This website will be unavailable from Friday, April 26, 2024 at 6:00 p.m. through Monday, April 29, 2024 at 7:00 a.m. due to data center maintenance.
By: Bonnen, et al. (Senate Sponsor - Armbrister) H.B. No. 2877
(In the Senate - Received from the House May 6, 2003;
May 8, 2003, read first time and referred to Committee on Natural
Resources; May 23, 2003, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 8, Nays 1;
May 23, 2003, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 2877 By: Armbrister
A BILL TO BE ENTITLED
AN ACT
relating to certain permitting procedures of the Texas Commission
on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (a), Section 5.555, 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. Section 5.556, Water Code, is amended by
amending Subsections (a), (c), and (d) and adding Subsections (g)
and (h) 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 or
for a contested case hearing must be filed with the commission after
transmittal of the executive director's response to public comments
and 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 or by a
local government with authority under state law over the issues
contemplated by the application upon a showing of good cause for not
having submitted written comments during the 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 is based on information in the
record 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 a specific, identifiable, technical
dispute regarding the application or draft permit rather than an
expression of generalized public health or environmental concerns
or objections;
(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 that the commission grants under this section is not
required. Notice of a hearing shall be provided to the applicant,
the office of public interest counsel, the executive director, and
the person whose hearing requests have been granted.
(h) Notwithstanding other law, an application to upgrade a
permitted landfill facility to meet the requirements of 40 C.F.R.
Part 258 submitted to the commission before April 30, 2003, shall be
considered by the commission as a modification as defined by
commission rules.
SECTION 3. Section 7.0025, Water Code, is amended to read as
follows:
Sec. 7.0025. INITIATION OF ENFORCEMENT ACTION USING
INFORMATION PROVIDED BY PRIVATE INDIVIDUAL. (a) In this section,
"relevant commission protocols" means protocols that are used by
the commission or determined to be acceptable by the executive
director.
(b) The commission may initiate an enforcement action on a
matter under its jurisdiction under this code or the Health and
Safety Code based on a combination of information the commission
[it] receives from a private individual and information developed
by the commission if that combined information, in the commission's
judgment, is of sufficient value and credibility to warrant the
initiation of an enforcement action.
(c) [(b)] The executive director or the executive
director's designated representative may evaluate the value and
credibility of information received from a private individual and
the merits of any proposed enforcement action based on that
information. In evaluating information under this subsection, the
executive director or the executive director's designated
representative shall consider the following criteria:
(1) the individual providing the information must be
willing to:
(A) submit a sworn affidavit attesting to the
facts that constitute the alleged violation and authenticating any
writings, recordings, or photographs provided by the individual;
and
(B) testify in any enforcement proceedings
regarding the alleged violation; and
(2) if the executive director relies on any physical
or sampling data submitted by an individual to prove one or more
elements of an enforcement case:
(A) the data must have been collected or gathered
in accordance with relevant commission protocols; and
(B) the individual submitting the physical or
sampling data must submit a sworn affidavit that the individual
followed relevant commission protocols when collecting the data.
(d) [(c)] The commission by rule may adopt additional
criteria for the executive director to use in evaluating the value
and credibility of information received from a private individual
and for use of that information in an enforcement action.
(e) [(d)] A private individual who submits information on
which the commission relies for all or part of an enforcement case
may be called to testify in the enforcement proceedings and is
subject to all sanctions under law for knowingly falsifying
evidence. If the commission relies on the information submitted by
a private individual to prove an enforcement case, any physical or
sampling data must have been collected or gathered in accordance
with commission protocols. The commission is not required to call a
private individual who provides information on which the commission
relies unless doing so is essential to the enforcement action.
(f) The commission may not use information provided by a
private individual if the information was obtained by trespass or
another illegal act.
(g) Information provided by a private individual that is
used in an enforcement action is subject to the rules of evidence.
SECTION 4. Subchapter C, Chapter 361, Health and Safety
Code, is amended by adding Section 361.1145 to read as follows:
Sec. 361.1145. PROHIBITION OF PERMIT FOR CERTAIN
SOLIDIFIED, COMMERCIAL INDUSTRIAL SOLID WASTE FACILITIES. The
commission may not issue a permit for the storage, processing, or
disposal of solidified, commercial, industrial solid waste in a
solution-mined salt dome cavern or a sulphur mine located within
one mile of a drinking water well, school, place of worship, or
public park.
SECTION 5. 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 file a notice of contest;
(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
notice of contest [requests] during the period provided by
commission rule [that the commission hold a public hearing] and the
notice of contest [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 notice of contest [request
for a public 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) The commission shall consider any hearing request
regarding [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 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; 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 notice of contest
[request for a public 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 notice of contest is not filed or is withdrawn under
Subsection (g), any public hearing requested in response to a later
public notice required solely by federal program requirements, if
granted, shall be conducted 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 a notice of contest or request for reconsideration may be
filed.
SECTION 6. Section 382.0564, Health and Safety Code, is
amended to read as follows:
Sec. 382.0564. NOTIFICATION TO OTHER GOVERNMENTAL
ENTITIES. (a) The commission by rule may allow for notification of
and review by the administrator and affected states of permit
applications, revisions, renewals, or draft permits prepared under
Sections 382.054-382.0543.
(b) The commission shall mail notice of intent to obtain a
permit, permit amendment, or other authorization for a
rock-crushing facility associated with blasting operations to an
affected municipality.
(c) An affected municipality entitled to notice under
Subsection (b) may submit comments to the commission within 30 days
of receiving a notice of intent under Subsection (b).
(d) The commission may not issue a permit, permit amendment,
or other authorization for a rock-crushing facility associated with
blasting operations if the commission receives from an affected
municipality a resolution in opposition to issuance of the permit,
permit amendment, or other authorization during the 30-day comment
period.
(e) The commission shall prohibit a currently permitted
rock-crushing facility from being associated with blasting
operations if:
(1) blasting operations have not taken place on the
tract for 10 or more years before April 10, 2003; and
(2) the commission receives from an affected
municipality a resolution in opposition to the currently permitted
rock-crushing facility.
(f) For purposes of this section, an "affected
municipality" means a municipality whose primary source of drinking
water is an aquifer made, wholly or partly, of water-bearing
limestone or dolomite which is located in a county:
(1) that is adjacent to a county with a population of
500,000 or more; and
(2) in which is located a portion of a body of water
into which a discharge of pollutants is prohibited by the
commission under 30 T.A.C. Chapter 311.
SECTION 7. 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 of the commission, 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 grant a motion for a
summary disposition on any or all of the issues referred for hearing
and issue a proposal for decision that resolves the contested case
without an evidentiary hearing or with a limited evidentiary
hearing as provided by commission rules.
SECTION 8. Subchapter B, Chapter 11, Water Code, is amended
by adding Sections 11.0235, 11.0236, and 11.0237 to read as
follows:
Sec. 11.0235. POLICY REGARDING WATERS OF THE STATE.
(a) The waters of the state are held in trust for the public, and
the right to use state water may be appropriated only as expressly
authorized by law.
(b) Maintaining the biological soundness of the state's
rivers, lakes, bays, and estuaries is of great importance to the
public's economic health and general well-being.
(c) The legislature has expressly required the commission
while balancing all other interests to consider and provide for the
freshwater inflows necessary to maintain the viability of the
state's bay and estuary systems in the commission's regular
granting of permits for the use of state waters.
(d) The legislature has not expressly authorized granting
water rights exclusively for:
(1) instream flows dedicated to environmental needs or
inflows to the state's bay and estuary systems; or
(2) other similar beneficial uses.
(e) The fact that greater pressures and demands are being
placed on the water resources of the state makes it of paramount
importance to reexamine the process for ensuring that these
important priorities are effectively addressed in clear
delegations of authority to the commission.
Sec. 11.0236. STUDY COMMISSION ON WATER FOR ENVIRONMENTAL
FLOWS. (a) In recognition of the importance that the ecological
soundness of our riverine, bay, and estuary systems and riparian
lands has on the economy, health, and well-being of the state there
is created the Study Commission on Water for Environmental Flows.
(b) The study commission is composed of 15 members as
follows:
(1) two members appointed by the governor;
(2) five members appointed by the lieutenant governor;
(3) five members appointed by the speaker of the house
of representatives;
(4) the presiding officer of the commission or the
presiding officer's designee;
(5) the chairman of the board or the chairman's
designee; and
(6) the presiding officer of the Parks and Wildlife
Commission or the presiding officer's designee.
(c) Of the members appointed under Subsection (b)(2):
(1) one member must represent a river authority or
municipal water supply agency or authority;
(2) one member must represent an entity that is
distinguished by its efforts in resource protection; and
(3) three members must be members of the senate.
(d) Of the members appointed under Subsection (b)(3):
(1) one member must represent a river authority or
municipal water supply agency or authority;
(2) one member must represent an entity that is
distinguished by its efforts in resource protection; and
(3) three members must be members of the house of
representatives.
(e) Each appointed member of the study commission serves at
the will of the person who appointed the member.
(f) The appointed senator with the most seniority and the
appointed house member with the most seniority serve together as
co-presiding officers of the study commission.
(g) A member of the study commission is not entitled to
receive compensation for service on the study commission but is
entitled to reimbursement of the travel expenses incurred by the
member while conducting the business of the study commission, as
provided by the General Appropriations Act.
(h) The study commission may accept gifts and grants from
any source to be used to carry out a function of the study
commission.
(i) The commission shall provide staff support for the study
commission.
(j) The study commission shall conduct public hearings and
study public policy implications for balancing the demands on the
water resources of the state resulting from a growing population
with the requirements of the riverine, bay, and estuary systems
including granting permits for instream flows dedicated to
environmental needs or bay and estuary inflows, use of the Texas
Water Trust, and any other issues that the study commission
determines have importance and relevance to the protection of
environmental flows. In evaluating the options for providing
adequate environmental flows, the study commission shall take
notice of the strong public policy imperative that exists in this
state recognizing that environmental flows are important to the
biological health of our parks, game preserves, and bay and estuary
systems and are high priorities in the permitting process. The
study commission shall specifically address ways that the
ecological soundness of these systems will be ensured in the water
allocation process.
(k) The study commission:
(1) shall appoint an advisory scientific committee
that will:
(A) serve as impartial scientific advisors and
reviewers for the study commission; and
(B) have a membership of no fewer than five and no
more than nine total members chosen by the study commission to
represent a variety of areas of relevant technical expertise;
(2) may appoint additional advisory committees to
assist the study commission; and
(3) may draft proposed legislation to modify existing
water-rights permitting statutes.
(l) Not later than December 1, 2004, the study commission
shall issue a report summarizing:
(1) any hearings conducted by the study commission;
(2) any studies conducted by the study commission;
(3) any legislation proposed by the study commission;
and
(4) any other findings and recommendations of the
study commission.
(m) The study commission shall promptly deliver copies of
the report to the governor, lieutenant governor, and speaker of the
house of representatives.
(n) The study commission shall adopt rules to administer
this section.
(o) The study commission is abolished and this section
expires September 1, 2005.
Sec. 11.0237. WATER RIGHTS FOR INSTREAM FLOWS DEDICATED TO
ENVIRONMENTAL NEEDS OR BAY AND ESTUARY INFLOWS. (a) The commission
may not issue a new permit for instream flows dedicated to
environmental needs or bay and estuary inflows. This section does
not prohibit the commission from issuing an amendment to an
existing permit or certificate of adjudication to change the use to
or add a use for instream flows dedicated to environmental needs or
bay and estuary inflows.
(b) This section does not alter the commission's
obligations under Section 11.042(b), 11.046(b), 11.085(k)(2)(F),
11.134(b)(3)(D), 11.147, 11.1491, 16.058, or 16.059.
(c) This section expires September 1, 2005.
SECTION 9. Subsections (d) and (e), Section 11.147, Water
Code, are amended to read as follows:
(d) In its consideration of an application to store, take,
or divert water, the commission shall include in the permit, to the
extent practicable when considering all public interests, those
conditions considered by the commission necessary to maintain
[consider the effect, if any, of the issuance of the permit on]
existing instream uses and water quality of the stream or river to
which the application applies.
(e) The commission shall include in the permit, to the
extent practicable when considering all public interests, those
conditions considered by the commission necessary to maintain [also
consider the effect, if any, of the issuance of the permit on] fish
and wildlife habitats.
SECTION 10. Rules adopted by the Texas Commission on
Environmental Quality under Section 26.040, Water Code, before the
effective date of this Act are validated as of the dates they were
adopted and remain valid until they are modified or repealed by the
commission.
SECTION 11. (a) Except as provided by Subsection (b) of
this section, this Act takes effect September 1, 2003.
(b) Sections 8 and 9 of this Act take effect immediately if
this Act receives a vote of two-thirds of all the members elected to
each house, as provided by Section 39, Article III, Texas
Constitution. If this Act does not receive the vote necessary for
immediate effect, Sections 8 and 9 of this Act take effect September
1, 2003.
(c) The changes in law made by Sections 1, 2, 4, 5, and 7 of
this Act apply only to an application for a permit, permit
amendment, or permit renewal for which the notice of preliminary
decision required by Section 5.553, Water Code, or Section
382.056(g), Health and Safety Code, is published on or after
September 1, 2003. A permit, permit amendment, or permit renewal
for which the notice of preliminary decision required by Section
5.553, Water Code, or Section 382.056(g), Health and Safety Code,
is published before September 1, 2003, is governed by the law in
effect on the date it was published, and that law is continued in
effect for that purpose.
(d) The changes in law made by Sections 8 and 9 of this Act
apply to a permit application pending before the Texas Commission
on Environmental Quality on the effective date of those sections or
filed with the commission on or after that date.
* * * * *