78S10014 JJT-F
By: Chisum H.B. No. 21
A BILL TO BE ENTITLED
AN ACT
relating to efficiency in certain procedures and hearings of the
Texas Commission on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. NONADJUDICATIVE HEARINGS; NOTICE
SECTION 1.01. Chapter 5, Water Code, is amended by adding
Subchapter S to read as follows:
SUBCHAPTER S. NONADJUDICATIVE NOTICE AND HEARING
Sec. 5.851. APPLICABILITY. This subchapter provides
procedures for providing public notice, opportunity for public
comment, and an opportunity for a nonadjudicative hearing regarding
commission actions relating to permits issued under Chapter 26 or
27 or under Chapter 361 or 382, Health and Safety Code.
Sec. 5.852. PRELIMINARY DECISION. (a) The executive
director shall conduct a technical review of and issue a
preliminary decision on an application for a permit.
(b) The applicant shall make available for review and
copying a copy of the application and preliminary decision at a
public place in the county in which the facility is located or
proposed to be located.
Sec. 5.853. NOTICE OF PRELIMINARY DECISION; PUBLIC COMMENT
PERIOD. (a) The commission by rule shall establish:
(1) the form, content, and timing of a notice of a
preliminary decision; and
(2) the duration of the public comment period.
(b) Notice of a preliminary decision must be provided as
follows:
(1) the chief clerk of the commission shall mail
notice to:
(A) the state senator and representative who
represent the general area in which the facility is located or
proposed to be located; and
(B) any other person designated by commission
rule; and
(2) the applicant shall publish notice in a newspaper
of general circulation in the county in which the facility is
located or proposed to be located.
(c) The notice must include:
(1) the permit application number;
(2) the applicant's name and address;
(3) the location of the facility and the nature of the
proposed activity at the facility;
(4) the location at which copies of the application
and preliminary decision are available for review and copying;
(5) a description of any procedural rights of the
public; and
(6) a 30-day public comment period, except as
otherwise provided by commission rule.
Sec. 5.854. NONADJUDICATIVE HEARING. (a) A hearing on an
application for issuance, amendment, modification, or renewal of a
permit subject to this subchapter must be conducted under this
section. Chapter 2001, Government Code, does not apply to a hearing
under this subchapter.
(b) The executive director shall hold a nonadjudicative
hearing for an application if, after the close of the public comment
period, there is significant public interest in the application.
(c) At the hearing, any person may submit an oral or written
statement regarding the application for the permit. The public
comment period extends to the close of the hearing.
(d) In determining whether to issue the permit and what
conditions should be included if a permit is issued, the executive
director shall consider all comments received during the public
comment period and at the hearing.
Sec. 5.855. RESPONSE TO PUBLIC COMMENTS; PREPARATION OF
FACT SHEET. (a) If necessary to satisfy a requirement for federal
authorization of a state permit program, the executive director, in
a manner consistent with commission rule, shall file with the chief
clerk of the commission a response to each significant written
public comment on the preliminary decision filed during the public
comment period.
(b) For an application that is not subject to Subsection
(a), the executive director shall submit to the chief clerk of the
commission a fact sheet that briefly describes the principal facts
and significant legal and policy issues related to the application.
ARTICLE 2. PUBLIC PARTICIPATION
SECTION 2.01. Subchapter D, Chapter 5, Water Code, is
amended by adding Sections 5.136 and 5.137 to read as follows:
Sec. 5.136. GENERAL PERMITS. (a) The commission may issue
a general permit to authorize a regulated activity for a category of
entities if the commission finds that:
(1) the types of operations of the entities are the
same or substantially similar;
(2) the activity is more appropriately regulated under
a general permit than under an individual permit;
(3) the general permit is enforceable;
(4) the commission can adequately monitor compliance
with the terms of the general permit; and
(5) the general permit does not conflict with any
requirement to maintain federal program authorization.
(b) The commission shall publish notice of a proposed
general permit in the Texas Register and in a newspaper of general
circulation in the area affected by the activity that is the subject
of the proposed general permit. For a statewide general permit, the
commission shall designate one or more newspapers of statewide or
regional circulation and shall publish notice of the proposed
statewide general permit in each designated newspaper in addition
to the Texas Register. The notice shall invite written comments and
be published not later than the 30th day before the commission
issues the general permit.
(c) The commission may hold a public meeting to provide an
additional opportunity for public comment. The commission shall
give notice of a public meeting as provided by Subsection (b) not
later than the 30th day before the date of the meeting.
(d) If the commission receives public comment relating to
issuance of a general permit, the commission may issue the general
permit only after responding in writing to the written comments.
The commission shall issue a written response to comments on the
permit at the same time the commission issues or denies the permit.
The commission shall make its response available to the public and
shall mail its response to each person who made a comment.
(e) A general permit must include the procedures for
obtaining authorization under the terms of the general permit.
(f) The commission by rule shall establish procedures for
the issuance, amendment, renewal, suspension, revocation, or
cancellation of a general permit.
(g) The commission may impose a reasonable and necessary fee
for authorization to use general permits under this section.
(h) The issuance, amendment, renewal, suspension,
revocation, or cancellation of a general permit or of authorization
to use a general permit is not subject to Subchapters C-F, Chapter
2001, Government Code.
(i) The commission may adopt rules as necessary to implement
and administer this section.
(j) The commission may delegate to the executive director
the authority to issue, amend, renew, suspend, revoke, or cancel a
general permit or an authorization to use a general permit.
Sec. 5.137. TIME LIMIT FOR ISSUANCE OR DENIAL OF PERMITS.
(a) Except as provided by Subsection (b), all permit decisions
shall be made within 180 days of the date of the receipt of the
permit application or application amendment or the date of the
determination of administrative completeness, whichever date is
later.
(b) This section does not apply to a permit issued under a
federally delegated or approved program unless allowed under that
program.
SECTION 2.02. Section 5.551, Water Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) This subchapter establishes procedures for providing
public notice, an opportunity for public comment, and a contested
case [an opportunity for public] hearing under [Subchapters C-H,]
Chapter 2001, Government Code, regarding commission actions
relating to a permit issued under Chapter 26 or 27 [of this code] or
under Chapter 361 or 382, Health and Safety Code. This subchapter
is procedural and does not expand or restrict the types of
commission actions for which public notice, an opportunity for
public comment, and a contested case [an opportunity for public]
hearing are provided under Chapter 26 or 27 [of this code] or
Chapter 361 or 382, Health and Safety Code.
(d) The procedures established by this subchapter apply to
permits subject to a contested case hearing and supersede any other
procedural requirements in Chapter 26 or 27 and under Chapter 361 or
382, Health and Safety Code, relating to public notice, public
comment, public meetings, and a request for a contested case
hearing.
SECTION 2.03. Subchapter M, Chapter 5, Water Code, is
amended by adding Section 5.5515 to read as follows:
Sec. 5.5515. NOTICE CONTENT; PUBLIC COMMENT PERIOD. (a)
The commission by rule shall establish:
(1) the form, content, and timing of the notice; and
(2) the duration of the public comment period.
(b) Notice must be provided as follows:
(1) the chief clerk shall mail the notice to:
(A) the state senator and representative who
represent the general area in which the facility is located or
proposed to be located; and
(B) any other person designated by commission
rule; and
(2) the applicant shall publish notice in a newspaper
of general circulation in the county in which the facility is
located or proposed to be located.
(c) The notice must include:
(1) the permit application number;
(2) the applicant's name and address;
(3) the location of the facility and the nature of the
proposed activity;
(4) the location of a public place in the county in
which the facility is located or proposed to be located at which
copies of the application and preliminary decision are available
for review and copying;
(5) a description of the procedural rights and
obligations of the public; and
(6) a 30-day public comment period, except as
otherwise provided by commission rule.
SECTION 2.04. The heading to Section 5.553, Water Code, is
amended to read as follows:
Sec. 5.553. PRELIMINARY DECISION[; NOTICE AND PUBLIC
COMMENT].
SECTION 2.05. Section 5.553, Water Code, is amended by
adding Subsection (a-1) and amending Subsection (e) to read as
follows:
(a-1) Notice of the preliminary decision must be provided in
accordance with Section 5.5515.
(e) The applicant shall make a copy of the application and
preliminary decision available for review and copying at a public
place in the county in which the facility is located or proposed to
be located.
SECTION 2.06. Section 5.554, Water Code, is amended to read
as follows:
Sec. 5.554. PUBLIC MEETING. (a) During the public comment
period, the executive director may hold one or more public meetings
in the county in which the facility is located or proposed to be
located. The executive director shall hold a public meeting:
(1) on the request of a member of the legislature who
represents the general area in which the facility is located or
proposed to be located; or
(2) if the executive director determines that there is
substantial public interest in the proposed activity.
(b) The applicant shall publish notice of a public meeting
in a newspaper of general circulation in the county in which the
facility is located or proposed to be located at least 30 days
before the public meeting unless otherwise provided by commission
rule.
SECTION 2.07. Section 5.555, Water Code, is amended to read
as follows:
Sec. 5.555. RESPONSE TO PUBLIC COMMENTS; PREPARATION OF
FACT SHEET. (a) If necessary to satisfy a requirement for federal
authorization of a state permit program, the [The] executive
director, in accordance with [procedures provided by] commission
rules [rule], shall file with the chief clerk of the commission a
response to each significant written [relevant and material] public
comment on the preliminary decision filed during the public comment
period.
(b) For applications that are not subject to Subsection (a),
the executive director shall prepare a fact sheet that briefly
describes the principal facts and significant legal and policy
issues and shall file the fact sheet with the chief clerk of the
commission [The chief clerk of the commission shall transmit the
executive director's decision, the executive director's response to
public comments, and instructions for requesting that the
commission reconsider the executive director's decision or hold a
contested case hearing to:
[(1) the applicant;
[(2) any person who submitted comments during the
public comment period; and
[(3) any person who requested to be on the mailing list
for the permit action].
SECTION 2.08. The heading to Section 5.556, Water Code, is
amended to read as follows:
Sec. 5.556. REQUEST FOR [RECONSIDERATION OR] CONTESTED CASE
HEARING.
SECTION 2.09. Section 5.556, Water Code, is amended by
amending Subsections (a), (b), (c), and (f), and by adding
Subsections (d-1)-(d-9) to read as follows:
(a) A person may request that the executive director refer
an application to the State Office of Administrative Hearings for
[commission reconsider the executive director's decision or hold] a
contested case hearing. A request must be filed with the chief
clerk of the commission during the period provided by commission
rule.
(b) The executive director [commission] shall act on a
request during the period provided by commission rule.
(c) The executive director on receiving [commission may not
grant] a request for a contested case hearing [unless the
commission determines that the request was filed] by the applicant
or by an affected person as defined by Subsections (d-1)-(d-5),
shall refer an application to the State Office of Administrative
Hearings [Section 5.115].
(d-1) For applications under Chapter 382, Health and Safety
Code, an affected person is a person who:
(1) resides on or owns property within one-half mile
of the facility or proposed facility if the application is for a
permit or permit amendment to allow emissions below the threshold
for major source or major modification, or for a permit renewal; or
(2) resides on or owns property within one mile of the
facility or proposed facility if the application is for a permit or
permit amendment for a major source or major modification.
(d-2) For industrial solid waste and hazardous waste
applications under Chapter 361, Health and Safety Code, an affected
person is a person who resides on or owns property within:
(1) one-half mile of the facility or proposed facility
if the application is for a major amendment, Class 3 modification,
or renewal; or
(2) one mile of the facility or proposed facility if
the application is for a new permit.
(d-3) For municipal solid waste applications under Chapter
361, Health and Safety Code, an affected person is a person who
resides on or owns property within:
(1) one-half mile of the facility or proposed facility
if the application is for a major amendment or a modification that
requires notice; or
(2) one mile of the facility or proposed facility if
the application is for a new permit.
(d-4) For underground injection well applications under
Chapter 27, an affected person is a person who, for a new permit,
major amendment, or renewal, resides on, owns property on, or owns
mineral rights:
(1) underlying the facility; or
(2) underlying property adjacent to the facility.
(d-5) For water quality applications for a new permit, major
amendment, or renewal, under Chapter 26, an affected person is a
person who resides on or owns property:
(1) within one-half mile downstream of a discharge or
proposed discharge;
(2) within one mile downstream of a discharge or
proposed discharge if the proposed discharge is for one million
gallons per day or more; or
(3) that is adjacent to the property used by the
applicant to dispose of or land apply waste or wastewater, or
adjacent to the facility or proposed facility.
(d-6) An affected person must reside on or own the property
specified in Subsections (d-1)-(d-5) on the date of the notice of
preliminary decision.
(d-7) A group composed of individuals with a common interest
and that is potentially affected by the application, an association
that has one or more members potentially affected by the
application, or a governmental entity with authority under state
law over issues relating to the permit application may be an
affected person. The commission by rule shall establish criteria
for determining whether a group, association, or governmental
entity is an affected person.
(d-8) A person whose hearing request is not referred to the
State Office of Administrative Hearings may appeal to the
commission as provided by commission rule.
(d-9) The commission by rule may establish criteria for the
amount of increase proposed to be authorized below which a request
for hearing by an affected person may be denied if the commission
determines that such an increase is not expected to have a negative
impact on human health or the environment.
(f) This section does not preclude the executive director
from referring any application for a contested case hearing and
does not preclude the commission from holding a hearing if it
determines that the public interest warrants doing so.
SECTION 2.10. Sections 26.028(c), (d), (g), and (h), Water
Code, are amended to read as follows:
(c) Except as otherwise provided by this section, the
commission, on the motion of a commissioner, or on the request of
the executive director or any affected person, shall hold a
contested case [public] hearing on the application for a permit,
permit amendment, or renewal of a permit.
(d) Notwithstanding any other provision of this chapter,
the commission, at a regular meeting without the necessity of
holding a contested case [public] hearing, may approve an
application to renew or amend a permit if:
(1) the applicant is not applying to:
(A) increase significantly the quantity of waste
authorized to be discharged; or
(B) change materially the pattern or place of
discharge;
(2) the activities to be authorized by the renewed or
amended permit will maintain or improve the quality of waste
authorized to be discharged;
(3) [for NPDES permits,] notice and the opportunity to
comment and request a nonadjudicative hearing under Subchapter S,
Chapter 5, has been [public meeting shall be] given, and a
nonadjudicative hearing has been held if required under Subchapter
S, Chapter 5 [in compliance with NPDES program requirements, and
the commission shall consider and respond to all timely received
and significant public comment]; [and]
(4) the commission determines that an applicant's
compliance history for the preceding five years [under the method
for evaluating compliance history developed by the commission under
Section 5.754] raises no issues regarding the applicant's ability
to comply with a material term of its permit; and
(5) for NPDES permits, the commission has considered
and responded to each significant public comment that was timely
received.
(g) An application to renew a permit for a confined animal
feeding operation [which was issued between July 1, 1974, and
December 31, 1977,] may be set for consideration and may be acted on
by the commission at a regular meeting without the necessity of
holding a contested case [public] hearing if the applicant does not
seek to discharge into or adjacent to water in the state and does
not seek to change materially the pattern or place of disposal.
(h) For the purposes of Subsection (c), the commission may
act on the application without holding a contested case [public]
hearing if all of the following conditions are met:
(1) not less than 30 days before the date of action on
the application by the commission, the applicant has published the
commission's notice of the application at least once in a newspaper
regularly published or circulated within each county where the
proposed facility or discharge is located and in each county
affected by the discharge;
(2) not less than 30 days before the date of action on
the application by the commission, the applicant has served or
mailed the commission's notice of the application to persons who in
the judgment of the commission may be affected, including the
county judges as required by Subsection (b). As part of the [his]
application the applicant shall submit an affidavit which lists the
names and addresses of the persons who may be affected by the
application and includes the source of the list;
(3) within 30 days after the date of the newspaper
publication of the commission's notice, neither a commissioner, the
executive director, nor an affected person who objects to the
application has requested a contested case [public] hearing.
SECTION 2.11. Section 361.0666, Health and Safety Code, is
amended by adding Subsection (f) to read as follows:
(f) A public meeting is not required for a new municipal
solid waste facility that is authorized through registration.
SECTION 2.12. Section 361.088(e), Health and Safety Code,
is amended to read as follows:
(e) This subsection applies to an application for a new
permit or permit modification or amendment for post-closure care or
corrective action at a solid waste management facility. After
complying with Sections 5.5515-5.555 [5.552-5.555], Water Code,
the commission, without providing an opportunity for a contested
case hearing, may act on an application described by this
subsection if notice and opportunity to request a nonadjudicative
hearing under Subchapter S, Chapter 5, Water Code, has been given,
to renew a permit for:
(1) storage of hazardous waste in containers, tanks,
or other closed vessels if the waste:
(A) was generated on-site; and
(B) does not include waste generated from other
waste transported to the site; [and]
(2) processing of hazardous waste if:
(A) the waste was generated on-site;
(B) the waste does not include waste generated
from other waste transported to the site; and
(C) the processing does not include thermal
processing; and
(3) treatment, storage, or disposal of solid waste,
including actions relating to post-closure or corrective action, if
the renewal application does not include any changes to
authorization provided by the existing permit.
SECTION 2.13. Section 361.121(c), Health and Safety Code,
as amended by H.B. No. 2546, Acts of the 78th Legislature, Regular
Session, 2003, is amended to read as follows:
(c) The notice and hearing provisions of Subchapter S [M],
Chapter 5, Water Code, [as added by Chapter 1350, Acts of the 76th
Legislature, Regular Session, 1999,] apply to an application under
this section for a permit, a permit amendment, or a permit renewal.
In addition, at the time published notice of intent to obtain a
permit is required under Section 5.552, Water Code, an applicant
for a permit, permit amendment, or permit renewal under this
section must notify by registered or certified mail each owner of
land located within one-quarter mile of the proposed land
application unit who lives on that land of the intent to obtain the
permit, amendment, or renewal. Notice to landowners must include
the information required by Section 5.552(c), Water Code, and
information regarding the anticipated date of the first application
of the sludge to the proposed land application unit. An owner of
land located within one-quarter mile of the proposed land
application unit who lives on that land is an affected person for
purposes of Section 5.115, Water Code.
SECTION 2.14. Subchapter C, Chapter 361, Health and Safety
Code, is amended by adding Sections 361.123 and 361.124 to read as
follows:
Sec. 361.123. PERMIT FOR DISPOSAL OF BRUSH, CONSTRUCTION
AND DEMOLITION WASTE, AND OTHER NONPUTRESCIBLE WASTES IN
ARID-EXEMPT LANDFILLS. This section applies only to a landfill for
which an application for an initial permit is filed on or after
November 1, 2003, and that is certified as arid-exempt in
accordance with commission rule and is designated for the disposal
of brush, construction and demolition waste, and other
nonputrescible wastes. An application by a landfill for a permit or
permit amendment is not subject to a contested case hearing but is
subject to notice and opportunity for a nonadjudicative hearing
under Subchapter S, Chapter 5, Water Code.
Sec. 361.124. PERMIT FOR ANIMAL CREMATORY FACILITY. This
section applies only to a facility that stores, processes, or
disposes of animal carcasses and that is not eligible for
authorization through a permit by rule. An application by a
facility for a permit or permit amendment is not subject to a
contested case hearing but is subject to the notice and opportunity
for a nonadjudicative hearing under Subchapter S, Chapter 5, Water
Code.
SECTION 2.15. Section 361.534, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (c) to
read as follows:
(a) The commission may hold a public meeting on [shall set a
hearing to be held not later than the 30th day after the date that
the commission receives] an application under this subchapter.
(c) Notice of the public meeting shall be mailed and
published as provided by commission rule.
SECTION 2.16. Section 382.0518(b), Health and Safety Code,
is amended to read as follows:
(b) The commission shall grant within a reasonable time a
permit or permit amendment to construct or modify a facility if,
from the information available to the commission, including
information presented at a contested case [any] hearing [held under
Section 382.056(k)], the commission finds:
(1) the proposed facility for which a permit, permit
amendment, or a special permit is sought will use at least the best
available control technology, considering the technical
practicability and economic reasonableness of reducing or
eliminating the emissions resulting from the facility; and
(2) no indication that the emissions from the facility
will contravene the intent of this chapter, including protection of
the public's health and physical property.
SECTION 2.17. Section 382.05191, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (e) to
read as follows:
(a) An applicant for a permit under Section 382.05183,
382.05185(c) or (d), 382.05186, or 382.0519 shall publish notice,
including notice of the opportunity for nonadjudicative hearing [of
intent to obtain the permit] in accordance with Subchapter S,
Chapter 5, Water Code [Section 382.056]. An applicant for a permit
under Section 382.05186(b) shall publish notice, including notice
of an opportunity for nonadjudicative hearing under Section
382.05197.
(e) For an application under Section 382.05183,
382.05185(c) or (d), 382.05186, or 382.0519, the executive director
shall prepare a fact sheet that briefly describes the principal
facts and significant legal and policy issues, as provided by
commission rule.
SECTION 2.18. Section 382.05197, Health and Safety Code, is
amended by amending Subsection (a) and adding Subsection (e) to
read as follows:
(a) An application [applicant] for a permit under Section
382.05194 is subject to notice and opportunity for contested case
hearing [shall publish notice of intent to obtain the permit in
accordance with Section 382.056, except that the notice of a
proposed multiple plant permit for existing facilities shall be
published in one or more statewide or regional newspapers that
provide reasonable notice throughout the state. If the multiple
plant permit for existing facilities will be effective for only
part of the state, the notice shall be published in a newspaper of
general circulation in the area to be affected. The commission by
rule may require that additional notice be given].
(e) Notwithstanding Section 5.5515(c), Water Code, notice
of a proposed multiple plant permit for existing facilities shall
be published in one or more statewide or regional newspapers that
provide reasonable notice throughout this state. If the multiple
plant permit for existing facilities will be effective for only a
part of this state, the notice shall be published in a newspaper of
general circulation in the area to be affected. The commission by
rule may require that additional notice be given.
SECTION 2.19. The heading to Section 382.056, Health and
Safety Code, is amended to read as follows:
Sec. 382.056. NOTICE AND [OF INTENT TO OBTAIN PERMIT OR
PERMIT REVIEW;] HEARING.
SECTION 2.20. Section 382.056, Health and Safety Code, as
amended by H.B. No. 555 and H.B. No. 1287, Acts of the 78th
Legislature, Regular Session, 2003, is amended by amending
Subsections (a), (o), (q), and (r) and adding Subsections (a-1)
through (a-3) to read as follows:
(a) An [Except as provided by Section 382.0518(h), an]
applicant for a permit or permit amendment under Section 382.0518
or a permit renewal review under Section 382.055 shall publish
notice of a preliminary decision on [intent to obtain] the permit,
permit amendment, or permit review and provide an opportunity for
contested case hearing as provided by Subchapter M, Chapter 5,
Water Code [not later than the 30th day after the date the
commission determines the application to be administratively
complete. The commission by rule shall require an applicant for a
federal operating permit under Section 382.054 to publish notice of
intent to obtain a permit, permit amendment, or permit review
consistent with federal requirements and with the requirements of
Subsection (b). The applicant shall publish the notice at least
once in a newspaper of general circulation in the municipality in
which the facility or federal source is located or is proposed to be
located or in the municipality nearest to the location or proposed
location of the facility or federal source. If the elementary or
middle school nearest to the facility or proposed facility provides
a bilingual education program as required by Subchapter B, Chapter
29, Education Code, the applicant shall also publish the notice at
least once in an additional publication of general circulation in
the municipality or county in which the facility is located or
proposed to be located that is published in the language taught in
the bilingual education program. This requirement is waived if
such a publication does not exist or if the publisher refuses to
publish the notice]. The commission by rule shall prescribe the
form and content of the notice and when notice must be published.
The commission may require publication of additional notice. The
commission by rule shall prescribe alternative procedures for
publication of the notice in a newspaper if the applicant is a small
business stationary source as defined by Section 382.0365 and will
not have a significant effect on air quality. The alternative
procedures must be cost-effective while ensuring adequate notice[.
Notice required to be published under this section shall only be
required to be published in the United States].
(a-1) An amendment, modification, or renewal that would not
result in an increase in allowable emissions and would not result in
the emission of an air contaminant not previously emitted is
subject to notice, but the commission may not hold a contested case
hearing on the amendment, modification, or renewal as provided by
this section except as provided by Subsection (o).
(a-2) An application for a permit amendment under this
section is not subject to notice or contested case hearing if the
total emissions increase from all facilities authorized under the
amended permit will meet the de minimus criteria established by
commission rule and the emissions will not change in character. An
application for a permit amendment for a facility affected by a rule
adopted under Section 382.020 is not subject to notice or contested
case hearing if the total emissions increase from all facilities
authorized under the permit amendment is not significant and will
not change in character. A finding under this subsection that a
total emissions increase is not significant must be made in the same
manner as a finding made under Section 382.05196.
(a-3) The following types of applications for a permit,
permit amendment, or permit renewal are not subject to the
opportunity for a contested case hearing and are subject to notice
and opportunity for a nonadjudicative hearing under Subchapter S,
Chapter 5, Water Code:
(1) concrete batch plants;
(2) rock crushing facilities;
(3) concrete crushing facilities;
(4) hot mix asphalt plants;
(5) cotton gins;
(6) grain handling facilities; and
(7) animal crematory facilities.
(o) Notwithstanding other provisions of this chapter, an
application for [the commission may hold a hearing on] a permit
amendment, modification, or renewal is subject to the opportunity
for a contested case hearing if it [if the commission determines
that the application] involves a facility for which the applicant's
compliance history is unacceptable to the commission based on
violations constituting a recurring pattern of conduct that
demonstrates a consistent disregard for the regulatory process,
including a failure to make a timely and substantial attempt to
correct the violations [in the lowest classification under Sections
5.753 and 5.754, Water Code, and rules adopted and procedures
developed under those sections].
(q) The commission [department] shall establish rules to
ensure that a permit applicant complies with the notice requirement
under Subchapter M, Chapter 5, Water Code [Subsection (a)].
(r) An application is not subject to notice and opportunity
for a contested case hearing if the application involves [This
section does not apply to]:
(1) the relocation or change of location of a portable
facility to a site where an authorized [a] portable facility has
been located at the proposed site at any time during the previous
two years;
(2) a portable facility located temporarily in the
right-of-way, or contiguous to the right-of-way, of a public works
project; or
(3) a facility described by Section 382.065(c), unless
that facility is in a county with a population of 2.4 million or
more or in a county adjacent to such a county.
SECTION 2.21. The heading to Section 382.0561, Health and
Safety Code, is amended to read as follows:
Sec. 382.0561. FEDERAL OPERATING PERMIT: NOTICE AND
HEARING.
SECTION 2.22. Section 382.0561(f), Health and Safety Code,
is amended to read as follows:
(f) Notice of the public comment period and opportunity for
a hearing under this section shall be published in accordance with
commission rules and include:
(1) a description of the location or proposed location
of the facility or federal source;
(2) a description of the manner in which the
commission may be contacted for further information, including a
telephone number;
(3) a statement that a person who may be affected by
emissions of air contaminants from the facility, proposed facility,
or federal source, is entitled to request a nonadjudicative hearing
from the commission; and
(4) any other information the commission by rule
requires [Section 382.056].
SECTION 2.23. The following laws are repealed:
(1) Section 5.552, Water Code;
(2) Sections 5.553(b), (c), and (d), Water Code;
(3) Sections 5.556(d) and (e), Water Code; and
(4) Section 5.557, Water Code.
SECTION 2.24. Sections 361.0791, 361.080(b), 361.081(c),
361.082(d), and 361.088(d), Health and Safety Code, are repealed.
SECTION 2.25. Sections 361.534(b), 382.0518(h) and (i),
382.05191(b) and (c), 382.05197(b) and (c), 382.056(b)-(n) and (p),
and 382.058, Health and Safety Code, are repealed.
ARTICLE 3. COMPLIANCE HISTORY
SECTION 3.01. Subchapter Q, Chapter 5, Water Code, is
repealed.
SECTION 3.02. Section 361.0215(c), Health and Safety Code,
is repealed.
SECTION 3.03. Section 27.051(h), Water Code, as added by
Chapter 965, Acts of the 77th Legislature, Regular Session, 2001,
is repealed.
SECTION 3.04. Section 26.0281, Water Code, is amended to
read as follows:
Sec. 26.0281. CONSIDERATION OF PAST PERFORMANCE AND
COMPLIANCE [HISTORY]. In considering the issuance, amendment, or
renewal of a permit to discharge effluent comprised primarily of
sewage or municipal waste, the commission shall consider any
adjudicated decision or [the] compliance proceeding addressing
past performance and compliance [history] of the applicant and its
operator with the laws of this state governing waste discharge,
waste treatment, or waste disposal facilities and with the terms of
any permit or order issued by the commission [under the method for
evaluating compliance history developed by the commission under
Section 5.754]. In considering an applicant's compliance history
under this subsection, the commission shall consider as evidence of
compliance information regarding the applicant's implementation of
an environmental management system at the facility for which the
permit, permit amendment, or permit renewal is sought. In this
section, "environmental management system" has the meaning
assigned by Section 5.127.
SECTION 3.05. Section 26.040(h), Water Code, is amended to
read as follows:
(h) Notwithstanding other provisions of this chapter, the
commission, after hearing, shall deny or suspend a discharger's
authority to discharge under a general permit if the commission
determines that the discharger operates any facility for which the
discharger's compliance history contains violations constituting a
recurring pattern of egregious conduct that demonstrates a
consistent disregard for the regulatory process, including a
failure to make a timely and substantial attempt to correct the
violations [is in the lowest classification under Sections 5.753
and 5.754 and rules adopted and procedures developed under those
sections]. A hearing under this subsection is not subject to
Chapter 2001, Government Code.
SECTION 3.06. Section 27.051(d), Water Code, and Section
27.051(e), Water Code, as amended by Chapter 965, Acts of the 77th
Legislature, Regular Session, 2001, are amended to read as follows:
(d) The commission, in determining if the use or
installation of an injection well is in the public interest under
Subsection (a)(1), shall consider, but shall not be limited to the
consideration of:
(1) compliance history of the applicant and related
entities [under the method for evaluating compliance history
developed by the commission under Section 5.754 and] in accordance
with the provisions of Subsection (e);
(2) whether there is a practical, economic, and
feasible alternative to an injection well reasonably available; and
(3) if the injection well will be used for the disposal
of hazardous waste, whether the applicant will maintain sufficient
public liability insurance for bodily injury and property damage to
third parties that is caused by sudden and non-sudden accidents or
will otherwise demonstrate financial responsibility in a manner
adopted by the commission in lieu of public liability insurance. A
liability insurance policy which satisfies the policy limits
required by the hazardous waste management regulations of the
commission for the applicant's proposed pre-injection facilities
shall be deemed "sufficient" under this subdivision if the policy:
(A) covers the injection well; and
(B) is issued by a company that is authorized to
do business and to write that kind of insurance in this state and is
solvent and not currently under supervision or in conservatorship
or receivership in this state or any other state.
(e) The [Consistent with Sections 5.753 and 5.754 and rules
adopted and procedures developed under those sections, the]
commission shall establish a procedure by rule for its preparation
of compliance summaries relating to the history of compliance and
noncompliance by the applicant with the rules adopted or orders or
permits issued by the commission under this chapter for any
injection well for which a permit has been issued under this chapter
[for preparing summaries of the applicant's compliance history].
The compliance summaries shall be made available to the applicant
and any interested person after the commission has completed its
technical review of the permit application and prior to the
promulgation of the public notice relating to the issuance of the
permit. Evidence of compliance or noncompliance by an applicant
for an injection well for the disposal of hazardous waste with the
rules adopted or orders or permits issued by the commission under
this chapter may be offered by any party at a hearing on the
applicant's application and admitted into evidence subject to
applicable rules of evidence. [In accordance with this subsection
and Sections 5.753 and 5.754 and rules adopted and procedures
developed under those sections, evidence of the compliance history
of an applicant for an injection well may be offered at a hearing on
the application and may be admitted into evidence, subject to the
rules of evidence.] All evidence admitted, including compliance
history, shall be considered by the commission in determining
whether to issue, amend, extend or renew a permit.
SECTION 3.07. Sections 361.084(a) and (c), Health and
Safety Code, are amended to read as follows:
(a) The commission by rule shall establish a procedure to
prepare compliance summaries relating to the applicant's solid
waste management activities [in accordance with the method for
evaluating compliance history developed by the commission under
Section 5.754, Water Code]. A compliance summary shall include as
evidence of compliance information regarding the applicant's
implementation of an environmental management system at the
facility for which the authorization is sought. In this subsection,
"environmental management system" has the meaning assigned by
Section 5.127, Water Code.
(c) Evidence of compliance or noncompliance by an applicant
for a solid waste management facility permit with agency rules,
permits, other orders, or evidence of a final determination of
noncompliance with federal statutes or statutes of any state in the
preceding five years concerning solid waste management may be:
(1) offered by a party at a hearing concerning the
application; and
(2) admitted into evidence subject to applicable rules
of evidence.
SECTION 3.08. Section 361.088(f), Health and Safety Code,
is amended to read as follows:
(f) Notwithstanding Subsection (e), if the commission
determines that an applicant's compliance history for the preceding
five years [under the method for evaluating compliance history
developed by the commission under Section 5.754, Water Code,]
raises an issue regarding the applicant's ability to comply with a
material term of its permit, the commission shall provide an
opportunity to request a contested case hearing.
SECTION 3.09. Sections 361.089(a), (e), and (f), Health and
Safety Code, are amended to read as follows:
(a) The commission may, for good cause, deny or amend a
permit it issues or has authority to issue for reasons pertaining to
public health, air or water pollution, or land use, or for a
violation of this chapter or other applicable laws or rules
controlling the management of solid waste [having a compliance
history that is in the lowest classification under Sections 5.753
and 5.754, Water Code, and rules adopted and procedures developed
under those sections].
(e) The commission may deny an original or renewal permit if
it is found, after notice and hearing, that:
(1) the applicant or permit holder has a record of
environmental violations in the preceding five years at the
permitted site [compliance history that is in the lowest
classification under Sections 5.753 and 5.754, Water Code, and
rules adopted and procedures developed under those sections];
(2) the permit holder or applicant made a false or
misleading statement in connection with an original or renewal
application, either in the formal application or in any other
written instrument relating to the application submitted to the
commission, its officers, or its employees;
(3) the permit holder or applicant is indebted to the
state for fees, payment of penalties, or taxes imposed by this title
or by a rule of the commission; [or]
(4) the permit holder or applicant is unable to ensure
that the management of the hazardous waste management facility
conforms or will conform to this title and the rules of the
commission; or
(5) the applicant has a record of environmental
violations in the preceding five years at any site owned, operated,
or controlled by the applicant.
(f) Before denying a permit under this section, the
commission must find:
(1) that a violation or violations are significant and
that the permit holder or applicant has not made a substantial
attempt to correct the violations [the applicant or permit holder
has a compliance history that is in the lowest classification under
Sections 5.753 and 5.754, Water Code, and rules adopted and
procedures developed under those sections]; or
(2) that the permit holder or applicant is indebted to
the state for fees, payment of penalties, or taxes imposed by this
title or by a rule of the commission.
SECTION 3.10. Section 382.0518(c), Health and Safety Code,
is amended to read as follows:
(c) In considering the issuance, amendment, or renewal of a
permit, the commission may consider any adjudicated decision or
compliance proceeding within the five years before the date on
which the application was filed that addressed the applicant's past
performance and compliance with the laws of this state, another
state, or the United States governing air contaminants or with the
terms of any permit or order issued by the commission [the
applicant's compliance history in accordance with the method for
evaluating compliance history developed by the commission under
Section 5.754, Water Code]. In considering an applicant's
compliance history under this subsection, the commission shall
consider as evidence of compliance information regarding the
applicant's implementation of an environmental management system
at the facility for which the permit, permit amendment, or permit
renewal is sought. In this subsection, "environmental management
system" has the meaning assigned by Section 5.127, Water Code.
SECTION 3.11. Section 382.055(d), Health and Safety Code,
is amended to read as follows:
(d) In determining whether and under which conditions a
preconstruction permit should be renewed, the commission shall
consider, at a minimum:
(1) whether the [performance of the owner or operator
of the] facility is or has been in substantial compliance with this
chapter and the terms of the existing permit [according to the
method developed by the commission under Section 5.754, Water
Code]; and
(2) the condition and effectiveness of existing
emission control equipment and practices.
SECTION 3.12. Section 401.110(a), Health and Safety Code,
as amended by H.B. No. 253, Acts of the 78th Legislature, Regular
Session, 2003, is amended to read as follows:
(a) In making a determination whether to grant, deny, amend,
renew, revoke, suspend, or restrict a license or registration, the
commission may consider an applicant's or license holder's
technical competence, financial qualifications, and the
applicant's or license holder's record in areas involving radiation
[compliance history under the method for evaluation of compliance
history developed by the commission under Section 5.754, Water
Code].
SECTION 3.13. Section 401.112(a), Health and Safety Code,
as amended by H.B. No. 253, Acts of the 78th Legislature, Regular
Session, 2003, is amended to read as follows:
(a) The department or commission, within its jurisdiction,
in making a licensing decision on a specific license application to
process or dispose of low-level radioactive waste from other
persons, shall consider:
(1) site suitability, geological, hydrological, and
meteorological factors, and natural hazards;
(2) compatibility with present uses of land near the
site;
(3) socioeconomic effects on surrounding communities
of operation of the licensed activity and of associated
transportation of low-level radioactive waste;
(4) the need for and alternatives to the proposed
activity, including an alternative siting analysis prepared by the
applicant;
(5) the applicant's qualifications, including
financial and technical qualifications and past operating
practices [and compliance history under the method for evaluation
of compliance history developed by the commission under Section
5.754, Water Code, for an application to the commission or the
requirements of Section 401.110(b) for an application to the
department];
(6) background monitoring plans for the proposed site;
(7) suitability of facilities associated with the
proposed activities;
(8) chemical, radiological, and biological
characteristics of the low-level radioactive waste and waste
classification under Section 401.053;
(9) adequate insurance of the applicant to cover
potential injury to any property or person, including potential
injury from risks relating to transportation;
(10) training programs for the applicant's employees;
(11) a monitoring, record-keeping, and reporting
program;
(12) spill detection and cleanup plans for the
licensed site and related to associated transportation of low-level
radioactive waste;
(13) decommissioning and postclosure care plans;
(14) security plans;
(15) worker monitoring and protection plans;
(16) emergency plans; and
(17) a monitoring program for applicants that includes
prelicense and postlicense monitoring of background radioactive
and chemical characteristics of the soils, groundwater, and
vegetation.
ARTICLE 4. REGULATORY FLEXIBILITY AND REGULATORY STRUCTURE
SECTION 4.01. Subchapter D, Chapter 5, Water Code, is
amended by adding Sections 5.138 and 5.139 to read as follows:
Sec. 5.138. REGULATORY FLEXIBILITY. (a) The commission by
order may exempt an applicant from a requirement of a statute or
commission rule regarding the control or abatement of pollution if
the applicant proposes to control or abate pollution by an
alternative method or by applying an alternative standard that is:
(1) as protective of the environment and the public
health as the method or standard prescribed by the statute or
commission rule that would otherwise apply; and
(2) not inconsistent with federal law.
(b) The commission may not exempt an applicant under this
section unless the applicant can demonstrate to the commission that
the applicant's proposed project will result in a level of
protection of environmental quality that is equal to or greater
than the level of protection afforded by existing standards.
(c) The commission by rule shall specify the procedure for
obtaining an exemption under this section.
(d) The commission's order must describe the alternative
method or standard and must condition the exemption on compliance
with the method or standard as the order prescribes.
(e) The commission by rule may establish a reasonable fee
for applying for an exemption under this section.
(f) The violation of an order issued under this section is
punishable as if it were a violation of the statute or rule from
which the order grants an exemption.
(g) The commission may not exempt an applicant from a
requirement of a statute or regulation regarding the storing,
handling, processing, or disposing of low-level radioactive
materials.
(h) In implementing the program of regulatory flexibility
authorized by this section, the commission shall:
(1) endorse alternative methods that will comply with
legal requirements and impose the least onerous restrictions on
business, including economic benefit; and
(2) work to achieve consistent and predictable results
for the regulated community and shorter waits for permit issuance.
Sec. 5.139. STRATEGICALLY DIRECTED REGULATORY STRUCTURE.
(a) The commission may develop a strategically directed regulatory
structure that is designed to use innovative programs to provide
enhanced environmental benefit and reward compliance performance.
(b) The strategically directed regulatory structure may
offer incentives based on a person's compliance performance and any
voluntary measures undertaken by the person to improve
environmental quality.
(c) An innovative program offered as part of a strategically
directed regulatory structure must:
(1) provide incentives to a person in return for
benefits to the environment that exceed benefits that would result
from compliance with applicable legal requirements under the
commission's jurisdiction; and
(2) be consistent with other law and any requirement
necessary to maintain federal program authorization.
ARTICLE 5. TRANSITION PROVISIONS AND EFFECTIVE DATE
SECTION 5.01. (a) The changes in law made by Articles 1 and
2 of this Act apply only to an application for a permit filed with
the Texas Commission on Environmental Quality on or after November
1, 2003. An application for a permit that is filed before November
1, 2003, is governed by the law in effect on the date the
application is filed, and that law is continued in effect for that
purpose.
(b) The changes in law made by Article 3 of this Act apply
only to an action taken by the Texas Commission on Environmental
Quality on or after November 1, 2003.
SECTION 5.02. This Act takes effect November 1, 2003.