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A BILL TO BE ENTITLED
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AN ACT
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relating to contested case hearings for environmental permits. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 382.056(n), Health and Safety Code, is |
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amended to read as follows: |
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(n) In this subsection, "affected person" has the meaning |
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assigned by Section 5.115, Water Code. Except as provided by |
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Section 382.0561, the commission shall consider a request that the |
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commission reconsider the executive director's decision or hold a |
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public hearing in accordance with the applicable procedures |
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provided by Sections 5.315, 5.316, 5.556, and 5.557, Water Code. In |
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a public hearing or contested case hearing granted in response to an |
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affected person's request under Section 5.556, Water Code, |
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regarding the issuance of a permit under Section 382.0518, a permit |
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renewal under Section 382.055, or a related permit condition, the |
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burden of proof is on the affected person to show that the permit |
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should not be issued or renewed or that a related permit condition |
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should be imposed, modified, or omitted. |
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SECTION 2. Section 382.0561, Health and Safety Code, is |
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amended by adding Subsection (j) to read as follows: |
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(j) In a public hearing regarding the issuance of a federal |
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operating permit or a specific condition in a federal operating |
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permit, permit amendment, or permit renewal, the burden of proof is |
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on the person who requested the hearing to show that the permit |
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should not be issued or renewed or that a related permit condition |
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should be imposed, modified, or omitted. |
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SECTION 3. Section 5.115(b), Water Code, is amended to read |
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as follows: |
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(b) At the time an application for a permit or license under |
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this code is filed with the executive director and is |
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administratively complete, the commission shall give notice of the |
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application to any person who may be affected by the granting of the |
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permit or license. A state agency that receives notice under this |
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subsection may submit comments to the commission in response to the |
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notice but may not contest the issuance of a permit or license by |
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the commission. |
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SECTION 4. Sections 5.228(c) and (d), Water Code, are |
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amended to read as follows: |
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(c) The executive director shall [may] participate as a |
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party in contested case permit hearings before the commission or |
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the State Office of Administrative Hearings to: |
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(1) provide information [for the sole purpose of
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providing information] to complete the administrative record; and |
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(2) support the executive director's position |
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developed in the underlying proceeding. [The commission by rule
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shall specify the factors the executive director must consider in
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determining, case by case, whether to participate as a party in a
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contested case permit hearing. In developing the rules under this
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subsection the commission shall consider, among other factors:
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[(1)
the technical, legal, and financial capacity of
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the parties to the proceeding;
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[(2)
whether the parties to the proceeding have
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participated in a previous contested case hearing;
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[(3) the complexity of the issues presented; and
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[(4) the available resources of commission staff.] |
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(d) In a contested case hearing relating to a permit |
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application, the executive director or the executive director's |
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designated representative may not rehabilitate the testimony of a |
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witness unless the witness is a commission employee [testifying for
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the sole purpose of providing information to complete the
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administrative record]. |
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SECTION 5. Subchapter H, Chapter 5, Water Code, is amended |
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by adding Sections 5.315 and 5.316 to read as follows: |
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Sec. 5.315. DISCOVERY IN CASES USING PREFILED WRITTEN |
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TESTIMONY. In a contested case hearing delegated by the commission |
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to the State Office of Administrative Hearings that uses prefiled |
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written testimony, all discovery must be completed before the |
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deadline for the submission of that testimony. |
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Sec. 5.316. DELEGATED CASES REGARDING PERMIT APPLICATION. |
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(a) In a contested case hearing delegated by the commission to the |
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State Office of Administrative Hearings regarding a permit |
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application, the rules, guidance, and policies in effect at the |
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time the technical review portion of the proceeding closes remain |
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in effect for that proceeding. |
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(b) Scientific and technical information available at the |
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time the technical review portion of the proceeding closes is the |
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only scientific and technical information that may be considered in |
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the proceeding. |
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SECTION 6. Section 5.556, Water Code, is amended by adding |
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Subsection (g) to read as follows: |
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(g) In a contested case hearing regarding the issuance of a |
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permit or specific conditions in a permit, the burden of proof is on |
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the affected person who requested the hearing to show that the |
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permit should not be issued or renewed or that a related permit |
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condition should be imposed, modified, or omitted. |
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SECTION 7. Section 5.228(e), Water Code, is repealed. |
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SECTION 8. (a) The changes in law made by this Act apply |
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only to an application for the issuance, amendment, extension, or |
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renewal of a permit that is received by the Texas Commission on |
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Environmental Quality on or after the effective date of this Act. |
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An application that is received before that date is governed by the |
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law in effect at the time the application is received, and the |
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former law is continued in effect for that purpose. |
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(b) The changes in law made by this Act apply to a proceeding |
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before the Texas Commission on Environmental Quality that is |
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pending or filed on or after September 1, 2011. |
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SECTION 9. This Act takes effect September 1, 2011. |