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A BILL TO BE ENTITLED
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AN ACT
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relating to the discontinuance of the Texas Commission on |
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Environmental Quality's compliance history program. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 361.084(a) and (c), Health and Safety |
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Code, are amended to read as follows: |
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(a) The commission by rule shall establish a procedure to |
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prepare compliance summaries relating to the applicant's solid |
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waste management activities [in accordance with the method for
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evaluating compliance history developed by the commission under
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Section 5.754, Water Code]. A compliance summary shall include as |
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evidence of compliance information regarding the applicant's |
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implementation of an environmental management system at the |
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facility for which the authorization is sought. In this |
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subsection, "environmental management system" has the meaning |
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assigned by Section 5.127, Water Code. |
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(c) Evidence of compliance or noncompliance by an applicant |
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for a solid waste management facility permit with agency rules, |
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permits, other orders, or evidence of a final determination of |
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noncompliance with federal statutes or statutes of any state in the |
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previous five years concerning solid waste management may be: |
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(1) offered by a party at a hearing concerning the |
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application; and |
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(2) admitted into evidence subject to applicable rules |
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of evidence. |
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SECTION 2. Section 361.088(f), Health and Safety Code, is |
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amended to read as follows: |
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(f) Notwithstanding Subsection (e), if the commission |
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determines that an applicant's compliance history for the preceding |
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five years [under the method for evaluating compliance history
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developed by the commission under Section 5.754, Water Code,] |
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raises an issue regarding the applicant's ability to comply with a |
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material term of its permit, the commission shall provide an |
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opportunity to request a contested case hearing. |
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SECTION 3. Sections 361.089(a), (e), and (f), Health and |
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Safety Code, are amended to read as follows: |
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(a) The commission may, for good cause, deny or amend a |
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permit it issues or has authority to issue for reasons pertaining to |
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public health, air or water pollution, or land use, or for a |
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violation of this chapter or other applicable laws or rules |
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controlling the management of solid waste [having a compliance
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history that is in the lowest classification under Sections 5.753
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and 5.754, Water Code, and rules adopted and procedures developed
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under those sections]. |
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(e) The commission may deny an original or renewal permit if |
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it is found, after notice and hearing, that: |
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(1) the applicant or permit holder has a record of |
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environmental violations in the preceding five years at the |
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permitted site; |
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(2) the applicant has a record of environmental |
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violations in the preceding five years at any site owned, operated, |
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or controlled by the applicant [compliance history that is in the
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lowest classification under Sections 5.753 and 5.754, Water Code,
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and rules adopted and procedures developed under those sections]; |
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(3) [(2)] the permit holder or applicant made a false |
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or misleading statement in connection with an original or renewal |
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application, either in the formal application or in any other |
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written instrument relating to the application submitted to the |
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commission, its officers, or its employees; |
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(4) [(3)] the permit holder or applicant is indebted |
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to the state for fees, payment of penalties, or taxes imposed by |
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this title or by a rule of the commission; or |
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(5) [(4)] the permit holder or applicant is unable to |
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ensure that the management of the hazardous waste management |
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facility conforms or will conform to this title and the rules of the |
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commission. |
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(f) Before denying a permit under this section, the |
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commission must find: |
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(1) that a violation or violations are significant and |
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that the permit holder or applicant has not made a substantial |
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attempt to correct the violations [the applicant or permit holder
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has a compliance history that is in the lowest classification under
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Sections 5.753 and 5.754, Water Code, and rules adopted and
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procedures developed under those sections]; or |
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(2) that the permit holder or applicant is indebted to |
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the state for fees, payment of penalties, or taxes imposed by this |
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title or by a rule of the commission. |
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SECTION 4. Section 375.101(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) A vehicle recycler or scrap metal recycling facility |
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that removes convenience switches from eligible vehicles in |
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accordance with educational materials received under this chapter |
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shall be provided regulatory incentives by the commission [under
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programs implemented pursuant to Section 5.755, Water Code], |
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including on-site technical assistance [and compliance history
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classification adjustments]. |
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SECTION 5. Section 382.0518(c), Health and Safety Code, is |
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amended to read as follows: |
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(c) In considering the issuance, amendment, or renewal of a |
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permit, the commission may consider any adjudicated decision or |
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compliance proceeding within the five years before the date on |
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which the application was filed that addressed the applicant's past |
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performance and compliance with the laws of this state, another |
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state, or the United States governing air contaminants or with the |
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terms of any permit or order issued by the commission [the
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applicant's compliance history in accordance with the method for
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evaluating compliance history developed by the commission under
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Section 5.754, Water Code]. In considering an applicant's |
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compliance history under this subsection, the commission shall |
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consider as evidence of compliance information regarding the |
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applicant's implementation of an environmental management system |
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at the facility for which the permit, permit amendment, or permit |
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renewal is sought. In this subsection, "environmental management |
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system" has the meaning assigned by Section 5.127, Water Code. |
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SECTION 6. Section 382.055(d), Health and Safety Code, is |
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amended to read as follows: |
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(d) In determining whether and under which conditions a |
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preconstruction permit should be renewed, the commission shall |
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consider, at a minimum: |
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(1) whether the [performance of the owner or operator
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of the] facility is or has been in substantial compliance with this |
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chapter and the terms of the existing permit [according to the
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method developed by the commission under Section 5.754, Water
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Code]; and |
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(2) the condition and effectiveness of existing |
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emission control equipment and practices. |
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SECTION 7. Section 382.056(o), Health and Safety Code, is |
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amended to read as follows: |
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(o) Notwithstanding other provisions of this chapter, the |
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commission may hold a hearing on a permit amendment, modification, |
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or renewal if the commission determines that the application |
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involves a facility for which the applicant's compliance history |
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contains violations which are unresolved and which constitute a |
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recurring pattern of egregious conduct which demonstrates a |
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consistent disregard for the regulatory process, including the |
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failure to make a timely and substantial attempt to correct the |
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violations [is in the lowest classification under Sections 5.753
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and 5.754, Water Code, and rules adopted and procedures developed
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under those sections]. |
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SECTION 8. Section 401.110(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) In making a determination whether to grant, deny, amend, |
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renew, revoke, suspend, or restrict a license or registration, the |
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commission may consider those aspects of an applicant's or license |
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holder's background that bear materially on the ability to fulfill |
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the obligations of licensure, including technical competence, |
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financial qualifications, and the applicant's or license holder's |
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record in areas involving radiation [compliance history under the
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method for evaluation of compliance history developed by the
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commission under Section 5.754, Water Code]. |
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SECTION 9. Section 401.112(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The department or commission, within its jurisdiction, |
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in making a licensing decision on a specific license application to |
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process or dispose of low-level radioactive waste from other |
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persons, shall consider: |
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(1) site suitability, geological, hydrological, and |
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meteorological factors, and natural [naturals] hazards; |
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(2) compatibility with present uses of land near the |
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site; |
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(3) socioeconomic effects on surrounding communities |
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of operation of the licensed activity and of associated |
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transportation of low-level radioactive waste; |
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(4) the need for and alternatives to the proposed |
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activity, including an alternative siting analysis prepared by the |
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applicant; |
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(5) the applicant's qualifications, including |
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financial and technical qualifications and past operating |
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practices [compliance history under the method for evaluation of
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compliance history developed by the commission under Section 5.754,
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Water Code,] for an application to the commission or the |
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requirements of Section 401.110(b) for an application to the |
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department; |
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(6) background monitoring plans for the proposed site; |
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(7) suitability of facilities associated with the |
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proposed activities; |
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(8) chemical, radiological, and biological |
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characteristics of the low-level radioactive waste and waste |
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classification under Section 401.053; |
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(9) adequate insurance of the applicant to cover |
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potential injury to any property or person, including potential |
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injury from risks relating to transportation; |
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(10) training programs for the applicant's employees; |
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(11) a monitoring, record-keeping, and reporting |
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program; |
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(12) spill detection and cleanup plans for the |
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licensed site and related to associated transportation of low-level |
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radioactive waste; |
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(13) decommissioning and postclosure care plans; |
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(14) security plans; |
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(15) worker monitoring and protection plans; |
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(16) emergency plans; and |
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(17) a monitoring program for applicants that includes |
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prelicense and postlicense monitoring of background radioactive |
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and chemical characteristics of the soils, groundwater, and |
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vegetation. |
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SECTION 10. Section 5.758, Water Code, is transferred to |
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Subchapter D, Chapter 5, Water Code, redesignated as Section 5.123, |
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Water Code, and amended to read as follows: |
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Sec. 5.123 [5.758]. REGULATORY FLEXIBILITY. (a) The |
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commission by order may exempt an applicant from a requirement of a |
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statute or commission rule regarding the control or abatement of |
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pollution if the applicant proposes to control or abate pollution |
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by an alternative method or by applying an alternative standard |
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that is: |
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(1) at least as [more] protective of the environment |
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and the public health as [than] the method or standard prescribed by |
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the statute or commission rule that would otherwise apply; and |
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(2) not inconsistent with federal law. |
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(b) [The commission may not exempt an applicant under this
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section unless the applicant can present to the commission
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documented evidence of benefits to environmental quality that will
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result from the project the applicant proposes.
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[(c)] The commission by rule shall specify the procedure for |
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obtaining an exemption under this section. The rules must provide |
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for public notice and for public participation in a proceeding |
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involving an application for an exemption under this section. |
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(c) [(d)] The commission's order must provide a specific |
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description of the alternative method or standard and condition the |
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exemption on compliance with the method or standard as the order |
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prescribes. |
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(d) [(e)] The commission by rule may establish a reasonable |
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fee for applying for an exemption under this section. |
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(e) [(f)] A violation of an order issued under this section |
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is punishable as if it were a violation of the statute or rule from |
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which the order grants an exemption. |
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(f) A permit may satisfy a requirement to demonstrate need |
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by showing need on a regional basis considering economic impacts. |
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(g) This section does not authorize exemptions to statutes |
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or regulations for storing, handling, processing, or disposing of |
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low-level radioactive materials. |
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(h) In implementing the program of regulatory flexibility |
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authorized by this section, the commission shall: |
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(1) market the program to businesses in the state |
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through all available appropriate media; |
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(2) endorse alternative methods that will [clearly] |
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benefit the environment and impose the least onerous restrictions |
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on business; |
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(3) fix and enforce environmental standards, allowing |
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businesses flexibility in meeting the standards in a manner that |
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[clearly] enhances environmental outcomes; and |
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(4) work to achieve consistent and predictable results |
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for the regulated community and shorter waits for permit issuance. |
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SECTION 11. Section 26.028(d), Water Code, is amended to |
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read as follows: |
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(d) Notwithstanding any other provision of this chapter, |
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the commission, at a regular meeting without the necessity of |
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holding a public hearing, may approve an application to renew or |
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amend a permit if: |
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(1) the applicant is not applying to: |
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(A) increase significantly the quantity of waste |
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authorized to be discharged; or |
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(B) change materially the pattern or place of |
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discharge; |
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(2) the activities to be authorized by the renewed or |
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amended permit will maintain or improve the quality of waste |
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authorized to be discharged; |
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(3) for NPDES permits, notice and the opportunity to |
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request a public meeting shall be given in compliance with NPDES |
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program requirements, and the commission shall consider and respond |
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to all timely received and significant public comment; and |
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(4) the commission determines that an applicant's |
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compliance history for the preceding five years [under the method
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for evaluating compliance history developed by the commission under
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Section 5.754] raises no issues regarding the applicant's ability |
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to comply with a material term of its permit. |
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SECTION 12. Section 26.0281, Water Code, is amended to read |
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as follows: |
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Sec. 26.0281. CONSIDERATION OF PAST PERFORMANCE AND |
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COMPLIANCE [HISTORY]. In considering the issuance, amendment, or |
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renewal of a permit to discharge effluent comprised primarily of |
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sewage or municipal waste, the commission shall consider any |
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adjudicated decision on or [the] compliance proceeding addressing |
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past performance and compliance [history] of the applicant and its |
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operator with the laws of this state governing waste discharge, |
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waste treatment, or waste disposal facilities and with the terms of |
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any permit or order issued by the commission [under the method for
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evaluating compliance history developed by the commission under
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Section 5.754]. In considering an applicant's compliance history |
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under this subsection, the commission shall consider as evidence of |
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compliance information regarding the applicant's implementation of |
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an environmental management system at the facility for which the |
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permit, permit amendment, or permit renewal is sought. In this |
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section, "environmental management system" has the meaning |
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assigned by Section 5.127. |
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SECTION 13. Section 26.040(h), Water Code, is amended to |
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read as follows: |
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(h) Notwithstanding other provisions of this chapter, the |
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commission, after hearing, shall deny or suspend a discharger's |
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authority to discharge under a general permit if the commission |
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determines that the discharger operates any facility for which the |
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discharger's compliance history contains violations constituting a |
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recurring pattern of egregious conduct that demonstrates a |
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consistent disregard for the regulatory process, including a |
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failure to make a timely and substantial attempt to correct the |
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violations [is in the lowest classification under Sections 5.753
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and 5.754 and rules adopted and procedures developed under those
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sections]. A hearing under this subsection is not subject to |
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Chapter 2001, Government Code. |
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SECTION 14. Section 27.051(d), Water Code, is amended to |
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read as follows: |
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(d) The commission, in determining if the use or |
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installation of an injection well is in the public interest under |
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Subsection (a)(1), shall consider, but shall not be limited to the |
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consideration of: |
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(1) compliance history of the applicant and related |
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entities [under the method for evaluating compliance history
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developed by the commission under Section 5.754 and] in accordance |
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with the provisions of Subsection (e); |
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(2) whether there is a practical, economic, and |
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feasible alternative to an injection well reasonably available; and |
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(3) if the injection well will be used for the disposal |
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of hazardous waste, whether the applicant will maintain sufficient |
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public liability insurance for bodily injury and property damage to |
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third parties that is caused by sudden and non-sudden accidents or |
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will otherwise demonstrate financial responsibility in a manner |
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adopted by the commission in lieu of public liability insurance. A |
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liability insurance policy which satisfies the policy limits |
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required by the hazardous waste management regulations of the |
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commission for the applicant's proposed pre-injection facilities |
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shall be deemed "sufficient" under this subdivision if the policy: |
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(A) covers the injection well; and |
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(B) is issued by a company that is authorized to |
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do business and to write that kind of insurance in this state and is |
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solvent and not currently under supervision or in conservatorship |
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or receivership in this state or any other state. |
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SECTION 15. Section 27.051(e), Water Code, as amended by |
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Chapters 347, 965, and 1161, Acts of the 77th Legislature, Regular |
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Session, 2001, is reenacted and amended to read as follows: |
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(e) The [Consistent with Sections 5.753 and 5.754 and rules
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adopted and procedures developed under those sections, The] |
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commission shall establish a procedure for the preparation of |
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comprehensive summaries of the applicant's compliance history, |
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including the compliance history of any corporation or business |
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entity managed, owned, or otherwise closely related to the |
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applicant. A compliance summary must include as evidence of |
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compliance information regarding the applicant's implementation of |
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an environmental management system at the facility for which an |
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authorization is sought. The summaries shall be made available to |
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the applicant and any interested person after the commission has |
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completed its technical review of the permit application and prior |
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to the promulgation of the public notice relating to the issuance of |
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the permit. Evidence of compliance or noncompliance by an |
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applicant for an injection well permit with environmental statutes |
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and the rules adopted or orders or permits issued by the commission |
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may be offered by any party at a hearing on the applicant's |
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application and admitted into evidence subject to applicable rules |
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of evidence. [In accordance with this subsection and Sections
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5.753 and 5.754 and rules adopted and procedures developed under
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those sections, evidence of the compliance history of an applicant
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for an injection well may be offered at a hearing on the application
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and may be admitted into evidence, subject to the rules of
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evidence.] Evidence of the compliance history of an applicant for |
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an injection well permit may be offered by the executive director at |
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a hearing on the application and admitted into evidence subject to |
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the rules of evidence. All evidence admitted, including compliance |
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history, shall be considered by the commission in determining |
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whether to issue, amend, extend or renew a permit. If the |
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commission concludes that the applicant's compliance history is |
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unacceptable, the commission shall deny the permit. In this |
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subsection, "environmental management system" has the meaning |
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assigned by Section 5.127. |
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SECTION 16. Section 32.101(c), Water Code, is amended to |
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read as follows: |
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(c) The commission, in determining if the use or |
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installation of a subsurface area drip dispersal system is in the |
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public interest under Subsection (a)(1), shall consider: |
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(1) compliance history of the applicant and related |
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entities [under the method for evaluating compliance history
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developed by the commission under Section 5.754 and] in accordance |
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with the provisions of Subsection (d) [of this section]; |
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(2) whether there is a practical, economic, and |
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feasible alternative to a subsurface area drip dispersal system |
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reasonably available; and |
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(3) any other factor the commission considers |
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relevant. |
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SECTION 17. The following provisions are repealed: |
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(1) except as provided by Section 10 of this Act, |
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Subchapter Q, Chapter 5, Water Code; |
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(2) Section 361.0215(c), Health and Safety Code; |
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(3) Section 361.088(g), Health and Safety Code; and |
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(4) Section 27.051(h), Water Code, as amended by |
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Section 16.08, Chapter 965, Acts of the 77th Legislature, Regular |
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Session, 2001. |
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SECTION 18. The change in law made by this Act applies only |
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to an application for a permit, permit amendment, or permit renewal |
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that is filed with the Texas Commission on Environmental Quality on |
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or after the effective date of this Act. An application for a |
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permit, permit amendment, or permit renewal that is filed with the |
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commission under that chapter before the effective date of this Act |
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is governed by the law in effect on the date the application is |
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filed, and that law is continued in effect for that purpose. |
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SECTION 19. This Act takes effect September 1, 2007. |