By: Bonnen, Homer, Chisum, Stick H.B. No. 2877
A BILL TO BE ENTITLED
AN ACT
relating to the permitting procedures of the Texas Commission on
Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. 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 commission shall extend the public comment period
automatically until the close of the public meetings. The
commission may not extend the period during which requests for
initiation of the public participation process or requests for
reconsideration may be filed.
SECTION 2. Section 5.555(a), Water Code, is amended to read
as follows:
(a) The executive director, in accordance with procedures
provided by commission rule, shall file with the chief clerk of the
commission a response to each relevant and material public comment
on the preliminary decision filed in writing during the public
comment period.
SECTION 3. Section 5.556, Water Code, is amended by
amending Subsections (a), (c), and (d) and adding Subsection (g) to
read as follows:
(a) A person may request that the commission reconsider the
executive director's decision or hold a contested case hearing. A
request for reconsideration of the executive director's decision
must be filed with the commission after publication of the
preliminary decision during the period provided by commission rule.
A request for a contested case hearing must be filed with the
commission after transmittal of the executive director's response
to public comments 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 who
submitted written comments during the public comment period.
(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) the issue involves a disputed question of fact;
(2) the hearing request provides substantial
information establishing a reasonable basis for the factual dispute
and describes how the executive director's response to comments
failed to resolve the dispute;
(3) the issue is discrete and not a broad or
generalized objection;
(4) the issue was raised during the public comment
period by the person requesting the hearing; and
(5) the issue [(3)] is relevant and material to the
decision on the application.
(g) Notwithstanding other law, public notice of a contested
case hearing the commission grants under this section is not
required. The commission by rule shall provide for notice of a
hearing the commission grants under this section to be given to the
applicant, the office of public interest counsel, the executive
director, and the persons whose hearing requests have been granted.
SECTION 4. Section 382.056, Health and Safety Code, is
amended by amending Subsections (b), (g), (h), (i), (l), (m), and
(n) and adding Subsections (s) and (t) to read as follows:
(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 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 applicable 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 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
hearing from the commission];
(6) 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 initiation of the public
participation process;
(7) 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;
(8) [(7)] the time and location of any public meeting
to be held under Subsection (e); and
(9) [(8)] any other information the commission by rule
requires.
(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 files a
request [requests] during the period provided by commission rule
that the commission initiate the public participation process [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 in
accordance with [. The commission shall consider the request for
public hearing under] the procedures provided by Subsections
(i)-(n). However, the [The] commission may not seek further public
comment or hold a public hearing [under the procedures provided by
Subsections (i)-(n)] in response to a request for initiation of the
[a] public participation process [hearing] on 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.
(h) 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 initiate the [hold a] public participation process
[hearing], the commission shall consider the request under the
procedures provided by Section 382.0561 and not under the
procedures provided by Subsections (i)-(n).
(i) The commission by rule shall establish the form and
content of the notice of preliminary decision under Subsection (g),
the manner of publication, and the duration of the public comment
period. The notice must include:
(1) the information required by Subsections
[Subsection] (b)(1)-(5) and (7)-(9);
(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 that includes 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 hearing from the commission; and
(5) any other information the commission by rule
requires.
(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 in writing during the
public comment period.
(m) 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;
(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
initiation of the [a] public participation process [hearing] in
response to the notice published under Subsection (a).
(n) Except as provided by Section 382.0561, the commission
shall consider a request that the commission reconsider the
executive director's decision or hold a contested case [public]
hearing in accordance with the procedures provided by Sections
5.556 and 5.557, Water Code.
(s) If a request to initiate the public participation
process is not filed during the period prescribed by commission
rule for a permit or permit amendment under Section 382.0518 or for
a permit renewal review under Section 382.055, the commission shall
conduct a public hearing held in response to a later public notice
required solely by federal program requirements in accordance with
Section 382.0561 and not under Chapter 2001, Government Code.
(t) The commission shall extend the public comment period
automatically until the close of the public meetings held under
Subsection (k). The commission may not extend the period during
which requests for initiation of the public participation process
or requests for reconsideration may be filed.
SECTION 5. Section 2003.047, Government Code, is amended by
adding Subsections (p) and (q) to read as follows:
(p) In designating parties to a hearing on a permit
application, the administrative law judge may name as parties only
the executive director, the office of public interest counsel, the
permit applicant, and other persons whose hearing requests have
been granted by the commission and whose issues have been referred
by the commission for a contested case hearing. The executive
director may participate in a contested case hearing only to the
extent described in Section 5.228, Water Code.
(q) An administrative law judge may make a summary
disposition of the issues referred by the commission as provided by
commission rules.
SECTION 6. (a) This Act takes effect September 1, 2003.
(b) The changes in law made by this Act apply only to an
application for a permit, permit amendment, or permit renewal that
is filed with the Texas Commission on Environmental Quality on or
after September 1, 2003. A permit, permit amendment, or permit
renewal that is filed before that date is governed by the law in
effect on the date it was filed, and that law is continued in effect
for that purpose.