9.05. FEES. The changes in law made by Sections
107-3 5.702 and 5.703, Water Code, as added by this Act, relating to the
107-4 timely payment and adjustment of fees due the Texas Natural
107-5 Resource Conservation Commission, and by Section 5.706, Water Code,
107-6 as added by this Act, relating to penalties and interest for
107-7 delinquent fees, apply only to fees that are due on or after
107-8 September 1, 2001.
107-9 SECTION 9.06. REGULATORY FLEXIBILITY. The change in law made
107-10 by Section 5.123, Water Code, as added by Chapter 1203, Acts of the
107-11 75th Legislature, Regular Session, 1997, relating to regulatory
107-12 flexibility, as transferred, redesignated, and amended by this Act,
107-13 applies only to an application for regulatory flexibility that is
107-14 submitted to the Texas Natural Resource Conservation Commission on
107-15 or after September 1, 2001.
107-16 SECTION 9.07. COMMISSIONER TRAINING. (a) As soon as
107-17 practicable after September 1, 2001, but not later than December 1,
107-18 2001, the Texas Natural Resource Conservation Commission shall
107-19 adopt rules to implement the training program for commission
107-20 members required by Section 5.0535, Water Code, as added by this
107-21 Act.
107-22 (b) The training requirements of Section 5.0535, Water Code,
107-23 as added by this Act, apply only to a member of the commission who
107-24 is appointed on or after January 1, 2002.
107-25 SECTION 9.08. EXECUTIVE DIRECTOR. The change in law made by
107-26 this Act to Section 5.228, Water Code, relating to hearing
107-27 appearances by the executive director of the Texas Natural Resource
108-1 Conservation Commission, applies only to a hearing in which the
108-2 executive director is named a party on or after September 1, 2001.
108-3 SECTION 9.09. INITIATION OF ACTION ON CITIZEN EVIDENCE. (a)
108-4 Not later than December 1, 2001, the Texas Natural Resource
108-5 Conservation Commission shall adopt rules to implement the
108-6 requirements of Section 7.0025, Water Code, as added by this Act,
108-7 relating to the initiation of enforcement action by the commission
108-8 based on evidence of an environmental problem submitted by a
108-9 private individual.
108-10 (b) The change in law made by Section 7.0025, Water Code, as
108-11 added by this Act, applies only to evidence of an environmental
108-12 problem submitted to the Texas Natural Resource Conservation
108-13 Commission on or after January 1, 2002.
108-14 SECTION 9.10. EFFECTIVE DATE. Except as otherwise provided
108-15 by this Act, this Act takes effect September 1, 2001.