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A BILL TO BE ENTITLED
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AN ACT
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relating to a performance-based program for permits issued by the |
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Texas Commission on Environmental Quality. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 5, Water Code, is amended by adding |
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Subchapter S to read as follows: |
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SUBCHAPTER S. PERFORMANCE-BASED PERMIT PROGRAM |
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Sec. 5.851. DEFINITIONS. In this subchapter: |
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(1) "Applicant": |
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(A) means: |
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(i) a person who, as owner or operator, is |
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responsible for an installation, facility, or activity seeking an |
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environmental permit; |
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(ii) the proposed permittee if different |
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from the owner or operator of the installation, facility, or |
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activity; or |
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(iii) the proposed permit transferee, if |
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applicable; and |
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(B) includes any person who has the legal or |
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actual authority to control the owner, operator, permittee, or |
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transferee if a permit has not been issued to the owner, operator, |
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permittee, or transferee of the installation, facility, or activity |
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in the five-year period preceding the date of the application. |
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(2) "Site" means a single parcel or multiple |
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contiguous or adjacent parcels of land on which the applicant: |
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(A) proposes to construct or operate, or has |
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constructed or operated, an installation or facility for which a |
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permit is required under commission rules and regulations; or |
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(B) conducts or proposes to conduct an activity |
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for which a permit is required under commission rules and |
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regulations. |
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Sec. 5.852. PERFORMANCE-BASED PERMIT PROGRAM. (a) The |
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commission by rule may establish a performance-based permit program |
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that makes permit applicants with a history of compliance with |
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environmental laws and regulations eligible for: |
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(1) expedited permit issuance; |
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(2) extended periods before renewal; |
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(3) automatic renewal of permits; and |
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(4) other incentives for compliance. |
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(b) Rules under Subsection (a) must identify the permit |
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applicants eligible for the program. |
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Sec. 5.853. CATEGORY A: FELONY CRIMINAL VIOLATIONS. (a) |
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The commission shall categorize as a Category A violation: |
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(1) a felony criminal violation of any environmental |
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statute: |
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(A) of which the applicant has been convicted; |
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(B) to which the applicant entered a plea of |
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guilty or nolo contendere; or |
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(C) for which the applicant had adjudication |
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withheld; or |
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(2) a violation of a commission statute, rule, consent |
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order, final order, or agreement that resulted in actual harm to |
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human health and the environment. |
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(b) For purposes of Subsection (a)(1), an applicant that is |
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a business entity is considered to have committed a felony criminal |
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violation of an environmental statute if an applicant's officer, |
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director, trustee, partner, or employee who has legal or actual |
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operational control over the installation, facility, or activity |
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for which the permit is being sought committed the violation. |
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Sec. 5.854. CATEGORY B: OTHER CRIMINAL VIOLATIONS. (a) |
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The commission shall categorize as a Category B violation: |
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(1) a misdemeanor criminal violation of any |
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environmental statute: |
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(A) of which the applicant has been convicted; |
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(B) to which the applicant entered a plea of |
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guilty or nolo contendere; or |
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(C) for which the applicant had adjudication |
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withheld; |
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(2) a violation involving the knowing submittal of any |
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false statement, representation, or certification in any |
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application, record, report, plan, or other document filed or |
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required to be maintained by commission rules, statutes, orders, or |
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permit conditions; |
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(3) a violation involving falsifying, tampering with, |
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or knowingly rendering inaccurate any monitoring device or method |
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required to be maintained by commission rules, statutes, orders, or |
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permit conditions; or |
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(4) a violation of a commission statute, rule, consent |
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order, final order, or agreement that resulted in actual harm to |
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human health or the environment. |
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(b) For purposes of Subsection (a)(1), (2), or (3), an |
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applicant that is a business entity is considered to have committed |
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a misdemeanor criminal violation of an environmental statute if an |
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applicant's officer, director, trustee, partner, or employee who |
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has legal or actual operational control over the installation, |
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facility, or activity for which the permit is being sought |
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committed the violation. |
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Sec. 5.855. CATEGORY C: SIGNIFICANT RISK TO HUMAN HEALTH OR |
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THE ENVIRONMENT. The commission shall consider as a Class C |
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violation a violation of a commission statute, rule, consent order, |
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final order, or agreement that resulted in a significant risk to |
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human health or the environment. |
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Sec. 5.856. PATTERN OF NONCOMPLIANCE. The commission shall |
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consider an applicant to have a pattern of noncompliance if the |
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applicant has committed multiple violations of commission |
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statutes, rules, consent orders, final orders, or agreements that |
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establish a pattern of noncompliance indicating that the applicant |
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is unwilling or unable to comply with applicable commission |
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standards and criteria. |
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Sec. 5.857. CIVIL VIOLATIONS. The commission may consider |
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as part of its compliance history review civil violations that were |
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committed during the relevant review period and that resulted in |
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the initiation of a formal enforcement action by the commission. |
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However, if a civil violation has not been resolved by consent order |
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or formally adjudicated before the commission makes its |
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determination on the application, the civil violation must be |
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established by appropriate evidence in any subsequent proceeding |
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challenging the commission's proposed action. In any subsequent |
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proceeding: |
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(1) the permit applicant has the initial burden in any |
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proceeding challenging the proposed agency action of establishing a |
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prima facie case that it has provided reasonable assurance and is |
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entitled to the permit; and |
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(2) the commission, or any party seeking to establish |
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violations under this subsection, has the subsequent burden of |
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presenting by appropriate evidence of violations by the permit |
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applicant a prima facie case supporting the contention that denial |
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of the permit is warranted. |
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Sec. 5.858. EXPEDITED ISSUANCE OF EXTENDED-TERM PERMIT IF |
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NO EVIDENCE OF NONCOMPLIANCE. (a) If after consideration of the |
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compliance history of an applicant for the issuance of a permit the |
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commission determines that the applicant has a history of |
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compliance for the five years preceding the date of the application |
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or there is no evidence of noncompliance in the that period, the |
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commission shall consider the applicant eligible for an expedited |
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process for permit approval for a period of five years. |
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(b) In reviewing an application for the issuance of a permit |
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at a site where the applicant has held a commission permit for at |
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least five years, the commission shall consider only compliance |
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history at that site. |
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Sec. 5.859. ISSUANCE OF EXTENDED-TERM PERMIT AFTER FURTHER |
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COMPLIANCE HISTORY REVIEW. (a) If the commission determines that |
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the applicant is responsible for a Category A, B, or C violation or |
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has a pattern of noncompliance, the commission shall conduct a |
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further review of the applicant's performance history for the five |
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years preceding the date of the application to determine whether |
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the applicant has provided reasonable assurance of future |
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compliance with commission rules and statutes. In conducting the |
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review, the commission shall consider: |
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(1) the number of violations and the seriousness of |
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the violations; |
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(2) the number of other installations or facilities |
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controlled by the applicant that have violations and the types of |
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permits authorizing activities at those installations or |
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facilities; |
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(3) the extent to which the violations involved |
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activities that are the same as or similar to the activity for which |
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a permit is being requested; |
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(4) the extent to which the applicant has resolved or |
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in good faith participated in a process to resolve any previous |
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violations by the applicant; and |
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(5) whether the applicant has developed an internal |
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compliance program designed to eliminate or reduce the likelihood |
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of a recurrence of similar violations. |
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(b) After considering the applicant's compliance history |
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under Subsection (a), including any mitigating factors, the |
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commission may: |
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(1) issue a permit valid for five years; |
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(2) issue a permit valid for five years with special |
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conditions that address compliance issues; |
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(3) issue a permit valid for five years with an |
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accompanying administrative order, which may include: |
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(A) a schedule for coming into compliance with |
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commission statutes, rules, consent orders, final orders, |
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agreements, or permit conditions; |
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(B) additional operating, training, or auditing |
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procedures necessary to ensure compliance; or |
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(C) specified penalties for future |
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noncompliance; |
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(4) issue a permit valid for less than five years, if |
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not prohibited by federal law; or |
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(5) deny the application for the permit and: |
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(A) if the applicant is responsible for a |
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Category A violation, prohibit the applicant from applying for a |
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permit for that installation, facility, or activity for one year; |
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or |
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(B) if the applicant is responsible for two or |
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more Category B violations, prohibit the applicant from applying |
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for a permit for that installation, facility, or activity for six |
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months from the time a final order denying the permit has been |
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entered. |
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Sec. 5.860. AUTOMATIC PERMIT RENEWAL. (a) Unless |
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otherwise prohibited by state or federal statute, commission rule, |
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or federal regulation, and provided that the applicant meets all |
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other applicable criteria for the renewal of a permit, the |
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commission may issue a renewal of an operation or closure permit, |
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including expansions or modifications involving construction, |
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valid for five years if: |
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(1) not less than 180 days before the end of the |
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five-year period, the applicant submits a complete application to |
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the commission; |
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(2) not less than 30 days after the date the |
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application is submitted under Subdivision (1), the commission |
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conducts a review of the compliance history of the applicant and |
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determines that the applicant: |
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(A) has operated the installation, facility, or |
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activity for at least two years; and |
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(B) has not been responsible for a Category A, B, |
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or C violation and does not have a pattern of noncompliance in the |
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five years preceding the date of the application; and |
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(3) the commission conducts at least one public |
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hearing not later than the 60th day after the date the application |
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was submitted to allow the public the opportunity to present |
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concerns regarding the compliance history of the applicant. |
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(b) In reviewing an application for a permit renewal at a |
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site where the applicant has held a commission permit for at least |
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five years, the commission shall consider only compliance history |
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at that site. |
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(c) If the commission determines that the applicant does not |
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meet the criteria under Subsection (a)(2), the commission shall: |
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(1) deny the automatic permit renewal; and |
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(2) require the applicant to submit a permit renewal |
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application in accordance with otherwise applicable commission |
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statutes and rules. |
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Sec. 5.861. AUTOMATIC TRANSFER OF PERMIT. Unless otherwise |
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prohibited by state or federal statute, commission rule, or federal |
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regulation, and provided that the applicant meets all other |
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applicable criteria for the transfer of a permit, an applicant who |
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seeks to have an extended permit transferred from another entity |
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shall submit an application for transfer and the commission shall |
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conduct a compliance history review and hold a hearing in the time |
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provided for a permit renewal under Section 5.860. The commission |
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shall agree to the transfer of the extended permit if the transfer |
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complies with all other applicable criteria and if the commission |
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determines that the transferee: |
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(1) has operated a similar installation or facility or |
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conducted a similar activity under a commission permit for at least |
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two years; and |
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(2) has not been responsible for a Category A, B, or C |
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violation and does not have a pattern of noncompliance in the five |
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years preceding the date of the application. |
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Sec. 5.862. ADDITIONAL COMPLIANCE INCENTIVES. An applicant |
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who meets the requirements for an automatic permit renewal under |
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Section 5.860 and has implemented an environmental management |
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system that results in the applicant's compliance performance |
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surpassing the commission's minimum compliance standards is |
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eligible for: |
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(1) extended permits and short-form renewal |
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applications; |
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(2) fewer routing inspections; |
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(3) expedited review of requests for permit |
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modifications; and |
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(4) other incentives as may be provided by the |
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commission, which may include special recognition or |
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program-specific incentives. |
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SECTION 2. This Act takes effect September 1, 2013. |