By: Morrison H.B. No. 1865

A BILL TO BE ENTITLED

AN ACT

relating to environmental permitting procedures for applications filed with the Texas Commission on Environmental Quality.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 2003.047, Government Code, is amended by adding Subsections (d-1) and (d-2) and amending Subsections (e) and (e-1) to read as follows:

(d-1) The applicant's filing with the administrative law judge of the draft permit, the executive director's preliminary decision, and any other supporting documentation in the administrative record is a prima facie demonstration that:

(1) the draft permit meets all state and federal statutory, regulatory and technical requirements; and

(2) a permit issued in the same form of the draft permit would be protective of the public's health and physical property and the environment.

(d-2) After the applicant has made a prima facie demonstration pursuant to Subsection (d-1), each protesting party shall be given an opportunity to present evidence to demonstrate that the draft permit does not meet the requirements of Subsection (d-1) based on the number and scope of issues that have been referred by the commission. After the submission of evidence by the protesting parties, the applicant and the executive director may present evidence to support the draft permit.

(e) In referring a matter for hearing pursuant to Water Code Section 5.556, the commission shall provide to the administrative law judge a discrete list of disputed factual issues and [. The commission] shall specify the date by which the] administrative law judge must [is expected to] complete the proceeding and provide a proposal for decision to the commission, which may not exceed 180 days after the preliminary hearing.

(e-1) In matters referred to a hearing pursuant to Water Code 5.556 or 5.557, the administrative law judge :

(1) may extend the proceeding only if the administrative law judge determines that failure to grant an extension would deprive a party of due process or another constitutional right; [. The administrative law judge]

(2) subject to Subsection (e-1) (1), shall establish a docket control order designed to complete the proceeding and provide a proposal for decision no later than 180 days after the preliminary hearing or by the date specified by the commission, whichever is earlier.

SECTION 2. Section 5.556, Water Code, is amended by adding Subsection (c-1) to read as follows:

(c-1) In determining under Subsection (c) whether a person seeking a contested case hearing is an affected person, the commission:

(1) may weigh and resolve matters relating to the merits of the underlying application, including whether the application meets the requirements for issuance and the likely impact of the regulated activity on the health, safety, and use of the property of the hearing requester;

(2) may evaluate the administrative record, including the permit application and any supporting documentation, the analysis and opinions of the executive director, and any other expert reports, affidavits, opinions, or data submitted to the commission by the executive director, the applicant or a hearing requester within the applicable deadlines to submit hearing requests and briefing to the commission;

(3) may not find that a group or association is an affected person unless the group or association identifies, by name and physical address in a timely request for a contested case hearing, a member who would be an affected person in the person's own right; and

(4) may not find that a hearing requester is an affected person unless the hearing requester timely submitted comments, and may only refer an issue pursuant to Subsection (d) if requested by the affected person who raised the issue in a timely submitted comment.

SECTION 3. The changes in law made by this Act apply only to an application for a permit that is filed with the Texas Commission on Environmental Quality on or after the effective date of this Act. An application for a permit filed before the effective date of this Act is governed by the law in effect on the date of filing, and that law is continued in effect for that purpose.

SECTION 4. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2015.