By: Armbrister S.B. No. 1263
(In the Senate - Filed March 12, 2003; March 19, 2003, read
first time and referred to Committee on Natural Resources;
April 25, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 8, Nays 1; April 25, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1263 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 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 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.
SECTION 3. Subchapter C, Chapter 382, Health and Safety
Code, is amended by adding Section 382.0531 to read as follows:
Sec. 382.0531. PERMITS FOR CERTAIN ROCK CRUSHERS. (a) The
commission may not issue a permit, permit amendment, or other
authorization for a rock-crushing facility associated with
blasting operations if:
(1) the facility or the blasting operations associated
with the facility are or will be located over an aquifer that is:
(A) made, wholly or partly, of water-bearing
limestone or dolomite; and
(B) the primary source of drinking water for a
municipality; and
(2) the facility is or will be located in a county:
(A) that is adjacent to a county with a
population of 500,000 or more; and
(B) 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.
(b) The commission shall prohibit a currently permitted
rock-crushing facility from being associated with blasting
operations if:
(1) the facility or the blasting operations associated
with the facility are or will be located over an aquifer that is:
(A) made, wholly or partly, of water-bearing
limestone or dolomite; and
(B) the primary source of drinking water for a
municipality; and
(2) the facility is or will be located in a county:
(A) that is adjacent to a county with a
population of 500,000 or more; and
(B) 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; and
(3) blasting operations have not taken place on the
tract for 10 or more years before April 10, 2003.
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 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 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 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 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 of filing, and that law is continued in effect
for that purpose.
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