78R5139 MI-F

By:  Bonnen                                                       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 5.555(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 2. Sections 5.556(a), (c), and (d), Water Code, are amended 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 person requesting the hearing has made a prima facie showing based on competent evidence that there is a reasonable basis for the factual 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. SECTION 3. Sections 382.056(b), (g), (h), (i), (l), (m), and (n), Health and Safety Code, are amended 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. SECTION 4. Section 2003.047, Government Code, is amended by adding Subsection (p) 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. SECTION 5. (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.