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A BILL TO BE ENTITLED
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AN ACT
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relating to the procedure for action by the Texas Commission on |
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Environmental Quality on applications for certain environmental |
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permits and administrative and judicial review of the commission's |
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action. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 2001, Government Code, is amended by |
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adding Subchapter J to read as follows: |
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SUBCHAPTER J. ADMINISTRATIVE REVIEW OF CERTAIN ENVIRONMENTAL |
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PERMITS |
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Sec. 2001.301. PURPOSE. It is the public policy of this |
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state and the purpose of this subchapter to continue leading the |
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country in maintaining protection of public health and the |
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environment while providing stability and certainty for the state's |
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economy. |
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Sec. 2001.302. DEFINITIONS. In this subchapter: |
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(1) "Commission" means the Texas Commission on |
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Environmental Quality. |
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(2) "Interested person" means a person who resides or |
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operates in this state, and includes an applicant for a permit, |
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permit amendment, or permit renewal. |
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(3) "Office" means the State Office of Administrative |
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Hearings. |
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(4) "Permit" includes a permit, license, certificate, |
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registration, approval, or other form of authorization issued by |
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the commission. |
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Sec. 2001.303. APPLICABILITY. (a) This subchapter applies |
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to a final commission decision issued under Section 5.5553, Water |
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Code, following a public hearing under Section 5.5541, Water Code, |
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for: |
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(1) a national pollutant discharge elimination system |
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permit under Chapter 26, Water Code; |
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(2) a Class I injection well permit under Chapter 27, |
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Water Code; |
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(3) an in situ uranium mining permit under Chapter 27, |
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Water Code; |
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(4) a permit under Chapter 28, Water Code; |
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(5) a solid waste facility permit under Chapter 361, |
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Health and Safety Code; |
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(6) a hazardous waste management facility permit under |
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Chapter 361, Health and Safety Code; |
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(7) a preconstruction permit under Chapter 382, Health |
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and Safety Code; |
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(8) a standard permit for a concrete batch plant under |
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Chapter 382, Health and Safety Code; and |
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(9) a license under Chapter 401, Health and Safety |
|
Code. |
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(b) This subchapter does not apply to a permit for which a |
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hearing under Section 5.5541(d), Water Code, is not held. |
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Sec. 2001.304. REVIEW OF FINAL PERMIT DECISIONS. (a) Not |
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later than the 30th day after the date notice of the commission's |
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final decision on a permit application under Section 5.5553, Water |
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Code, is published in the Texas Register, an interested person who |
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filed a comment on the permit application or participated in a |
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public hearing on the permit application may file a petition for |
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administrative review of the permit decision by the office. |
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(b) A person who failed to file a comment or participate in |
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the public hearing on the permit application may petition for |
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administrative review of the permit decision only with regard to |
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any changes made to the draft permit in the permit decision. |
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(c) The petition must be filed with the chief clerk of the |
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commission. Not later than the fifth calendar day after the date |
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the commission receives the petition, the chief clerk shall forward |
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the petition to the office for review. The chief clerk shall |
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include with the petition: |
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(1) if the permit was issued, the final permit and the |
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administrative record for the final permit, including: |
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(A) the findings of fact and conclusions of law |
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that support the issuance of the permit; |
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(B) the draft permit and the findings of fact and |
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conclusions of law that support the draft permit; and |
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(C) the executive director's preliminary |
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decision on the permit application; |
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(2) all comments received during the public comment |
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period other than comments received in a public meeting held under |
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Section 5.554, Water Code; |
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(3) the tape or transcript of any public hearing held |
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under Section 5.5541, Water Code; |
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(4) the response to the comments required by Section |
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5.555, Water Code; and |
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(5) any other documents contained in the supporting |
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materials for the permit. |
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(d) The petition must include a statement of the reasons |
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supporting review by the office, including a demonstration that any |
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issues raised in the petition: |
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(1) were raised during the public comment period or at |
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a public hearing; or |
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(2) relate to changes made to the draft permit in the |
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permit decision. |
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(e) The office may grant the petition only if the petitioner |
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demonstrates that the basis for the review is: |
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(1) a finding of fact or conclusion of law that is |
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clearly erroneous; or |
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(2) an exercise of discretion or an important policy |
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consideration that the office should, in its discretion, review. |
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(f) The commission and permit applicant, if applicable, may |
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each file a response to the petition not later than the 30th day |
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after the date the petition is filed. |
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(g) The petitioner may file a reply brief not later than the |
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15th day after the date of the service of a response described by |
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Subsection (f). |
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(h) The office may, in its discretion, deny the petition, |
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even if the petition satisfies the requirements of Subsection (e). |
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(i) The scope of review on a petition is limited to the |
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administrative record provided to the office by the chief clerk of |
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the commission. New evidence may not be raised or considered by the |
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office in reviewing the petition. |
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(j) Not later than the 60th day after the date the office |
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receives the petition, it shall issue an order granting or denying |
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the petition. An issue raised in a denied petition is eligible for |
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judicial review of the issue in the Court of Appeals for the Third |
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Court of Appeals District. |
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Sec. 2001.305. ADMINISTRATIVE REVIEW. (a) If the office |
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grants a petition for review under Section 2001.304, the office |
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shall give public notice of the review not later than the 10th day |
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before the date set for the review that includes: |
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(1) a statement of the time, place, and nature of the |
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review; |
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(2) a statement of the legal authority and |
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jurisdiction under which the review is to be held; |
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(3) a reference to the specific sections of the |
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statutes and rules involved in the matter under review; |
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(4) a short, plain statement of the matters asserted; |
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and |
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(5) at the discretion of the office, a briefing |
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schedule for the review that may allow the submission of briefs by a |
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petitioner, the permit applicant, the commission, and the office of |
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public interest counsel of the commission. |
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(b) If the office determines that the briefing provided with |
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the petition for review is sufficient to make a final decision, it |
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may conclude that additional briefing is not necessary. |
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(c) The office may allow for the filing of amicus briefs. If |
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applicable, the notice required under Subsection (a) must include |
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instructions for any interested person to file an amicus brief. |
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(d) The office may, in addition to establishing a briefing |
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schedule, direct the parties to present oral argument on a |
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specified issue. |
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(e) The scope of review by the office shall be limited to |
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review of the administrative record, briefs provided by the |
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parties, and any oral arguments presented to the office. |
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(f) The office shall issue a decision not later than the |
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60th day after the date it grants the petition. |
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(g) The office is limited to the following actions with |
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regard to a final decision issued by the commission: |
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(1) affirm the commission's final decision; or |
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(2) remand the final decision to the commission with |
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recommendations to address: |
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(A) clearly erroneous findings of fact or |
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conclusions of law identified by the office; |
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(B) an exercise of discretion; or |
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(C) an important policy consideration. |
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(h) If the office affirms the commission's final decision, |
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that final decision is eligible for judicial review in the Court of |
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Appeals for the Third Court of Appeals District. |
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Sec. 2001.306. ISSUES REMANDED TO THE COMMISSION. (a) Not |
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later than the 30th day after the date the office remands a decision |
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to the commission, the commission shall: |
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(1) modify the decision accordingly; or |
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(2) decline to modify the decision. |
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(b) An action taken by the commission under Subsection (a) |
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must: |
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(1) be published in the Texas Register; and |
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(2) include an explanation describing the commission's |
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reasoning for the action. |
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(c) The commission's action on a decision remanded to the |
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commission by the office is eligible for judicial review in the |
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Court of Appeals for the Third Court of Appeals District. |
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SECTION 2. The heading to Subchapter G, Chapter 2001, |
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Government Code, is amended to read as follows: |
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SUBCHAPTER G. [CONTESTED CASES:] JUDICIAL REVIEW |
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SECTION 3. Section 2001.171, Government Code, is amended to |
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read as follows: |
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Sec. 2001.171. JUDICIAL REVIEW. (a) A person who has |
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exhausted all administrative remedies available within a state |
|
agency and who is aggrieved by a final decision in a contested case |
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or in an administrative review under Subchapter J of an |
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environmental permit decision is entitled to judicial review under |
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this chapter. |
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(b) Except as provided by Section 2001.227, this subchapter |
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applies to an administrative review under Subchapter J of an |
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environmental permit in the same manner as it applies to a contested |
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case. |
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SECTION 4. Subchapter I, Chapter 2001, Government Code, is |
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amended by adding Section 2001.227 to read as follows: |
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Sec. 2001.227. VENUE AND STANDARD OF REVIEW FOR CERTAIN |
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ENVIRONMENTAL CASES. (a) The venue for judicial review of an |
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action or decision identified under Subchapter J as eligible for |
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judicial review is in the Court of Appeals for the Third Court of |
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Appeals District. |
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(b) The standard of review of an action or decision under |
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Subchapter J is whether the action or decision was: |
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(1) arbitrary and capricious; or |
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(2) characterized by abuse or a clearly unwarranted |
|
exercise of discretion. |
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(c) Under the arbitrary and capricious standard of review, a |
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court may not substitute its judgment for the judgment of the Texas |
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Commission on Environmental Quality but: |
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(1) may affirm the decision in whole or in part; or |
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(2) shall reverse and remand the case for further |
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proceedings if substantial rights of the permit applicant have been |
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prejudiced because the findings, inferences, conclusions, or |
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decisions of the Texas Commission on Environmental Quality are: |
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(A) in violation of a constitutional or statutory |
|
provision; |
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(B) in excess of the agency's statutory |
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authority; |
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(C) made through unlawful approval; |
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(D) affected by other error of law; |
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(E) arbitrary or capricious; or |
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(F) characterized by abuse or clearly |
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unwarranted exercise of discretion. |
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SECTION 5. Section 2003.024(d), Government Code, is amended |
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to read as follows: |
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(d) This section does not apply to hearings conducted: |
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(1) by the environmental quality [natural resource
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conservation] division or the utility division; or |
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(2) under the administrative license revocation |
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program. |
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SECTION 6. The heading to Section 2003.047, Government |
|
Code, is amended to read as follows: |
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Sec. 2003.047. ENVIRONMENTAL QUALITY [NATURAL RESOURCE
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CONSERVATION] DIVISION. |
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SECTION 7. Section 2003.047, Government Code, is amended by |
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amending Subsections (a), (b), and (m) and adding Subsection (p) to |
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read as follows: |
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(a) The office shall establish an environmental quality [a
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natural resource conservation] division to perform the contested |
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case hearings and administrative review of certain permit decisions |
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for the Texas Commission on Environmental Quality [Natural Resource
|
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Conservation Commission]. |
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(b) The division shall conduct hearings relating to |
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contested cases before the commission, other than a hearing |
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conducted by one or more commissioners, and shall conduct |
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administrative review of commission permit application decisions |
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to which Subchapter J, Chapter 2001, applies. The commission by |
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rule may delegate to the division the responsibility to hear any |
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other matter before the commission if consistent with the |
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responsibilities of the division. |
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(m) The [Except as provided in Section 361.0832, Health and
|
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Safety Code, the] commission shall consider the proposal for |
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decision prepared by the administrative law judge, the exceptions |
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of the parties, and the briefs and argument of the parties. The |
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commission may amend the proposal for decision, including any |
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finding of fact, but any such amendment thereto and order shall be |
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based solely on the record made before the administrative law |
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judge. Any such amendment by the commission shall be accompanied by |
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an explanation of the basis of the amendment. The commission may |
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also refer the matter back to the administrative law judge to |
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reconsider any findings and conclusions set forth in the proposal |
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for decision or take additional evidence or to make additional |
|
findings of fact or conclusions of law. The commission shall serve |
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a copy of the commission's order, including its finding of facts and |
|
conclusions of law, on each party. |
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(p) The chief administrative law judge shall adopt rules |
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that govern the procedure to be used by the environmental quality |
|
division for the administrative review of a commission decision on |
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an environmental permit to which Subchapter J, Chapter 2001, |
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applies. |
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SECTION 8. Section 2003.048, Government Code, is amended to |
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read as follows: |
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Sec. 2003.048. TEXAS [NATURAL RESOURCE CONSERVATION] |
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COMMISSION ON ENVIRONMENTAL QUALITY HEARINGS FEE. The office shall |
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charge the Texas [Natural Resource Conservation] Commission on |
|
Environmental Quality a fixed annual fee rather than an hourly rate |
|
for services rendered by the office to the commission. The amount |
|
of the fee may not be less than the amount appropriated to the Texas |
|
[Natural Resource Conservation] Commission on Environmental |
|
Quality in the General Appropriations Act for payment to the |
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environmental quality [natural resource conservation] division to |
|
conduct commission hearings. The amount of the fee shall be based |
|
on the costs of conducting the hearings, the costs of travel |
|
expenses and telephone charges directly related to the hearings, |
|
docketing costs, and other applicable administrative costs of the |
|
office including the administrative costs of the environmental |
|
quality [natural resource conservation] division. The office and |
|
the Texas [Natural Resource Conservation] Commission on |
|
Environmental Quality shall negotiate the amount of the fixed fee |
|
biennially, subject to the approval of the governor, to coincide |
|
with the commission's legislative appropriations request. |
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SECTION 9. Section 5.311(a), Water Code, is amended to read |
|
as follows: |
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(a) The commission may delegate to an administrative law |
|
judge of the State Office of Administrative Hearings the |
|
responsibility to: |
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(1) hear any matter before the commission other than a |
|
matter that is the subject of a public hearing under Section 5.5541; |
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and |
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(2) [to] issue interlocutory orders related to interim |
|
rates under Chapter 13. |
|
SECTION 10. Section 5.313, Water Code, is amended to read as |
|
follows: |
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Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. Any |
|
reference in law to a hearing examiner who has a duty related to a |
|
case pending before the commission, other than a case involving a |
|
matter that is the subject of a public hearing under Section 5.5541, |
|
means an administrative law judge of the State Office of |
|
Administrative Hearings. |
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SECTION 11. Subchapter H, Chapter 5, Water Code, is amended |
|
by adding Section 5.316 to read as follows: |
|
Sec. 5.316. APPLICABILITY OF CONTESTED CASE PROCEDURE TO |
|
CERTAIN HEARINGS. Subchapters C, D, E, and F, Chapter 2001, |
|
Government Code, do not apply to an application for an original |
|
permit, permit amendment, or permit renewal to which Subchapter J, |
|
Chapter 2001, Government Code, applies. |
|
SECTION 12. Subchapter I, Chapter 5, Water Code, is amended |
|
by adding Section 5.358 to read as follows: |
|
Sec. 5.358. JUDICIAL REVIEW OF PERMITS SUBJECT TO |
|
ADMINISTRATIVE REVIEW. Except as provided by Section 2001.227, |
|
Government Code, Subchapter G, Chapter 2001, Government Code, |
|
applies to the judicial review of a permit action or decision under |
|
Subchapter J, Chapter 2001, Government Code, instead of this |
|
subchapter. |
|
SECTION 13. Sections 5.402(a) and (b), Water Code, are |
|
amended to read as follows: |
|
(a) At any time before the public notice of the opportunity |
|
to request a public hearing on a permit application, the applicant |
|
may request that consolidated applications be processed separately |
|
as determined by the executive director. The executive director |
|
shall process the applications separately if the applicant submits |
|
a timely request under this subsection. |
|
(b) At any time after the notice of opportunity to request a |
|
public hearing [but before referral of the matter to the State
|
|
Office of Administrative Hearings], the executive director may |
|
separate the applications for processing on a showing of good cause |
|
by the applicant that the applications should be processed |
|
separately. For purposes of this subsection, "good cause" includes |
|
a change in the statutory or regulatory requirements governing a |
|
permit or a substantial change in the factual circumstances |
|
surrounding the applications for permits. |
|
SECTION 14. Sections 5.551(a) and (b), Water Code, are |
|
amended to read as follows: |
|
(a) This subchapter establishes procedures for providing |
|
public notice, an opportunity for public comment, and an |
|
opportunity for public hearing [under Subchapters C-H, Chapter
|
|
2001, Government Code,] regarding commission actions relating to a |
|
permit issued under Chapter 26, [or] 27, or 28 of this code or |
|
Chapter 361, 382, or 401, Health and Safety Code. This subchapter |
|
is procedural and does not expand or restrict the types of |
|
commission actions for which public notice, an opportunity for |
|
public comment, and an opportunity for public hearing are provided |
|
under Chapter 26, [or] 27, or 28 of this code or Chapter 361, 382, or |
|
401, Health and Safety Code. |
|
(b) The commission by rule shall provide for additional |
|
notice, opportunity for public comment, or opportunity for public |
|
hearing to the extent necessary to satisfy a requirement for United |
|
States Environmental Protection Agency authorization of a state |
|
permit program. |
|
SECTION 15. Subchapter M, Chapter 5, Water Code, is amended |
|
by adding Section 5.5515 to read as follows: |
|
Sec. 5.5515. DEFINITIONS. In this subchapter: |
|
(1) "Interested person" means a person who resides or |
|
operates in this state, and includes an applicant for a permit, |
|
permit amendment, or permit renewal. |
|
(2) "Permit" includes a permit, license, certificate, |
|
registration, approval, or other form of authorization issued by |
|
the commission. |
|
SECTION 16. Sections 5.552(a) and (d), Water Code, are |
|
amended to read as follows: |
|
(a) Not later than the 30th day after the date the |
|
commission receives the application, the [The] executive director |
|
shall determine whether [when] an application is administratively |
|
complete. |
|
(d) In addition to providing notice under Subsection |
|
(b)(1), the applicant shall comply with any applicable public |
|
notice requirements under Chapters 26, [and] 27, and 28 of this |
|
code, Chapters [Chapter] 361, 382, and 401, Health and Safety Code, |
|
and rules adopted under those chapters. |
|
SECTION 17. Section 5.553, Water Code, is amended by |
|
amending Subsections (c) and (d) and adding Subsections (f) and (g) |
|
to read as follows: |
|
(c) The commission by rule shall establish the form and |
|
content of the notice, the manner of publication, and the duration |
|
of the public comment period. The notice must include: |
|
(1) the information required by Sections |
|
5.552(c)(1)-(5); |
|
(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 (e); |
|
(4) a description of the manner in which comments |
|
regarding the preliminary decision may be submitted; [and] |
|
(5) if applicable, a description of the procedure for |
|
requesting a public hearing on the preliminary decision; and |
|
(6) any other information the commission by rule |
|
requires. |
|
(d) In addition to providing notice under this section, the |
|
applicant shall comply with any applicable public notice |
|
requirements under Chapters 26, [and] 27, and 28 of this code, |
|
Chapters [Chapter] 361, 382, and 401, Health and Safety Code, and |
|
rules adopted under those chapters. |
|
(f) The duration of the public comment period shall extend |
|
to the later of: |
|
(1) the close of a public hearing on the matter, if |
|
applicable; or |
|
(2) the 45th day after the date the public comment |
|
period begins. |
|
(g) If the executive director determines that there is |
|
substantial public interest in extending the public comment period, |
|
the executive director may extend the public comment period |
|
described by Subsection (f) for a period not to exceed 30 days. |
|
SECTION 18. Section 5.554, Water Code, is amended to read as |
|
follows: |
|
Sec. 5.554. PUBLIC MEETING. (a) In this section, "public |
|
meeting" means an informal meeting open to any interested person at |
|
which the permit applicant, the executive director, and members of |
|
the public may discuss issues related to the permit application. |
|
(b) During the public comment period, the executive |
|
director or the applicant, in cooperation with the executive |
|
director, may hold one or more public meetings in the county in |
|
which the facility is located or proposed to be located or in an |
|
adjacent county. |
|
(c) The executive director shall hold a public meeting: |
|
(1) on the request of a member of the legislature who |
|
represents the general area in which the facility is located or |
|
proposed to be located; or |
|
(2) if the executive director determines that there is |
|
substantial public interest in the proposed activity. |
|
SECTION 19. Subchapter M, Chapter 5, Water Code, is amended |
|
by adding Sections 5.5541 and 5.5542 to read as follows: |
|
Sec. 5.5541. PUBLIC HEARING. (a) In this section, "public |
|
hearing" means a formal meeting at which any interested person may |
|
make comments on the record relating to a proposed agency decision |
|
on a permit application. |
|
(b) An interested person may request a public hearing after |
|
a preliminary decision has been issued on an application for a |
|
permit, permit renewal, or permit amendment for: |
|
(1) a national pollutant discharge elimination system |
|
permit under Chapter 26; |
|
(2) a Class I injection well permit under Chapter 27; |
|
(3) an in situ uranium mining permit under Chapter 27; |
|
(4) a permit under Chapter 28; |
|
(5) a solid waste facility permit under Chapter 361, |
|
Health and Safety Code; |
|
(6) a hazardous waste management facility permit under |
|
Chapter 361, Health and Safety Code; |
|
(7) a preconstruction permit under Chapter 382, Health |
|
and Safety Code; |
|
(8) a standard permit for a concrete batch plant under |
|
Chapter 382, Health and Safety Code; or |
|
(9) a license under Chapter 401, Health and Safety |
|
Code. |
|
(c) The executive director shall hold a public hearing not |
|
later than the 35th day after the date the request is made under |
|
Subsection (b). |
|
(d) The following permits are not eligible for a public |
|
hearing: |
|
(1) a general permit under Chapter 26; |
|
(2) any of the following permits under Chapter 382, |
|
Health and Safety Code: |
|
(A) a standard permit, other than a standard |
|
permit for a concrete batch plant; or |
|
(B) a permit by rule; |
|
(3) any of the following permits under Chapter 26, 27, |
|
or 28 of this code or Chapter 361, 382, or 401, Health and Safety |
|
Code: |
|
(A) an administrative permit or a minor permit, |
|
minor permit amendment, or minor permit modification, as those |
|
terms are defined by commission rule; or |
|
(B) a registration; and |
|
(4) any permit determined by commission rule to be |
|
ineligible for a hearing. |
|
(e) A public hearing must be held in the county in which the |
|
facility is located or proposed to be located or in an adjacent |
|
county. |
|
(f) For a permit application not listed in Subsection (b) or |
|
(d), a public hearing may be held if the executive director |
|
determines that there is a substantial public interest in the |
|
proposed activity. |
|
(g) Notice of a public hearing must be given not later than |
|
the 30th day before the date of the hearing and in the same form and |
|
manner as is required for notice of a preliminary decision under |
|
Section 5.553(c). |
|
(h) The executive director is responsible for the |
|
scheduling and orderly conduct of a public hearing. |
|
(i) The commission by rule shall establish the procedures |
|
for requesting and conducting a public hearing, including |
|
reasonable time limits for oral statements and provisions for |
|
asking and answering questions. |
|
(j) At a public hearing, any person may submit oral or |
|
written comments and data concerning the preliminary decision. |
|
Sec. 5.5542. OBLIGATION TO RAISE ISSUES AND PROVIDE |
|
INFORMATION DURING PUBLIC COMMENT PERIOD. (a) An interested person |
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must raise all reasonably ascertainable issues and submit all |
|
reasonably available arguments supporting the person's position on |
|
the executive director's preliminary decision before the close of |
|
the public comment period. |
|
(b) Supporting materials submitted during the public |
|
comment period must be included in full in the administrative |
|
record for the application and may not be incorporated by reference |
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unless the materials: |
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(1) are already part of the administrative record in |
|
the same proceeding; or |
|
(2) consist of: |
|
(A) state or federal statutes or rules; or |
|
(B) generally available reference materials. |
|
(c) The commission by rule shall establish procedures to |
|
make supporting materials not already included in the |
|
administrative record available to the executive director. |
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SECTION 20. Section 5.555, Water Code, is amended to read as |
|
follows: |
|
Sec. 5.555. RESPONSE TO PUBLIC COMMENTS. (a) The executive |
|
director, in accordance with procedures provided by commission |
|
rule, shall file with the chief clerk of the commission a response |
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to each relevant and material public comment on the preliminary |
|
decision filed during the public comment period, including an oral |
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or written comment delivered at a public hearing, but not including |
|
an oral or written comment raised solely at a public meeting. The |
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executive director is required to respond to only those comments |
|
that substantially relate to the permit application. |
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(b) Not later than the 60th day after the date the public |
|
comment period ends, the [The] chief clerk of the commission shall |
|
transmit the executive director's decision, the executive |
|
director's response to public comments, a draft permit under |
|
Section 5.5551, if applicable, and instructions for filing a |
|
petition for an administrative review of a final commission |
|
decision [requesting that the commission reconsider the executive
|
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director's decision or hold a contested case hearing] to: |
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(1) the applicant; |
|
(2) any person who submitted comments during the |
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public comment period; and |
|
(3) any person who requested to be on the mailing list |
|
for the permit action. |
|
(c) If, after the close of the public comment period, the |
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executive director determines that additional time is necessary to |
|
respond to public comments, the time limit described by Subsection |
|
(b) may be extended for a period not to exceed 30 days. |
|
SECTION 21. Subchapter M, Chapter 5, Water Code, is amended |
|
by adding Sections 5.5551, 5.5552, and 5.5553 to read as follows: |
|
Sec. 5.5551. DRAFT PERMIT. (a) If the executive director |
|
approves a permit application, the executive director shall prepare |
|
a draft permit that includes the findings of fact and conclusions of |
|
law that support the issuance of the draft permit. The chief clerk |
|
of the commission shall include the draft permit with the |
|
information transmitted under Section 5.555(b). |
|
(b) The commission by rule shall develop a procedure for an |
|
interested person to file proposed findings of fact and conclusions |
|
of law for consideration by the executive director for the purpose |
|
of preparing the draft permit. |
|
Sec. 5.5552. UNCONTESTED APPLICATIONS. If a public hearing |
|
is not requested and comments are not filed on an application, that |
|
application is considered uncontested and the executive director |
|
may issue the final permit. A final permit issued under this |
|
section is not subject to administrative or judicial review. |
|
Sec. 5.5553. FINAL COMMISSION DECISION ON CERTAIN PERMIT |
|
APPLICATIONS; PETITION FOR ADMINISTRATIVE REVIEW. (a) Not later |
|
than the 30th day after the date the chief clerk transmits the |
|
executive director's decision as described by Section 5.555(b), the |
|
commission shall approve, disapprove, or approve with |
|
modifications the executive director's decision and publish notice |
|
of the decision in the Texas Register. |
|
(b) If the commission approves the draft permit, the |
|
commission shall issue a final permit that includes the findings of |
|
fact and conclusions of law that support the issuance of the final |
|
permit. |
|
(c) A final permit issued by the commission is effective on |
|
the date of approval by the commission. The permit applicant may |
|
rely on the final permit to conduct the authorized activity. |
|
(d) The commission's action under Subsection (a) is subject |
|
to administrative review by the State Office of Administrative |
|
Hearings under Subchapter J, Chapter 2001, Government Code. |
|
(e) A petition for administrative review by the State Office |
|
of Administrative Hearings is a prerequisite to seeking judicial |
|
review of a final commission action on a permit application. |
|
SECTION 22. Sections 27.018(a) and (b), Water Code, are |
|
amended 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.] The commission on request shall hold a public |
|
hearing on a permit application for a Class I [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]. |
|
(b) The commission by rule shall provide for giving notice |
|
of [the opportunity to request] a public hearing on a permit |
|
application. The rules for notice shall include provisions for |
|
giving notice to local governments and affected persons. The |
|
commission shall define "affected person" by rule. |
|
SECTION 23. Sections 27.0513(a) and (d), Water Code, are |
|
amended to read as follows: |
|
(a) The commission may issue a permit pursuant to Section |
|
27.011 that authorizes the construction and operation of two or |
|
more similar injection wells within a specified area for mining of |
|
uranium. An application for a new permit issued pursuant to Section |
|
27.011, a major amendment of such a permit, or a renewal of such a |
|
permit for mining of uranium is subject to the public notice |
|
requirements [and opportunity for contested case hearing] provided |
|
under Section 27.018. |
|
(d) Notwithstanding Sections 5.551, [5.556,] 27.011, and |
|
27.018, an application for an authorization submitted after |
|
September 1, 2007, is an uncontested matter not subject to an |
|
administrative review under Subchapter J, [a contested case hearing
|
|
or the hearing requirements of] Chapter 2001, Government Code, |
|
unless the authorization seeks any of the following: |
|
(1) an amendment to a restoration table value; |
|
(2) the initial establishment of monitoring wells for |
|
any area covered by the authorization, including the location, |
|
number, depth, spacing, and design of the monitoring wells, unless |
|
the executive director uses the recommendation of an independent |
|
third-party expert chosen by the commission; or |
|
(3) an amendment to the type or amount of bond required |
|
for groundwater restoration or by Section 27.073 to assure that |
|
there are sufficient funds available to the state for groundwater |
|
restoration or the plugging of abandoned wells in the area by a |
|
third-party contractor. |
|
SECTION 24. Section 361.082(b), Health and Safety Code, is |
|
amended to read as follows: |
|
(b) The [On its own motion or the request of a person
|
|
affected, the] commission on request shall [may] hold a public |
|
hearing on an application for a hazardous waste permit in |
|
accordance with this subchapter. |
|
SECTION 25. Section 361.0831, Health and Safety Code, is |
|
amended to read as follows: |
|
Sec. 361.0831. EX PARTE CONTACTS PROHIBITED. (a) Unless |
|
required for the disposition of ex parte matters authorized by law, |
|
[or unless permitted by Section 2001.061, Government Code,] a |
|
hearings examiner conducting a public hearing on a permit |
|
application may not communicate, directly or indirectly, with any |
|
employee of the commission, any commissioner, or any party to a |
|
hearing conducted by the commission in connection with any issue of |
|
fact or law pertaining to an administrative review [a contested
|
|
case] in which the commission or party is involved. |
|
(b) Except for communications allowed under Subsection (a), |
|
an employee of the commission, a commissioner, or a party to a |
|
hearing conducted by the commission may not attempt to influence |
|
the finding of facts or the application of law or rules by a |
|
hearings examiner conducting a public hearing except [by proper
|
|
evidence, pleadings, and legal argument] with notice and |
|
opportunity for all parties to participate. |
|
(c) If a prohibited contact is made, the hearings examiner |
|
conducting the public hearing shall notify all parties with a |
|
summary of that contact and notice of their opportunity to respond |
|
and shall give all parties an opportunity to respond. |
|
SECTION 26. Sections 361.088(c) and (d), Health and Safety |
|
Code, are amended to read as follows: |
|
(c) Except as provided by Subsection (e), before a permit is |
|
issued, amended, extended, or renewed, the commission on request |
|
shall hold [provide an opportunity for] a public hearing [to the
|
|
applicant and persons affected]. The commission may also hold a |
|
hearing on its own motion. |
|
(d) The [In addition to providing an opportunity for a
|
|
hearing held under this section, the] commission shall hold a |
|
public meeting as described by Section 5.554, Water Code, and give |
|
notice as provided by Section 361.0791. |
|
SECTION 27. Section 361.089(b), Health and Safety Code, is |
|
amended to read as follows: |
|
(b) Except as provided by Section 361.110, the commission |
|
shall notify each governmental entity listed under Section 361.067 |
|
and provide an opportunity for a public hearing to the permit holder |
|
or applicant and persons affected. The commission may also hold a |
|
public hearing on its own motion. |
|
SECTION 28. Section 361.121(c), Health and Safety Code, is |
|
amended to read as follows: |
|
(c) The notice and hearing provisions of Subchapter M, |
|
Chapter 5, Water Code, [as added by Chapter 1350, Acts of the 76th
|
|
Legislature, Regular Session, 1999,] apply to an application under |
|
this section for a permit, a permit amendment, or a permit renewal. |
|
In addition, at the time published notice of intent to obtain a |
|
permit is required under Section 5.552, Water Code, an applicant |
|
for a permit, permit amendment, or permit renewal under this |
|
section must notify by registered or certified mail each owner of |
|
land located within one-quarter mile of the proposed land |
|
application unit who lives on that land of the intent to obtain the |
|
permit, amendment, or renewal. Notice to landowners must include |
|
the information required by Section 5.552(c), Water Code, and |
|
information regarding the anticipated date of the first application |
|
of the sludge to the proposed land application unit. [An owner of
|
|
land located within one-quarter mile of the proposed land
|
|
application unit who lives on that land is an affected person for
|
|
purposes of Section 5.115, Water Code.] |
|
SECTION 29. Section 361.321(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) A person affected by a ruling, order, decision, or other |
|
act of the commission may appeal the action by filing a petition in |
|
a district court of Travis County, except that a final decision by |
|
the commission on an application for a permit, permit renewal, or |
|
permit amendment that is subject to administrative review under |
|
Subchapter J, Chapter 2001, Government Code, may be appealed to the |
|
court of appeals for the Third Court of Appeals District. |
|
SECTION 30. Section 382.032(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) A person affected by a ruling, order, decision, or other |
|
act of the commission or of the executive director, if an appeal to |
|
the commission is not provided, may appeal the action by filing a |
|
petition in a district court of Travis County, except that a final |
|
decision by the commission on an application for a permit, permit |
|
renewal, or permit amendment that is subject to administrative |
|
review under Subchapter J, Chapter 2001, Government Code, may be |
|
appealed to the court of appeals for the Third Court of Appeals |
|
District. |
|
SECTION 31. Section 382.055(g), Health and Safety Code, is |
|
amended to read as follows: |
|
(g) If the applicant meets the commission's requirements in |
|
accordance with the schedule, the commission shall renew the |
|
permit. If the applicant does not meet those requirements in |
|
accordance with the schedule, the applicant must show in a public |
|
hearing conducted by the commission [contested case proceeding] why |
|
the permit should not expire immediately. The applicant's permit |
|
is effective until: |
|
(1) the final date specified by the commission's |
|
report to the applicant; |
|
(2) the existing permit is renewed; or |
|
(3) the date specified by a commission order issued |
|
following a public hearing [contested case proceeding] held under |
|
this section. |
|
SECTION 32. Sections 382.056(b), (g), (h), and (m), Health |
|
and Safety Code, are amended 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 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 informs the public of |
|
the executive director's obligation under Section 5.5541(b), Water |
|
Code, to hold a public hearing on the application [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 description of the procedure by which a person |
|
may be placed on a mailing list in order to receive additional |
|
information about the application; |
|
(7) the time and location of any public meeting to be |
|
held under Subsection (e); and |
|
(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 requests |
|
during the period provided by commission rule that the commission |
|
hold a public hearing and the 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. |
|
The commission shall consider the request for public hearing under |
|
the procedures provided by Subsections (i)-(m) [(i)-(n)]. The |
|
commission may not seek further public comment or hold a public |
|
hearing under the procedures provided by Subsections (i)-(m) |
|
[(i)-(n)] in response to a 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) 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)-(m) [(i)-(n)]. |
|
(m) The chief clerk of the commission shall transmit the |
|
executive director's decision and[,] 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 request for a public |
|
hearing in response to the notice published under Subsection (a). |
|
SECTION 33. Section 382.059(d), Health and Safety Code, is |
|
amended to read as follows: |
|
(d) Not later than the 30th day after the date of issuance of |
|
the draft permit under Subsection (c), parties may submit to the |
|
commission any legitimate issues of material fact regarding whether |
|
the choice of technology approved in the draft permit is the maximum |
|
achievable control technology required under Section 112 of the |
|
federal Clean Air Act (42 U.S.C. Section 7412) and may request a |
|
public [contested case] hearing before the commission under Section |
|
5.5541, Water Code. If a party requests a public [contested case] |
|
hearing under this subsection, the commission shall conduct a |
|
public [contested case] hearing and issue a final order issuing or |
|
denying the permit amendment not later than the 120th day after the |
|
date of issuance of the draft permit under Subsection (c). |
|
SECTION 34. Sections 401.114(a) and (c), Health and Safety |
|
Code, are amended to read as follows: |
|
(a) Before the commission grants or renews a license to |
|
process or dispose of low-level radioactive waste from other |
|
persons, the commission shall give notice and shall provide an |
|
opportunity for a public hearing in the manner provided by Section |
|
5.5541, Water [the commission's formal hearing procedure and
|
|
Chapter 2001, Government] Code. |
|
(c) The commission shall mail, by certified mail in the |
|
manner provided by the commission's rules, written notice to each |
|
person who owns property adjacent to the proposed site. The notice |
|
must be mailed not later than the 31st day before the date of the |
|
hearing and must include the same information that is in the |
|
published notice. [If true, the commission or the applicant must
|
|
certify that the notice was mailed as required by this subsection,
|
|
and at the hearing the certificate is conclusive evidence of the
|
|
mailing.] |
|
SECTION 35. Section 401.116(d), Health and Safety Code, is |
|
amended to read as follows: |
|
(d) The agency shall give notice and hold a public hearing |
|
to consider the license amendment if a person [affected] files a |
|
written complaint with the agency before the 31st day after the date |
|
on which notice is published under Subsection (b). The agency shall |
|
give notice of the hearing as provided by Section 401.114. |
|
SECTION 36. Section 401.227(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) In selecting an application for the compact waste |
|
disposal facility license, the commission shall: |
|
(1) issue notice of the opportunity to submit an |
|
application to dispose of low-level radioactive waste in accordance |
|
with Section 401.228; |
|
(2) review all applications received under |
|
Subdivision (1) for administrative completeness; |
|
(3) evaluate all administratively complete |
|
applications in accordance with the evaluation criteria |
|
established by Sections 401.233-401.236 and shall select the |
|
application that has the highest comparative merit in accordance |
|
with Section 401.232; and |
|
(4) review the selected application under Subdivision |
|
(3) for technical completeness in accordance with Section 401.237 |
|
and issue a draft license [in accordance with Sections 401.237 and
|
|
401.238]. |
|
SECTION 37. Section 401.240(a), Health and Safety Code, is |
|
amended to read as follows: |
|
(a) Notwithstanding any other law, a person affected by an |
|
action of the commission under this subchapter may file a petition |
|
for judicial review of the action only after the commission takes |
|
final action on a license application [under Section 401.239(d)]. |
|
A petition must be filed not later than the 30th day after the date |
|
of the final action. |
|
SECTION 38. Sections 401.264(a) and (e), Health and Safety |
|
Code, are amended to read as follows: |
|
(a) The commission on its own motion may or on [the] written |
|
request [of a person affected] shall provide an opportunity for a |
|
public hearing on an application over which the commission has |
|
jurisdiction to determine whether to issue, renew, or amend a |
|
license to process materials that produce by-product materials or a |
|
license to dispose of by-product materials [in the manner provided
|
|
by Chapter 2001, Government Code, and permit appearances with or
|
|
without counsel and the examination and cross-examination of
|
|
witnesses under oath]. |
|
(e) The determination is subject to administrative |
|
[judicial] review under Subchapter J, Chapter 2001, Government |
|
Code, and following administrative review or the denial of a |
|
petition for administrative review, is subject to judicial review |
|
in the court of appeals for the Third Court of Appeals District [in
|
|
a district court of Travis County]. |
|
SECTION 39. The following provisions are repealed: |
|
(1) Sections 361.068(b) and (c), Health and Safety |
|
Code; |
|
(2) Section 361.079(b), Health and Safety Code; |
|
(3) Section 361.082(g), Health and Safety Code; |
|
(4) Section 361.083, Health and Safety Code; |
|
(5) Section 361.0832, Health and Safety Code; |
|
(6) Section 361.0833, Health and Safety Code; |
|
(7) Section 361.085(b), Health and Safety Code; |
|
(8) Sections 361.088(e) and (f), Health and Safety |
|
Code; |
|
(9) Section 361.089(d), Health and Safety Code; |
|
(10) Sections 382.056(n) and (o), Health and Safety |
|
Code; |
|
(11) Section 382.0566(c), Health and Safety Code; |
|
(12) Section 382.058(c), Health and Safety Code; |
|
(13) Section 382.059(f), Health and Safety Code; |
|
(14) Section 401.003(15), Health and Safety Code; |
|
(15) Section 401.238, Health and Safety Code; |
|
(16) Section 401.239, Health and Safety Code; |
|
(17) Sections 401.245(g) and (h), Health and Safety |
|
Code; |
|
(18) Section 401.2455(b), Health and Safety Code; |
|
(19) Section 401.264(b), Health and Safety Code; |
|
(20) Section 5.115, Water Code; |
|
(21) Sections 5.228(c) and (d), Water Code; |
|
(22) Section 5.315, Water Code; |
|
(23) Section 5.402(c), Water Code; |
|
(24) Section 5.552(f), Water Code; |
|
(25) Section 5.556, Water Code; |
|
(26) Section 5.557, Water Code; |
|
(27) Section 5.558(c), Water Code; |
|
(28) Sections 27.018(c) and (e), Water Code; |
|
(29) Section 27.0513(f), Water Code; and |
|
(30) Section 28.028, Water Code. |
|
SECTION 40. (a) Not later than January 1, 2014, the chief |
|
administrative law judge of the State Office of Administrative |
|
Hearings shall adopt rules to implement Subchapter J, Chapter 2001, |
|
Government Code, as added by this Act, and Section 2003.047, |
|
Government Code, as amended by this Act. |
|
(b) The changes in law made by this Act apply only to an |
|
application for a permit to which Subchapter J, Chapter 2001, |
|
Government Code, as added by this Act, applies that is filed on or |
|
after the date the rules described by Subsection (a) of this section |
|
take effect. An application for a permit filed before the date the |
|
rules described by Subsection (a) of this section take effect is |
|
governed by the law in effect on the date of filing, and that law is |
|
continued in effect for that purpose. |
|
SECTION 41. This Act takes effect September 1, 2013. |