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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. |
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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. CONTESTED CASES: CERTAIN ENVIRONMENTAL 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) "Office" means the State Office of Administrative |
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Hearings. |
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(3) "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, including the amendment or renewal of an |
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authorization. |
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Sec. 2001.303. APPLICABILITY. This subchapter applies to a |
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permit issued by the commission 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 or Class III injection well permit under |
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Chapter 27, Water Code; |
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(3) an in situ uranium mining production area |
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authorization under Chapter 27, 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 |
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Code. |
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Sec. 2001.304. BURDEN OF PROOF. A person who requests a |
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contested case hearing to which this subchapter applies has the |
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burden of proof to demonstrate that: |
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(1) the person has a right to a contested case hearing |
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as an affected person as described by Section 5.115, Water Code; and |
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(2) the commission erred in its decision on a permit |
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application based on the issues and arguments raised by the person |
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requesting the hearing during the public comment period. |
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Sec. 2001.305. SCOPE OF REVIEW. (a) The scope of review of |
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a contested case hearing under this subchapter 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. |
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(b) The office may not consider any issue outside of those |
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described by Section 5.556, Water Code, unless the matter was |
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directly referred to the office for a contested case hearing under |
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Section 5.557, Water Code. |
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Sec. 2001.306. PARTIES. A person may join as a party to a |
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contested case hearing only if the person requested a contested |
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case hearing in compliance with any applicable deadlines |
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established by commission rule. |
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Sec. 2001.307. HEARINGS. (a) In the event of a conflict |
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between the provisions of this section and another provision of |
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this chapter, this section prevails. |
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(b) Not later than the 120th day after the date the office |
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conducts a preliminary hearing on the matter, the office shall |
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conclude the hearing and submit a proposal for decision to the |
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commission that includes findings of fact and conclusions of law. |
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The deadline prescribed by this subsection may not be extended |
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unless all parties agree to an extension of time. An extension of |
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time granted under this subsection may not exceed 60 days. |
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SECTION 2. Subsection (d), Section 2003.024, Government |
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Code, is amended 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 3. The heading to Section 2003.047, Government |
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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 4. Subsection (a), Section 2003.047, Government |
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Code, is amended to 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 of certain permit decisions for the Texas Commission |
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on Environmental Quality [Natural Resource Conservation
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Commission]. |
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SECTION 5. 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 |
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Environmental Quality a fixed annual fee rather than an hourly rate |
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for services rendered by the office to the commission. The amount |
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of the fee may not be less than the amount appropriated to the Texas |
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[Natural Resource Conservation] Commission on Environmental |
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Quality in the General Appropriations Act for payment to the |
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environmental quality [natural resource conservation] division to |
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conduct commission hearings. The amount of the fee shall be based |
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on the costs of conducting the hearings, the costs of travel |
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expenses and telephone charges directly related to the hearings, |
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docketing costs, and other applicable administrative costs of the |
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office including the administrative costs of the environmental |
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quality [natural resource conservation] division. The office and |
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the Texas [Natural Resource Conservation] Commission on |
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Environmental Quality shall negotiate the amount of the fixed fee |
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biennially, subject to the approval of the governor, to coincide |
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with the commission's legislative appropriations request. |
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SECTION 6. Section 5.115, Water Code, is amended by adding |
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Subsections (a-1) and (a-2) to read as follows: |
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(a-1) An association is not entitled to standing in a |
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contested case hearing unless the association: |
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(1) expressly identifies each member of the |
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association who would otherwise have standing to request a hearing |
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in the member's own right; and |
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(2) submits with the hearing request documentation |
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demonstrating that: |
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(A) the interests of the association are germane |
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to the matter that is the subject of the contested case; and |
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(B) at least part of the association's purpose is |
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to contest permit applications. |
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(a-2) The commission shall deny a hearing request submitted |
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by an association that does not satisfy the requirements of |
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Subsection (a-1). The information required by Subsection (a-1) may |
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not be submitted after the hearing request. |
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SECTION 7. Subsection (a), Section 5.551, Water Code, is |
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amended to read as follows: |
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(a) This subchapter establishes procedures for providing |
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public notice, an opportunity for public comment, and an |
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opportunity for public hearing under Subchapters C-H and J, Chapter |
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2001, Government Code, regarding commission actions relating to a |
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permit issued under Chapter 26 or 27 of this code or Chapter 361, |
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Health and Safety Code. This subchapter is procedural and does not |
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expand or restrict the types of commission actions for which public |
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notice, an opportunity for public comment, and an opportunity for |
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public hearing are provided under Chapter 26 or 27 of this code or |
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Chapter 361, Health and Safety Code. |
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SECTION 8. Subchapter M, Chapter 5, Water Code, is amended |
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by adding Sections 5.5541 and 5.5551 to read as follows: |
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Sec. 5.5541. OBLIGATION TO RAISE ISSUES AND PROVIDE |
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INFORMATION DURING PUBLIC COMMENT PERIOD. (a) A person must raise |
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all reasonably ascertainable issues and submit all reasonably |
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available arguments supporting the person's position on the |
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executive director's preliminary decision before the close of the |
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public comment period. |
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(b) Supporting materials submitted during the public |
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comment period must be included in full in the administrative |
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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 |
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the same proceeding; or |
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(2) consist of: |
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(A) state or federal statutes or rules; or |
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(B) generally available reference materials. |
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(c) The commission by rule shall establish procedures to |
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make supporting materials not already included in the |
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administrative record available to the executive director. |
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Sec. 5.5551. UNCONTESTED APPLICATIONS. (a) If a contested |
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case hearing has not been requested in the time and manner required |
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by applicable law, that application is considered uncontested and |
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the executive director may issue a final decision on the permit |
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application. |
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(b) A person may file with the commission a motion to |
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overturn as described by commission rule to challenge an executive |
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director's final decision under this section. |
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(c) A final permit decision issued under this section is not |
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subject to a contested case hearing. |
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SECTION 9. Section 5.556, Water Code, is amended by adding |
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Subsection (g) to read as follows: |
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(g) Granting a request for a contested case hearing on a |
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draft permit issued by the executive director creates a rebuttable |
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presumption that the draft permit: |
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(1) meets all state and federal legal and technical |
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requirements; and |
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(2) is protective of human health and safety. |
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SECTION 10. Subchapter M, Chapter 5, Water Code, is amended |
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by adding Section 5.5571 to read as follows: |
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Sec. 5.5571. FINAL COMMISSION DECISION. (a) Not later |
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than the 45th day after the date the commission receives a proposal |
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for decision from the State Office of Administrative Hearings, the |
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commission shall consider the proposal. |
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(b) In considering the proposal for decision, the |
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commission shall limit each of the parties in the proceeding to: |
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(1) one exceptions brief; and |
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(2) one reply brief that may only include arguments in |
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reply to another party's exceptions. |
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(c) An exceptions brief must be submitted not later than the |
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20th day after the date the commission receives the proposal for |
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decision. A reply brief must be submitted not later than the 30th |
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day after the date the commission receives the proposal for |
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decision. |
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SECTION 11. The changes in law made by this Act apply only |
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to an application for a permit that is filed with the Texas |
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Commission on Environmental Quality on or after the effective date |
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of this Act. An application for a permit filed before the effective |
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date of this Act is governed by the law in effect on the date of |
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filing, and that law is continued in effect for that purpose. |
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SECTION 12. This Act takes effect September 1, 2013. |
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