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79R8625 SLO-F
By: Bonnen H.B. No. 2758
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. Section 5.228(b), Water Code, is amended to read
as follows:
(b) The executive director shall be named a party in
hearings before the commission [in a matter in which the executive
director bears the burden of proof].
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), (b), (c), (d), and (f) 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 under Section 5.553 and 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 under Section
5.555 and during the period provided by commission rule.
(b) The commission shall act on a request made under
Subsection (a) or a preliminary recommendation made by the State
Office of Administrative Hearings under Section 5.5561 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 contested case hearing
unless the commission determines that [the issue]:
(1) the issue involves a disputed question of fact;
(2) there is a reasonable basis for the factual
dispute and the executive director's response to comments has
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.
(f) Notwithstanding other law, if an issue is raised by an
affected person in a contested case hearing and found by the
commission to prevent issuance of the permit unless it is corrected
and the issue can be corrected by a change to the technical aspects
or requirements of the permit or the permit application, the
commission shall require the applicant to make the change to the
permit application or the executive director to make the change to
the permit conditions without requiring any further administrative
process [This section does not preclude the commission from
holding a hearing if it determines that the public interest
warrants doing so].
(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 that the commission grants under this
section is required to be provided only to the applicant, the office
of public interest counsel, the executive director, and the person
who requested the hearing.
SECTION 4. Subchapter M, Chapter 5, Water Code, is amended
by adding Section 5.5561 to read as follows:
Sec. 5.5561. PRELIMINARY PROCEEDING ON REQUEST FOR
CONTESTED CASE HEARING. (a) On written request of an applicant,
the commission shall refer a request for a contested case hearing
under Section 5.556 to the State Office of Administrative Hearings
for a preliminary review of whether the person requesting the
contested case hearing meets the requirements for bringing a
contested case hearing under Sections 5.556(c) and (d).
(b) On receiving a referral from the commission under
Subsection (a), the State Office of Administrative Hearings shall
schedule a preliminary review proceeding not later than the 60th
day after the date the commission refers the request to the office.
(c) During the preliminary review proceeding, the State
Office of Administrative Hearings shall require that the person
requesting the contested case hearing demonstrate through
testimony or affidavit a prima facie case that the person is an
affected person and that the issue raised by the person meets the
criteria provided by Section 5.556(d).
(d) Not later than the 30th day after the date of the
preliminary review proceeding, the State Office of Administrative
Hearings shall make a recommendation to the commission on whether
the person requesting the contested case hearing is an affected
person and whether the person has demonstrated through prima facie
evidence that the issue raised by the person meets the criteria
provided by Section 5.556(d).
SECTION 5. Section 26.028(d), Water Code, is amended to
read as follows:
(d) Notwithstanding any other provision of this chapter,
the commission, at a regular meeting without the necessity of
holding a public hearing, may approve an application for a permit,
permit amendment, or renewal of [to renew or amend] a permit, except
that a permit for a new major source, as defined by commission rule,
may not be issued except after an opportunity for a public hearing
on the application [if:
[(1) the applicant is not applying to:
[(A) increase significantly the quantity of
waste authorized to be discharged; or
[(B) change materially the pattern or place of
discharge;
[(2) the activities to be authorized by the renewed or
amended permit will maintain or improve the quality of waste
authorized to be discharged;
[(3) for NPDES permits, notice and the opportunity to
request a public meeting shall be given in compliance with NPDES
program requirements, and the commission shall consider and respond
to all timely received and significant public comment; and
[(4) the commission determines that an applicant's
compliance history under the method for evaluating compliance
history developed by the commission under Section 5.754 raises no
issues regarding the applicant's ability to comply with a material
term of its permit].
SECTION 6. Section 27.018, Water Code, is amended by
amending Subsection (a) and adding Subsection (e) to read as
follows:
(a) If it is considered necessary and in the public
interest, the commission may hold a public hearing on the
application. Except as provided by Subsection (e), the [The]
commission shall hold a hearing on a permit application for an
injection well to dispose of industrial and municipal waste if a
hearing is requested by a local government located in the county of
the proposed disposal well site or by an affected person. In this
subsection, "local government" has the meaning provided for that
term by Chapter 26 of this code.
(e) Notwithstanding any other provision of this chapter,
after public notice and an opportunity for public comment, the
commission may, at a regular meeting and without the necessity of
holding a public hearing, approve an application for a permit,
permit amendment, or renewal of a permit, unless the application is
for a new injection well at a site at which there is no existing
permitted injection in the injection zone for which the application
seeks authorization.
SECTION 7. Section 361.088(e), Health and Safety Code, is
amended to read as follows:
(e) After complying with Sections 5.552-5.555, Water Code,
the commission, without providing an opportunity for a contested
case hearing, may act on an application for [to renew] a permit,
permit amendment, or renewal of a permit, unless the application is
for a new or a major expansion of an existing commercial industrial
solid waste processing or disposal facility or a new or a major
expansion of an existing municipal solid waste disposal facility.
The commission by rule shall define "major expansion" for purposes
of this subsection [for:
[(1) storage of hazardous waste in containers, tanks,
or other closed vessels if the waste:
[(A) was generated on-site; and
[(B) does not include waste generated from other
waste transported to the site; and
[(2) processing of hazardous waste if:
[(A) the waste was generated on-site;
[(B) the waste does not include waste generated
from other waste transported to the site; and
[(C) the processing does not include thermal
processing].
SECTION 8. Section 382.056, Health and Safety Code, is
amended by amending Subsections (b), (g), (h), (i), (l), (m), and
(n) and adding Subsections (t) and (u) 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 an
emission 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). 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 a
permit, permit amendment, permit modification, or renewal of a
permit, unless the application concerns:
(1) construction of a major new source or a major
modification of an existing source as those terms are used in the
context of the federal regulations relating to prevention of
significant deterioration of air quality and review of new sources
and modifications in nonattainment areas (40 C.F.R. Part 51,
Subpart I);
(2) construction of a major source of hazardous air
pollutants as defined by Section 112 of the federal Clean Air Act
(42 U.S.C. Section 7412); or
(3) the proposed modification of an existing source
that would result in the source becoming a major source of hazardous
air pollutants [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.
(t) 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 shall
be conducted in accordance with Section 382.0561 and not under
Chapter 2001, Government Code.
(u) 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 9. 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.
(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 10. Sections 5.228(c), (d), (e), and (f) and
Section 26.028(e), Water Code, are repealed.
SECTION 11. (a) Except as provided by Subsection (b) of this
section, the changes in law made by this Act apply only to a permit
application 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, 2005. An
application 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, 2005, is governed by
the law in effect on the date it was published, and that law is
continued in effect for that purpose.
(b) The changes in law made by this Act to Section 2003.047,
Government Code, apply only to an application for a permit issued by
the Texas Commission on Environmental Quality other than a permit
issued under Chapter 361 or 382, Health and Safety Code, or Chapter
26 or 27, Water Code, that was received by the commission on or
after September 1, 2005. An application received before that date
is governed by the law in effect on the date the application was
received, and that law is continued in effect for that purpose.
SECTION 12. This Act takes effect September 1, 2005.