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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