78R8606 T
By: Bonnen H.B. No. 2874
A BILL TO BE ENTITLED
AN ACT
relating to the operations, functions, and funding of the Texas
Commission on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Amend Sections 5.552, 5.553, 5.554 and 5.556,
Water Code, to read as follows:
Sec. 5.552. NOTICE [OF INTENT TO OBTAIN PERMIT]. (a) The
executive director shall determine when an application is
administratively complete.
(b) The applicant shall provide notice of an application to
store, treat or dispose of hazardous waste as required by federal
law.
(c) The applicant shall provide notice of an application
under Chapter 26 to discharge wastewater to waters of the United
States as required by federal law.
[(b)] (d) For all other applications for permits to be
issued under Chapter 26 of this code, or Chapter 361, Health and
Safety Code, not [Not] later than the 30th day after the date the
executive director determines the application to be
administratively complete:
(1) the applicant shall publish notice of intent to
obtain a permit at least once in the newspaper of largest
circulation in the county in which the facility to which the
application relates is located or proposed to be located or, if the
facility to which the application relates is located or proposed to
be located in a municipality, at least once in a newspaper of
general circulation in the municipality; and
(2) the chief clerk of the commission shall mail
notice of intent to obtain a permit to:
(A) the state senator and representative who
represent the general area in which the facility is located or
proposed to be located;
(B) the mayor and health authorities of the
municipality in which the facility is located or proposed to be
located;
(C) the county judge and health authorities of
the county in which the facility is located or proposed to be
located; and
(D) the river authority in which the facility is
located or proposed to be located if the application is under
Chapter 26, Water Code.
[(c)] (e) The commission by rule shall establish the form
and content of the notice. The notice must include:
(1) the location and nature of the proposed activity;
(2) the location at which a copy of the application is
available for review and copying as provided by Subsection (e);
(3) a description, including a telephone number, of
the manner in which a person may contact the commission for further
information;
(4) a description, including a telephone number, of
the manner in which a person may contact the applicant for further
information;
(5) a description of the procedural rights and
obligations of the public, printed in a font style or size that
clearly provides emphasis and distinguishes it from the remainder
of the notice;
(6) a description of the procedure by which a person
may be placed on a mailing list in order to receive additional
information about the application;
(7) the time and location of any public meeting to be
held under Subsection (f); and
(8) any other information the commission by rule
requires.
[(d)] (f) In addition to providing notice under [Subsection
(b)(1)] this section, the applicant shall comply with any
applicable public notice requirements under Chapters 26 and 27 of
this code, Chapter 361, Health and Safety Code, and rules adopted
under those chapters.
[(e)] (g) The applicant shall make a copy of the application
available for review and copying at a public place in the county in
which the facility is located or proposed to be located.
[(f)] (h) The applicant, in cooperation with the executive
director, may hold a public meeting in the county in which the
facility is located or proposed to be located in order to inform the
public about the application and obtain public input.
Sec. 5.553. [PRELIMINARY DECISION;] NOTICE AND PUBLIC
COMMENT. (a) The executive director shall conduct a technical
review of and issue a [preliminary decision] recommendation on the
application.
(b) The applicant shall publish notice of [the preliminary
decision] the executive director's recommendation on an
application described by Subsection (c) of Section 5.552 in a
newspaper.
(c) The commission by rule shall establish the form and
content of the notice, the manner of publication, and the duration
of the public comment period. The notice must include:
(1) the information required by Sections
5.552(c)(1)-(5);
(2) a summary of the [preliminary decision] executive
director's recommendation;
(3) [the location at which a copy of the preliminary
decision is available for review and copying as provided by
Subsection (e)] a description of the manner in which a copy of the
executive director's recommendation may be obtained;
(4) a description of the manner in which comments
regarding the [preliminary decision] executive director's
recommendation may be submitted; and
(5) any other information the commission by rule
requires.
[(d)] (e) In addition to providing notice under this
section, the applicant shall comply with any applicable public
notice requirements under Chapters 26 and 27 of this code, Chapter
361, Health and Safety Code, and rules adopted under those
chapters.
[(e) The applicant shall make a copy of the 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.]
Sec. 5.554. PUBLIC MEETING.
During the public comment period, the executive director may
hold [one or more] a public meeting[s] 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.
Sec. 5.556. REQUEST FOR [RECONSIDERATION OR] CONTESTED CASE
HEARING. (a) A person may request that the commission [reconsider
the executive director's decision or] hold a contested case
hearing. A request must be filed with the commission during the
period provided by commission rule.
(b) The commission shall act on a request during the period
provided by commission rule.
(c) The commission may not grant a request for a contested
case hearing unless the commission determines that the request was
filed by a person that
(1) for applications described by Subsection (c) of
Section 5.552, lives within one mile downstream of the facility; or
(2) for all other applications, lives within one-half
mile of the facility. [an affected person as defined by Section
5.115.
[(d) The commission may not refer an issue to the State
Office of Administrative Hearings for a hearing unless the
commission determines that the issue:]
Sec. 5.556. REQUEST FOR [RECONSIDERATION OR] CONTESTED CASE
HEARING. (a) A person may request that the commission [reconsider
the executive director's decision or] hold a contested case
hearing. A request under this subsection must be filed with the
commission during the comment period following publication of
notice required under Section 5.552 [the period provided by
commission rule].
(b) A person entitled to noticed under Section 5.553 may
request that the commission hold a contested case hearing. A
request under this subsection must be filed with the commission
within 18 days of notice being mailed under Section 5.553.
(b) The commission shall act on a request during the period
provided by commission rule.
(c) The commission may not grant a request for a contested
case hearing unless the commission determines that the request was
filed by an affected person as defined by Section 5.115.
(d) The commission may not refer an issue to the State
Office of Administrative Hearings for a hearing unless the
commission determines that the issue:
(1) involves a disputed question of fact;
(2) was raised during the public comment period; and
(3) is relevant and material to the decision on the
application.
(e) If the commission grants a request for a contested case
hearing it shall:
(1) limit the number and scope of the issues to be
referred to the State Office of Administrative Hearings for a
hearing; and
(2) consistent with the nature and number of the
issues to be considered at the hearing, specify the maximum
expected duration of the hearing.
(f) This section does not preclude the commission from
holding a hearing if it determines that the public interest
warrants doing so.
SECTION 2. Sections 5.555, 26.022 and 26.028(a)-(c) are
repealed.
SECTION 3. Sections 361.079(c), 361.0791, 361.080,
361.082(c) and 361.082(d), Health and Safety Code, are repealed.
SECTION 4. Add a new Section 5.558 to Chapter 5, Water Code,
to read as follows:
Sec. 5.558. REVERSAL OF A COMMISSION DECISION BASED ON
NOTICE. Absent a showing that the person alleging a defect in
notice has been denied the opportunity to participate in the
hearing process as a result of the defect, a decision of the
commission may not be reversed on the grounds of defective notice.
SECTION 5. Add a new subsection (9) to Section 382.003,
Health and Safety Code, to read as follows, and renumber the
following subsections accordingly:
(9) "Material permit representation" means any
representation included in a permit application that, if departed
from, could result in a change in:
(A) a significant change in the location of
emissions,
(B) a change in the character of the emissions of
air contaminants;
(C) an increase in the amount of air
contaminants, or
(D) a reduction in the level of control
technology used at the facility.
SECTION 6. Add a new subsection (c) to Section 382.0512,
Health and Safety Code, to read as follows:
(c) A departure from a permit representation that is not
material is not a modification.
SECTION 7. Add a new subsection () to Section 382., Health
and Safety Code, to read as follows:
() Unless required by a federal law or rule, the commission
may not require a responsible official to certify compliance with a
permit representation that is not material.
SECTION 8. Add a new clause (G) to subsection (9) of Section
382.003, Health and Safety Code, to read as follows:
(G) emission, including emissions from
maintenance, startup and shutdown activities, from a facility
authorized under Section 382.0518, for which a maximum allowable
emission rate was not established in the authorization, where
(i) the emissions attributable to those
activities were reviewed and determined under subsection (b)(2) of
that section to have no impact on public health or the environment,
and;
(ii) the facility uses best available
control technology to control the emissions.
SECTION 9. Add a new sentence at the end of section ____,
Health and Safety, to read as follows:
"Emissions event" does not include the following:
(1) Episodic emissions, including emissions from
maintenance, startup and shutdown activities, from a facility
authorized under Section 382.0518, for which a maximum allowable
emission rate was not established in the authorization, where
(i) the emissions attributable to those
activities were reviewed and determined under subsection (b)(2) of
that section to have no impact on public health or the environment,
and;
(ii) the facility uses best available
control technology to control the emissions.
SECTION 10. Amend Section 382.056, Health and Safety Code,
is amended to read as follows:
Sec. 382.056. NOTICE OF INTENT TO OBTAIN PERMIT OR PERMIT
REVIEW; HEARING. (a) 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 intent to obtain the permit, permit amendment, or permit
review 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.
(b) The notice must include:
(1) a description of the location or proposed location
of the facility or federal source;
(2) the location at which a copy of the application is
available for review and copying [as provided by] if required under
Subsection (d);
(3) a description, including a telephone number, of
the manner in which the commission may be contacted for further
information;
(4) a description, including a telephone number, of
the manner in which the applicant may be contacted for further
information;
(5) a description of the procedural rights and
obligations of the public, printed in a font style or size that
clearly provides emphasis and distinguishes it from the remainder
of the notice, that includes:
(A) a description of the manner in which comments
regarding the application may be submitted; and
(B) a statement that a person who may be affected
by emissions of air contaminants from the facility, proposed
facility, or federal source in entitled to request a hearing from
the commission;
(6) a description of the procedure by which a person
may be placed on a mailing list in order to receive additional
information about the application;
(7) the time and location of any public meeting to be
held under Subsection [(e)] (h) that is scheduled at the time of
publication of notice; and
(8) any other information the commission by rule
requires.
(c) At the site of a facility, proposed facility, or federal
source for which an applicant is required to publish notice under
this section, the applicant shall place a sign declaring the filing
of an application for a permit or permit review for a facility at
the site and stating the manner in which the commission may be
contacted for further information. The commission shall adopt any
rule necessary to carry out this subsection.
(d) The applicant during the public comment period shall
make a copy of the application available for review and copying at a
public place in the county in which the facility or federal source
is located or proposed to be located.
(e) [The applicant, in cooperation with the executive
director, may hold a public meeting in the county in which the
facility or federal source is located or proposed to be located in
order to inform the public about the application and obtain public
input.
[(f) The executive director shall conduct a technical
review of and issue a preliminary decision on the application.
[(g)] If, in response to the notice published under
Subsection (a) for a permit or permit amendment under Section
382.0518 or a permit renewal review under Section 382.055, a person
requests during the period provided by commission rule that the
commission hold a public hearing and the request is not withdrawn
[before the date the preliminary decision is issued, the applicant
shall publish notice of the preliminary decision in a newspaper,
and the commission shall seek public comment on the preliminary
decision. The] commission shall consider the request for public
hearing under the procedures provided by Subsection[s (i)-(n)] (k).
The commission may not [seek further public comment or] hold a
public hearing under the procedure[s] provided by Subsection[s
(i)-(n)] (k) in response to a request for a public hearing on an
amendment, modification, or renewal that would not result in [an] a
significant increase in allowable emissions and would not result in
the emission of an air contaminant not previously emitted.
[(h)] (f) If, in response to the notice published under
Subsection (a) for a permit under Section 382.054, a person
requests during the public comment period provided by commission
rule that the commission hold a public hearing, the commission
shall consider the request under the procedures provided by Section
382.0561 and not under the procedures provided by Subsection[s
(i)-(n)] (k).
[(i) The commission by rule shall establish the form and
content of the notice, the manner of publication, and the duration
of the public comment period. The notice must include:
[(1) the information required by Subsection (b);
[(2) a summary of the preliminary decision;
[(3) the location at which a copy of the preliminary
decision is available for review and copying as provided by
Subsection (j);
[(4) a description of the manner in which comments
regarding the preliminary decision may be submitted; and
[(5) any other information the commission by rule
requires.
[(j) The applicant shall make a copy of the 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.
[(k) During the public comment period, the].
(g) 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.
[(l) The executive director, in accordance with procedures
adopted by the commission by rule, shall file with the chief clerk
of the commission a response to each relevant and material public
comment on the preliminary decision filed during the public comment
period.
[(m)] (h) 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] recommendation on the application to:
(1) the applicant;
(2) any person who submitted comments during the
public comment period;
(3) any person who requested to be on the mailing list
for the permit action; and
(4) any person who timely filed a request for a public
hearing in response to the notice published under Subsection (a).
[(n)] (i) Except as provided by Sections 382.0561 or
382.058, [the commission shall consider a request that the
commission reconsider the executive director's decision or hold] a
hearing requestor is entitled to a public hearing [in accordance
with the procedures provided by Sections 5.556 and 5.557, Water
Code.
[(o)] if the commission finds that:
(1) the permit, permit amendment or renewal would
result in a significant increase in the emission of air
contaminants or the emission of an air contaminant not previously
authorized by the permit; and
(2) the hearing requestor resides on or owns property
that is located within one mile of the facility at which the
increase in emissions or emission of a new contaminant would occur.
(j) Notwithstanding other provisions of this chapter, the
commission may hold a hearing on a permit amendment, modification,
or renewal if the commission determines that the application
involves a facility for which the applicant's compliance history is
in the lowest classification under Sections 5.753 and 5.754, Water
Code, and rules adopted and procedures developed under those
sections.
[(p)] (k) The commission by rule shall provide for
additional notice, opportunity for public comment, or opportunity
for public hearing to the extent necessary to satisfy a requirement
to obtain or maintain delegation or approval of a federal program.
[(q)] (l) The department shall establish rules to ensure
that a permit applicant complies with the notice requirement under
Subsection (a).
[(r) (T)] (m) Except as provided by Subsection (n), this
section does not apply to:
(1) the relocation or change of location of a portable
facility to a site where a [facility permitted by the commission is
located if no] portable facility has been located at the proposed
site at any time during the previous two years; or
(2) a facility located temporarily in the
right-of-way, or contiguous to the right-of-way, of a public works
project.
SECTION 11. Add a new Section 382.0623 to Chapter 382,
Health and Safety Code, to read as follows:
Sec. 382.0623. PERMIT REVIEW SURCHARGE. (a) In addition to
any other application fee assessed under this chapter, an applicant
for a permit or permit amendment issued under Section 382.0518 may
elect to pay to the commission a permit review surcharge.
(b) Except as provided by Subsection (), monies collected
under this section shall be applied to a contract entered into by
the agency for the purpose of an expedited review of applications
for which a surcharge has been paid.
(c) The executive director may enter into one or more
contracts with qualified vendors for the initial, expedited review
of the technical merits of applications submitted under this
chapter. For purposes of this section, a qualified vendor at a
minimum must show that
(1) Persons reviewing an application pursuant to the
contract have at least five years experience in reviewing
applications for permits or amendments issued under Section
382.0518; and
(2) The vendor will not receive income from any entity
seeking expedited review under this section.
(d) A vendor with whom the state contracts under this
section is responsible solely to the executive director.
(e) The executive director may apply 9% of the monies
collected under this section to the costs of administering any
contracts entered into under this section.
SECTION 12. Amend Sections 5.553, 5.554 and 5.556, Water
Code, to read as follows: