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 * * * * *