1-1     By:  Bosse, Chisum, Counts (Senate Sponsor - Harris)  H.B. No. 2912
 1-2           (In the Senate - Received from the House April 23, 2001;
 1-3     April 24, 2001, read first time and referred to Committee on
 1-4     Natural Resources; May 8, 2001, reported adversely, with favorable
 1-5     Committee Substitute by the following vote:  Yeas 6, Nays 0;
 1-6     May 8, 2001, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR H.B. No. 2912                  By:  Bivins
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the continuation and functions of the Texas Natural
1-11     Resource Conservation Commission; providing penalties.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13                    ARTICLE 1.  ADMINISTRATION AND POLICY
1-14           SECTION 1.01. Section 5.014, Water Code, is amended to read
1-15     as follows:
1-16           Sec. 5.014.  SUNSET PROVISION. The Texas Natural Resource
1-17     Conservation Commission is subject to Chapter 325, Government Code
1-18     (Texas Sunset Act).  Unless continued in existence as provided by
1-19     that chapter, the commission is abolished and this chapter expires
1-20     September 1, 2013 [2001].
1-21           SECTION 1.02. Section 5.052(c), Water Code, is amended to
1-22     read as follows:
1-23           (c)  Appointments to the commission shall be made without
1-24     regard to the race, color, disability [handicap], sex, religion,
1-25     age, or national origin of the appointees.
1-26           SECTION 1.03. Section 5.053(a), Water Code, is amended to
1-27     read as follows:
1-28           (a)  A person may not be a member of [is not eligible to
1-29     serve on] the commission if the person or the person's spouse:
1-30                 (1)  is registered, certified, licensed, permitted, or
1-31     otherwise authorized by the commission;
1-32                 (2)  is employed by or participates in the management
1-33     of a business entity or other organization regulated by the
1-34     commission or receiving money [funds] from the commission;
1-35                 (3) [(2)]  owns or[,] controls, [or has,] directly or
1-36     indirectly, more than a 10 percent interest in a business entity or
1-37     other organization regulated by [the commission] or receiving funds
1-38     from the commission; or
1-39                 (4) [(3)]  uses or receives a substantial amount of
1-40     tangible goods, services, or money [funds] from the commission
1-41     other than compensation or reimbursement authorized by law for
1-42     commission membership, attendance, or expenses.
1-43           SECTION 1.04. Subchapter C, Chapter 5, Water Code, is amended
1-44     by adding Section 5.0535 to read as follows:
1-45           Sec. 5.0535.  REQUIRED TRAINING PROGRAM FOR COMMISSION
1-46     MEMBERS. (a)  A person who is appointed to and qualifies for office
1-47     as a member of the commission may not vote, deliberate, or be
1-48     counted as a member in attendance at a meeting of the commission
1-49     until the person completes a training program that complies with
1-50     this section.
1-51           (b)  The training program must provide the person with
1-52     information regarding:
1-53                 (1)  the legislation that created the commission;
1-54                 (2)  the programs operated by the commission;
1-55                 (3)  the role and functions of the commission;
1-56                 (4)  the rules of the commission, with an emphasis on
1-57     the rules that relate to disciplinary and investigatory authority;
1-58                 (5)  the current budget for the commission;
1-59                 (6)  the results of recent significant internal and
1-60     external audits of the  commission;
1-61                 (7)  the requirements of:
1-62                       (A)  the open meetings law, Chapter 551,
1-63     Government Code;
1-64                       (B)  the public information law, Chapter 552,
 2-1     Government Code;
 2-2                       (C)  the administrative procedure law,  Chapter
 2-3     2001, Government Code; and
 2-4                       (D)  other laws relating to public officials,
 2-5     including conflict-of-interest laws; and
 2-6                 (8)  any applicable ethics policies adopted by the
 2-7     commission or the Texas Ethics Commission.
 2-8           (c)  A person appointed to the commission is entitled to
 2-9     reimbursement, as provided by the General Appropriations Act, for
2-10     the travel expenses incurred in attending the training program
2-11     regardless of whether the attendance at the program occurs before
2-12     or after the person qualifies for office.
2-13           SECTION 1.05. Section 5.054, Water Code, is amended to read
2-14     as follows:
2-15           Sec. 5.054.  REMOVAL OF COMMISSION MEMBERS. (a)  It is a
2-16     ground for removal from the commission that [if] a member:
2-17                 (1)  does not have at the time of taking office the
2-18     qualifications required by Section 5.053(b);
2-19                 (2)  does not maintain during the service on the
2-20     commission the qualifications required by Section 5.053(b) [for
2-21     appointment to the commission];
2-22                 (3)  is ineligible for membership under Section
2-23     5.053(a), 5.059, or 5.060 [(2)  violates a prohibition established
2-24     by Sections 5.059 and 5.060 of this code];
2-25                 (4)  cannot, because of illness or disability, [(3)  is
2-26     unable to] discharge the member's [his] duties for a substantial
2-27     part of the member's term [portion of the term for which he was
2-28     appointed because of illness or disability]; or
2-29                 (5) [(4)]  is absent from more than one-half of the
2-30     regularly scheduled commission meetings that the member is eligible
2-31     to attend during each calendar year without an excuse approved [,
2-32     except when the absence is excused] by a majority vote of the
2-33     commission.
2-34           (b)  The validity of an action of the commission is not
2-35     affected by the fact that it is [was] taken when a ground for
2-36     removal of a member of the commission exists [existed].
2-37           (c)  If the executive director or a member [of the
2-38     commission] has knowledge that a potential ground for removal
2-39     exists, the executive director or member [he] shall notify the
2-40     presiding officer [chairman] of the commission of the potential
2-41     [that] ground.  The presiding officer [chairman of the commission]
2-42     shall then notify the governor and the attorney general that a
2-43     potential ground for removal exists.  If the potential ground for
2-44     removal involves the presiding officer, the executive director or
2-45     another member of the commission shall notify the member of the
2-46     commission with the most seniority, who shall then notify the
2-47     governor and the attorney general that a potential ground for
2-48     removal exists.
2-49           SECTION 1.06. Sections 5.058(a)-(d), Water Code, are amended
2-50     to read as follows:
2-51           (a)  The governor shall designate a member of the commission
2-52     as the presiding officer [the chairman] of the commission to serve
2-53     in that capacity at the pleasure of[.  He shall serve as chairman
2-54     until] the governor [designates a different chairman].
2-55           (b)  The presiding officer [chairman] may designate another
2-56     commissioner to act for the presiding officer [him] in the
2-57     presiding officer's  [his] absence.
2-58           (c)  The presiding officer [chairman] shall preside at the
2-59     meetings and hearings of the commission.
2-60           (d)  The commission shall hold regular meetings and all
2-61     hearings at times specified by a commission order and entered in
2-62     its minutes.  The commission may hold special meetings at the times
2-63     and places in the state that the commission decides are appropriate
2-64     for the performance of its duties.  The presiding officer
2-65     [chairman] or acting presiding officer [chairman] shall give the
2-66     other members reasonable notice before holding a special meeting.
2-67           SECTION 1.07. Sections 5.059 and 5.060, Water Code, are
2-68     amended to read as follows:
2-69           Sec. 5.059.  CONFLICT OF INTEREST. (a)  In this section,
 3-1     "Texas trade association" means a cooperative and voluntarily
 3-2     joined association of business or professional competitors in this
 3-3     state designed to assist its members and its industry or profession
 3-4     in dealing with mutual business or professional problems and in
 3-5     promoting their common interest.
 3-6           (b)  A person may not be a member of the commission and may
 3-7     not be a commission employee employed in a "bona fide executive,
 3-8     administrative, or professional capacity," as that phrase is used
 3-9     for purposes of establishing an exemption to the overtime
3-10     provisions of the federal Fair Labor Standards Act of 1938 (29
3-11     U.S.C. Section 201 et seq.) and its subsequent amendments, if:
3-12                 (1)  the person is an officer, employee, or paid
3-13     consultant of a Texas trade association in an industry regulated by
3-14     the commission; or
3-15                 (2)  the person's spouse is an officer, manager, or
3-16     paid consultant of a Texas trade association in an industry
3-17     regulated by the commission [An officer, employee, or paid
3-18     consultant of a trade association in an industry regulated by the
3-19     commission may not be a member of the commission or employee of the
3-20     commission, nor may a person who cohabits with or is the spouse of
3-21     an officer, managerial employee, or paid consultant of a trade
3-22     association in an industry regulated by the commission be a member
3-23     of the commission or an employee of the commission grade 17 or
3-24     over, including exempt employees, according to the position
3-25     classification schedule under the General Appropriations Act].
3-26           Sec. 5.060.  LOBBYIST PROHIBITION. A person may not be a
3-27     member of the commission or act as general counsel to the
3-28     commission if the person [who] is required to register as a
3-29     lobbyist under Chapter 305, Government Code, because  [by virtue]
3-30     of the person's [his] activities for compensation [in or] on behalf
3-31     of a profession related to the operation of the commission [may not
3-32     serve as a member of the commission or act as the general counsel
3-33     to the commission].
3-34           SECTION 1.08. Section 5.107, Water Code, is amended to read
3-35     as follows:
3-36           Sec. 5.107.  ADVISORY COMMITTEES, WORK GROUPS, AND TASK
3-37     FORCES [COUNCILS]. (a)  The commission or the executive director
3-38     may create and consult with advisory committees, work groups, or
3-39     task forces [councils], including committees, work groups, or task
3-40     forces [councils] for the environment, [councils] for public
3-41     information, or for any other matter [councils] that the commission
3-42     or the executive director may consider appropriate.
3-43           (b)  The commission shall identify affected groups of
3-44     interested persons for advisory committees, work groups, and task
3-45     forces and shall make reasonable attempts to have balanced
3-46     representation on all advisory committees, work groups, and task
3-47     forces.  This subsection does not require the commission to ensure
3-48     that all representatives attend a scheduled meeting.  A rule or
3-49     other action may not be challenged because of the composition of an
3-50     advisory committee, work group, or task force.
3-51           (c)  The commission shall monitor the composition and
3-52     activities of advisory committees, work groups, and task forces
3-53     appointed by the commission or formed at the staff level and shall
3-54     maintain that information in a form and location that is easily
3-55     accessible to the public, including making the information
3-56     available on the Internet.
3-57           SECTION 1.09. Subchapter D, Chapter 5, Water Code, is amended
3-58     by adding Sections 5.127-5.131 to read as follows:
3-59           Sec. 5.127.  USE OF ENVIRONMENTAL TESTING LABORATORY DATA AND
3-60     ANALYSIS. (a)  The commission may accept environmental testing
3-61     laboratory data and analysis for use in commission decisions
3-62     regarding any matter under the commission's jurisdiction relating
3-63     to permits or other authorizations, compliance matters, enforcement
3-64     actions, or corrective actions only if the data and analysis is
3-65     prepared by an environmental testing laboratory accredited by the
3-66     commission under Subchapter R or an environmental testing
3-67     laboratory described in Subsection (b).
3-68           (b)  The commission may accept for use in commission
3-69     decisions data and analysis prepared by:
 4-1                 (1)  an on-site or in-house environmental testing
 4-2     laboratory if the laboratory is periodically inspected by the
 4-3     commission;
 4-4                 (2)  an environmental testing laboratory that is
 4-5     accredited under federal law; or
 4-6                 (3)  if the data and analysis are necessary for
 4-7     emergency response activities and the required data and analysis
 4-8     are not otherwise available,  an environmental testing laboratory
 4-9     that is not accredited by the commission under Subchapter R or
4-10     under federal law.
4-11           (c)  The commission by rule may require that data and
4-12     analysis used in other commission decisions be obtained from an
4-13     environmental testing laboratory accredited by the commission under
4-14     Subchapter R.
4-15           (d)  The commission shall periodically inspect on-site or
4-16     in-house environmental testing laboratories described in Subsection
4-17     (b).
4-18           Sec. 5.128.  ELECTRONIC REPORTING TO COMMISSION; REDUCTION OF
4-19     DUPLICATE REPORTING. (a)  The commission shall encourage the use of
4-20     electronic reporting through the Internet, to the extent
4-21     practicable, for reports required by the commission.  An electronic
4-22     report must be submitted in a format prescribed by the commission.
4-23     The commission may consult with the Department of Information
4-24     Resources on developing a  simple format for use in implementing
4-25     this subsection.
4-26           (b)  The commission shall strive to reduce duplication in
4-27     reporting requirements throughout the agency.
4-28           Sec. 5.129.  SUMMARY FOR PUBLIC NOTICES. (a)  The commission
4-29     by rule shall provide for each public notice issued or published by
4-30     the commission or by a person under the jurisdiction of the
4-31     commission as required by law or by commission rule to include at
4-32     the beginning of the notice a succinct statement of the subject of
4-33     the notice.  The rules must provide that a summary statement must
4-34     be designed to inform the reader of the subject matter of the
4-35     notice without having to read the entire text of the notice.
4-36           (b)  The summary statement may not be grounds for challenging
4-37     the validity of the proposed action for which the notice was
4-38     published.
4-39           Sec. 5.130.  PRIORITY AREAS. The commission shall give
4-40     priority to monitoring and enforcement in areas in which regulated
4-41     facilities are concentrated.
4-42           Sec. 5.131.  ENVIRONMENTAL MANAGEMENT SYSTEMS. (a)  In this
4-43     section, "environmental management system" means a documented
4-44     management system to address applicable environmental regulatory
4-45     requirements that includes organizational structure, planning
4-46     activities, responsibilities, practices, procedures, processes, and
4-47     resources for developing, implementing, achieving, reviewing, and
4-48     maintaining an environmental policy directed toward continuous
4-49     improvement.
4-50           (b)  The commission by rule shall adopt a comprehensive
4-51     program that provides regulatory incentives to encourage the use of
4-52     environmental management systems by regulated entities, state
4-53     agencies, local governments, and  other entities as determined by
4-54     the commission. The incentives may include:
4-55                 (1)  on-site technical assistance;
4-56                 (2)  accelerated access to information about programs;
4-57     and
4-58                 (3)  to the extent consistent with federal
4-59     requirements:
4-60                       (A)  inclusion of information regarding an
4-61     entity's use of an environmental management system in the entity's
4-62     compliance history and compliance summaries; and
4-63                       (B)  consideration of the entity's implementation
4-64     of an environmental management system in scheduling and conducting
4-65     compliance inspections.
4-66           (c)  The commission shall:
4-67                 (1)  integrate the use of environmental management
4-68     systems into its regulatory programs, including permitting,
4-69     compliance assistance, and enforcement;
 5-1                 (2)  develop model environmental management systems for
 5-2     small businesses and local governments; and
 5-3                 (3)  establish environmental performance indicators to
 5-4     measure the program's performance.
 5-5           SECTION 1.10. Subchapter E, Chapter 5, Water Code, is amended
 5-6     by adding Section 5.1733 to read as follows:
 5-7           Sec. 5.1733.  ELECTRONIC POSTING OF INFORMATION. The
 5-8     commission shall post public information on its website.  Such
 5-9     information shall include but not be limited to the minutes of
5-10     advisory committee meetings, pending permit and enforcement
5-11     actions, compliance histories, and emissions inventories by county
5-12     and facility name.
5-13           SECTION 1.11. Subchapter E, Chapter 5, Water Code, is amended
5-14     by adding Section 5.1765 to read as follows:
5-15           Sec. 5.1765.  PUBLICATION OF INFORMATION REGARDING COMPLAINT
5-16     PROCEDURES AND POLICIES. The commission shall establish a process
5-17     for educating the public regarding the commission's complaint
5-18     policies and procedures. As part of the public education process,
5-19     the commission shall make available to the public in pamphlet form
5-20     an explanation of the complaint policies and procedures, including
5-21     information regarding and standards applicable to the collection
5-22     and preservation of credible evidence of environmental problems by
5-23     members of the public.
5-24           SECTION 1.12. Sections 5.176 and 5.177, Water Code, are
5-25     amended to read as follows:
5-26           Sec. 5.176.  COMPLAINT FILE. (a)  The commission shall
5-27     maintain a [keep an information] file on [about] each written
5-28     complaint other than an anonymous complaint filed with the
5-29     commission about a matter within the commission's regulatory
5-30     jurisdiction relating to an entity regulated by the commission.
5-31     The file must include:
5-32                 (1)  the name of the person who filed the complaint,
5-33     unless the person has specifically requested anonymity;
5-34                 (2)  the date the complaint is received by the
5-35     commission;
5-36                 (3)  the subject matter of the complaint;
5-37                 (4)  the name of each person contacted in relation to
5-38     the complaint;
5-39                 (5)  a summary of the results of the review or
5-40     investigation of the complaint; and
5-41                 (6)  an explanation of the reason the file was closed,
5-42     if the agency closed the file without taking action other than to
5-43     investigate the complaint.
5-44           (b)  The commission shall establish and implement procedures
5-45     for receiving complaints submitted by means of the Internet and
5-46     orally and shall maintain files on those complaints as provided by
5-47     Subsection (a).
5-48           Sec. 5.177.  NOTICE OF COMPLAINT PROCEDURES; NOTICE OF
5-49     INVESTIGATION STATUS. (a)  The agency shall provide to the person
5-50     filing the complaint about a matter within the commission's
5-51     regulatory jurisdiction and to each person who is the subject of
5-52     the complaint a copy of the commission's policies and procedures
5-53     relating to complaint investigation and resolution.
5-54           (b)  The [If a written complaint is filed with the commission
5-55     relating to an entity regulated by the commission, the] commission,
5-56     at least [as frequently as] quarterly [and] until final disposition
5-57     of the complaint, shall notify the person filing the complaint and
5-58     each person who is a subject of [parties to] the complaint of the
5-59     status of the investigation [complaint] unless the notice would
5-60     jeopardize an undercover investigation.
5-61           (c)  The commission is not required to provide the
5-62     information described in Subsection (a) or (b) to a complainant who
5-63     files an anonymous complaint or provides inaccurate contact
5-64     information.
5-65           SECTION 1.13. Subchapter E, Chapter 5, Water Code, is amended
5-66     by adding Sections 5.1771, 5.1772, and 5.1773 to read as follows:
5-67           Sec. 5.1771.  COORDINATION OF COMPLAINT INVESTIGATIONS WITH
5-68     LOCAL ENFORCEMENT OFFICIALS:  TRAINING. (a)  The commission shall
5-69     share information regarding a complaint about a matter within the
 6-1     commission's regulatory jurisdiction made to the commission with
 6-2     local officials with authority to act on the complaint in the
 6-3     county or municipality in which the alleged action or omission that
 6-4     is the subject of the complaint occurred or is threatening to
 6-5     occur.
 6-6           (b)  On request, the commission shall provide training for
 6-7     local enforcement officials in investigating complaints and
 6-8     enforcing environmental laws relating to matters under the
 6-9     commission's jurisdiction under this code or the Health and Safety
6-10     Code.  The training must include, at a minimum:
6-11                 (1)  procedures for local enforcement officials to use
6-12     in addressing citizen complaints if the commission is unavailable
6-13     or unable to  respond to the complaint; and
6-14                 (2)  an explanation of local government authority to
6-15     enforce state laws and commission rules relating to the
6-16     environment.
6-17           (c)  The commission may charge a reasonable fee for providing
6-18     training to local enforcement officials as required by Subsection
6-19     (b) in an amount sufficient to recover the costs of the training.
6-20     Money collected under this subsection shall be deposited to the
6-21     credit of the water resource management account.
6-22           Sec. 5.1772.  AFTER-HOURS RESPONSE TO COMPLAINTS. (a)  The
6-23     commission shall adopt and implement a policy to provide timely
6-24     response to complaints during periods outside regular business
6-25     hours.
6-26           (b)  This section does not:
6-27                 (1)  require availability of field inspectors for
6-28     response 24 hours a day, seven days a week, in all parts of the
6-29     state; or
6-30                 (2)  authorize additional use of overtime.
6-31           Sec. 5.1773.  COMPLAINT ASSESSMENT. (a)  The commission
6-32     annually shall conduct a comprehensive analysis of the complaints
6-33     it receives, including analysis by the following categories:
6-34                 (1)  air;
6-35                 (2)  water;
6-36                 (3)  waste;
6-37                 (4)  priority classification;
6-38                 (5)  region;
6-39                 (6)  commission response;
6-40                 (7)  enforcement action taken; and
6-41                 (8)  trends by complaint type.
6-42           (b)  In addition to the analysis required by Subsection (a),
6-43     the commission shall assess the impact of changes made in the
6-44     commission's complaint policy.
6-45           SECTION 1.14. Section 5.178(b), Water Code, is amended to
6-46     read as follows:
6-47           (b)  The report due by December 1 of an even-numbered year
6-48     shall include, in addition:
6-49                 (1)  the commission's recommendations for necessary and
6-50     desirable legislation; and
6-51                 (2)  the following reports:
6-52                       (A)  the assessments and reports required by
6-53     Sections 361.0219(c), 361.0232, [361.485,] 361.510, 371.063, and
6-54     382.141, Health and Safety Code; [and]
6-55                       (B)  the reports required by Section 26.0135(d)
6-56     of this code and Section 5.02, Chapter 133, Acts of the 69th
6-57     Legislature, Regular Session, 1985; and
6-58                       (C)  a summary of the analyses and assessments
6-59     required by Section 5.1773 of this code.
6-60           SECTION 1.15. Section 5.227, Water Code, is amended to read
6-61     as follows:
6-62           Sec. 5.227.  EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a)  The
6-63     executive director or his designee shall prepare and maintain a
6-64     written policy statement that implements  [to assure implementation
6-65     of] a program of equal employment opportunity to ensure that
6-66     [whereby] all personnel decisions [transactions] are made without
6-67     regard to race, color, disability [handicap], sex, religion, age,
6-68     or national origin.
6-69           (b)  The policy statement must include:
 7-1                 (1)  personnel policies, including policies relating to
 7-2     recruitment, evaluation, selection, [appointment,] training, and
 7-3     promotion of personnel, that show the intent of the commission to
 7-4     avoid the unlawful employment practices described by Chapter 21,
 7-5     Labor Code; and
 7-6                 (2)  a comprehensive analysis of the extent to which
 7-7     the composition of the commission's personnel is in accordance with
 7-8     state and federal law and a description of reasonable methods to
 7-9     achieve compliance with state and federal law [work force that
7-10     meets federal and state guidelines;]
7-11                 [(3)  procedures by which a determination can be made
7-12     of significant underutilization in the commission's work force of
7-13     all persons for whom federal or state guidelines encourage a more
7-14     equitable balance; and]
7-15                 [(4)  reasonable methods to address appropriately areas
7-16     of significant underutilization in the commission's work force of
7-17     all persons for whom federal or state guidelines encourage a more
7-18     equitable balance].
7-19           (c) [(b)]  The policy statement must:
7-20                 (1)  [shall be filed with the governor's office before
7-21     November 1, 1985, cover an annual period, and] be updated [at
7-22     least] annually;
7-23                 (2)  be reviewed by the state Commission on Human
7-24     Rights for compliance with Subsection (b)(1); and
7-25                 (3)  be filed with the governor's office.  [The
7-26     governor's office shall develop a biennial report to the
7-27     legislature based on the information submitted.  This report may be
7-28     made individually or as a part of other biennial reports made to
7-29     the legislature.]
7-30           SECTION 1.16. Subchapter F, Chapter 5, Water Code, is amended
7-31     by adding Section 5.2275 to read as follows:
7-32           Sec. 5.2275.  STATE EMPLOYEE INCENTIVE PROGRAM. The executive
7-33     director or the executive director's designee shall provide to
7-34     commission employees information and training on the benefits and
7-35     methods of participation in the state employee incentive program
7-36     under Subchapter B, Chapter 2108, Government Code.
7-37           SECTION 1.17. Section 5.228, Water Code, is amended to read
7-38     as follows:
7-39           Sec. 5.228.  APPEARANCES AT HEARINGS. (a)  The position of
7-40     and information developed by the commission shall be presented by
7-41     the executive director or his designated representative at hearings
7-42     of the commission and the hearings held by federal, state, and
7-43     local agencies on matters affecting the public's interest in the
7-44     state's environment and natural resources, including matters that
7-45     have been determined to be policies of the state.
7-46           (b)  The executive director shall be named a party in
7-47     hearings before the commission in a matter in which the executive
7-48     director bears the burden of proof.
7-49           (c)  The executive director may participate as a party in
7-50     contested case permit hearings before the commission or the State
7-51     Office of Administrative Hearings for the sole purpose of providing
7-52     information to complete the administrative record.  The commission
7-53     by rule shall specify the factors the executive director must
7-54     consider in determining, case by case, whether to participate as a
7-55     party in a contested case permit hearing.  In developing the rules
7-56     under this subsection the commission shall consider, among other
7-57     factors:
7-58                 (1)  the technical, legal, and financial capacity of
7-59     the parties to the proceeding;
7-60                 (2)  whether the parties to the proceeding have
7-61     participated in a previous contested case hearing;
7-62                 (3)  the complexity of the issues presented; and
7-63                 (4)  the available resources of commission staff.
7-64           (d)  In a contested case hearing relating to a permit
7-65     application, the executive director or the executive director's
7-66     designated representative may not rehabilitate the testimony of a
7-67     witness unless the witness is a commission employee testifying for
7-68     the sole purpose of providing information to complete the
7-69     administrative record.
 8-1           (e)  The executive director or the executive director's
 8-2     designated representative may not assist a permit applicant in
 8-3     meeting its burden of proof in a hearing before the commission or
 8-4     the State Office of Administrative Hearings unless the permit
 8-5     applicant fits a category of permit applicant that the commission
 8-6     by rule has designated as eligible to receive assistance.  The
 8-7     commission shall adopt rules establishing categories of permit
 8-8     applicants eligible to receive assistance.
 8-9           (f)  The fact that the executive director is not named as a
8-10     party in a hearing before the commission is not grounds for
8-11     appealing a commission decision.
8-12           SECTION 1.18. Subchapter F, Chapter 5, Water Code, is amended
8-13     by adding Section 5.2291 to read as follows:
8-14           Sec. 5.2291.  SCIENTIFIC AND TECHNICAL SERVICES. (a)  In this
8-15     section, "scientific and technical environmental services" means
8-16     services, other than engineering services, of a scientific or
8-17     technical nature the conduct of which requires technical training
8-18     and professional judgment.  The term includes modeling, risk
8-19     assessment, site characterization and assessment, studies of the
8-20     magnitude, source, and extent of contamination, contaminant fate
8-21     and transport analysis, watershed assessment and analysis, total
8-22     maximum daily load studies, scientific data analysis, and similar
8-23     tasks, to the extent those tasks are not defined as the "practice
8-24     of engineering" under The Texas Engineering Practice Act (Article
8-25     3271a, Vernon's Texas Civil Statutes).
8-26           (b)  The procurement of a contract for scientific and
8-27     technical environmental services shall be conducted under the
8-28     procedures for professional services selection provided in
8-29     Subchapter A, Chapter 2254, Government Code.
8-30           SECTION 1.19. Section 5.234(b), Water Code, is amended to
8-31     read as follows:
8-32           (b)  After an application, petition, or other document is
8-33     processed, it shall be presented to the commission for action as
8-34     required by law and rules of the commission.  If, in the course of
8-35     reviewing an application and preparing a draft permit, the
8-36     executive director has required changes to be made to the
8-37     applicant's proposal, the executive director shall prepare a
8-38     summary of the changes that were made to increase protection of
8-39     public health and the environment.
8-40           SECTION 1.20. Sections 5.273 and 5.274, Water Code, are
8-41     amended to read as follows:
8-42           Sec. 5.273.  DUTIES OF THE PUBLIC INTEREST COUNSEL. (a)  The
8-43     counsel shall represent the public interest and be a party to all
8-44     proceedings before the commission.
8-45           (b)  The counsel may recommend needed legislative and
8-46     regulatory changes.
8-47           Sec. 5.274.  STAFF; OUTSIDE TECHNICAL SUPPORT. (a)  The
8-48     office shall be adequately staffed to carry out its functions under
8-49     this code.
8-50           (b)  The counsel may obtain and use outside technical support
8-51     to carry out its functions under this code.
8-52           SECTION 1.21.  Subchapter A, Chapter 7, Water Code, is
8-53     amended by adding Section 7.0025 to read as follows:
8-54           Sec. 7.0025.  INITIATION OF ENFORCEMENT ACTION USING
8-55     INFORMATION PROVIDED BY PRIVATE INDIVIDUAL. (a)  The commission may
8-56     initiate an enforcement action on a matter under its jurisdiction
8-57     under this code or the Health and Safety Code based on information
8-58     it receives from a private individual if that information, in the
8-59     commission's judgment, is of sufficient value and credibility to
8-60     warrant the initiation of an enforcement action.
8-61           (b)  The executive director or the executive director's
8-62     designated representative may evaluate the value and credibility of
8-63     information received from a private individual and the merits of
8-64     any proposed enforcement action based on that information.
8-65           (c)  The commission by rule may adopt criteria for the
8-66     executive director to use in evaluating the value and credibility
8-67     of information received from a private individual and for use of
8-68     that information in an enforcement action.
8-69           (d)  A private individual who submits information on which
 9-1     the commission relies for all or part of an enforcement case may be
 9-2     called to testify in the enforcement proceedings and is subject to
 9-3     all sanctions under law for falsifying evidence.  If the commission
 9-4     relies on the information submitted by a private individual to
 9-5     prove an enforcement case, any physical or sampling data must have
 9-6     been collected or gathered in accordance with commission protocols.
 9-7                         ARTICLE 2.  FEES AND RATES
 9-8           SECTION 2.01. Chapter 5, Water Code, is amended by adding a
 9-9     heading for Subchapter P to read as follows:
9-10                             SUBCHAPTER P.  FEES
9-11           SECTION 2.02. Section 5.235, Water Code, is transferred to
9-12     new Subchapter P, Chapter 5, Water Code, redesignated as Section
9-13     5.701, and amended to read as follows:
9-14           Sec. 5.701 [5.235].  FEES. (a)  The executive director shall
9-15     charge and collect the fees prescribed by law.  The executive
9-16     director shall make a record of fees prescribed when due and shall
9-17     render an account to the person charged with the fees.  Each fee is
9-18     a separate charge and is in addition to other fees unless provided
9-19     otherwise.  Except as otherwise provided, a fee assessed and
9-20     collected under this section shall be deposited to the credit of
9-21     the water resource management account.
9-22                 (1)  Notwithstanding other provisions, the commission
9-23     by rule may establish due dates, schedules, and procedures for
9-24     assessment, collection, and remittance of fees due the commission
9-25     to ensure the cost-effective administration of revenue collection
9-26     and cash management programs.
9-27                 (2)  Notwithstanding other provisions, the commission
9-28     by rule shall establish uniform and consistent requirements for the
9-29     assessment of penalties and interest for late payment of fees owed
9-30     the state under the commission's jurisdiction.  Penalties and
9-31     interest established under this section shall not exceed rates
9-32     established for delinquent taxes under Sections 111.060 and
9-33     111.061, Tax Code.
9-34           (b)  Except as otherwise provided by law, the fee for filing
9-35     an application or petition is $100 plus the cost of any required
9-36     notice.  The fee for a by-pass permit shall be set by the
9-37     commission at a reasonable amount to recover costs, but not less
9-38     than $100.
9-39           (c)  The fee for filing a water permit application is $100
9-40     plus the cost of required notice.
9-41           (d)  The fee for filing an application for fixing or
9-42     adjusting rates is $100 plus the cost of required notice.
9-43           (e)  A person who files with the commission a petition for
9-44     the creation of a water district or addition of sewage and drainage
9-45     powers or a resolution for a water district conversion must pay a
9-46     one-time nonrefundable application fee.  The commission by rule may
9-47     establish [set] the application fee in an amount sufficient to
9-48     cover [not to exceed] the costs of reviewing and processing the
9-49     application, plus the cost of required notice.  The commission may
9-50     also use the application fee to cover other costs incurred to
9-51     protect water resources in this state, including assessment of
9-52     water quality, reasonably related to the activities of any of the
9-53     persons required to pay a fee under the statutes listed in
9-54     Subsection (p).  This fee is the only fee that the commission may
9-55     charge with regard to the processing of an application for creation
9-56     of a water district, addition of sewage or drainage powers, or
9-57     conversion under this code.
9-58           (f)  A person who files a bond issue application with the
9-59     commission must pay an application fee set by the commission.  The
9-60     commission by rule may set the application fee in an amount not to
9-61     exceed the costs of reviewing and processing the application, plus
9-62     the cost of required notice.  If the bonds are approved by the
9-63     commission, the seller shall pay to the commission a percentage of
9-64     the bond proceeds not later than the seventh business day after
9-65     receipt of the bond proceeds.  The commission by rule may set the
9-66     percentage of the proceeds in an amount not to exceed 0.25 percent
9-67     of the principal amount of the bonds actually issued. Proceeds of
9-68     the fees shall be used to supplement any other funds available for
9-69     paying expenses of the commission in supervising the various bond
 10-1    and construction activities of the districts filing the
 10-2    applications.
 10-3          (g)  The fee for recording an instrument in the office of the
 10-4    commission is $1.25 per page.
 10-5          (h)  The fee for the use of water for irrigation is 50 cents
 10-6    per acre to be irrigated.
 10-7          (i)  The fee for impounding water, except under Section
 10-8    11.142 of this code, is 50 cents per acre-foot of storage, based on
 10-9    the total holding capacity of the reservoir at normal operating
10-10    level.
10-11          (j)  The fee for other uses of water not specifically named
10-12    in this section is $1 per acre-foot, except that no political
10-13    subdivision may be required to pay fees to use water for recharge
10-14    of underground freshwater-bearing sands and aquifers or for
10-15    abatement of natural pollution.
10-16          (k)  A fee charged under Subsections (h) through (j) of this
10-17    section for one use of water under a permit from the commission may
10-18    not exceed $50,000. The fee for each additional use of water under
10-19    a permit for which the maximum fee is paid may not exceed $10,000.
10-20          (l)  The fees prescribed by Subsections (h) through (j) of
10-21    this section are one-time fees, payable when the application for an
10-22    appropriation is made.   However, if the total fee for a permit
10-23    exceeds $1,000, the applicant shall pay one-half of the fee when
10-24    the application is filed and one-half within 180 days after notice
10-25    is mailed to him that the permit is granted.  If the applicant does
10-26    not pay all of the amount owed before beginning to use water under
10-27    the permit, the permit is annulled.
10-28          (m)  If a permit is annulled, the matter reverts to the
10-29    status of a pending, filed application and, on the payment of use
10-30    fees as provided by Subsections (h) through (l) of this section
10-31    together with sufficient postage fees for mailing notice of
10-32    hearing, the commission shall set the application for hearing and
10-33    proceed as provided by this code.
10-34          (n)(1)  Each provider of potable water or sewer utility
10-35    service shall collect a regulatory assessment from each retail
10-36    customer as follows:
10-37                      (A)  A public utility as defined in Section
10-38    13.002 of this code shall collect from each retail customer a
10-39    regulatory assessment equal to one percent of the charge for retail
10-40    water or sewer service.
10-41                      (B)  A water supply or sewer service corporation
10-42    as defined in Section 13.002 of this code shall collect from each
10-43    retail customer a regulatory assessment equal to one-half of one
10-44    percent of the charge for retail water or sewer service.
10-45                      (C)  A district as defined in Section 49.001 of
10-46    this code that provides potable water or sewer utility service to
10-47    retail customers shall collect from each retail customer a
10-48    regulatory assessment equal to one-half of one percent of the
10-49    charge for retail water or sewer service.
10-50                (2)  The regulatory assessment may be listed on the
10-51    customer's bill as a separate item and shall be collected in
10-52    addition to other charges for utility services.
10-53                (3)  The commission shall use the assessments collected
10-54    under this subsection solely to pay costs and expenses incurred by
10-55    the commission in the regulation of districts, water supply or
10-56    sewer service corporations, and public utilities under Chapter 13,
10-57    Water Code.
10-58                (4)  The commission shall annually use a portion of the
10-59    assessments to provide on-site technical assistance and training to
10-60    public utilities, water supply or sewer service corporations, and
10-61    districts.  The commission shall contract with others to provide
10-62    the services.
10-63                (5)  The commission by rule may establish due dates,
10-64    collection procedures, and penalties for late payment related to
10-65    regulatory assessments under this subsection.  The executive
10-66    director shall collect all assessments from the utility service
10-67    providers.
10-68                (6)  The commission shall assess a penalty against a
10-69    municipality with a population of more than 1.5 million that does
 11-1    not provide municipal water and sewer services in an annexed area
 11-2    in accordance with Section 43.0565, Local Government Code.  A
 11-3    penalty assessed under this paragraph shall be not more than $1,000
 11-4    for each day the services are not provided after March 1, 1998, for
 11-5    areas annexed before January 1, 1993, or not provided within 4 1/2
 11-6    years after the effective date of the annexation for areas annexed
 11-7    on or after January 1, 1993.  A penalty collected under this
 11-8    paragraph shall be deposited to the credit of the water resource
 11-9    management account to be used to provide water and sewer service to
11-10    residents of the city.
11-11                (7)  The regulatory assessment does not apply to water
11-12    that has not been treated for the purpose of human consumption.
11-13          (o)  A fee imposed under Subsection (j) of this section for
11-14    the use of saline tidal water for industrial processes shall be $1
11-15    per acre-foot of water diverted for the industrial process, not to
11-16    exceed a total fee of $5,000.
11-17          (p)  Notwithstanding any other law, fees collected for
11-18    deposit to the water resource management account under the
11-19    following statutes may be appropriated and used to protect water
11-20    resources in this state, including assessment of water quality,
11-21    reasonably related to the activities of any of the persons required
11-22    to pay a fee under:
11-23                (1)  Subsection (b), to the extent those fees are paid
11-24    by water districts, and Subsections (e), (f), and (n);
11-25                (2)  Sections 13.4521 and 13.4522; or
11-26                (3)  Section 54.037(c).
11-27          (q)  Notwithstanding any other law, fees collected for
11-28    deposit to the water resource management account under the
11-29    following statutes may be appropriated and used to protect water
11-30    resources in this state, including assessment of water quality,
11-31    reasonably related to the activities of any of the persons required
11-32    to pay a fee under:
11-33                (1)  Subsections (b) and (c), to the extent those fees
11-34    are collected in connection with water use or water quality
11-35    permits;
11-36                (2)  Subsections (h)-(l);
11-37                (3)  Section 11.138(g);
11-38                (4)  Section 11.145;
11-39                (5)  Section 26.0135(h);
11-40                (6)  Sections 26.0291, 26.044, and 26.0461;
11-41                (7)  Sections 341.041, 366.058, and 366.059, Health and
11-42    Safety Code; or
11-43                (8)  Section 372.002(d), Health and Safety Code.
11-44          SECTION 2.03. New Subchapter P, Chapter 5, Water Code, is
11-45    amended by adding Sections 5.702-5.707 to read as follows:
11-46          Sec. 5.702.  PAYMENT OF FEES REQUIRED WHEN DUE. (a)  A fee
11-47    due the commission under this code or the Health and Safety Code
11-48    shall be paid on the date the fee is due, regardless of whether the
11-49    fee is billed by the commission to the person required to pay the
11-50    fee or is calculated and paid to the commission by the person
11-51    required to pay the fee.
11-52          (b)  A person required to pay a fee to the commission may not
11-53    dispute the assessment of or amount of a fee before the fee has
11-54    been paid in full.
11-55          Sec. 5.703.  FEE ADJUSTMENTS. (a)  The commission may not
11-56    consider adjusting the amount of a fee due the commission under
11-57    this code or the Health and Safety Code:
11-58                (1)  before the fee has been paid in full; or
11-59                (2)  if the request for adjustment is received after
11-60    the first anniversary of the date on which the fee was paid in
11-61    full.
11-62          (b)  A person who pays an amount that exceeds the amount of
11-63    the fee due because the commission incorrectly calculated the fee
11-64    or the person made a duplicate payment may request a refund of the
11-65    excess amount paid before the fourth anniversary of the date on
11-66    which the excess amount was paid.
11-67          (c)  A request for a refund or credit in an amount that
11-68    exceeds $5,000 shall be forwarded for approval to the commission
11-69    fee audit staff, together with an explanation of the grounds for
 12-1    the requested refund or credit.  Approval of a refund or credit
 12-2    does not prevent the fee audit staff from conducting a subsequent
 12-3    audit of the person for whom the refund or credit was approved.
 12-4          Sec. 5.704.  NOTICE OF CHANGE IN PAYMENT PROCEDURE. The
 12-5    commission shall promptly notify each person required to pay a
 12-6    commission fee under this code or the Health and Safety Code of any
 12-7    change in fee payment procedures.
 12-8          Sec. 5.705.  NOTICE OF VIOLATION. (a)  The commission may
 12-9    issue a notice of violation to a person required to pay a
12-10    commission fee under this code or the Health and Safety Code for
12-11    knowingly violating reporting requirements or knowingly calculating
12-12    the fee in an amount less than the amount actually due.
12-13          (b)  The executive director may modify audit findings
12-14    reported by a commission fee auditor only if the executive director
12-15    provides a written explanation showing good cause for the
12-16    modification.
12-17          Sec. 5.706.  PENALTIES AND INTEREST ON DELINQUENT FEES. (a)
12-18    Except as otherwise provided by law, the commission may collect,
12-19    for a delinquent fee due the commission under this code or the
12-20    Health and Safety Code:
12-21                (1)  a penalty in an amount equal to five percent of
12-22    the amount of the fee due, if the fee is not paid on or before the
12-23    day on which the fee is due; and
12-24                (2)  an additional penalty in an amount equal to five
12-25    percent of the amount due, if the fee is not paid on or before the
12-26    30th day after the date on which the fee was due.
12-27          (b)  Unless otherwise required by law interest accrues,
12-28    beginning on the 61st day after the date on which the fee was due,
12-29    on the total amount of fee and penalties that have not been paid on
12-30    or before the 61st day after the date on which the fee was due.
12-31    The yearly interest rate is the rate of interest established for
12-32    delinquent taxes under Section 111.060, Tax Code.
12-33          (c)  The executive director may modify a penalty or interest
12-34    on a fee and penalties authorized by this section if the executive
12-35    director provides a written explanation showing good cause for the
12-36    modification.
12-37          (d)  Penalties and interest collected by the commission under
12-38    this section or under other law, unless that law otherwise
12-39    provides, shall be deposited to the credit of the fund or account
12-40    to which the fee is required to be deposited.
12-41          Sec. 5.707.  TRANSFERABILITY OF APPROPRIATIONS AND FUNDS
12-42    DERIVED FROM FEES. Notwithstanding any law that provides specific
12-43    purposes for which a fund, account, or revenue source may be used
12-44    and expended by the commission and that restricts the use of
12-45    revenues and balances by the commission, the commission may
12-46    transfer a percentage of appropriations from one appropriation item
12-47    to another appropriation item consistent with the General
12-48    Appropriations Act for any biennium authorizing the commission to
12-49    transfer a percentage of appropriations from one appropriation item
12-50    to another appropriation item.  The use of funds in dedicated
12-51    accounts under this section for purposes in addition to those
12-52    provided by statutes restricting their use may not exceed seven
12-53    percent or $20 million, whichever is less, of appropriations to the
12-54    commission in the General Appropriations Act for any biennium.  A
12-55    transfer of $500,000 or more from one appropriation item to another
12-56    appropriation item under this section must be approved by the
12-57    commission at an open meeting subject to Chapter 551, Government
12-58    Code.
12-59          SECTION 2.04. Section 26.0291, Water Code, is amended to read
12-60    as follows:
12-61          Sec. 26.0291.  WATER QUALITY [WASTE TREATMENT INSPECTION]
12-62    FEE. (a)  An annual water quality [waste treatment inspection] fee
12-63    is imposed on:
12-64                (1)  each wastewater [permittee for each waste]
12-65    discharge permit holder for each wastewater discharge permit held;
12-66    and
12-67                (2)  each user of water in proportion to the user's
12-68    water right, through permit or contract, as reflected in the
12-69    commission's records, provided that the commission by rule shall
 13-1    ensure that no fee shall be assessed for the portion of a municipal
 13-2    or industrial water right directly associated with a facility or
 13-3    operation for which a fee is assessed under Subdivision (1) of this
 13-4    subsection [by the permittee].
 13-5          (b)  The fee is to supplement any other funds available to
 13-6    pay expenses of the commission related to:
 13-7                (1)  [in] inspecting waste treatment facilities; and
 13-8                (2)  enforcing the laws of the state and the rules of
 13-9    the commission governing:
13-10                      (A)  waste discharge and waste treatment
13-11    facilities, including any expenses [of the commission] necessary
13-12    [to obtain from the federal government delegation of and] to
13-13    administer the national pollutant discharge elimination system
13-14    (NPDES) program;
13-15                      (B)  the water resources of this state, including
13-16    the water quality management programs under Section 26.0135; and
13-17                      (C)  any other water resource management programs
13-18    reasonably related to the activities of the persons required to pay
13-19    a fee under this section.
13-20          (c)  The fee for each year is imposed on each permit or water
13-21    right in effect during any part of the year.  The commission may
13-22    establish reduced fees for inactive permits.
13-23          (d)  Irrigation water rights are not subject to a fee under
13-24    this section.
13-25          (e) [(b)]  The commission by rule shall adopt a fee schedule
13-26    for determining the amount of the fee to be charged.  The amount of
13-27    the fee may not exceed $75,000 [$25,000] for each [waste discharge]
13-28    permit or contract [held by a permittee].  The maximum annual fee
13-29    under this section for a wastewater discharge or waste treatment
13-30    facility that holds a water right for the use of water by the
13-31    facility may not exceed $75,000.  In determining the amount of a
13-32    fee under this section, the commission may consider:
13-33                (1)  waste discharge permitting factors such as flow
13-34    volume, toxic pollutant potential, level of traditional pollutant,
13-35    and heat load;
13-36                (2)  [.  The commission may consider] the designated
13-37    uses and segment ranking classification of the water affected by
13-38    discharges from the permitted facility;
13-39                (3)  [.  Finally, the commission also may consider] the
13-40    expenses necessary to obtain and administer the NPDES program;
13-41                (4)  the reasonable costs of administering the water
13-42    quality management programs under Section 26.0135; and
13-43                (5)  any other reasonable costs necessary to administer
13-44    and enforce a water resource management program reasonably related
13-45    to the activities of the persons required to pay a fee under this
13-46    section.  [The commission shall not adopt any rule designed to
13-47    increase the fee imposed under this section on a treatment works
13-48    owned by a local government, as those terms are defined in Section
13-49    26.001 of this code, before August 31, 1999.]
13-50          (f) [(c)]  The fees collected under this section shall be
13-51    deposited to the credit of the water resource management account,
13-52    an account in the general revenue fund.
13-53          (g) [(d)]  The commission may adopt rules necessary to
13-54    administer this section.
13-55          (h) [(e)]  A fee collected under this section is in addition
13-56    to any other fee that may be charged under this chapter.
13-57          SECTION 2.05. Section 26.0135(h), Water Code, is amended to
13-58    read as follows:
13-59          (h)  The commission shall apportion, assess, and recover the
13-60    reasonable costs of administering the water quality management
13-61    programs under this section [from users of water and wastewater
13-62    permit holders in the watershed according to the records of the
13-63    commission generally in proportion to their right, through permit
13-64    or contract, to use water from and discharge wastewater in the
13-65    watershed.  Irrigation water rights will not be subject to this
13-66    assessment].  The cost to river authorities and others to conduct
13-67    water quality monitoring and assessment shall be subject to prior
13-68    review and approval by the commission as to methods of allocation
13-69    and total amount to be recovered.  The commission shall adopt rules
 14-1    to supervise and implement the water quality monitoring,
 14-2    assessment, and associated costs.  The rules shall ensure that
 14-3    water users and wastewater dischargers do not pay excessive
 14-4    amounts, [that program funds are equitably apportioned among
 14-5    basins,] that a river authority may recover no more than the actual
 14-6    costs of administering the water quality management programs called
 14-7    for in this section, and that no municipality shall be assessed the
 14-8    cost for any efforts under this section that duplicate water
 14-9    quality management activities described in Section 26.177 of this
14-10    chapter.  [The rules concerning the apportionment and assessment of
14-11    reasonable costs shall provide for a recovery of not more than
14-12    $5,000,000 annually.  Costs recovered by the commission are to be
14-13    deposited to the credit of the water resource management account
14-14    and may be used only to accomplish the purposes of this section.
14-15    The commission may apply not more than 10 percent of the costs
14-16    recovered annually toward the commission's overhead costs for the
14-17    administration of this section and the implementation of regional
14-18    water quality assessments.  The commission, with the assistance and
14-19    input of each river authority, shall file a written report
14-20    accounting for the costs recovered under this section with the
14-21    governor, the lieutenant governor, and the speaker of the house of
14-22    representatives on or before December 1 of each even-numbered
14-23    year.]
14-24          SECTION 2.06. Section 26.0135(j), Water Code, is repealed.
14-25          SECTION 2.07. Section 341.041(a), Health and Safety Code, is
14-26    amended to read as follows:
14-27          (a)  The commission by rule may charge fees to a person who
14-28    owns, operates, or maintains a public drinking water supply system
14-29    [to recover the costs of public drinking water supply system
14-30    programs or services authorized by this subchapter or performed
14-31    pursuant to the requirements of the federal Safe Drinking Water Act
14-32    (42 U.S.C. Section 300f et seq.)].  The commission may establish a
14-33    schedule of fees.  The amount of the fees must be sufficient to
14-34    cover [may not exceed] the reasonable costs of administering the
14-35    programs and services in this subchapter or the federal Safe
14-36    Drinking Water Act (42 U.S.C. Section 300f et seq.).  Among other
14-37    factors, the commission shall consider equity among persons
14-38    required to pay the fees as a factor in determining the amount of
14-39    the fees.  The commission may also use the fees to cover any other
14-40    costs incurred to protect water resources in this state, including
14-41    assessment of water quality, reasonably related to the activities
14-42    of any of the persons required to pay a fee under the statutes
14-43    listed in Section 5.701(q), Water Code.
14-44          SECTION 2.08. Section 366.058(a), Health and Safety Code, is
14-45    amended to read as follows:
14-46          (a)  The commission by rule shall establish and collect a
14-47    reasonable permit fee to cover the cost of issuing permits under
14-48    this chapter and administering the permitting system.  The
14-49    commission may also use the fee to cover any other costs incurred
14-50    to protect water resources in this state, including assessment of
14-51    water quality, reasonably related to the activities of any of the
14-52    persons required to pay a fee under the statutes listed in Section
14-53    5.701(q), Water Code.
14-54          SECTION 2.09. Section 366.059, Health and Safety Code, is
14-55    amended by amending Subsection (b) and adding Subsection (d) to
14-56    read as follows:
14-57          (b)  The commission may assess a reasonable and appropriate
14-58    charge-back fee, not to exceed $500, to a local governmental entity
14-59    for which the commission issues permits for administrative costs
14-60    relating to the permitting function that are not covered by the
14-61    permit fees collected.  The commission shall base the amount of a
14-62    charge-back fee under this subsection on the actual cost of issuing
14-63    a permit under this section.  The commission may assess a
14-64    charge-back fee to a local governmental entity under this
14-65    subsection if the local governmental entity is an authorized agent
14-66    that:
14-67                (1)  has repealed the order, ordinance, or resolution
14-68    that established the entity as an authorized agent; or
14-69                (2)  has had its authorization as an authorized agent
 15-1    revoked by the commission.
 15-2          (d)  The commission may not assess a charge-back fee to a
 15-3    local governmental entity if the local governmental entity has
 15-4    repealed the order, ordinance, or resolution that established the
 15-5    entity as an authorized agent or has lost its designation as an
 15-6    authorized agent due to material change in the commission's rules
 15-7    under this chapter.
 15-8          SECTION 2.10. Section 13.187(a), Water Code, is amended to
 15-9    read as follows:
15-10          (a)  A utility may not make changes in its rates except by
15-11    delivering a statement of intent to each ratepayer and with the
15-12    regulatory authority having original jurisdiction at least 45 [30]
15-13    days before the effective date of the proposed change.  The
15-14    effective date of the new rates must be the first day of a billing
15-15    period, and the new rates may not apply to service received before
15-16    the effective date of the new rates.  The statement of intent must
15-17    include the information required by the regulatory authority's
15-18    rules.  A copy of the statement of intent shall be mailed or
15-19    delivered to the appropriate offices of each affected municipality,
15-20    and to any other affected persons as required by the regulatory
15-21    authority's rules.  When the statement of intent is delivered, the
15-22    utility shall file with the regulatory authority an application to
15-23    change rates.  The application must include information the
15-24    regulatory authority requires by rule.  If the utility fails to
15-25    provide within a reasonable time after the application is filed the
15-26    necessary documentation or other evidence that supports the costs
15-27    and expenses that are shown in the application, the regulatory
15-28    authority may disallow the nonsupported expenses.  If the
15-29    application or the statement of intent is not substantially
15-30    complete or does not comply with the regulatory authority's rules,
15-31    it may be rejected and the effective date of the rate change may be
15-32    suspended until a properly completed application is accepted by the
15-33    regulatory authority and a proper statement of intent is provided.
15-34    The commission may also suspend the effective date of any rate
15-35    change if the utility does not have a certificate of public
15-36    convenience and necessity or a completed application for a
15-37    certificate or to transfer a certificate pending before the
15-38    commission or if the utility is delinquent in paying the assessment
15-39    and any applicable penalties or interest required by Section
15-40    5.701(n) [5.235(n)] of this code.
15-41                 ARTICLE 3.  PERFORMANCE-BASED REGULATION
15-42          SECTION 3.01. Chapter 5, Water Code, is amended by adding
15-43    Subchapter Q to read as follows:
15-44                SUBCHAPTER Q.  PERFORMANCE-BASED REGULATION
15-45          Sec. 5.751.  APPLICABILITY. This subchapter applies to
15-46    programs under the jurisdiction of the commission under Chapters 26
15-47    and 27 of this code and Chapters 361, 382, and 401, Health and
15-48    Safety Code.  It does not apply to occupational licensing programs
15-49    under the jurisdiction of the commission.
15-50          Sec. 5.752.  DEFINITIONS. In this subchapter:
15-51                (1)  "Applicable legal requirement" means an
15-52    environmental law, regulation, permit, order, consent, decree, or
15-53    other requirement.
15-54                (2)  "Innovative program" means:
15-55                      (A)  a program developed by the commission under
15-56    this subchapter, Chapter 26 or 27 of this code, or Chapter 361,
15-57    382, or 401, Health and Safety Code, that provides incentives to a
15-58    person in return for benefits to the environment that exceed
15-59    benefits that would result from compliance with applicable legal
15-60    requirements under the commission's jurisdiction;
15-61                      (B)  the flexible permit program administered by
15-62    the commission under Chapter 382, Health and Safety Code; or
15-63                      (C)  the regulatory flexibility program
15-64    administered by the commission under Section 5.758.
15-65                (3)  "Permit" includes a license, certificate,
15-66    registration, approval, permit by rule, standard permit, or other
15-67    form of authorization issued by the commission under this code or
15-68    the Health and Safety Code.
15-69                (4)  "Region" means a region of the commission's field
 16-1    operations division or that division's successor.
 16-2                (5)  "Strategically directed regulatory structure"
 16-3    means a program that is designed to use innovative programs to
 16-4    provide maximum environmental benefit and to reward compliance
 16-5    performance.
 16-6          Sec. 5.753.  STANDARD FOR EVALUATING COMPLIANCE HISTORY. (a)
 16-7    Consistent with other law and the requirements necessary to
 16-8    maintain federal program authorization, the commission by rule
 16-9    shall develop a uniform standard for evaluating compliance history.
16-10          (b)  The components of compliance history must include:
16-11                (1)  enforcement orders, court judgments, consent
16-12    decrees, and criminal convictions of this state and the federal
16-13    government relating to compliance with applicable legal
16-14    requirements under the jurisdiction of the commission or the United
16-15    States Environmental Protection Agency;
16-16                (2)  notwithstanding any other provision of this code,
16-17    orders issued under Section 7.070;
16-18                (3)  to the extent readily available to the commission,
16-19    enforcement orders, court judgments, and criminal convictions
16-20    relating to violations of environmental laws of other states; and
16-21                (4)  changes in ownership.
16-22          (c)  The set of components must also include any information
16-23    required by other law or any requirement necessary to maintain
16-24    federal program authorization.
16-25          (d)  The set of components may include substantiated notices
16-26    of violations.
16-27          (e)  Except as required by other law or any requirement
16-28    necessary to maintain federal program authorization, the commission
16-29    by rule shall establish a period for compliance history.
16-30          Sec. 5.754.  CLASSIFICATION AND USE OF COMPLIANCE HISTORY.
16-31    (a)  The commission by rule shall establish a set of standards for
16-32    the classification of a person's compliance history.
16-33          (b)  Rules adopted under this section must, at a minimum,
16-34    provide for three classifications of compliance history in a manner
16-35    adequate to distinguish among:
16-36                (1)  poor performers, or regulated entities that in the
16-37    commission's judgment perform below average;
16-38                (2)  average performers, or regulated entities that
16-39    generally comply with environmental regulations; and
16-40                (3)  high performers, or regulated entities that have
16-41    an above-average compliance record.
16-42          (c)  In classifying a person's compliance history, the
16-43    commission shall:
16-44                (1)  determine whether a violation of an applicable
16-45    legal requirement is of major, moderate, or minor significance;
16-46                (2)  establish criteria for classifying a repeat
16-47    violator, giving consideration to the number and complexity of
16-48    facilities owned or operated by the person; and
16-49                (3)  consider the significance of the violation and
16-50    whether the person is a repeat violator.
16-51          (d)  The commission by rule shall establish methods of
16-52    assessing the compliance history of regulated entities for which it
16-53    does not have adequate compliance information.  The methods may
16-54    include requiring a compliance inspection to determine an entity's
16-55    eligibility for participation in a program that requires a high
16-56    level of compliance.
16-57          (e)  The commission by rule shall provide for the use of
16-58    compliance history classifications in commission decisions
16-59    regarding:
16-60                (1)  the issuance, renewal, amendment, modification,
16-61    denial, suspension, or revocation of a permit;
16-62                (2)  enforcement;
16-63                (3)  the use of announced inspections; and
16-64                (4)  participation in innovative programs.
16-65          (f)  The assessment methods shall specify the circumstances
16-66    in which the commission may revoke the permit of a repeat violator
16-67    and shall establish enhanced administrative penalties for repeat
16-68    violators.
16-69          (g)  Rules adopted under Subsection (e) for the use of
 17-1    compliance history shall provide for additional oversight of, and
 17-2    review of applications regarding, facilities owned or operated by a
 17-3    person whose compliance performance is in the lowest classification
 17-4    developed under this section.
 17-5          (h)  The commission by rule shall, at a minimum, prohibit a
 17-6    person whose compliance history is classified in the poor performer
 17-7    classification developed under this section from:
 17-8                (1)  receiving an announced inspection; and
 17-9                (2)  participating in the flexible permit program
17-10    administered by the commission under Chapter 382, Health and Safety
17-11    Code, and the regulatory flexibility program administered by the
17-12    commission under Section 5.758.
17-13          (i)  The commission shall consider the compliance history of
17-14    a regulated entity when determining whether to grant the regulated
17-15    entity's application for a permit or permit amendment for any
17-16    activity under the commission's jurisdiction.  Notwithstanding any
17-17    provision of this  code or the Health and Safety Code relating to
17-18    the granting of permits or permit amendments by the commission, the
17-19    commission, after a hearing, shall deny a regulated entity's
17-20    application for a permit or permit amendment if the regulated
17-21    entity's compliance history is unacceptable under the method for
17-22    evaluating compliance history developed by the commission under
17-23    Section 5.753 and this section.  In this subsection, "permit" has
17-24    the meaning assigned by Section 7.001, Water Code.
17-25          Sec. 5.755.  STRATEGICALLY DIRECTED REGULATORY STRUCTURE.
17-26    (a)  The commission by rule shall develop a strategically directed
17-27    regulatory structure to provide incentives for enhanced
17-28    environmental performance.
17-29          (b)  The strategically directed regulatory structure shall
17-30    offer incentives based on:
17-31                (1)  a  person's  compliance  history  classification;
17-32    and
17-33                (2)  any voluntary measures undertaken by the person to
17-34    improve environmental quality.
17-35          (c)  An innovative program offered as part of the
17-36    strategically directed regulatory structure must be consistent with
17-37    other law and any requirement necessary to maintain federal program
17-38    authorization.
17-39          Sec. 5.756.  COLLECTION AND ANALYSIS OF COMPLIANCE
17-40    PERFORMANCE INFORMATION.  (a)  The commission shall collect data
17-41    on:
17-42                (1)  the results of inspections conducted by the
17-43    commission; and
17-44                (2)  whether inspections are announced or unannounced.
17-45          (b)  The commission shall collect data on and make available
17-46    to the public on the Internet:
17-47                (1)  the number and percentage of all violations
17-48    committed by persons who previously have committed the same or
17-49    similar violations;
17-50                (2)  the number and percentage of enforcement orders
17-51    issued by the commission that are issued to entities that have been
17-52    the subject of a previous enforcement order;
17-53                (3)  whether a violation is of major, moderate, or
17-54    minor significance, as defined by commission rule;
17-55                (4)  whether a violation relates to an applicable legal
17-56    requirement pertaining to air, water, or waste; and
17-57                (5)  the region in which the facility is located.
17-58          (c)  The commission annually shall prepare a comparative
17-59    analysis of data evaluating the performance, over time, of the
17-60    commission and of entities regulated by the commission.
17-61          (d)  The commission shall include in the annual enforcement
17-62    report required by Section 5.123, as added by Chapters 304 and
17-63    1082, Acts of the 75th Legislature, Regular Session, 1997, the
17-64    comparative performance analysis required by Subsection (c),
17-65    organized by region and regulated medium.
17-66          Sec. 5.757.  COORDINATION OF INNOVATIVE PROGRAMS.  (a)  The
17-67    commission shall designate a single point of contact within the
17-68    agency to coordinate all innovative programs.
17-69          (b)  The coordinator shall:
 18-1                (1)  inventory, coordinate, and market and evaluate all
 18-2    innovative programs;
 18-3                (2)  provide information and technical assistance to
 18-4    persons participating in or interested in participating in those
 18-5    programs; and
 18-6                (3)  work with the pollution prevention advisory
 18-7    committee to assist the commission in integrating the innovative
 18-8    programs into the commission's operations, including:
 18-9                      (A)  program administration;
18-10                      (B)  strategic planning; and
18-11                      (C)  staff training.
18-12          SECTION 3.02. Section 5.123, Water Code, as added by Chapter
18-13    1203, Acts of the 75th Legislature, Regular Session, 1997, is
18-14    transferred to new Subchapter Q, Chapter 5, Water Code,
18-15    redesignated as Section 5.758, and amended to read as follows:
18-16          Sec. 5.758 [5.123].  REGULATORY FLEXIBILITY. (a)  The
18-17    commission by order may exempt an applicant from a requirement of a
18-18    statute or commission rule regarding the control or abatement of
18-19    pollution if the applicant proposes to control or abate pollution
18-20    by an alternative method or by applying an alternative standard
18-21    that is:
18-22                (1)  more [at least as] protective of the environment
18-23    and the public health than [as] the method or standard prescribed
18-24    by the statute or commission rule that would otherwise apply; and
18-25                (2)  not inconsistent with federal law.
18-26          (b)  The commission may not exempt an applicant under this
18-27    section unless the applicant can present to the commission
18-28    documented evidence of benefits to environmental quality that will
18-29    result from the project the applicant proposes.
18-30          (c)  The commission by rule shall specify the procedure for
18-31    obtaining an exemption under this section.  The rules must provide
18-32    for public notice and for public participation in a proceeding
18-33    involving an application for an exemption under this section.
18-34          (d) [(c)]  The commission's order must provide a specific
18-35    description of the alternative method or standard and condition the
18-36    exemption on compliance with the method or standard as the order
18-37    prescribes.
18-38          (e) [(d)]  The commission by rule may establish a reasonable
18-39    fee for applying for an exemption under this section.
18-40          (f) [(e)]  A violation of an order issued under this section
18-41    is punishable as if it were a violation of the statute or rule from
18-42    which the order grants an exemption.
18-43          (g) [(f)]  A permit may satisfy a requirement to demonstrate
18-44    need by showing need on a regional basis considering economic
18-45    impacts.
18-46          (h) [(g)]  This section does not authorize exemptions to
18-47    statutes or regulations for storing, handling, processing, or
18-48    disposing of low-level radioactive materials.
18-49          (i) [(h)]  In implementing the program of regulatory
18-50    flexibility authorized by this section, the commission shall:
18-51                (1)  market the program to businesses in the state
18-52    through all available appropriate media;
18-53                (2)  endorse alternative methods that will clearly
18-54    benefit the environment and impose the least onerous restrictions
18-55    on business;
18-56                (3)  fix and enforce environmental standards, allowing
18-57    businesses flexibility in meeting the standards in a manner that
18-58    clearly enhances environmental outcomes; and
18-59                (4)  work to achieve consistent and predictable results
18-60    for the regulated community and shorter waits for permit issuance.
18-61          SECTION 3.03. Section 7.067(a), Water Code, is amended to
18-62    read as follows:
18-63          (a)  The commission may compromise, modify, or remit, with or
18-64    without conditions, an administrative penalty imposed under this
18-65    subchapter.  In determining the appropriate amount of a penalty for
18-66    settlement of an administrative enforcement matter, the commission
18-67    may consider a respondent's willingness to contribute to
18-68    supplemental environmental projects that are approved by the
18-69    commission, giving preference to projects that benefit the
 19-1    community in which the alleged violation occurred.  The commission
 19-2    may approve a supplemental environmental project with activities in
 19-3    territory of the United Mexican States if the project substantially
 19-4    benefits territory in this state in a manner described by
 19-5    Subsection (b).  The commission may not approve a project that is
 19-6    necessary to bring a respondent into compliance with environmental
 19-7    laws, [or] that is necessary to remediate environmental harm caused
 19-8    by the respondent's alleged violation, or that the respondent has
 19-9    already agreed to perform under a preexisting agreement with a
19-10    governmental agency.
19-11          SECTION 3.04. Section 361.0215, Health and Safety Code, is
19-12    amended to read as follows:
19-13          Sec. 361.0215.  POLLUTION PREVENTION [WASTE REDUCTION]
19-14    ADVISORY COMMITTEE. (a)  The pollution prevention [waste reduction]
19-15    advisory committee is composed of nine members with a balanced
19-16    representation of environmental and public interest groups and the
19-17    regulated community.
19-18          (b)  The committee shall advise the commission and
19-19    interagency coordination council on:
19-20                (1)  the appropriate organization of state agencies and
19-21    the financial and technical resources required to aid the state in
19-22    its efforts to promote waste reduction and minimization;
19-23                (2)  the development of public awareness programs to
19-24    educate citizens about hazardous waste and the appropriate disposal
19-25    of hazardous waste and hazardous materials that are used and
19-26    collected by households;
19-27                (3)  the provision of technical assistance to local
19-28    governments for the development of waste management strategies
19-29    designed to assist small quantity generators of hazardous waste;
19-30    and
19-31                (4)  other possible programs to more effectively
19-32    implement the state's hierarchy of preferred waste management
19-33    technologies as set forth in Section 361.023(a).
19-34          (c)  The committee shall advise the commission on the
19-35    creation and implementation of the strategically directed
19-36    regulatory structure developed under Section 5.755, Water Code.
19-37          (d)  The committee shall report quarterly to the commission
19-38    on its activities, including suggestions or proposals for future
19-39    activities and other matters the committee considers important.
19-40          SECTION 3.05. Section 361.088, Health and Safety Code, is
19-41    amended by adding Subsection (g) to read as follows:
19-42          (g)  The commission shall review a permit issued under this
19-43    chapter every five years to assess the permit holder's compliance
19-44    history.
19-45                  ARTICLE 4.  REGULATION OF AIR POLLUTION
19-46          SECTION 4.01.  Section 382.019(a), Health and Safety Code, is
19-47    amended to read as follows:
19-48          (a)  Except as provided by Section 382.037(g), or another
19-49    provision of this chapter, the [The] commission by rule may provide
19-50    requirements concerning the particular method to be used to control
19-51    and reduce emissions from engines used to propel land vehicles.
19-52          SECTION 4.02. Subchapter B, Chapter 382, Health and Safety
19-53    Code, is amended by adding Sections 382.0215 and 382.0216 to read
19-54    as follows:
19-55          Sec. 382.0215.  ASSESSMENT OF EMISSIONS DUE TO EMISSIONS
19-56    EVENTS. (a)  In this section, "emissions event" means an upset, or
19-57    an unscheduled maintenance, startup, or shutdown activity, that
19-58    results in the unauthorized emissions of air contaminants from an
19-59    emissions point.  For purposes of this section only, the term does
19-60    not include emissions from an emissions point that is monitored
19-61    constantly and produces a continuous record of the excess
19-62    emissions.
19-63          (b)  The commission shall require the owner or operator of a
19-64    facility that experiences emissions events:
19-65                (1)  to maintain a record of all emissions events at
19-66    the facility in the manner and for the periods prescribed by
19-67    commission rule;
19-68                (2)  to notify the commission, as soon as practicable
19-69    but not later than 24 hours after discovery of the emissions event,
 20-1    of an emissions event resulting in the emission of a reportable
 20-2    quantity of air contaminants as determined by commission rule; and
 20-3                (3)  to report to the commission, not later than two
 20-4    weeks after the occurrence of an emissions event that results in
 20-5    the emission of a reportable quantity of air contaminants as
 20-6    determined by commission rule, all information necessary to
 20-7    evaluate the emissions event, including:
 20-8                      (A)  the name of the owner or operator of the
 20-9    reporting facility;
20-10                      (B)  the location of the reporting facility;
20-11                      (C)  the date and time the emissions began;
20-12                      (D)  the duration of the emissions;
20-13                      (E)  the nature and measured or estimated
20-14    quantity of air contaminants emitted, including the method of
20-15    calculation of, or other basis for determining, the quantity of air
20-16    contaminants emitted;
20-17                      (F)  the processes and equipment involved in the
20-18    emissions event;
20-19                      (G)  the cause of the emissions; and
20-20                      (H)  any additional information necessary to
20-21    evaluate the emissions event.
20-22          (c)  The commission shall centrally track emissions events
20-23    and collect information relating to:
20-24                (1)  inspections or enforcement actions taken by the
20-25    commission in response to emissions events; and
20-26                (2)  the number of emissions events occurring in each
20-27    commission region.
20-28          (d)  The commission shall develop the capacity for electronic
20-29    reporting and shall incorporate reportable emissions events into a
20-30    permanent centralized database for emissions events.  The database
20-31    shall be accessible to the public.
20-32          (e)  The commission annually shall assess the information
20-33    received under this section, including actions taken by the
20-34    commission in response to the emissions events and shall include
20-35    the assessment in the report required by Section 5.123, Water Code,
20-36    as added by Chapters 304 and 1082, Acts of the 75th Legislature,
20-37    Regular Session, 1997.
20-38          Sec. 382.0216.  REGULATION OF EMISSIONS EVENTS. (a)  In this
20-39    section, "emissions event" has the meaning assigned by Section
20-40    382.0215.
20-41          (b)  The commission shall establish criteria for determining
20-42    when emissions events are excessive.  The criteria must include
20-43    consideration of:
20-44                (1)  the frequency of the facility's emissions events;
20-45                (2)  the cause of the emissions event;
20-46                (3)  the quantity and impact on human health or the
20-47    environment of the emissions event;
20-48                (4)  the duration of the emissions event;
20-49                (5)  the percentage of a facility's total annual
20-50    operating hours during which emissions events occur; and
20-51                (6)  the need for startup, shutdown, and maintenance
20-52    activities.
20-53          (c)  The executive director may require a facility to take
20-54    action to reduce emissions from excessive emissions events.
20-55    Consistent with commission rules, a facility required to take
20-56    action under this subsection must either file a corrective action
20-57    plan to reduce emissions from emissions events or apply for a
20-58    permit from the commission.
20-59          (d)  A corrective action plan filed under Subsection (c) must
20-60    identify the cause or causes of each emissions event, specify the
20-61    control devices or other measures that are reasonably designed to
20-62    prevent or minimize similar emissions events in the future, and
20-63    specify a time within which the corrective action plan will be
20-64    implemented.  A corrective action plan must be approved by the
20-65    commission.  An approved corrective action plan shall be made
20-66    available to the public by the commission, except to the extent
20-67    information in the plan is confidential information protected under
20-68    Chapter 552, Government Code.  The commission shall establish
20-69    reasonable schedules for the implementation of corrective action
 21-1    plans and procedures for revision of a corrective action plan if
 21-2    the commission finds the plan, after implementation begins, to be
 21-3    inadequate to meet the goal of preventing or minimizing emissions
 21-4    and emissions events.
 21-5          (e)  The commission by rule may establish an affirmative
 21-6    defense to a commission enforcement action if the emissions event
 21-7    meets criteria defined by commission rule.  In establishing rules
 21-8    under this subsection, the commission at a minimum must require
 21-9    consideration of the factors listed in Subsections (b)(1)-(6).
21-10          (f)  The burden of proof in any claim of a defense to
21-11    commission enforcement action for an emissions event is on the
21-12    person claiming the defense.
21-13          (g)  A person may not claim a defense to a commission
21-14    enforcement action under Subsection (e) if the person failed to
21-15    take corrective action under a corrective action plan approved by
21-16    the commission within the time prescribed by the commission and an
21-17    emissions event recurs because of that failure.
21-18          SECTION 4.03.  (a)  Section 382.037, Health and Safety Code,
21-19    is amended by amending Subsection (g) and adding Subsections (h)
21-20    and (i) to read as follows:
21-21          (g)  The commission may not establish, before January 1,
21-22    2004, vehicle fuel content standards to provide for vehicle fuel
21-23    content for clean motor vehicle fuels for any area of the state
21-24    that are more stringent or restrictive [other] than those standards
21-25    promulgated by the United States Environmental Protection Agency
21-26    applicable to that area except for a fuel described in Subsection
21-27    (h) unless the fuel is specifically authorized by the legislature
21-28    [or unless it is demonstrated to be necessary for the attainment of
21-29    federal ozone ambient air quality standards or, following
21-30    appropriate health studies and in consultation with the Texas
21-31    Department of Health, it is determined to be necessary for the
21-32    protection of public health].
21-33          (h)  The commission may not require the distribution of Texas
21-34    low-emission diesel as described in revisions to the State
21-35    Implementation Plan for the control of ozone air pollution before
21-36    February 1, 2005.
21-37          (i)  The commission may consider, as an alternative method of
21-38    compliance with Subsection (h), fuels to achieve equivalent
21-39    emissions reductions.
21-40          (b)  Section 382.039(a), Health and Safety Code, is amended
21-41    to read as follows:
21-42          (a)  Except as provided by Section 382.037(g) or another
21-43    provision of this chapter, the [The] commission shall coordinate
21-44    with federal, state, and local transportation planning agencies to
21-45    develop and implement transportation programs and other measures
21-46    necessary to demonstrate and maintain attainment of national
21-47    ambient air quality standards and to protect the public from
21-48    exposure to hazardous air contaminants from motor vehicles.
21-49          (c)  The changes in law made by this section do not apply to
21-50    fuel standards adopted by the Texas Natural Resource Conservation
21-51    Commission before September 1, 2000.
21-52          SECTION 4.04. Sections 382.051(a) and (b), Health and Safety
21-53    Code, are amended to read as follows:
21-54          (a)  The commission may issue a permit:
21-55                (1)  to construct a new facility or modify an existing
21-56    facility that may emit air contaminants;
21-57                (2)  to operate a [an existing] facility described by
21-58    Section 382.0518(g) [under a voluntary emissions reduction permit];
21-59    or
21-60                (3)  to operate a federal source.
21-61          (b)  To assist in fulfilling its authorization provided by
21-62    Subsection (a), the commission may issue:
21-63                (1)  special permits for certain facilities;
21-64                (2)  a general permit for numerous similar sources
21-65    subject to Section 382.054;
21-66                (3)  a standard permit for similar facilities;
21-67                (4)  a permit by rule for types of facilities that will
21-68    not significantly contribute air contaminants to the atmosphere;
21-69                (5)  a single federal operating permit or
 22-1    preconstruction permit for multiple federal sources or facilities
 22-2    located at the same site;
 22-3                (6)  a multiple plant permit for existing facilities at
 22-4    multiple locations subject to Section 382.0518 or 382.0519; [or]
 22-5                (7)  an existing facility permit or existing facility
 22-6    flexible permit under Section 382.05183;
 22-7                (8)  a small business stationary source permit under
 22-8    Section 382.05184;
 22-9                (9)  an electric generating facility permit under
22-10    Section 382.05185 and Section 39.264, Utilities Code;
22-11                (10)  an authorization under Section 382.05186; or
22-12                (11)  other permits as necessary.
22-13          SECTION 4.05. Section 382.0518(h), Health and Safety Code, is
22-14    amended to read as follows:
22-15          (h)  Section 382.056 does not apply to an applicant for a
22-16    permit amendment under this section if the total emissions increase
22-17    from all facilities authorized under the amended permit will meet
22-18    the de minimis criteria defined by commission rule and will not
22-19    change in character.  For a facility affected by Section 382.020,
22-20    Section 382.056 does not apply to an applicant for a permit
22-21    amendment under this section if the total emissions increase from
22-22    all facilities authorized under the permit amendment is not
22-23    significant and will not change in character.  In this subsection,
22-24    a finding that a total emissions increase is not significant must
22-25    be made as provided under Section 382.05196 for a finding under
22-26    that section.  [A reference to a permit in this section includes an
22-27    amendment to a permit.]
22-28          SECTION 4.06. Subchapter C, Chapter 382, Health and Safety
22-29    Code, is amended by adding Sections 382.05181-382.05186 to read as
22-30    follows:
22-31          Sec. 382.05181.  PERMIT REQUIRED. (a)  Any facility described
22-32    by Section 382.0518(g) that does not have an application pending
22-33    for a permit or other authorization under this chapter, other than
22-34    a permit required under Section 382.054, and that has not submitted
22-35    a notice of shutdown under Section 382.05182, may not emit air
22-36    contaminants on or after:
22-37                (1)  September 1, 2003, if the facility is located in
22-38    an area designated as nonattainment for a national ambient air
22-39    quality standard as of September 1, 2001; or
22-40                (2)  September 1, 2005, if the facility is located in
22-41    an area other than a nonattainment area as of September 1, 2001.
22-42          (b)  Any facility described by Section 382.0518(g) that does
22-43    not have a permit or other authorization under this chapter, other
22-44    than a permit required under Section 382.054, may not emit air
22-45    contaminants on or after:
22-46                (1)  September 1, 2005, if the facility is located in
22-47    an area designated as nonattainment for a national ambient air
22-48    quality standard as of September 1, 2001; or
22-49                (2)  September 1, 2007, if the facility is located in
22-50    an area other than a nonattainment area as of September 1, 2001.
22-51          (c)  Facilities eligible for a permit under Section 382.05184
22-52    are not subject to this section.
22-53          Sec. 382.05182.  NOTICE OF SHUTDOWN. (a)  Any notice
22-54    submitted in compliance with this section must be filed with the
22-55    commission by the dates in Section 382.05181(a).
22-56          (b)  A notice under this section shall include:
22-57                (1)  the date the facility intends to cease operating;
22-58                (2)  an inventory of the type and amount of emissions
22-59    that will be eliminated when the facility ceases to operate; and
22-60                (3)  any other necessary and relevant information the
22-61    commission by rule deems appropriate.
22-62          Sec. 382.05183.  EXISTING FACILITY PERMIT. (a)  The owner or
22-63    operator of a facility described by Section 382.0518(g) may apply
22-64    for a permit to operate the facility under this section.
22-65          (b)  The commission shall grant a permit under this section
22-66    if, from the information available to the commission, including
22-67    information presented at any public hearing or through written
22-68    comment, the commission finds that the application demonstrates
22-69    compliance with:
 23-1                (1)  Section 382.003(9)(E)(ii) if the permit
 23-2    application is filed before September 1, 2002; or
 23-3                (2)  Section 382.0518(b) if the permit application is
 23-4    filed:
 23-5                      (A)  before September 1, 2003, if the facility is
 23-6    located in an area designated as nonattainment for national ambient
 23-7    air quality standards as of September 1, 2001; and
 23-8                      (B)  before September 1, 2005, if the facility is
 23-9    located in an area other than a nonattainment area as of September
23-10    1, 2001.
23-11          (c)  The commission may issue an existing facility flexible
23-12    permit for some or all of the facilities at a site described by
23-13    Section 382.0518(g) and facilities permitted under Section 382.0519
23-14    in order to implement the requirements of this section.  Permits
23-15    issued under this subsection shall follow the same permit issuance,
23-16    modification, and renewal procedures as existing facility permits.
23-17          (d)  If the commission finds that the emissions from the
23-18    facility will contravene the standards under Subsection (b) or the
23-19    intent of this chapter, including protection of the public's health
23-20    and physical property, the commission may not grant the permit
23-21    under this section.
23-22          (e)  A person planning the modification of a facility
23-23    previously permitted under this section must comply with Section
23-24    382.0518 before modifying.
23-25          (f)  The commission may adopt rules as necessary to implement
23-26    and administer this section.
23-27          (g)  A permit application under this section is subject to
23-28    notice and hearing requirements as provided by Section 382.05191.
23-29          (h)  If an applicant omits any relevant facts or submits
23-30    incorrect information in an application, the applicant shall submit
23-31    the relevant facts or correct the information no later than 60 days
23-32    after discovering the error.  If while processing the application,
23-33    the commission determines that additional information is necessary
23-34    to evaluate or to take final action on the application, the
23-35    commission may request the information and set a reasonable
23-36    deadline for a response.  Failure to comply with the deadline for
23-37    the response will result in the application being returned to the
23-38    applicant.
23-39          Sec. 382.05184.  SMALL BUSINESS STATIONARY SOURCE PERMIT. (a)
23-40    Facilities described by Section 382.0518(g) that are located at a
23-41    small business stationary source, as defined by Section
23-42    382.0365(h)(2), and are not required by commission rule to report
23-43    to the commission under Section 382.014 may apply for a permit
23-44    under this section before September 1, 2005.
23-45          (b)  Facilities described by Section 382.0518(g) that are
23-46    located at a small business stationary source that does not have an
23-47    application pending for a permit or other authorization under this
23-48    chapter, other than a permit required under Section 382.054, and
23-49    that has not submitted a notice of shutdown under Section
23-50    382.05182, may not emit air contaminants on or after September 1,
23-51    2007.
23-52          (c)  The commission shall grant a permit under this section
23-53    if, from the information available to the commission, including
23-54    information presented at any public hearing or through written
23-55    comment, the commission finds that there is no indication that the
23-56    emissions from the facility will contravene the intent of this
23-57    chapter, including protection of the public's health and physical
23-58    property.
23-59          (d)  If the commission finds that the emissions from the
23-60    facility will not comply with Subsection (c), the commission may
23-61    not grant the permit under this section.
23-62          (e)  A person planning the modification of a facility
23-63    previously permitted under this section must comply with Section
23-64    382.0518 before modifying.
23-65          (f)  The commission may adopt rules as necessary to implement
23-66    and administer this section.
23-67          (g)  If an applicant omits any relevant facts or submits
23-68    incorrect information in an application, the applicant shall submit
23-69    the relevant facts or correct the information no later than 60 days
 24-1    after discovering the error.  If while processing the application,
 24-2    the commission determines that additional information is necessary
 24-3    to evaluate or to take final action on the application, the
 24-4    commission may request the information and set a reasonable
 24-5    deadline for a response.  Failure to comply with the deadline for
 24-6    the response will result in the application being returned to the
 24-7    applicant.
 24-8          Sec.  382.05185.  ELECTRIC GENERATING FACILITY PERMIT. (a)
 24-9    An electric generating facility is considered permitted under this
24-10    section with respect to all air contaminants if the facility is:
24-11                (1)  a natural-gas-fired electric generating facility
24-12    that has applied for or obtained a permit under Section 39.264,
24-13    Utilities Code; or
24-14                (2)  an electric generating facility exempted from
24-15    permitting under Section 39.264(d), Utilities Code.
24-16          (b)  Electric generating facilities, including coal-fired
24-17    electric generating facilities, that are required to obtain a
24-18    permit under Section 39.264, Utilities Code, and are not described
24-19    by Subsection (a):
24-20                (1)  shall be considered permitted under this section
24-21    with respect to nitrogen oxides, sulphur dioxide, and, as provided
24-22    by commission rules, for opacity if the facility has applied for or
24-23    obtained a permit under Section 39.264, Utilities Code; and
24-24                (2)  are not considered permitted for criteria
24-25    pollutants not described by Subdivision (b)(1).
24-26          (c)  The commission shall issue a permit for a facility
24-27    subject to Subsection (b) for criteria pollutants not covered by
24-28    Subsection (b)(1) if the commission finds that the emissions from
24-29    the facility will not contravene the intent of this chapter,
24-30    including protection of the public's health and physical property.
24-31    Upon request by the applicant, the commission shall include a
24-32    permit application under this subsection with the applicant's
24-33    pending permit application under Section 39.264, Utilities Code.
24-34          (d)  The owner or operator of an electric generating facility
24-35    with a permit or an application pending under Section 39.264,
24-36    Utilities Code, may apply for a permit under this section before
24-37    September 1, 2002, for a facility located at the same site if the
24-38    facility not permitted or without a pending application under
24-39    Section 39.264, Utilities Code, is:
24-40                (1)  a generator that does not generate electric energy
24-41    for compensation and is used no more than 10 percent of the normal
24-42    annual operating schedule; or
24-43                (2)  an auxiliary fossil-fuel-fired combustion facility
24-44    that does not generate electric energy for compensation.
24-45          (e)  Nitrogen oxide emissions from facilities permitted under
24-46    Subsection (d) shall be included in the emission allowance trading
24-47    program established under Section 39.264, Utilities Code.  The
24-48    commission shall not issue new allowances based on a permit issued
24-49    under this section.
24-50          (f)  A person planning the modification of a facility
24-51    previously permitted under this section must comply with Section
24-52    382.0518 before modifying.
24-53          (g)  The commission may adopt rules as necessary to implement
24-54    and administer this section.
24-55          (h)  A permit application under this section is subject to
24-56    notice and hearing requirements as provided by Section 382.05191.
24-57          (i)  For purposes of this section, a natural-gas-fired
24-58    electric generating facility is one that was designed to burn
24-59    natural gas or fuel oil.  A natural-gas-fired electric generating
24-60    facility may burn fuel oil, provided that the emissions that occur
24-61    from the facility when it is burning fuel oil will not exceed any
24-62    applicable emissions limit in state or federal law.
24-63          Sec. 382.05186.  AUTHORIZATION FOR PIPELINE FACILITIES. (a)
24-64    The commission by rule shall establish the procedures for
24-65    applications for existing processing, treating, compression, or
24-66    pumping facilities described by Section 382.0518(g) connected to or
24-67    part of a gathering or transmission pipeline.
24-68          (b)  Based on a prioritization by the commission as necessary
24-69    to meet local, regional, and statewide air quality needs related
 25-1    directly or indirectly to federal air quality standards, the
 25-2    commission may require up to a 30 percent reduction of the hourly
 25-3    emission rate, in terms of grams per brake horsepower-hour, of
 25-4    nitrogen oxide and may also require up to a 30 percent reduction of
 25-5    the hourly emission rate, in terms of grams per brake
 25-6    horsepower-hour, of volatile organic compounds from reciprocating
 25-7    internal combustion engines subject to this section.  The
 25-8    commission may consider requiring up to a 30 percent reduction of
 25-9    the hourly emission rate of nitrogen oxide and may also consider
25-10    requiring up to a 20 percent reduction of the hourly emission rate
25-11    of volatile organic compounds from facilities other than
25-12    reciprocating internal combustion engines that are connected to or
25-13    part of a gathering or transmission pipeline.  The commission by
25-14    rule may designate counties or regions of the state where greater
25-15    reductions in the hourly emission rate will be required than in
25-16    other areas, but no more than 30 percent reductions in the hourly
25-17    rate may be required in any area.
25-18          (c)  The commission shall:
25-19                (1)  allow for a single permit for all facilities
25-20    connected to or part of a gathering or transmission pipeline;
25-21                (2)  allow for required reductions for facilities under
25-22    this section to be achieved at one facility or averaged among more
25-23    than one facility and located in the same local, regional, or
25-24    statewide areas designated by the commission under Subsection (b);
25-25                (3)  for purposes of emission averaging, allow emission
25-26    reductions achieved from facilities defined by Section 382.0518(g)
25-27    since September 1, 1997; and
25-28                (4)  allow an owner or operator to apply for separate
25-29    permits under this section for discrete and separate facilities
25-30    connected to or part of a gathering or transmission pipeline.
25-31          (d)  Facilities authorized by this section shall be
25-32    considered permitted under this chapter.
25-33          (e)  The commission shall issue a permit under this section
25-34    if the requirements of this section are met.
25-35          (f)  A person planning the modification of a facility
25-36    previously permitted under this section must comply with Section
25-37    382.0518 before modifying.
25-38          (g)  The commission may adopt rules as necessary to implement
25-39    and administer this section.
25-40          (h)  A permit application under this section is subject to
25-41    notice and hearing requirements as provided by Section 382.05191.
25-42          (i)  If an applicant omits any relevant facts or submits
25-43    incorrect information in an application, the applicant shall submit
25-44    the relevant facts or correct the information no later than 60 days
25-45    after discovering the error.  If while processing the application,
25-46    the commission determines that additional information is necessary
25-47    to evaluate or to take final action on the application, the
25-48    commission may request the information and set a reasonable
25-49    deadline for a response.  Failure to comply with the deadline for
25-50    the response will result in the application being returned to the
25-51    applicant.
25-52          SECTION 4.07. Section 382.05191, Health and Safety Code, is
25-53    amended to read as follows:
25-54          Sec. 382.05191.  [VOLUNTARY] EMISSIONS REDUCTION PERMITS
25-55    [PERMIT]: NOTICE AND HEARING. (a)  An applicant for a permit or
25-56    other authorization under Section 382.05183, Section 382.05185(c)
25-57    or (d), Section 382.05186, or Section 382.0519 shall publish notice
25-58    of intent to obtain the permit in accordance with Section 382.056.
25-59          (b)  The commission may authorize an applicant for a permit
25-60    for a facility that constitutes or is part of a small business
25-61    stationary source as defined in Section 382.0365(h)(2)
25-62    [382.0365(g)(2)] to provide notice using an alternative means if
25-63    the commission finds that the proposed method will result in equal
25-64    or better communication with the public, considering the
25-65    effectiveness of the notice in reaching potentially affected
25-66    persons, cost, and consistency with federal requirements.
25-67          (c)  The commission shall provide an opportunity for a public
25-68    hearing and the submission of public comment and send notice of a
25-69    decision on an application for a permit under Section 382.05183,
 26-1    Section 382.05185(c) or (d), Section 382.05186, or Section 382.0519
 26-2    in the same manner as provided by Sections 382.0561 and 382.0562.
 26-3          (d)  A person affected by a decision of the commission to
 26-4    issue or deny an [a voluntary] emissions reduction permit may move
 26-5    for rehearing and is entitled to judicial review under Section
 26-6    382.032.
 26-7          SECTION 4.08. Section 382.05192, Health and Safety Code, is
 26-8    amended to read as follows:
 26-9          Sec. 382.05192.  REVIEW AND RENEWAL OF [VOLUNTARY] EMISSIONS
26-10    REDUCTION [AND MULTIPLE PLANT] PERMITS. Review and renewal of a
26-11    permit issued or other authorization granted under Section
26-12    382.05183, Section 382.05184, Section 382.05185(c) or (d), Section
26-13    382.05186, Section 382.0519, or Section 382.05194 shall be
26-14    conducted in accordance with Section 382.055.
26-15          SECTION 4.09.  (a)  Section 382.056, Health and Safety Code,
26-16    is amended by amending Subsections (a) and (g) and adding
26-17    Subsections (q) and (r) to read as follows:
26-18          (a)  Except as provided by Section 382.0518(h), an [An]
26-19    applicant for a permit or permit amendment under Section 382.0518
26-20    or a permit renewal review under Section 382.055 shall publish
26-21    notice of intent to obtain the permit, permit amendment, or permit
26-22    review not later than the 30th day after the date the commission
26-23    determines the application to be administratively complete.  The
26-24    commission by rule shall require an applicant for a federal
26-25    operating permit under Section 382.054 to publish notice of intent
26-26    to obtain a permit, permit amendment, or permit review consistent
26-27    with federal requirements and with the requirements of Subsection
26-28    (b).  The applicant shall publish the notice at least once in a
26-29    newspaper of general circulation in the municipality in which the
26-30    facility or federal source is located or is proposed to be located
26-31    or in the municipality nearest to the location or proposed location
26-32    of the facility or federal source.  If the elementary or middle
26-33    school nearest to the facility or proposed facility provides a
26-34    bilingual education program as required by Subchapter B, Chapter
26-35    29, Education Code, the applicant shall also publish the notice at
26-36    least once in an additional publication of general circulation in
26-37    the municipality or county in which the facility is located or
26-38    proposed to be located that is published in the language taught in
26-39    the bilingual education program.  This requirement is waived if
26-40    such a publication does not exist or if the publisher refuses to
26-41    publish the notice.  The commission by rule shall prescribe the
26-42    form and content of the notice and when notice must be published.
26-43    The commission may require publication of additional notice.  The
26-44    commission by rule shall prescribe alternative procedures for
26-45    publication of the notice in a newspaper if the applicant is a
26-46    small business stationary source as defined by Section 382.0365 and
26-47    will not have a significant effect on air quality.  The alternative
26-48    procedures must be cost-effective while ensuring adequate notice.
26-49    Notice required to be published under this section shall only be
26-50    required to be published in the United States.
26-51          (g)  If, in response to the notice published under Subsection
26-52    (a)  for a permit or permit amendment under Section 382.0518 or a
26-53    permit renewal review under Section 382.055, a person requests
26-54    during the period provided by commission rule that the commission
26-55    hold a public hearing and the request is not withdrawn before the
26-56    date the preliminary decision is issued, the applicant shall
26-57    publish notice of the preliminary decision in a newspaper, and the
26-58    commission shall seek public comment on the preliminary decision.
26-59    The commission shall consider the request for public hearing under
26-60    the procedures provided by Subsections (i)-(n).  The commission may
26-61    not seek further public comment or hold a public hearing under the
26-62    procedures provided by Subsections (i)-(n) in response to a request
26-63    for a public hearing on an amendment, modification, or renewal that
26-64    would not result in an increase in allowable emissions and would
26-65    not result in the emission of an air contaminant not previously
26-66    emitted.
26-67          (q)  The department shall establish rules to ensure that a
26-68    permit applicant complies with the notice requirement under
26-69    Subsection (a).
 27-1          (r)  This section does not apply to:
 27-2                (1)  the relocation or change of location of a portable
 27-3    facility to a site where a facility permitted by the commission is
 27-4    located; or
 27-5                (2)  a facility located temporarily in the
 27-6    right-of-way, or contiguous to the right-of-way, of a public works
 27-7    project.
 27-8          (b)  The changes in law relating to permit amendments made by
 27-9    Section 382.056, Health and Safety Code, as amended by this
27-10    section, apply to an application for an amendment to a permit
27-11    issued by the Texas Natural Resource Conservation Commission for a
27-12    facility that may emit air contaminants that is:
27-13                (1)  pending before the commission on September 1,
27-14    2001; or
27-15                (2)  filed with the commission on or after September 1,
27-16    2001.
27-17          SECTION 4.10. Section 382.0621(d), Health and Safety Code, is
27-18    amended to read as follows:
27-19          (d)  Except as provided by this subsection [section], the
27-20    commission may not impose a fee for any amount of emissions of an
27-21    air contaminant regulated under the federal Clean Air Act
27-22    Amendments of 1990 (Pub.L. No. 101-549) in excess of 4,000 tons per
27-23    year from any source. The fees under this subsection do not apply
27-24    to a facility with a permit or a permit application pending under
27-25    Section 382.05185(c).  The fees under this subsection do not apply
27-26    to a facility for which a letter expressing intent to authorize
27-27    that facility is filed on or before September 1, 2002, or a permit
27-28    application is timely filed.  In the event that a letter of intent
27-29    is not filed, or if a letter of intent is filed but a permit
27-30    application is not subsequently timely filed, the fees due and
27-31    owing for such facility shall be deemed to have accrued since
27-32    September 1, 2001, in the amounts set forth in this subsection.  On
27-33    and after September 1, 2001, for a facility that is not subject to
27-34    the requirement to obtain a permit under Section 382.0518(g) that
27-35    does not have a permit application pending, the commission shall:
27-36                (1)  impose a fee under this section for all emissions,
27-37    including emissions in excess of 4,000 tons; [and]
27-38                (2)  double the amount of the fee imposed for all
27-39    emissions of 4,000 tons or less each fiscal year; and
27-40                (3)  treble the amount of the fee imposed for all
27-41    emissions in excess of 4,000 tons each fiscal year [treble the
27-42    amount of the fee imposed for emissions in excess of 4,000 tons
27-43    each fiscal year].
27-44          SECTION 4.11.  (a)  Subchapter L, Chapter 5, Water Code, is
27-45    amended by adding Section 5.5145 to read as follows:
27-46          Sec. 5.5145.  EMERGENCY ORDER CONCERNING OPERATION OF ROCK
27-47    CRUSHER OR CONCRETE PLANT WITHOUT PERMIT. The commission shall
27-48    issue an emergency order under this subchapter suspending
27-49    operations of a rock crusher or a concrete plant that performs wet
27-50    batching, dry batching, or central mixing and is required to obtain
27-51    a permit under Section 382.0518, Health and Safety Code, and is
27-52    operating without the necessary permit.
27-53          (b)  Section 7.052, Water Code, is amended by adding a new
27-54    Subsection (b), relettering existing Subsection (b) as Subsection
27-55    (c), and amending and relettering existing Subsection (c) as
27-56    Subsection (d) to read as follows:
27-57          (b)  The amount of the penalty for operating a rock crusher
27-58    or a concrete plant that performs wet batching, dry batching, or
27-59    central mixing, that is required to obtain a permit under Section
27-60    382.0518, Health and Safety Code, and that is operating without the
27-61    required permit is $10,000.  Each day that a continuing violation
27-62    occurs is a separate violation.
27-63          (c)  The amount of the penalty for all other violations
27-64    within the jurisdiction of the commission to enforce may not exceed
27-65    $10,000 a day for each violation.
27-66          (d)  Except as provided by Subsection (b), each [(c)  Each]
27-67    day that a continuing violation occurs may be considered a separate
27-68    violation.  The commission may authorize an installment payment
27-69    schedule for an administrative penalty assessed under this
 28-1    subchapter, except for an administrative penalty assessed under
 28-2    Section 7.057 or assessed after a hearing under Section 7.058.
 28-3          (c)  The changes in law made by Section 5.5145, Water Code,
 28-4    as added by this Act, and Section 7.052, Water Code, as amended by
 28-5    this Act, apply only to a violation that occurs on or after the
 28-6    effective date of this Act.  A violation that occurs before that
 28-7    date is governed by the law in effect at the time the violation
 28-8    occurred, and the former law is continued in effect for that
 28-9    purpose.
28-10      ARTICLE 5.  ACCREDITATION OF ENVIRONMENTAL TESTING LABORATORIES
28-11          SECTION 5.01. Chapter 421, Health and Safety Code, as added
28-12    by Chapter 447, Acts of the 76th Legislature, Regular Session,
28-13    1999, is transferred to Chapter 5, Water Code, redesignated as
28-14    Subchapter R, and amended to read as follows:
28-15               SUBCHAPTER R [CHAPTER 421].  ACCREDITATION OF
28-16                    ENVIRONMENTAL TESTING LABORATORIES
28-17          Sec. 5.801 [421.001].  DEFINITION [DEFINITIONS]. In this
28-18    subchapter, "environmental [chapter:]
28-19                [(1)  "Board" means the Texas Board of Health.]
28-20                [(2)  "Department" means the Texas Department of
28-21    Health.]
28-22                [(3)  "Environmental] testing laboratory" means a
28-23    scientific laboratory that[:]
28-24                      [(A)]  performs analyses to determine the
28-25    chemical, molecular, or pathogenic components of environmental
28-26    media [drinking water, wastewater, hazardous wastes, soil, or air]
28-27    for regulatory compliance purposes[; and]
28-28                      [(B)  is either a commercial laboratory or an
28-29    environmental laboratory that is required to be accredited under
28-30    federal law].
28-31          Sec. 5.802 [421.002].  ADMINISTRATION BY COMMISSION
28-32    [DEPARTMENT]. The commission [department] shall adopt rules for the
28-33    administration of [administer] the voluntary environmental testing
28-34    laboratory accreditation program established by this chapter.  The
28-35    program must be consistent with national accreditation standards
28-36    approved by the National Environmental Laboratory Accreditation
28-37    Program.
28-38          Sec. 5.803 [421.003].  APPLICATION; FEE. (a)  To be
28-39    accredited under the accreditation program adopted under this
28-40    subchapter [chapter], an environmental testing laboratory must
28-41    submit an application to the commission [department] on a form
28-42    prescribed by the commission [department], accompanied by the
28-43    accreditation fee. The application must contain the information
28-44    that the commission [department] requires.
28-45          (b)  The commission by rule  [board] shall establish a
28-46    schedule of reasonable [an] accreditation fees designed to recover
28-47    the costs of the accreditation program, including the costs
28-48    associated with:
28-49                (1)  application review;
28-50                (2)  initial, routine, and follow-up inspections by the
28-51    commission; and
28-52                (3)  preparation of reports [fee in an amount
28-53    sufficient to defray the cost of administering this chapter].
28-54          Sec. 5.804 [421.004].  ISSUANCE OF ACCREDITATION;
28-55    RECIPROCITY. (a)  The commission [department] may accredit an
28-56    environmental testing laboratory that complies with the commission
28-57    requirements established under this subchapter [chapter].
28-58          (b)  The commission [board] by rule may provide for the
28-59    accreditation of an environmental testing laboratory that is
28-60    accredited or licensed in [by] another state by an authority that
28-61    is approved by the National Environmental Laboratory Accreditation
28-62    Program.
28-63          Sec. 5.805 [421.005].  RULES; MINIMUM STANDARDS. The
28-64    commission [board] shall adopt rules to implement this subchapter
28-65    [chapter] and minimum performance and quality assurance standards
28-66    for accreditation of an environmental testing laboratory.
28-67          Sec. 5.806 [421.006].  DISCIPLINE. After notice and an
28-68    opportunity for hearing, the commission [department] may suspend or
28-69    revoke the accreditation of an environmental testing laboratory
 29-1    that does not comply with the minimum performance and quality
 29-2    assurance standards established under this subchapter [chapter].
 29-3          Sec. 5.807.  ENVIRONMENTAL TESTING LABORATORY ACCREDITATION
 29-4    ACCOUNT. All fees collected under this subchapter shall be
 29-5    deposited to the credit of the environmental testing laboratory
 29-6    accreditation account and may be appropriated to the commission
 29-7    only for paying the costs of the accreditation program.
 29-8         ARTICLE 6.  CERTIFICATION OF WATER TREATMENT SPECIALISTS
 29-9          SECTION 6.01. Section 3A, The Plumbing License Law (Article
29-10    6243-101, Vernon's Texas Civil Statutes), is amended to read as
29-11    follows:
29-12          Sec. 3A.  CERTIFICATION RELATING TO RESIDENTIAL WATER
29-13    TREATMENT FACILITIES. (a)  The Texas Natural Resource Conservation
29-14    Commission [Commissioner of Health or his designee] shall certify
29-15    persons as being qualified for the installation, exchange,
29-16    servicing, and repair of residential water treatment facilities [as
29-17    defined by Subsection (g) of Section 2 of this Act].  The Texas
29-18    Natural Resource Conservation Commission [Board of Health] shall
29-19    set standards for certification to ensure the public health and to
29-20    protect the public from unqualified persons engaging in activities
29-21    relating to water treatment.  Nothing in this section shall be
29-22    construed to require that persons licensed pursuant to this Act are
29-23    subject to certification under this section.
29-24          (b)  Before a certificate is issued or renewed under this
29-25    section, an applicant or holder of a certificate shall be required
29-26    to pay a fee of $10 a year.  On receipt of the required fee, the
29-27    Texas Natural Resource Conservation Commission [Department of
29-28    Health] shall issue to a qualified person a certificate stating
29-29    that the person is qualified for the installation, exchange,
29-30    servicing, and repair of residential water treatment facilities.
29-31    The Texas Natural Resource Conservation Commission [Board of
29-32    Health] shall adopt rules establishing classes of certificates,
29-33    duration of certificates, and fees.
29-34          (c)  All fees received by the Texas Natural Resource
29-35    Conservation Commission [Department of Health] under this section
29-36    shall be deposited in the State Treasury to the credit of the
29-37    General Revenue Fund.
29-38            ARTICLE 7.  REGISTRATION OF IRRIGATORS AND ON-SITE
29-39                     SEWAGE DISPOSAL SYSTEM INSTALLERS
29-40          SECTION 7.01. Section 34.008(a), Water Code, is amended to
29-41    read as follows:
29-42          (a)  The commission may waive any prerequisite [certify] for
29-43    obtaining registration for [without examination] an applicant who
29-44    is registered as a licensed irrigator or licensed installer by [in]
29-45    another jurisdiction with which this state has a reciprocity
29-46    agreement.  The commission may make an agreement, subject to the
29-47    approval of the governor, with another state to allow for
29-48    registration by reciprocity [state or country that has requirements
29-49    for registration that are at least substantially equivalent to the
29-50    requirements of this state and that extends the same privilege of
29-51    reciprocity to licensed irrigators or licensed installers
29-52    registered in this state].
29-53          SECTION 7.02. Section 34.009(f), Water Code, is amended to
29-54    read as follows:
29-55          (f)  The commission by rule may adopt a system under which
29-56    certificates of registration expire on various dates during the
29-57    year.  For the year in which the expiration date is changed, the
29-58    commission shall prorate registration [renewal] fees [payable on
29-59    August 31 shall be prorated] on a monthly basis so that each
29-60    registrant pays [will pay] only that portion of the registration
29-61    fee that is allocable to the number of months during which the
29-62    registration is valid.  On renewal of the registration on the new
29-63    expiration date, the total registration renewal fee is due.
29-64          SECTION 7.03. Section 366.076, Health and Safety Code, is
29-65    amended to read as follows:
29-66          Sec. 366.076.  REGISTRATION RENEWAL. The commission by rule
29-67    may adopt a system under which registrations expire on various
29-68    dates during the year.  For each year in which the registration
29-69    expiration date is changed, the commission shall prorate
 30-1    registration fees on a monthly basis so that each registrant pays
 30-2    only that portion of the registration fee that is allocable to the
 30-3    number of months during which the registration is valid.  On
 30-4    renewal of the registration on the new expiration date, the total
 30-5    registration renewal fee is payable [provide for periodic renewal
 30-6    of registrations].
 30-7                   ARTICLE 8.  REGULATION OF SOLID WASTE
 30-8          SECTION 8.01.  Subchapter C, Chapter 361, Health and Safety
 30-9    Code, is amended by adding Section 361.1125 to read as follows:
30-10          Sec. 361.1125.  IMMEDIATE REMEDIATION OR REMOVAL OF HAZARDOUS
30-11    SUBSTANCE AT SCRAP TIRE SITE. (a)  In this section:
30-12                (1)  "Scrap tire" has the meaning assigned by Section
30-13    361.112.
30-14                (2)  "Scrap tire site" includes any site at which more
30-15    than 500 scrap tires are located.
30-16          (b)  If the executive director after investigation finds that
30-17    there exists a release or threat of release of a hazardous
30-18    substance at a scrap tire site and immediate action is appropriate
30-19    to protect human health and the environment, the commission may,
30-20    with money available from money appropriated to the commission,
30-21    undertake immediate remedial or removal action at the scrap tire
30-22    site to achieve the necessary protection.
30-23          (c)  The reasonable expenses of immediate remedial or removal
30-24    action by the commission under this section are recoverable from
30-25    the persons described in Section 361.271, and the state may bring
30-26    an action to recover the commission's reasonable expenses.
30-27          SECTION 8.02. Subchapter C, Chapter 361, Health and Safety
30-28    Code, is amended by adding Section 361.119 to read as follows:
30-29          Sec. 361.119.  REGULATION OF CERTAIN FACILITIES AS SOLID
30-30    WASTE FACILITIES. (a)  The commission by rule shall ensure that a
30-31    solid waste processing facility is regulated as a solid waste
30-32    facility under this chapter and is not allowed to operate
30-33    unregulated as a recycling facility.
30-34          (b)  A facility and the operations conducted and materials
30-35    handled at the facility are not subject to regulation under rules
30-36    adopted under this section if the owner or operator of the facility
30-37    demonstrates that:
30-38                (1)  the primary function of the facility is to process
30-39    materials that have a resale value greater than the cost of
30-40    processing the materials for subsequent beneficial use; and
30-41                (2)  all the solid waste generated from processing the
30-42    materials is disposed of in a solid waste facility authorized under
30-43    this chapter, with the exception of small amounts of solid waste
30-44    that may be inadvertently and unintentionally disposed of in
30-45    another manner.
30-46          SECTION 8.03.  Subchapter C, Chapter 361, Health and Safety
30-47    Code, is amended by adding Section 361.120 to read as follows:
30-48          Sec. 361.120.  NOTICE OF HEARING AND REQUIREMENTS FOR
30-49    REOPENING OF CLOSED OR INACTIVE LANDFILLS. (a)  This section
30-50    applies to any municipal solid waste landfill facility permitted by
30-51    the commission or any of its predecessor or successor agencies that
30-52    have either stopped accepting waste, or only accepted waste
30-53    pursuant to an emergency authorization, for a period of five years
30-54    or longer.  This section shall not apply to any solid waste
30-55    landfill facility that has received a permit but never received
30-56    waste.
30-57          (b)  The commission or its successor agencies shall allow any
30-58    municipal solid waste landfill facility covered by this section to
30-59    be reopened and to accept waste again only if the permittee
30-60    demonstrates compliance with all current state, federal, and local
30-61    requirements, including but not limited to the requirements of
30-62    Subtitle D of the federal Resource Conservation and Recovery Act of
30-63    1976 (42 U.S.C. Section 6901 et seq.) and the implementing Texas
30-64    State regulations.
30-65          (c)  Except as provided in Subsection (d), the reopening of
30-66    any such facility shall be considered a major amendment as such is
30-67    defined by commission rules and shall subject the permittee to all
30-68    of the procedural and substantive obligations imposed by the rules
30-69    applicable to major amendments.
 31-1          (d)  This section shall not apply to any municipal solid
 31-2    waste landfill facility that has received an approved modification
 31-3    to its permit as of the effective date of this section.
 31-4          SECTION 8.04. Subchapter F, Chapter 361, Health and Safety
 31-5    Code, is amended by adding Section 361.1875 to read as follows:
 31-6          Sec. 361.1875.  EXCLUSION OF CERTAIN POTENTIALLY RESPONSIBLE
 31-7    PARTIES. The commission may not name a person as a responsible
 31-8    party for an enforcement action or require a person to reimburse
 31-9    remediation costs for a site if the commission has conducted an
31-10    investigation of a site owned or operated by the person and as a
31-11    result of the investigation has determined that:
31-12                (1)  the contaminants that are the subject of
31-13    investigation under this subchapter appear to originate from an
31-14    up-gradient, off-site source that is not owned or operated by the
31-15    person;
31-16                (2)  additional corrective action is not required at
31-17    the site owned or operated by the person; and
31-18                (3)  the commission will not undertake a formal
31-19    enforcement action in the matter.
31-20          SECTION 8.05. (a)  Subchapter C, Chapter 361, Health and
31-21    Safety Code, is amended by adding Section 361.121 to read as
31-22    follows:
31-23          Sec. 361.121.  LAND APPLICATION OF CERTAIN SLUDGE; PERMIT
31-24    REQUIRED. (a)  In this section:
31-25                (1)  "Class B sludge" is sewage sludge that meets one
31-26    of the pathogen reduction requirements of 30 T.A.C. 312.82(b).
31-27                (2)  "Land application unit" means an area where wastes
31-28    are applied onto or incorporated into the soil surface for
31-29    agricultural purposes or for treatment and disposal.  The term does
31-30    not include manure spreading operations.
31-31          (b)  A person may not apply Class B sludge on a land
31-32    application unit without a permit issued by the commission under
31-33    this section.
31-34          (c)  The commission shall provide for notice and the
31-35    opportunity for a public hearing on an application or renewal for a
31-36    permit under this section in accordance with Subchapter M, Chapter
31-37    5, Water Code, as added by Chapter 1350, Acts of the 76th
31-38    Legislature, Regular Session, 1999.
31-39          (d)  In each permit, the commission shall prescribe the
31-40    conditions under which it is issued, including:
31-41                (1)  the duration of the permit;
31-42                (2)  the location of the land application unit;
31-43                (3)  the maximum quantity of Class B sludge that may be
31-44    applied or disposed of under the permit;
31-45                (4)  any monitoring and reporting requirements
31-46    prescribed by the commission for the permit holder; and
31-47                (5)  a requirement that the permit holder must report
31-48    to the commission any noncompliance by the permit holder with the
31-49    permit conditions or applicable commission rules.
31-50          (e)  A permit does not become a vested right in the permit
31-51    holder.
31-52          (f)  A permit may be issued under this section for a term set
31-53    by the board not to exceed six years from the date of issuance.
31-54          (g)  The commission shall charge a fee for the issuance of a
31-55    permit under this section in an amount not less than $1,000 and not
31-56    more than $5,000.  In determining the fee under this subsection,
31-57    the commission shall consider the amount of sludge to be applied
31-58    under the permit.
31-59          (h)  The commission by rule shall require an applicant for a
31-60    permit under this section to submit with the application, at a
31-61    minimum, information regarding:
31-62                (1)  the applicant;
31-63                (2)  the source, quality, and quantity of sludge to be
31-64    applied; and
31-65                (3)  the hydrologic characteristics of the surface
31-66    water and groundwater at and within one-quarter of a mile of the
31-67    land application unit.
31-68          (i)  The commission may expand the definition of Class B
31-69    sludge only by expanding the definition to include sludge that
 32-1    meets more stringent pathogen reduction requirements.
 32-2          (b)  Subsection (a) of this section takes effect September 1,
 32-3    2001, and applies only to Class B sludge, as defined by Section
 32-4    361.121(a), Health and Safety Code, as added by this Act, applied
 32-5    to or disposed of on a land application unit, as defined by Section
 32-6    361.121(a), Health and Safety Code, as added by this Act, on or
 32-7    after that date.  Class B sludge applied or disposed of before the
 32-8    effective date of this Act is covered by the law in effect on the
 32-9    date the sludge was applied, and the former law is continued in
32-10    effect for that purpose.
32-11          SECTION 8.06. Subchapter N, Chapter 361, Health and Safety
32-12    Code, is amended by adding Section 361.431 to read as follows:
32-13          Sec. 361.431.  PRIORITIZATION OF NEW TECHNOLOGY. (a)  A
32-14    political subdivision or solid waste producer shall give preference
32-15    in contracting for the disposal of solid waste to license or permit
32-16    holders who use processes and technologies that reduce the volume
32-17    of sludge and hazardous waste that is being disposed of through
32-18    beneficial use land application, landfill disposal, and other
32-19    methods.
32-20          (b)  Technology that reduces the volume of solid waste,
32-21    destroys the solid waste, or renders the solid waste inert is
32-22    preferred to methods referred to under Subsection (a), to minimize
32-23    the possibility of hazardous materials entering the state's air,
32-24    waterways, and water sources.
32-25          SECTION 8.07. Subchapter H, Chapter 801, Occupations Code, is
32-26    amended by adding Section 801.361 to read as follows:
32-27          Sec. 801.361.  DISPOSAL OF ANIMAL REMAINS. (a)  A
32-28    veterinarian may dispose of the remains of an animal by burial or
32-29    burning if:
32-30                (1)  the burial or burning occurs on property owned by
32-31    the veterinarian; and
32-32                (2)  the veterinarian does not charge for the burning
32-33    or burial.
32-34          (b)  Notwithstanding any other law, the Texas Natural
32-35    Resource Conservation Commission may not adopt a rule that
32-36    prohibits conduct authorized by this section.
32-37          (c)  This section applies only in a county with a population
32-38    of less than 10,000.
32-39                        ARTICLE 9.  EDWARDS AQUIFER
32-40          SECTION 9.01. As used in this article, "Edwards Aquifer" has
32-41    the meaning defined in Section 26.046, Water Code.
32-42          SECTION 9.02. Subchapter B, Chapter 26, Water Code, is
32-43    amended by adding Section 26.050 to read as follows:
32-44          Sec. 26.050. The commission shall make available to the
32-45    public digital copies of the Recharge, Transition, and Contributing
32-46    Zone boundary lines, when they become available.
32-47          SECTION 9.03. Subchapter B, Chapter 26, Water Code, is
32-48    amended by adding Section 26.051 to read as follows:
32-49          Sec. 26.051. The commission shall report annually on the
32-50    Edwards Aquifer Program expenses and allocation of fees.
32-51          SECTION 9.04.  Subchapter D, Chapter 26, Water Code, is
32-52    amended by adding Section 26.137 to read as follows:
32-53          Sec. 26.137. The commission shall provide for a 30-day
32-54    comment period in the review process for Edwards Aquifer Protection
32-55    Plans in the Contributing Zone of the Edwards Aquifer as provided
32-56    in 30 T.A.C. Section 213.4(a)(2).
32-57                    ARTICLE 10.  REGULATION OF CERTAIN
32-58                         ANIMAL FEEDING OPERATIONS
32-59          SECTION 10.01. Section 26.001, Water Code, is amended by
32-60    amending Subdivisions (10) and (13) to read as follows:
32-61                (10)  "Agricultural waste" means waterborne liquid,
32-62    gaseous, or solid substances that arise from the agricultural
32-63    industry and agricultural activities, including without limitation
32-64    agricultural animal feeding pens and lots, structures for housing
32-65    and feeding agricultural animals, and processing facilities for
32-66    agricultural products.  The term:
32-67                      (A)  includes tail water or runoff water from
32-68    irrigation or rainwater runoff from an animal feeding operation or
32-69    concentrated animal feeding operation that is located in a major
 33-1    sole source impairment zone, as defined by Section 26.502; and
 33-2                      (B)  ["agricultural waste"] does not include tail
 33-3    water or runoff water from irrigation or rainwater runoff from
 33-4    other cultivated or uncultivated range land, pasture land, and
 33-5    farmland.
 33-6                (13)  "Pollutant" means dredged spoil, solid waste,
 33-7    incinerator residue, sewage, garbage, sewage sludge, filter
 33-8    backwash, munitions, chemical wastes, biological materials,
 33-9    radioactive materials, heat, wrecked or discarded equipment, rock,
33-10    sand, cellar dirt, and industrial, municipal, and agricultural
33-11    waste discharged into any water in the state.  The term:
33-12                      (A)  includes tail water or runoff water from
33-13    irrigation or rainwater runoff from an animal feeding operation or
33-14    concentrated animal feeding operation that is located in a major
33-15    sole source impairment zone, as defined by Section 26.502; and
33-16                      (B)  ["pollutant"] does not include tail water or
33-17    runoff water from irrigation or rainwater runoff from cultivated or
33-18    uncultivated rangeland, pastureland, and farmland.
33-19          SECTION 10.02. Chapter 26, Water Code, is amended by adding
33-20    Subchapter L to read as follows:
33-21              SUBCHAPTER L.  PROTECTION OF CERTAIN WATERSHEDS
33-22          Sec. 26.501.  DEFINITIONS. In this subchapter:
33-23                (1)  "Concentrated animal feeding operation" has the
33-24    meaning assigned by 30 T.A.C. Section 321.32 on the effective date
33-25    of this subchapter.
33-26                (2)  "New concentrated animal feeding operation" means
33-27    a proposed concentrated animal feeding operation, any part of which
33-28    is located on property not previously authorized by the state to be
33-29    operated as a concentrated animal feeding operation.
33-30                (3)  "Historical waste application field" means an area
33-31    of land that at any time since January 1, 1995, has been owned or
33-32    controlled by an operator of a concentrated animal feeding
33-33    operation on which agricultural waste from a concentrated animal
33-34    feeding operation has been applied.
33-35          Sec. 26.502.  APPLICABILITY. This subchapter applies only in
33-36    a major sole source impairment zone.  In this subchapter, "major
33-37    sole source impairment zone" means a watershed that contains a
33-38    reservoir:
33-39                (1)  that is used by a municipality as a sole source of
33-40    drinking water supply for a population, inside and outside of its
33-41    municipal boundaries, of more than 140,000; and
33-42                (2)  at least half of the water flowing into which is
33-43    from a source that, on the effective date of this subchapter, is on
33-44    the list of impaired state waters adopted by the commission as
33-45    required by 33 U.S.C. Section 1313(d), as amended:
33-46                      (A)  at least in part because of concerns
33-47    regarding pathogens and phosphorus; and
33-48                      (B)  for which the commission, at some time, has
33-49    prepared and submitted a total maximum daily load standard.
33-50          Sec. 26.503.  REGULATION OF CERTAIN CONCENTRATED ANIMAL
33-51    FEEDING OPERATION WASTES. (a)  The commission may authorize the
33-52    construction or operation of a new concentrated animal feeding
33-53    operation, or an increase in number of the animals confined under
33-54    an existing operation, only by a new or amended individual permit.
33-55          (b)  The individual permit issued or amended under Subsection
33-56    (a) must:
33-57                (1)  provide for management and disposal of waste in
33-58    accordance with Subchapter B, Chapter 321, Title 30, Texas
33-59    Administrative Code;
33-60                (2)  require that 100 percent of the collectible manure
33-61    produced by the additional animals in confinement at an expanded
33-62    operation or all of the animals in confinement at a new operation
33-63    must be:
33-64                      (A)  disposed of or used outside of the
33-65    watershed;
33-66                      (B)  delivered to a composting facility approved
33-67    by the executive director;
33-68                      (C)  applied as directed by the commission to a
33-69    waste application field owned or controlled by the owner of the
 34-1    concentrated animal feeding operation, if the field is not a
 34-2    historical waste application field;
 34-3                      (D)  put to another beneficial use approved by
 34-4    the executive director, including delivery to a third party for use
 34-5    or disposal; or
 34-6                      (E)  applied to a historical waste application
 34-7    field that is owned or operated by the owner or operator of the
 34-8    concentrated animal feeding operation only if:
 34-9                            (i)  results of representative composite
34-10    soil sampling conducted at the waste application field and filed
34-11    with the commission show that the waste application field contains
34-12    200 or fewer parts per million of extractable phosphorus (reported
34-13    as P); or
34-14                            (ii)  the manure is applied, with
34-15    commission approval, in accordance with a detailed nutrient
34-16    utilization plan approved by the commission that is developed by:
34-17                                  (a)  an employee of the United States
34-18    Department of Agriculture's Natural Resources Conservation Service;
34-19                                  (b)  a nutrient management specialist
34-20    certified by the United States Department of Agriculture's Natural
34-21    Resources Conservation Service;
34-22                                  (c)  the State Soil and Water
34-23    Conservation Board;
34-24                                  (d)  the Texas Agricultural Extension
34-25    Service;
34-26                                  (e)  an agronomist or soil scientist
34-27    on the full-time staff of an accredited university located in this
34-28    state; or
34-29                                  (f)  a professional agronomist or
34-30    soil scientist certified by the American Society of Agronomy.
34-31          (c)  The commission may approve a detailed nutrient
34-32    utilization plan approved by the commission that is developed by a
34-33    professional agronomist or soil scientist certified by the American
34-34    Society of Agronomy only if the commission finds that another
34-35    person listed by Subsection (b)(2)(E)(ii) cannot develop a plan in
34-36    a timely manner.
34-37          (d)  The commission may not issue a general permit to
34-38    authorize the discharge of agricultural waste into or adjacent to
34-39    waters in this state from an animal feeding operation if such
34-40    waters are within a major sole source impairment zone.
34-41          (e)  The commission and employees or agents of the commission
34-42    may enter public or private property at any reasonable time for
34-43    activities related to the purposes of this subchapter.  The
34-44    commission may enforce this authority as provided by Section 7.032,
34-45    7.051, 7.052, or 7.105.
34-46          (f)  This section does not limit the commission's authority
34-47    to include in an individual or general permit under this chapter
34-48    provisions necessary to protect a water resource in this state.
34-49          Sec. 26.504.  WASTE APPLICATION FIELD SOIL SAMPLING AND
34-50    TESTING. (a)  The operator of a concentrated animal feeding
34-51    operation shall contract with a person described by Section
34-52    26.503(b)(2)(E)(ii) selected by the executive director to collect
34-53    one or more representative composite soil samples from each waste
34-54    application field.  The operator shall have sampling performed
34-55    under this subsection not less often than once every 12 months.
34-56          (b)  Each sample collected under this section must be tested
34-57    for phosphorus and any other nutrient designated by the executive
34-58    director.  The test results must be made available to the executive
34-59    director and the operator of the concentrated animal feeding
34-60    operation.  The test results are public records of the commission.
34-61          (c)  If the samples tested under Subsection (b) show a
34-62    phosphorus level in the soil of more than 500 parts per million,
34-63    the operator shall file with the commission a new or amended
34-64    nutrient utilization plan with a phosphorus reduction component
34-65    that is certified as acceptable by a person listed by Section
34-66    26.503(b)(2)(E)(ii).
34-67          (d)  If the samples tested under Subsection (b) show a
34-68    phosphorus level in the soil of more than 200 parts per million but
34-69    not more than 500 parts per million, the operator shall:
 35-1                (1)  file with the commission a new or amended nutrient
 35-2    utilization plan with a phosphorus reduction component that is
 35-3    certified as acceptable by a person listed by Section
 35-4    26.503(b)(2)(E)(ii); or
 35-5                (2)  show that the level is supported by a nutrient
 35-6    utilization plan certified as acceptable by a person listed by
 35-7    Section 26.503(b)(2)(E)(ii).
 35-8          (e)  The owner or operator of a waste application field
 35-9    required by this section to have a nutrient utilization plan with a
35-10    phosphorus reduction component for which the results of tests
35-11    performed on composite soil samples collected 12 months or more
35-12    after the plan is filed do not show a reduction in phosphorus is
35-13    subject to enforcement for a violation of this subchapter at the
35-14    discretion of the executive director.  The executive director, in
35-15    determining whether to take an enforcement action under this
35-16    subsection, shall consider any explanation presented by the owner
35-17    or operator regarding the reasons for the lack of phosphorus
35-18    reduction, including an act of God, meteorologic conditions,
35-19    diseases, vermin, crop conditions, or variability of soil testing
35-20    results.
35-21          (f)  The commission shall adopt rules to implement this
35-22    section.  The rules must provide for the scheduling and manner of
35-23    the required soil testing and the form, content, and deadlines for
35-24    plans required under this section.
35-25           ARTICLE 11.  CONTAINMENT SYSTEMS REQUIRED FOR CERTAIN
35-26                         UNDERGROUND STORAGE TANKS
35-27          SECTION 11.01. Subchapter I, Chapter 26, Water Code, is
35-28    amended by adding Section 26.3476 to read as follows:
35-29          Sec. 26.3476.  SECONDARY CONTAINMENT REQUIRED FOR TANKS
35-30    LOCATED OVER CERTAIN AQUIFERS. (a)  In this section, "secondary
35-31    containment" means a method by which a secondary wall or barrier is
35-32    installed around an underground storage tank system in a manner
35-33    designed to prevent a release of a regulated substance from
35-34    migrating beyond the secondary wall or barrier before the release
35-35    can be detected.  A secondary containment system may include an
35-36    impervious liner or vault surrounding a primary tank or piping
35-37    system or a double-wall tank or piping system.
35-38          (b)  An underground storage tank system, at a minimum, shall
35-39    incorporate a method for secondary containment if the system is
35-40    located in:
35-41                (1)  the outcrop of a major aquifer composed of
35-42    limestone and associated carbonate rocks of Cretaceous age or
35-43    older; and
35-44                (2)  a county that:
35-45                      (A)  has a population of at least one million and
35-46    relies on groundwater for at least 75 percent of the county's water
35-47    supply; or
35-48                      (B)  has a population of at least 75,000 and is
35-49    adjacent to a county described by Paragraph (A).
35-50          (c)  Section 26.3475(e) applies to an underground storage
35-51    tank system that is subject to this section as if a violation of
35-52    this section were a violation of Section 26.3475.
35-53        ARTICLE 12.  REGULATION AND REMEDIATION OF UNDERGROUND AND
35-54                         ABOVEGROUND STORAGE TANKS
35-55          SECTION 12.01. Section 26.342, Water Code, is amended by
35-56    amending Subdivisions (9)-(17) and adding Subdivision (18) to read
35-57    as follows:
35-58                (9)  "Owner" means a person who holds legal possession
35-59    or ownership of an interest in an underground storage tank system
35-60    or an aboveground storage tank.  If the actual ownership of an
35-61    underground storage tank system or an aboveground storage tank is
35-62    uncertain, unknown, or in dispute, the fee simple owner of the
35-63    surface estate of the tract on which the tank system is located is
35-64    considered the owner of the system unless that person can
35-65    demonstrate by appropriate documentation, including a deed
35-66    reservation, invoice, or bill of sale, or by other legally
35-67    acceptable means that the underground storage tank system or
35-68    aboveground storage tank is owned by another person.  A person that
35-69    has registered as an owner of an underground storage tank system or
 36-1    aboveground storage tank with the commission under Section 26.346
 36-2    after September 1, 1987, shall be considered the tank system owner
 36-3    until such time as documentation demonstrates to the executive
 36-4    director's satisfaction that the legal interest in the tank system
 36-5    was transferred to a different person subsequent to the date of the
 36-6    tank registration.  This definition is subject to the limitations
 36-7    found in Section 26.3514 (Limits on Liability of Lender), Section
 36-8    26.3515 (Limits on Liability of Corporate Fiduciary), and Section
 36-9    26.3516 (Limits on Liability of Taxing Unit).
36-10                (10)  "Person" means an individual, trust, firm,
36-11    joint-stock company, corporation, government corporation,
36-12    partnership, association, state, municipality, commission,
36-13    political subdivision of a state, an interstate body, a consortium,
36-14    joint venture, commercial entity, or the United States government.
36-15                (11) [(10)]  "Petroleum product" means a petroleum
36-16    product that is obtained from distilling and processing crude oil
36-17    and that is capable of being used as a fuel for the propulsion of a
36-18    motor vehicle or aircraft, including motor gasoline, gasohol, other
36-19    alcohol blended fuels, aviation gasoline, kerosene, distillate fuel
36-20    oil, and #1 and #2 diesel.  The term does not include naphtha-type
36-21    jet fuel, kerosene-type jet fuel, or a petroleum product destined
36-22    for use in chemical manufacturing or feedstock of that
36-23    manufacturing.
36-24                (12) [(11)]  "Petroleum storage tank" means:
36-25                      (A)  any one or combination of aboveground
36-26    storage tanks that contain petroleum products and that are
36-27    regulated by the commission; or
36-28                      (B)  any one or combination of underground
36-29    storage tanks and any connecting underground pipes that contain
36-30    petroleum products and that are regulated by the commission.
36-31                (13) [(12)]  "Regulated substance" means an element,
36-32    compound, mixture, solution, or substance that, when released into
36-33    the environment, may present substantial danger to the public
36-34    health, welfare, or the environment.
36-35                (14) [(13)]  "Release" means any spilling including
36-36    overfills, leaking, emitting, discharging, escaping, leaching, or
36-37    disposing from an underground or aboveground storage tank into
36-38    groundwater, surface water, or subsurface soils.
36-39                (15) [(14)]  "Risk-based corrective action" means site
36-40    assessment or site remediation, the timing, type, and degree of
36-41    which is determined according to case-by-case consideration of
36-42    actual or potential risk to public health from environmental
36-43    exposure to a regulated substance released from a leaking
36-44    underground or aboveground storage tank.
36-45                (16) [(15)]  "Spent oil" means a regulated substance
36-46    that is a lubricating oil or similar petroleum substance which has
36-47    been refined from crude oil, used for its designed or intended
36-48    purposes, and contaminated as a result of that use by physical or
36-49    chemical impurities, including spent motor vehicle lubricating
36-50    oils, transmission fluid, or brake fluid.
36-51                (17) [(16)]  "Underground storage tank" means any one
36-52    or combination of underground tanks and any connecting underground
36-53    pipes used to contain an accumulation of regulated substances, the
36-54    volume of which, including the volume of the connecting underground
36-55    pipes, is 10 percent or more beneath the surface of the ground.
36-56                (18) [(17)]  "Vehicle service and fueling facility"
36-57    means a facility where motor vehicles are serviced or repaired and
36-58    where petroleum products are stored and dispensed from fixed
36-59    equipment into the fuel tanks of motor vehicles.
36-60          SECTION 12.02. Sections 26.346(a) and (c), Water Code, are
36-61    amended to read as follows:
36-62          (a)  An underground or aboveground storage tank must be
36-63    registered with the commission unless the tank is exempt from
36-64    regulation under Section 26.344 of this code or the tank is covered
36-65    under Subsection (b) of this section.  The commission by rule shall
36-66    establish the procedures and requirements for establishing and
36-67    maintaining current registration information concerning underground
36-68    and aboveground storage tanks.  The commission shall also require
36-69    that an owner or operator of an underground storage tank used for
 37-1    storing motor fuels (as defined in commission rule) complete an
 37-2    annual underground storage tank compliance certification form.
 37-3          (c)  The commission shall issue to each person who owns or
 37-4    operates a petroleum storage tank that is registered under this
 37-5    section a registration and compliance confirmation certificate that
 37-6    includes a brief description of:
 37-7                (1)  the responsibility of the owner or operator under
 37-8    Section 26.3512 of this code;
 37-9                (2)  the rights of the owner or operator to participate
37-10    in the petroleum storage tank remediation account and the
37-11    groundwater protection cleanup program established under this
37-12    subchapter; and
37-13                (3)  the responsibility of the owner or operator of an
37-14    underground storage tank to accurately complete the part of the
37-15    registration form pertaining to the certification of compliance
37-16    with underground storage tank administrative requirements and
37-17    technical standards if the tank is used for storing motor fuels (as
37-18    defined in commission rule).
37-19          SECTION 12.03. Section 26.351, Water Code, is amended by
37-20    adding Subsections (f), (g), and (h) to read as follows:
37-21          (f)  The person performing corrective action under this
37-22    section, if the release was reported to the commission on or before
37-23    December 22, 1998, shall meet the following deadlines:
37-24                (1)  a complete site assessment and risk assessment
37-25    (including, but not limited to, risk-based criteria for
37-26    establishing target concentrations), as determined by the executive
37-27    director, must be received by the agency no later than September 1,
37-28    2002;
37-29                (2)  a complete Corrective Action Plan, as determined
37-30    by the executive director and including, but not limited to,
37-31    completion of pilot studies and recommendation of a cost-effective
37-32    and technically appropriate remediation methodology, must be
37-33    received by the agency no later than September 1, 2003.  The person
37-34    may, in lieu of this requirement, submit by this same deadline a
37-35    demonstration that a Corrective Action Plan is not required for the
37-36    site in question under commission rules.  Such demonstration must
37-37    be to the executive director's satisfaction;
37-38                (3)  for those sites found under Subdivision (2) to
37-39    require a Corrective Action Plan, that plan must be initiated and
37-40    proceeding according to the requirements and deadlines in the
37-41    approved plan no later than March 1, 2004;
37-42                (4)  for sites which require either a Corrective Action
37-43    Plan or groundwater monitoring, a comprehensive and accurate annual
37-44    status report concerning those activities must be submitted to the
37-45    agency;
37-46                (5)  for sites which require either a Corrective Action
37-47    Plan or groundwater monitoring, all deadlines set by the executive
37-48    director concerning the Corrective Action Plan or approved
37-49    groundwater monitoring plan shall be met; and
37-50                (6)  site closure requests for all sites where the
37-51    executive director agreed in writing that no Corrective Action Plan
37-52    was required must be received by the agency no later than September
37-53    1, 2005.  The request must be complete, as judged by the executive
37-54    director.
37-55          (g)  For persons regulated under Subsection (f), their
37-56    failure to comply with any deadline listed in Subsection (f) is a
37-57    violation of this section, and the executive director may enforce
37-58    such a violation under Chapter 7 of this code.  A missed deadline
37-59    that is the fault of the person, his agent, or contractor shall
37-60    also eliminate reimbursement eligibility as described by Section
37-61    26.3571(b).  If it can be established to the executive director's
37-62    satisfaction that the deadline was not missed at the fault of the
37-63    person, his agent, or contractor, then reimbursement eligibility is
37-64    not affected under this subsection.
37-65          (h)  A person's liability to perform corrective action under
37-66    this chapter is unrelated to any possible reimbursements the person
37-67    may be eligible for under Section 26.3571.
37-68          SECTION 12.04. Section 26.3512(b), Water Code, is amended to
37-69    read as follows:
 38-1          (b)  Funds from the petroleum storage tank remediation
 38-2    account may not be used to pay, and the owner or operator of a
 38-3    petroleum storage tank ordered by the commission to take corrective
 38-4    action is responsible for payment of, the following:
 38-5                (1)  the owner or operator contribution described by
 38-6    Subsections (e)-(k);
 38-7                (2)  any expenses for corrective action that exceed the
 38-8    applicable amount specified by Section 26.3573(m);
 38-9                (3)  any expenses for corrective action that are not
38-10    covered by payment from the petroleum storage tank remediation
38-11    account under the rules or decisions of the commission under this
38-12    subchapter;
38-13                (4)  any expenses for corrective action not ordered or
38-14    agreed to by the commission; [or]
38-15                (5)  any expenses for corrective action incurred for
38-16    confirmed releases initially discovered and reported to the
38-17    commission after December 22, 1998; and
38-18                (6)  any corrective action expenses for which
38-19    reimbursement is prohibited under Section 26.3571, 26.3573, or
38-20    26.361.
38-21          SECTION 12.05. Section 26.355(d), Water Code, is amended to
38-22    read as follows:
38-23          (d)  If the commission uses money from the petroleum storage
38-24    tank remediation account for corrective action or enforcement and
38-25    if the costs are recovered under this section, the commission may
38-26    not recover more than the amount of the applicable owner or
38-27    operator contribution described by Section 26.3512[(e) of this
38-28    code] from an eligible owner or operator for corrective action for
38-29    each occurrence.  However, this limitation is not applicable to
38-30    cost recovery actions initiated by the executive director at sites
38-31    where the executive director has determined that the owner or
38-32    operator is in violation of Section 26.351(f).
38-33          SECTION 12.06. Section 26.3571, Water Code, is amended by
38-34    amending Subsection (b) and adding Subsections (g) and (h) to read
38-35    as follows:
38-36          (b)  To be an eligible owner or operator for purposes of this
38-37    subchapter, a person must not have missed any of the deadlines
38-38    described in Section 26.351(f) and must:
38-39                (1)  be one of the following:
38-40                      (A)  an owner or operator of a petroleum storage
38-41    tank that is subject to regulation under this subchapter;
38-42                      (B)  an owner of land that can clearly prove that
38-43    the land has been contaminated by a release of petroleum products
38-44    from a petroleum storage tank that is subject to regulation under
38-45    this subchapter, whether or not the tank is still attached to that
38-46    land; or
38-47                      (C)  a lender that has a bona fide security or
38-48    lienhold interest in or mortgage lien on any property contaminated
38-49    by the release of petroleum products from a petroleum storage tank
38-50    subject to regulation under this subchapter, or that forecloses on
38-51    or receives an assignment or deed in lieu of foreclosure and
38-52    becomes the owner of such property;
38-53                (2)  be in compliance with this subchapter as
38-54    determined by the commission; and
38-55                (3)  meet qualifying criteria established by the
38-56    commission under Subsection (a)  of this section.
38-57          (g)  An otherwise eligible owner or operator who misses a
38-58    deadline referenced in Subsection (b) shall be considered
38-59    ineligible for reimbursement under this subchapter.
38-60          (h)  Nothing in this section reduces the liability to perform
38-61    corrective action created under Section 26.351 and other parts of
38-62    this subchapter.
38-63          SECTION 12.07. Section 26.3572(b), Water Code, is amended to
38-64    read as follows:
38-65          (b)  In administering the program, the commission shall:
38-66                (1)  negotiate with or direct responsible parties in
38-67    site assessment and remediation matters using risk-based corrective
38-68    action;
38-69                (2)  approve site-specific corrective action plans for
 39-1    each site as necessary, using risk-based corrective action;
 39-2                (3)  review and inspect site assessment and remedial
 39-3    activities and reports;
 39-4                (4)  use risk-based corrective action procedures as
 39-5    determined by commission rule to establish cleanup levels;
 39-6                (5)  adopt by rule criteria for assigning a priority to
 39-7    each site using risk-based corrective action and assign a priority
 39-8    to each site according to those criteria;
 39-9                (6)  adopt by rule criteria for:
39-10                      (A)  risk-based corrective action site closures;
39-11    and
39-12                      (B)  the issuance of a closure letter to the
39-13    owner or operator of a tank site on completion of the commission's
39-14    corrective action requirements; and
39-15                (7)  process claims for petroleum storage tank
39-16    remediation account disbursement in accordance with this
39-17    subchapter.
39-18          SECTION 12.08. Section 26.3573, Water Code, is amended by
39-19    amending Subsection (d) and by adding Subsections (r) and (s) to
39-20    read as follows:
39-21          (d)  The commission may use the money in the petroleum
39-22    storage tank remediation account to pay:
39-23                (1)  necessary expenses associated with the
39-24    administration of the petroleum storage tank remediation account
39-25    and the groundwater protection cleanup program, not to exceed an
39-26    amount equal to:  11.8 [6.7] percent of the gross receipts of that
39-27    account for FY 02/03; 16.40 percent of the gross receipts of that
39-28    account for FY 04/05; and 21.1 percent of the gross receipts of
39-29    that account for FY 06/07;
39-30                (2)  expenses associated with investigation, cleanup,
39-31    or corrective action measures performed in response to a release or
39-32    threatened release from a petroleum storage tank, whether those
39-33    expenses are incurred by the commission or pursuant to a contract
39-34    between a contractor and an eligible owner or operator as
39-35    authorized by this subchapter; and
39-36                (3)  subject to the conditions of Subsection (e) of
39-37    this section, expenses associated with investigation, cleanup, or
39-38    corrective action measures performed in response to a release or
39-39    threatened release of hydraulic fluid or spent oil from hydraulic
39-40    lift systems or tanks located at a vehicle service and fueling
39-41    facility and used as part of the operations of that facility.
39-42          (r)  The petroleum storage tank remediation account may not
39-43    be used to reimburse any person for corrective action performed
39-44    after September 1, 2005.
39-45          (s)  The petroleum storage tank remediation account may not
39-46    be used to reimburse any person for corrective action contained in
39-47    a reimbursement claim filed with the commission after March 1,
39-48    2006.
39-49          SECTION 12.09. Sections 26.3574(b), (x), (y), (z), and (aa),
39-50    Water Code, are amended to read as follows:
39-51          (b)  A fee is imposed on the delivery of a petroleum product
39-52    on withdrawal from bulk of that product as provided by this
39-53    subsection.  Each operator of a bulk facility on withdrawal from
39-54    bulk of a petroleum product shall collect from the person who
39-55    orders the withdrawal a fee in an amount determined as follows:
39-56                (1)  $12.50 [$18.75] for each delivery into a cargo
39-57    tank having a capacity of less than 2,500 gallons for Fiscal Year
39-58    2002 and Fiscal Year 2003; $10 for each delivery into a cargo tank
39-59    having a capacity of less than 2,500 gallons for Fiscal Year 2004
39-60    and Fiscal Year 2005; $5 for each delivery into a cargo tank having
39-61    a capacity of less than 2,500 gallons for Fiscal Year 2006; and $2
39-62    for each delivery into a cargo tank having a capacity of less than
39-63    2,500 gallons for Fiscal Year 2007;
39-64                (2)  $25 [$37.50] for each delivery into a cargo tank
39-65    having a capacity of 2,500 gallons or more but less than 5,000
39-66    gallons for Fiscal Year 2002 and Fiscal Year 2003; $20 for each
39-67    delivery into a cargo tank having a capacity of 2,500 gallons or
39-68    more but less than 5,000 gallons for Fiscal Year 2004 and Fiscal
39-69    Year 2005; $10 for each delivery into a cargo tank having a
 40-1    capacity of 2,500 gallons or more but less than 5,000 gallons for
 40-2    Fiscal Year 2006; and $4 for each delivery into a cargo tank having
 40-3    a capacity of 2,500 gallons or more but less than 5,000 gallons for
 40-4    Fiscal Year 2007;
 40-5                (3)  $37.50 [$56.25] for each delivery into a cargo
 40-6    tank having a capacity of 5,000 gallons or more but less than 8,000
 40-7    gallons for Fiscal Year 2002 and Fiscal Year 2003; $30 for each
 40-8    delivery into a cargo tank having a capacity of 5,000 gallons or
 40-9    more but less than 8,000 gallons for Fiscal Year 2004 and Fiscal
40-10    Year 2005; $15 for each delivery into a cargo tank having a
40-11    capacity of 5,000 gallons or more but less than 8,000 gallons for
40-12    Fiscal Year 2006; and $6 for each delivery into a cargo tank having
40-13    a capacity of 5,000 gallons or more but less than 8,000 gallons for
40-14    Fiscal Year 2007;
40-15                (4)  $50 [$75] for each delivery into a cargo tank
40-16    having a capacity of 8,000 gallons or more but less than 10,000
40-17    gallons for Fiscal Year 2002 and Fiscal Year 2003; $40 for each
40-18    delivery into a cargo tank having a capacity of 8,000 gallons or
40-19    more but less than 10,000 gallons for Fiscal Year 2004 and Fiscal
40-20    Year 2005; $20 for each delivery into a cargo tank having a
40-21    capacity of 8,000 gallons or more but less than 10,000 gallons for
40-22    Fiscal Year 2006; and $8 for each delivery into a cargo tank having
40-23    a capacity of 8,000 gallons or more but less than 10,000 gallons
40-24    for Fiscal Year 2007; and
40-25                (5)  a $25 [$37.50] fee for each increment of 5,000
40-26    gallons or any part thereof delivered into a cargo tank having a
40-27    capacity of 10,000 gallons or more for Fiscal Year 2002 and Fiscal
40-28    Year 2003; $20 for each increment of 5,000 gallons or any part
40-29    thereof delivered into a cargo tank having a capacity of 10,000
40-30    gallons or more for Fiscal Year 2004 and Fiscal Year 2005; $10 for
40-31    each increment of 5,000 gallons or any part thereof delivered into
40-32    a cargo tank having a capacity of 10,000 gallons or more for Fiscal
40-33    Year 2006; and $4 for each increment of 5,000 gallons or any part
40-34    thereof delivered into a cargo tank having a capacity of 10,000
40-35    gallons or more for Fiscal Year 2007.
40-36          (x)  [After the deposits have been made to the credit of the
40-37    general revenue fund under Section 403.092(c)(1), Government Code,
40-38    as added by Chapter 533, Acts of the 73rd Legislature, 1993, the
40-39    fee imposed under this section may not be collected or required to
40-40    be paid on or after the first day of the second month following
40-41    notification by the commission of the date on which the unobligated
40-42    balance in the petroleum storage tank remediation account equals or
40-43    exceeds $100 million.  The commission shall notify the comptroller
40-44    in writing of the date on which the unobligated balance equals or
40-45    exceeds $100 million.]
40-46          [(y)  If the unobligated balance in the petroleum storage
40-47    tank remediation account falls below $25 million, the fee shall be
40-48    reinstated, effective on the first day of the second month
40-49    following notification by the commission, in amounts determined as
40-50    follows:]
40-51                [(1)  $9.38 for each delivery into a cargo tank having
40-52    a capacity of less than 2,500 gallons;]
40-53                [(2)  $18.75 for each delivery into a cargo tank having
40-54    a capacity of 2,500 gallons or more but less than 5,000 gallons;]
40-55                [(3)  $28.13 for each delivery into a cargo tank having
40-56    a capacity of 5,000 gallons or more but less than 8,000 gallons;]
40-57                [(4)  $37.50 for each delivery into a cargo tank having
40-58    a capacity of 8,000 gallons or more but less than 10,000 gallons;
40-59    and]
40-60                [(5)  an $18.75 fee for each increment of 5,000 gallons
40-61    or any part thereof delivered into a cargo tank having a capacity
40-62    of 10,000 gallons or more.]
40-63          [(z)  For purposes of Subsections (x) and (y) of this
40-64    section, the unobligated balance in the petroleum storage tank
40-65    remediation account shall be determined by subtracting from the
40-66    cash balance of the account at the end of each month the sum of the
40-67    total balances remaining on all contracts entered by the commission
40-68    or an eligible owner for corrective action plus the total estimates
40-69    made by the commission of allowable costs for corrective action
 41-1    that are unpaid relating to all  commission orders issued before
 41-2    that date to enforce this subchapter.]
 41-3          [(aa)]  The commission shall report to the Legislative Budget
 41-4    Board at the end of each fiscal quarter on the financial status of
 41-5    the petroleum storage tank remediation account.
 41-6          SECTION 12.10. Sections 26.359 and 26.361, Water Code, are
 41-7    amended to read as follows:
 41-8          Sec. 26.359.  LOCAL REGULATION OR ORDINANCE. (a) In this
 41-9    section, "local government" means a school district, county,
41-10    municipality, junior college district, river authority, water
41-11    district or other special district, or other political subdivision
41-12    created under the constitution or a statute of this state.
41-13          (b)  A [This subchapter establishes a unified statewide
41-14    program for underground and surface water protection, and any
41-15    local] regulation or ordinance adopted by a local government that
41-16    imposes standards [is effective only to the extent the regulation
41-17    or ordinance does not conflict with the standards adopted] for the
41-18    design, construction, installation, or operation of underground
41-19    storage tanks is not valid [under this subchapter].
41-20          (c)  This section does not apply to a regulation or ordinance
41-21    in effect as of January 1, 2001.
41-22          Sec. 26.361.  EXPIRATION OF REIMBURSEMENT PROGRAM. [(a)]
41-23    Notwithstanding any other provision of this subchapter, the
41-24    reimbursement program established under this subchapter expires
41-25    September 1, 2006 [2003]. On or after September 1, 2006 [2003], the
41-26    commission may not use money from the petroleum storage tank
41-27    remediation account to reimburse an eligible owner or operator for
41-28    any expenses of corrective action or to pay the claim of a person
41-29    who has contracted with an eligible owner or operator to perform
41-30    corrective action.
41-31          [(b)  On or after March 1, 2002, the commission may not
41-32    collect a fee under Section 26.3574 of this code.]
41-33                         ARTICLE 13.  WATER RIGHTS
41-34          SECTION 13.01.  Section 11.142, Water Code, is amended to
41-35    read as follows:
41-36          Sec. 11.142.  PERMIT EXEMPTIONS. (a)  Without obtaining a
41-37    permit, a person may construct on the person's [his] own property a
41-38    dam or reservoir with normal storage of not more than 200 acre-feet
41-39    of water for domestic and livestock purposes.  A person who
41-40    temporarily stores more than 200 acre-feet of water in a dam or
41-41    reservoir described by this subsection is not required to obtain a
41-42    permit for the dam or reservoir if the person can demonstrate that
41-43    the person has not stored in the dam or reservoir more than 200
41-44    acre-feet of water on average in any 12-month period.
41-45          (b)  Without obtaining a permit, a person may construct on
41-46    the person's property in an unincorporated area a dam or reservoir
41-47    with normal storage of not more than 200 acre-feet of water for
41-48    fish and wildlife purposes.
41-49          (c)  Without obtaining a permit, a person who is drilling and
41-50    producing petroleum and conducting operations associated with
41-51    drilling and producing petroleum may take for those purposes state
41-52    water from the Gulf of Mexico and adjacent bays and arms of the
41-53    Gulf of Mexico in an amount not to exceed one acre-foot during each
41-54    24-hour period.
41-55          (d) [(c)]  Without obtaining a permit, a person may construct
41-56    or maintain a reservoir for the sole purpose of sediment control as
41-57    part of a surface coal mining operation under the Texas Surface
41-58    Coal Mining and Reclamation Act (Chapter 134, Natural Resources
41-59    Code [Article 5920-11, Vernon's Texas Civil Statutes]).
41-60          SECTION 13.02.  Section 11.173(b), Water Code, is amended to
41-61    read as follows:
41-62          (b)  A permit, certified filing, or certificate of
41-63    adjudication or a portion of a permit, certified filing, or
41-64    certificate of adjudication is exempt from cancellation under
41-65    Subsection (a) of this section:
41-66                (1)  to the extent of the owner's participation in the
41-67    Conservation Reserve Program authorized by the Food Security Act,
41-68    Pub.L. No. 99-198, Secs. 1231-1236, 99 Stat. 1354, 1509-1514 (1985)
41-69    or a similar governmental program; [or]
 42-1                (2)  if a significant [any] portion of the water
 42-2    authorized to be used pursuant to a permit, certified filing, or
 42-3    certificate of adjudication has been used in accordance with a
 42-4    specific recommendation for meeting a water need included in the
 42-5    regional water plan approved pursuant to Section 16.053;
 42-6                (3)  if the permit, certified filing, or certificate of
 42-7    adjudication was obtained to meet demonstrated long-term public
 42-8    water supply or electric generation needs as evidenced by a water
 42-9    management plan developed by the holder and is consistent with
42-10    projections of future water needs contained in the state water
42-11    plan; or
42-12                (4)  if the permit, certified filing, or certificate of
42-13    adjudication was obtained as the result of the construction of a
42-14    reservoir funded, in whole or in part, by the holder of the permit,
42-15    certified filing, or certificate of adjudication as part of the
42-16    holder's long-term water planning [of this code].
42-17                     ARTICLE 14.  ENVIRONMENTAL HEALTH
42-18          SECTION 14.01. Title 5, Health and Safety Code, is amended by
42-19    adding Subtitle G to read as follows:
42-20                     SUBTITLE G.  ENVIRONMENTAL HEALTH
42-21            CHAPTER 427.  TEXAS ENVIRONMENTAL HEALTH INSTITUTE
42-22          Sec. 427.001. In this chapter:
42-23                (1)  "Board" means the Texas Board of Health.
42-24                (2)  "Commission" means the Texas Natural Resource
42-25    Conservation Commission.
42-26                (3)  "Department" means the Texas Department of Health.
42-27                (4)  "Federal superfund site" means a site defined by
42-28    the federal Comprehensive Environmental Response, Compensation, and
42-29    Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended.
42-30                (5)  "Immediately surrounding area" means an area
42-31    determined by the commission to have been significantly exposed to
42-32    one or more pollutants from the identified site.
42-33                (6)  "Institute" means the Texas Environmental Health
42-34    Institute.
42-35          Sec. 427.002.  TEXAS ENVIRONMENTAL HEALTH INSTITUTE. The
42-36    commission shall enter into an agreement with the department to
42-37    jointly establish the Texas Environmental Health Institute in order
42-38    to examine ways to identify, treat, manage, prevent, and reduce
42-39    health problems associated with environmental contamination.
42-40          Sec. 427.003.  PURPOSES. The purposes of the institute are
42-41    to:
42-42                (1)  develop a statewide plan to identify health
42-43    conditions, related or potentially related to environmental
42-44    contamination, of residents of this state who live or have lived
42-45    within the immediately surrounding area of a federal superfund site
42-46    or a state superfund site;
42-47                (2)  develop a plan to promote and protect the health
42-48    and safety of residents in immediately surrounding areas by
42-49    preventing or reducing their health risks from exposure to chemical
42-50    and biological contaminants, radioactive materials, and other
42-51    hazards in the environment and the workplace;
42-52                (3)  develop a plan for informing and educating
42-53    citizens in immediately surrounding areas about the identified
42-54    health risks and ways to prevent or reduce exposure;
42-55                (4)  identify private and federal funding opportunities
42-56    for institute operations; and
42-57                (5)  conduct, coordinate, or pursue funding for
42-58    research concerning short-term and long-term impacts of exposure to
42-59    environmental contamination.
42-60          Sec. 427.004.  PROGRAMS. The commission and the department
42-61    may establish at the institute any programs necessary to carry out
42-62    the institute's established purposes under this chapter.  The
42-63    commission and the board may contract with public or private
42-64    entities to carry out the institute's purposes.
42-65          Sec. 427.005.  GIFTS AND GRANTS. The commission and the
42-66    department may accept and administer gifts and grants to fund the
42-67    institute from any individual, corporation, trust, or foundation or
42-68    the United States, subject to limitations or conditions imposed by
42-69    law.
 43-1          Sec. 427.006.  PILOT PROJECT. (a)  The institute shall
 43-2    conduct a pilot project at the RSR West Dallas site and at the
 43-3    Cadillac Heights site.  The project may include health screenings
 43-4    and assessments.
 43-5          (b)  The institute may enter into a memorandum of
 43-6    understanding with the commission and the department for toxic
 43-7    screening, pollutant assessment, toxicologist services, or any
 43-8    other appropriate service to be provided by the agencies, as
 43-9    necessary.
43-10          (c)  The institute shall use information gathered through the
43-11    pilot project to assist in developing its plan for implementing the
43-12    institute's purposes under this chapter.
43-13          (d)  The pilot project shall be conducted for two years
43-14    beginning on September 1, 2001.  The institute shall submit to the
43-15    78th Legislature a report on the results of the pilot project and
43-16    the development and implementation of the statewide plan and the
43-17    further organization of the institute.
43-18                 ARTICLE 15.  OTHER REGULATORY PROVISIONS
43-19          SECTION 15.01. Subchapter K, Chapter 13, Water Code, is
43-20    amended by adding Section 13.4115 to read as follows:
43-21          Sec. 13.4115.  ACTION TO REQUIRE ADJUSTMENT TO CONSUMER
43-22    CHARGE; PENALTY. In regard to a customer complaint arising out of a
43-23    charge made by a retail public utility, if the executive director
43-24    finds that the utility has failed to make the proper adjustment to
43-25    the customer's bill after the conclusion of the complaint process
43-26    established by the commission, the commission may issue an order
43-27    requiring the utility to make the adjustment.   Failure to comply
43-28    with the order within 15 days of receiving the order is a violation
43-29    for which the commission may impose an administrative penalty under
43-30    Section 13.4151.
43-31          SECTION 15.02. Section 26.028, Water Code, is amended by
43-32    adding Subsection (h) to read as follows:
43-33          (h)  A public hearing on an application for a permit for a
43-34    domestic wastewater treatment operation proposing secondary or
43-35    greater treatment and no discharge of pollutants in water of the
43-36    state shall be held in the same manner as provided by Section
43-37    382.0561, Health and Safety Code, for an application under that
43-38    section.
43-39          SECTION 15.03. Section 51.149, Water Code, is amended to read
43-40    as follows:
43-41          Sec. 51.149.  CONTRACTS. (a)  Notwithstanding Section
43-42    49.108(e), no approval other than that specified in Subsection (c)
43-43    need be obtained in order for a contract between a district and a
43-44    municipality to be valid, binding, and enforceable against all
43-45    parties to the contract.  After approval by a majority of the
43-46    electors voting at an election conducted in the manner of a bond
43-47    election, a district may make payments under a contract from taxes
43-48    for debt that does not exceed 30 years.
43-49          (b) [(d)]  A contract may provide that the district will make
43-50    payments under the contract from proceeds from the sale of notes or
43-51    bonds, from taxes, from any other income of the district, or from
43-52    any combination of these.
43-53          (c) [(e)]  A district may make payments under a contract from
43-54    taxes, other than maintenance taxes, after the provisions of the
43-55    contract have been approved by a majority of the electors voting at
43-56    an election held for that purpose.
43-57          (d) [(f)]  Any contract election may be held at the same time
43-58    as and in conjunction with an election to issue bonds, and the
43-59    procedure for calling the election, giving notice, conducting the
43-60    election, and canvassing the returns shall be the same as the
43-61    procedure for a bond election.
43-62          SECTION 15.04. Subchapter D, Chapter 366, Health and Safety
43-63    Code, is amended by adding Section 366.0512 to read as follows:
43-64          Sec. 366.0512.  MULTIPLE TREATMENT SYSTEMS. A multiple system
43-65    of treatment devices and disposal facilities may be permitted as an
43-66    on-site disposal system under this chapter if the system:
43-67                (1)  is located on a tract of land of at least 100
43-68    acres in size;
43-69                (2)  produces not more than 5,000 gallons a day on an
 44-1    annual average basis;
 44-2                (3)  is used only on a seasonal or intermittent basis;
 44-3    and
 44-4                (4)  is used only for disposal of sewage produced on
 44-5    the tract of land on which any part of the system is located.
 44-6                    ARTICLE 16.  CONFORMING AMENDMENTS
 44-7          SECTION 16.01. Section 5.174(a), Water Code, is amended to
 44-8    read as follows:
 44-9          (a)  Except as otherwise specifically provided by this code
44-10    and subject to the specific limitations provided by this code, on
44-11    application of any person the commission shall furnish certified or
44-12    other copies of any proceeding or other official record or of any
44-13    map, paper, or document filed with the commission.  A certified
44-14    copy with the seal of the commission and the signature of the
44-15    presiding officer [chairman] of the commission or the executive
44-16    director or chief clerk is admissible as evidence in any court or
44-17    administrative proceeding.
44-18          SECTION 16.02. Section 11.323(a), Water Code, is amended to
44-19    read as follows:
44-20          (a)  When a final determination of the rights to the waters
44-21    of a stream has been made in accordance with the procedure provided
44-22    in this subchapter and the time for a rehearing has expired, the
44-23    commission shall issue to each person adjudicated a water right a
44-24    certificate of adjudication, signed by the presiding officer of the
44-25    commission [chairman] and bearing the seal of the commission.
44-26          SECTION 16.03. Section 26.028(d), Water Code, is amended to
44-27    read as follows:
44-28          (d)  Notwithstanding any other provision of this chapter, the
44-29    commission, at a regular meeting without the necessity of holding a
44-30    public hearing, may approve an application to renew or amend a
44-31    permit if:
44-32                (1)  the applicant is not applying to:
44-33                      (A)  increase significantly the quantity of waste
44-34    authorized to be discharged; or
44-35                      (B)  change materially the pattern or place of
44-36    discharge;
44-37                (2)  the activities to be authorized by the renewed or
44-38    amended permit will maintain or improve the quality of waste
44-39    authorized to be discharged;
44-40                (3)  for NPDES permits, notice and the opportunity to
44-41    request a public meeting shall be given in compliance with NPDES
44-42    program requirements, and the commission shall consider and respond
44-43    to all timely received and significant public comment; and
44-44                (4)  the commission determines that an applicant's
44-45    compliance history under the method for evaluating compliance
44-46    history developed by the commission under Section 5.754 [for the
44-47    preceding five years] raises no issues regarding the applicant's
44-48    ability to comply with a material term of its permit.
44-49          SECTION 16.04. Section 26.0281, Water Code, is amended to
44-50    read as follows:
44-51          Sec. 26.0281.  CONSIDERATION OF [PAST PERFORMANCE AND]
44-52    COMPLIANCE HISTORY. In considering the issuance, amendment, or
44-53    renewal of a permit to discharge effluent comprised primarily of
44-54    sewage or municipal waste, the commission shall consider the [any
44-55    adjudicated decision on or] compliance history [proceeding
44-56    addressing past performance and compliance] of the applicant and
44-57    its operator under the method for evaluating compliance history
44-58    developed by the commission under Section 5.754 [with the laws of
44-59    this state governing waste discharge, waste treatment, or waste
44-60    disposal facilities and with the terms of any permit or order
44-61    issued by the commission].
44-62          SECTION 16.05. Section 26.040(h), Water Code, is amended to
44-63    read as follows:
44-64          (h)  Notwithstanding other provisions of this chapter, the
44-65    commission, after hearing, shall deny or suspend a discharger's
44-66    authority to discharge under a general permit if the commission
44-67    determines that the [discharger operates any facility for which
44-68    the] discharger's compliance history  is in the lowest
44-69    classification under Sections 5.753 and 5.754 and rules adopted and
 45-1    procedures developed under those sections [contains violations
 45-2    constituting a recurring pattern of egregious conduct that
 45-3    demonstrates a consistent disregard for the regulatory process,
 45-4    including a failure to make a timely and substantial attempt to
 45-5    correct the violations].  A hearing under this subsection is not
 45-6    subject to Chapter 2001, Government Code.
 45-7          SECTION 16.06. Section 27.051, Water Code, is amended by
 45-8    amending Subsections (d) and (e) and adding Subsection (h) to read
 45-9    as follows:
45-10          (d)  The commission, in determining if the use or
45-11    installation of an injection well for the disposal of hazardous
45-12    waste is in the public interest under Subsection (a)(1) [of this
45-13    section], shall consider, but shall not be limited to the
45-14    consideration of:
45-15                (1)  compliance history of the applicant under the
45-16    method for evaluating compliance history developed by the
45-17    commission under Section 5.754 and in accordance with the
45-18    provisions of Subsection (e) [of this section];
45-19                (2)  whether there is a practical, economic, and
45-20    feasible alternative to an injection well reasonably available to
45-21    manage the types and classes of hazardous waste; and
45-22                (3)  whether the applicant will maintain sufficient
45-23    public liability insurance for bodily injury and property damage to
45-24    third parties that is caused by sudden and non-sudden accidents or
45-25    will otherwise demonstrate financial responsibility in a manner
45-26    adopted by the commission in lieu of public liability insurance.  A
45-27    liability insurance policy which satisfies the policy limits
45-28    required by the hazardous waste management regulations of the
45-29    commission for the applicant's proposed pre-injection facilities
45-30    shall be deemed "sufficient" under this subdivision if the policy:
45-31                      (A)  covers the injection well; and
45-32                      (B)  is issued by a company that is authorized to
45-33    do business and to write that kind of insurance in this state and
45-34    is solvent and not currently under supervision or in
45-35    conservatorship or receivership in this state or any other state.
45-36          (e)  Consistent with Sections 5.753 and 5.754 and rules
45-37    adopted and procedures developed under those sections, the [The]
45-38    commission shall establish a procedure for preparing summaries of
45-39    the applicant's compliance history [by rule for its preparation of
45-40    compliance summaries relating to the history of compliance and
45-41    noncompliance by the applicant with the rules adopted or orders or
45-42    permits issued by the commission under this chapter for any
45-43    injection well for which a permit has been issued under this
45-44    chapter].  The [compliance] summaries shall be made available to
45-45    the applicant and any interested person after the commission has
45-46    completed its technical review of the permit application and prior
45-47    to the promulgation of the public notice relating to the issuance
45-48    of the permit.  Evidence of compliance or noncompliance by an
45-49    applicant for an injection well for the disposal of hazardous waste
45-50    with the rules adopted or orders or permits issued by the
45-51    commission under this chapter may be offered by any party at a
45-52    hearing on the applicant's application and admitted into evidence
45-53    subject to applicable rules of evidence.  In accordance with this
45-54    subsection and Sections 5.753 and 5.754 and rules adopted and
45-55    procedures developed under those sections, evidence of the
45-56    compliance performance of an applicant for an injection well may be
45-57    offered by the executive director at a hearing on the application
45-58    and may be admitted into evidence, subject to the rules of
45-59    evidence.  All evidence admitted, including compliance history,
45-60    shall be considered by the commission in determining whether to
45-61    issue, amend, extend or renew a permit.
45-62          (h)  In determining whether the use or installation of an
45-63    injection well is in the public interest under Subsection (a)(1),
45-64    the commission shall consider the compliance performance of the
45-65    applicant in accordance with Subsection (e) and Sections 5.753 and
45-66    5.754 and rules adopted and procedures developed under those
45-67    sections.
45-68          SECTION 16.07. Section 361.020(d), Health and Safety Code, is
45-69    amended to read as follows:
 46-1          (d)  The commission in developing a comprehensive statewide
 46-2    strategic plan shall:
 46-3                (1)  consult with:
 46-4                      (A)  the agency's waste minimization, recycling,
 46-5    or reduction division;
 46-6                      (B)  the municipal solid waste management and
 46-7    resource recovery advisory council;
 46-8                      (C)  the pollution prevention [waste reduction]
 46-9    advisory committee;
46-10                      (D)  the interagency coordinating council; and
46-11                      (E)  local governments, appropriate regional and
46-12    state agencies, businesses, citizen groups, and private waste
46-13    management firms;
46-14                (2)  hold public hearings in different regions of the
46-15    state; and
46-16                (3)  publish the proposed plan in the Texas Register.
46-17          SECTION 16.08. Sections 361.084(a) and (c), Health and Safety
46-18    Code, are amended to read as follows:
46-19          (a)  The commission by rule shall establish a procedure to
46-20    prepare compliance summaries relating to the applicant's solid
46-21    waste management activities in accordance with the method for
46-22    evaluating compliance history developed by the commission under
46-23    Section 5.754, Water Code.
46-24          (c)  Evidence of compliance or noncompliance by an applicant
46-25    for a solid waste management facility permit with agency rules,
46-26    permits, other orders, or evidence of a final determination of
46-27    noncompliance with federal statutes or statutes of any state [in
46-28    the preceding five years] concerning solid waste management may be:
46-29                (1)  offered by a party at a hearing concerning the
46-30    application; and
46-31                (2)  admitted into evidence subject to applicable rules
46-32    of evidence.
46-33          SECTION 16.09. Section 361.088(f), Health and Safety Code, is
46-34    amended to read as follows:
46-35          (f)  Notwithstanding Subsection (e), if the commission
46-36    determines that an applicant's compliance history under the method
46-37    for evaluating compliance history developed by the commission under
46-38    Section 5.754, Water Code, [for the preceding five years] raises an
46-39    issue regarding the applicant's ability to comply with a material
46-40    term of its permit, the commission shall provide an opportunity to
46-41    request a contested case hearing.
46-42          SECTION 16.10. Sections 361.089(a), (e), and (f), Health and
46-43    Safety Code, are amended to read as follows:
46-44          (a)  The commission may, for good cause, deny or amend a
46-45    permit it issues or has authority to issue for reasons pertaining
46-46    to public health, air or water pollution, or land use, or for
46-47    having a compliance history that is in the lowest classification
46-48    under Sections 5.753 and 5.754, Water Code, and rules adopted and
46-49    procedures developed under those sections [a violation of this
46-50    chapter or other applicable laws or rules controlling the
46-51    management of solid waste].
46-52          (e)  The commission may deny an original or renewal permit if
46-53    it is found, after notice and hearing, that:
46-54                (1)  the applicant or permit holder has a compliance
46-55    history that is in the lowest classification under Sections 5.753
46-56    and 5.754, Water Code, and rules adopted and procedures developed
46-57    under those sections [record of environmental violations in the
46-58    preceding five years at the permitted site;]
46-59                [(2)  the applicant has a record of environmental
46-60    violations in the preceding five years at any site owned, operated,
46-61    or controlled by the applicant];
46-62                (2) [(3)]  the permit holder or applicant made a false
46-63    or misleading statement in connection with an original or renewal
46-64    application, either in the formal application or in any other
46-65    written instrument relating to the application submitted to the
46-66    commission, its officers, or its employees;
46-67                (3) [(4)]  the permit holder or applicant is indebted
46-68    to the state for fees, payment of penalties, or taxes imposed by
46-69    this title or by a rule of the commission; or
 47-1                (4) [(5)]  the permit holder or applicant is unable to
 47-2    ensure that the management of the hazardous waste management
 47-3    facility conforms or will conform to this title and the rules of
 47-4    the commission.
 47-5          (f)  Before denying a permit under this section, the
 47-6    commission must find:
 47-7                (1)  that the applicant or permit holder has a
 47-8    compliance history that is in the lowest classification under
 47-9    Sections 5.753 and 5.754, Water Code, and rules adopted and
47-10    procedures developed under those sections [a violation or
47-11    violations are significant and that the permit holder or applicant
47-12    has not made a substantial attempt to correct the violations]; or
47-13                (2)  that the permit holder or applicant is indebted to
47-14    the state for fees, payment of penalties, or taxes imposed by this
47-15    title or by a rule of the commission.
47-16          SECTION 16.11. Section 382.0518(c), Health and Safety Code,
47-17    is amended to read as follows:
47-18          (c)  In considering the issuance, amendment, or renewal of a
47-19    permit, the commission may consider the applicant's compliance
47-20    history in accordance with the method for evaluating compliance
47-21    history developed by the commission under Section 5.754, Water Code
47-22    [any adjudicated decision or compliance proceeding within the five
47-23    years before the date on which the application was filed that
47-24    addressed the applicant's past performance and compliance with the
47-25    laws of this state, another state, or the United States governing
47-26    air contaminants or with the terms of any permit or order issued by
47-27    the commission].
47-28          SECTION 16.12. Section 382.055(d), Health and Safety Code, is
47-29    amended to read as follows:
47-30          (d)  In determining whether and under which conditions a
47-31    preconstruction permit should be renewed, the commission shall
47-32    consider, at a minimum:
47-33                (1)  [whether] the performance of the owner or operator
47-34    of the facility according to the method developed by the commission
47-35    under Section 5.754, Water Code [is or has been in substantial
47-36    compliance with this chapter and the terms of the existing permit];
47-37    and
47-38                (2)  the condition and effectiveness of existing
47-39    emission control equipment and practices.
47-40          SECTION 16.13. Section 382.056(o), Health and Safety Code, is
47-41    amended to read as follows:
47-42          (o)  Notwithstanding other provisions of this chapter, the
47-43    commission may hold a hearing on a permit amendment, modification,
47-44    or renewal if the commission determines that the application
47-45    involves a facility for which the applicant's compliance history is
47-46    in the lowest classification under Sections 5.753 and 5.754, Water
47-47    Code, and rules adopted and procedures developed under those
47-48    sections [contains violations which are unresolved and which
47-49    constitute a recurring pattern of egregious conduct which
47-50    demonstrates a consistent disregard for the regulatory process,
47-51    including the failure to make a timely and substantial attempt to
47-52    correct the violations].
47-53                 ARTICLE 17.  TRANSITIONS; EFFECTIVE DATE
47-54          SECTION 17.01.  CHANGE OF AGENCY NAME. (a)  Effective January
47-55    1, 2004:
47-56                (1)  the name of the Texas Natural Resource
47-57    Conservation Commission is changed to the Texas Commission on
47-58    Environmental Quality, and all powers, duties, rights, and
47-59    obligations of the Texas Natural Resource Conservation Commission
47-60    are the powers, duties, rights, and obligations of the Texas
47-61    Commission on Environmental Quality;
47-62                (2)  a member of the Texas Natural Resource
47-63    Conservation Commission is a member of the board of the Texas
47-64    Commission on Environmental Quality;
47-65                (3)  all personnel, equipment, data, documents,
47-66    facilities, and other items of the Texas Natural Resource
47-67    Conservation Commission are transferred to the agency under its new
47-68    name; and
47-69                (4)  any appropriation to the Texas Natural Resource
 48-1    Conservation Commission is automatically an appropriation to the
 48-2    Texas Commission on Environmental Quality.
 48-3          (b)  Effective January 1, 2004, a reference in law to the
 48-4    Texas Natural Resource Conservation Commission is a reference to
 48-5    the Texas Commission on Environmental Quality.
 48-6          (c)  The Texas Natural Resource Conservation Commission shall
 48-7    adopt a timetable for phasing in the change of the agency's name so
 48-8    as to minimize the fiscal impact of the name change.  Until January
 48-9    1, 2004, to allow for phasing in the change of the agency's name
48-10    and in accordance with the timetable established as required by
48-11    this section, the agency may perform any act authorized by law for
48-12    the Texas Natural Resource Conservation Commission as the Texas
48-13    Natural Resource Conservation Commission or as the Texas Commission
48-14    on Environmental Quality.  Any act of the Texas Natural Resource
48-15    Conservation Commission acting as the Texas Commission on
48-16    Environmental Quality after the effective date of this Act and
48-17    before January 1, 2004, is an act of the Texas Natural Resource
48-18    Conservation Commission.
48-19          SECTION 17.02.  TRANSFER OF SAFE DRINKING WATER LABORATORY
48-20    CERTIFICATION PROGRAM. (a)  On the effective date of this Act, the
48-21    following are transferred to the Texas Natural Resource
48-22    Conservation Commission:
48-23                (1)  all powers, duties, rights, and obligations of the
48-24    Texas Department of Health relating to the safe drinking water
48-25    laboratory certification program administered by the Texas
48-26    Department of Health's bureau of laboratories;
48-27                (2)  all personnel, equipment, data, documents,
48-28    facilities, and other items of the Texas Department of Health
48-29    relating to the safe drinking water laboratory certification
48-30    program; and
48-31                (3)  all appropriations to the Texas Department of
48-32    Health pertaining to the safe drinking water laboratory
48-33    certification program, and all other state or federal money
48-34    available to the Texas Department of Health for that program.
48-35          (b)  On the effective date of this Act, Texas Department of
48-36    Health rules relating to the safe drinking water laboratory
48-37    certification program administered by the Texas Department of
48-38    Health's bureau of laboratories are the rules of the Texas Natural
48-39    Resource Conservation Commission until the commission adopts rules
48-40    to govern that program.
48-41          (c)  A certification issued by the Texas Department of Health
48-42    for a safe drinking water laboratory before September 1, 2001,
48-43    remains in effect until the date it expires or is revoked,
48-44    notwithstanding the change in law made by this section.
48-45          SECTION 17.03.  TRANSFER OF ENVIRONMENTAL TESTING LABORATORY
48-46    CERTIFICATION PROGRAM. (a)  On the effective date of this Act, the
48-47    following are transferred to the Texas Natural Resource
48-48    Conservation Commission:
48-49                (1)  all powers, duties, rights, and obligations of the
48-50    Texas Department of Health relating to the environmental testing
48-51    laboratory certification program administered by the Texas
48-52    Department of Health under Chapter 421, Health and Safety Code;
48-53                (2)  all personnel, equipment, data, documents,
48-54    facilities, and other items of the Texas Department of Health
48-55    relating to the environmental testing laboratory certification
48-56    program; and
48-57                (3)  all appropriations to the Texas Department of
48-58    Health pertaining to the environmental laboratory certification
48-59    program, and all other state or federal money available to the
48-60    Texas Department of Health for that program.
48-61          (b)  On the effective date of this Act, Texas Department of
48-62    Health rules relating to the environmental testing laboratory
48-63    certification program administered by the Texas Department of
48-64    Health under Chapter 421, Health and Safety Code, are the rules of
48-65    the Texas Natural Resource Conservation Commission until the
48-66    commission adopts rules to govern that program.
48-67          (c)  A certification issued by the Texas Department of Health
48-68    before September 1, 2001, remains in effect until the date it
48-69    expires or is revoked, notwithstanding the change in law made by
 49-1    this section and by this Act to Chapter 421, Health and Safety
 49-2    Code.
 49-3          (d)  The change in law made by the addition by this Act of
 49-4    Section 5.127, Water Code, relating to the acceptance of
 49-5    environmental testing laboratory results by the Texas Natural
 49-6    Resource Conservation Commission, applies only to environmental
 49-7    testing laboratory results submitted to the commission on or after
 49-8    the third anniversary of the date on which the commission publishes
 49-9    notice in the Texas Register that the commission's environmental
49-10    laboratory testing program established under Subchapter R, Chapter
49-11    5, Water Code, as added by this Act, has met the standards of the
49-12    National Environmental Laboratory Accreditation Conference.
49-13          SECTION 17.04.  CERTIFICATION OF WATER TREATMENT SPECIALISTS.
49-14    (a)  On the effective date of this Act, the following are
49-15    transferred to the Texas Natural Resource Conservation Commission:
49-16                (1)  all powers, duties, rights, and obligations of the
49-17    Texas Department of Health relating to the certification of water
49-18    treatment specialists administered by the Texas Department of
49-19    Health under Section 3A, The Plumbing License Law (Article
49-20    6243-101, Vernon's Texas Civil Statutes);
49-21                (2)  all equipment, data, documents, facilities, and
49-22    other items of the Texas Department of Health relating to the
49-23    certification of water treatment specialists; and
49-24                (3)  all appropriations to the Texas Department of
49-25    Health pertaining to the certification of water treatment
49-26    specialists, and all other state or federal money available to the
49-27    Texas Department of Health for that program.
49-28          (b)  On the effective date of this Act, Texas Department of
49-29    Health rules relating to the certification of water treatment
49-30    specialists are the rules of the Texas Natural Resource
49-31    Conservation Commission until the commission adopts rules to govern
49-32    that program. The existing rules relating to certification of water
49-33    treatment specialists shall be in effect until the commission
49-34    adopts new or amended rules.
49-35          SECTION 17.05.  PERFORMANCE-BASED REGULATION. (a)  Not later
49-36    than February 1, 2002, the Texas Natural Resource Conservation
49-37    Commission by rule shall establish the components of compliance
49-38    history, as required by Section 5.753, Water Code, as added by this
49-39    Act.  The use of compliance history for the purposes established by
49-40    Section 5.754, Water Code, as added by this Act, apply only to
49-41    violations that occur on or after the effective date of the rules
49-42    adopted under this subsection.
49-43          (b)  Not later than September 1, 2002, the Texas Natural
49-44    Resource Conservation Commission by rule shall establish the
49-45    standards for the classification and use of compliance history, as
49-46    required by Section 5.754, Water Code, as added by this Act.
49-47          (c)  Not later than September 1, 2003, the Texas Natural
49-48    Resource Conservation Commission by rule shall establish interim
49-49    incentives as part of the strategically directed regulatory
49-50    structure required by Section 5.755, Water Code, as added by this
49-51    Act.
49-52          (d)  Not later than September 1, 2005, the Texas Natural
49-53    Resource Conservation Commission by rule shall complete all rules
49-54    necessary for the strategically directed regulatory structure
49-55    required by Section 5.755, Water Code, as added by this Act.
49-56          (e)  The Texas Natural Resource Conservation Commission shall
49-57    report to the 78th and 79th legislatures regarding the
49-58    implementation of the strategically directed regulatory structure
49-59    required by Section 5.755, Water Code, as added by this Act.  The
49-60    reports must include recommendations regarding statutory
49-61    impediments to program implementation, progress in the development
49-62    of rules and incentives, participation in the program, changes in
49-63    federal statutes and policies affecting implementation of the
49-64    program, and benefits accruing to the environment from the program.
49-65    A report required by this subsection shall be filed not later than
49-66    December 15 of the year preceding the year in which the legislative
49-67    session begins.
49-68          (f)  The changes made by this Act in the consideration of
49-69    compliance history in decisions by the Texas Natural Resource
 50-1    Conservation Commission relating to the issuance, amendment,
 50-2    modification, or renewal of permits under the following sections
 50-3    apply only to an application for the issuance, amendment,
 50-4    modification, or renewal of a permit submitted to the Texas Natural
 50-5    Resource Conservation Commission on or after September 1, 2002:
 50-6                (1)  Sections 5.754, 26.028, 26.0281, 26.040, and
 50-7    27.018, Water Code; and
 50-8                (2)  Sections 361.084, 361.088, 361.089, 382.0518,
 50-9    382.055, and 382.056, Health and Safety Code.
50-10          (g)  The changes made by this Act in the consideration of
50-11    compliance history in decisions by the Texas Natural Resource
50-12    Conservation Commission relating to inspections and flexible
50-13    permitting under Subchapter Q, Chapter 5, Water Code, as added by
50-14    this Act apply, effective September 1, 2002, to an action taken by
50-15    the Texas Natural Resource Conservation Commission that is subject
50-16    to those sections.
50-17          (h)  The changes made by this Act in the definition of
50-18    compliance history apply to an action taken by the commission on or
50-19    after February 1, 2002.
50-20          (i)  The changes made by this Act in the consideration of
50-21    compliance history in decisions of the Texas Natural Resource
50-22    Conservation Commission relating to the suspension or revocation of
50-23    a permit or the imposition of a penalty in a matter under the
50-24    jurisdiction of the commission apply only to a proceeding that is
50-25    initiated or an action that is brought on or after September 1,
50-26    2002.
50-27          (j)  For the period between September 1, 2002, and September
50-28    1, 2005, the commission by rule may temporarily modify specific
50-29    compliance history requirements to implement the regulatory
50-30    structure being developed under Subchapter Q, Chapter 5, Water
50-31    Code, as added by this Act.  This section does not authorize the
50-32    commission to modify existing statutory requirements relating to
50-33    the use of compliance history in any enforcement proceeding.
50-34          SECTION 17.06.  FEES. (a)  The changes in law made by
50-35    Sections 5.702 and 5.703, Water Code, as added by this Act,
50-36    relating to the timely payment and adjustment of fees due the Texas
50-37    Natural Resource Conservation Commission, and by Section 5.706,
50-38    Water Code, as added by this Act, relating to penalties and
50-39    interest for delinquent fees, apply only to fees that are due on or
50-40    after September 1, 2001.
50-41          (b)  The change in law made by this Act to Sections 26.0135
50-42    and 26.0291, Water Code, relating to the consolidation of certain
50-43    fees relating to water quality, takes effect September 1, 2002, and
50-44    applies only to fees due on or after that date.  The assessment and
50-45    collection of fees due before the effective date of this Act are
50-46    governed by the former law, and that law is continued in effect for
50-47    that purpose.  Water resource management account balances dedicated
50-48    to a particular purpose under Sections 26.0135 and 26.0291, Water
50-49    Code, as that law exists before the changes in law made by this
50-50    Act, that have not been expended before the effective date of this
50-51    Act may be used for the purposes authorized by this Act.
50-52          (c)  Water resource management account balances dedicated to
50-53    a particular purpose under the law as it exists before the changes
50-54    in law made by this Act to redesignated Sections 5.701(e), (p), and
50-55    (q), Water Code, and Sections 341.041(a), 366.058(a), and
50-56    366.059(b), Health and Safety Code, that have not been expended
50-57    before the effective date of this Act may be used for the purposes
50-58    authorized under this Act.
50-59          SECTION 17.07.  REGULATORY FLEXIBILITY. The change in law
50-60    made by Section 5.123, Water Code, as added by Chapter 1203, Acts
50-61    of the 75th Legislature, Regular Session, 1997, relating to
50-62    regulatory flexibility, as transferred, redesignated, and amended
50-63    by this Act, applies only to an application for regulatory
50-64    flexibility that is submitted to the Texas Natural Resource
50-65    Conservation Commission on or after September 1, 2001.
50-66          SECTION 17.08.  COMMISSIONER TRAINING. (a)  As soon as
50-67    practicable after September 1, 2001, but not later than December 1,
50-68    2001, the Texas Natural Resource Conservation Commission shall
50-69    adopt rules to implement the training program for commission
 51-1    members required by Section 5.0535, Water Code, as added by this
 51-2    Act.
 51-3          (b)  The training requirements of Section 5.0535, Water Code,
 51-4    as added by this Act, apply only to a member of the commission who
 51-5    is appointed on or after January 1, 2002.
 51-6          SECTION 17.09.  EXECUTIVE DIRECTOR. The change in law made by
 51-7    this Act to Section 5.228, Water Code, relating to hearing
 51-8    appearances by the executive director of the Texas Natural Resource
 51-9    Conservation Commission, applies only to a hearing in which the
51-10    executive director is named a party on or after September 1, 2001.
51-11          SECTION 17.10.  INITIATION OF ACTION ON CITIZEN INFORMATION.
51-12    (a)  Not later than December 1, 2001, the Texas Natural Resource
51-13    Conservation Commission shall adopt rules to implement the
51-14    requirements of Section 7.0025, Water Code, as added by this Act,
51-15    relating to the initiation of enforcement action by the commission
51-16    based on information regarding an environmental problem submitted
51-17    by a private individual.
51-18          (b)  The change in law made by Section 7.0025, Water Code, as
51-19    added by this Act, applies only to information regarding an
51-20    environmental problem submitted to the Texas Natural Resource
51-21    Conservation Commission on or after January 1, 2002.
51-22          SECTION 17.11.  ADOPTION OF RULES REGARDING REGULATION OF
51-23    CERTAIN FACILITIES AS SOLID WASTE FACILITIES. As soon as
51-24    practicable after the effective date of this Act, the Texas Natural
51-25    Resource Conservation Commission shall adopt rules as necessary to
51-26    implement Section 361.119, Health and Safety Code, as added by this
51-27    Act.
51-28          SECTION 17.12.  EMISSIONS EVENTS.  The purpose of Sections
51-29    382.0215 and 382.0216, Health and Safety Code, as added by this
51-30    Act, is to specifically state the statutory basis for certain
51-31    requirements in the existing rules of the Texas Natural Resource
51-32    Conservation Commission relating to upsets, startups, shutdowns,
51-33    and maintenance as they exist on September 1, 2001, and to add new
51-34    or more stringent requirements regarding upsets, startups,
51-35    shutdowns, and maintenance.
51-36          SECTION 17.13.  CONTAINMENT SYSTEMS REQUIRED FOR CERTAIN
51-37    UNDERGROUND STORAGE TANKS. The change in law made by Section
51-38    26.3476, Water Code, as added by this Act, applies only to an
51-39    underground storage tank system that is installed, upgraded, or
51-40    replaced on or after the effective date of this Act.
51-41          SECTION 17.14. (a) Not later than December 31, 2002, the
51-42    Texas Natural Resource Conservation Commission shall review the
51-43    permitting process relating to air source contaminants from
51-44    concrete batch plant facilities and make recommendations to the
51-45    governor, lieutenant governor, and the speaker of the house of
51-46    representatives as to their findings.  In their review, the
51-47    commission shall consider the following:
51-48                (1)  the direct and indirect cost and benefit of the
51-49    public participation process in authorizing concrete batch plant
51-50    emissions;
51-51                (2)  the risks posed to public health and the
51-52    environment by concrete batch plants, and the efficacy and cost of
51-53    control technology and methods in minimizing those risks;
51-54                (3)  applicable federal standards; and
51-55                (4)  the role of land use issues in the concrete batch
51-56    plant process, and methods of addressing such issues.
51-57          (b)  The commission may utilize or contract with any outside
51-58    sources deemed necessary to meet the requirements of this section.
51-59          SECTION 17.15.  EFFECTIVE DATE.  Except as otherwise provided
51-60    by this Act, this Act takes effect September 1, 2001.
51-61                                 * * * * *