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AN ACT
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relating to procedures for certain environmental permit |
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applications. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 2003.047, Government Code, is amended by |
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adding Subsections (e-1), (e-2), (e-3), (e-4), (e-5), (i-1), (i-2), |
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and (i-3) to read as follows: |
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(e-1) This subsection applies only to a matter referred |
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under Section 5.556, Water Code. Each issue referred by the |
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commission must have been raised by an affected person in a comment |
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submitted by that affected person in response to a permit |
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application in a timely manner. The list of issues submitted under |
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Subsection (e) must: |
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(1) be detailed and complete; and |
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(2) contain either: |
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(A) only factual questions; or |
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(B) mixed questions of fact and law. |
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(e-2) For a matter referred under Section 5.556 or 5.557, |
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Water Code, the administrative law judge must complete the |
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proceeding and provide a proposal for decision to the commission |
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not later than the earlier of: |
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(1) the 180th day after the date of the preliminary |
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hearing; or |
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(2) the date specified by the commission. |
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(e-3) The deadline specified by Subsection (e-2) may be |
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extended: |
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(1) by agreement of the parties with the approval of |
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the administrative law judge; or |
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(2) by the administrative law judge if the judge |
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determines that failure to extend the deadline would unduly deprive |
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a party of due process or another constitutional right. |
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(e-4) For the purposes of Subsection (e-3)(2), a political |
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subdivision has the same constitutional rights as an individual. |
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(e-5) This subsection applies only to a matter referred |
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under Section 5.557, Water Code. The administrative law judge may |
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not hold a preliminary hearing until after the executive director |
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has issued a response to public comments under Section 5.555, Water |
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Code. |
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(i-1) In a contested case regarding a permit application |
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referred under Section 5.556 or 5.557, Water Code, the filing with |
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the office of the application, the draft permit prepared by the |
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executive director of the commission, the preliminary decision |
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issued by the executive director, and other sufficient supporting |
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documentation in the administrative record of the permit |
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application establishes a prima facie demonstration that: |
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(1) the draft permit meets all state and federal legal |
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and technical requirements; and |
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(2) a permit, if issued consistent with the draft |
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permit, would protect human health and safety, the environment, and |
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physical property. |
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(i-2) A party may rebut a demonstration under Subsection |
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(i-1) by presenting evidence that: |
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(1) relates to a matter referred under Section 5.557, |
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Water Code, or an issue included in a list submitted under |
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Subsection (e) in connection with a matter referred under Section |
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5.556, Water Code; and |
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(2) demonstrates that one or more provisions in the |
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draft permit violate a specifically applicable state or federal |
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requirement. |
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(i-3) If in accordance with Subsection (i-2) a party rebuts |
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a presumption established under Subsection (i-1), the applicant and |
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the executive director may present additional evidence to support |
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the draft permit. |
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SECTION 2. Section 5.115, Water Code, is amended by |
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amending Subsections (a) and (d) and adding Subsection (a-1) to |
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read as follows: |
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(a) For the purpose of an administrative hearing held by or |
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for the commission involving a contested case, "affected person," |
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or "person affected," or "person who may be affected" means a person |
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who has a personal justiciable interest related to a legal right, |
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duty, privilege, power, or economic interest affected by the |
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administrative hearing. An interest common to members of the |
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general public does not qualify as a personal justiciable interest. |
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(a-1) The commission shall adopt rules specifying factors |
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which must be considered in determining whether a person is an |
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affected person in any contested case arising under the air, waste, |
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or water programs within the commission's jurisdiction and whether |
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an affected association is entitled to standing in contested case |
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hearings. For a matter referred under Section 5.556, the |
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commission: |
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(1) may consider: |
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(A) the merits of the underlying application, |
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including whether the application meets the requirements for permit |
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issuance; |
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(B) the likely impact of regulated activity on |
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the health, safety, and use of the property of the hearing |
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requestor; |
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(C) the administrative record, including the |
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permit application and any supporting documentation; |
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(D) the analysis and opinions of the executive |
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director; and |
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(E) any other expert reports, affidavits, |
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opinions, or data submitted on or before any applicable deadline to |
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the commission by the executive director, the applicant, or a |
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hearing requestor; and |
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(2) may not find that: |
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(A) a group or association is an affected person |
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unless the group or association identifies, by name and physical |
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address in a timely request for a contested case hearing, a member |
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of the group or association who would be an affected person in the |
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person's own right; or |
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(B) a hearing requestor is an affected person |
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unless the hearing requestor timely submitted comments on the |
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permit application. |
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(d) The commission shall adopt rules for the notice required |
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by this section. The rules must provide for the notice required by |
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this section to be posted on the Internet by the commission. |
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SECTION 3. Section 5.228(c), Water Code, is amended to read |
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as follows: |
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(c) The executive director shall participate as a party in |
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contested case permit hearings before the commission or the State |
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Office of Administrative Hearings to: |
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(1) provide information to complete the |
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administrative record; and |
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(2) support the executive director's position |
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developed in the underlying proceeding, unless the executive |
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director has revised or reversed that position. |
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SECTION 4. Subchapter M, Chapter 5, Water Code, is amended |
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by adding Section 5.5553 to read as follows: |
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Sec. 5.5553. NOTICE OF DRAFT PERMIT. (a) This section |
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applies only to a permit application that is eligible to be referred |
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for a contested case hearing under Section 5.556 or 5.557. |
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(b) Notwithstanding any other law, not later than the 30th |
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day before the date the commission issues a draft permit in |
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connection with a permit application, the executive director shall |
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provide written notice to the state senator and state |
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representative of the area in which the facility that is the subject |
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of the permit is located. |
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SECTION 5. (a) The changes in law made by this Act apply |
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only to: |
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(1) a permit application 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; or |
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(2) a judicial proceeding initiated on or after the |
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effective date of this Act that challenges an act or decision of the |
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Texas Commission on Environmental Quality made during a permit |
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proceeding. |
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(b) A permit application filed or a judicial proceeding |
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initiated before the effective date of this Act is governed by the |
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law in effect when the permit application was filed or the judicial |
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proceeding was initiated, and the former law is continued in effect |
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for that purpose. |
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(c) Notwithstanding Subsection (a), the changes in law made |
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by this Act do not apply to: |
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(1) a permit application: |
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(A) filed after the effective date of this Act; |
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and |
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(B) that is substantially similar to a permit |
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application for which a draft permit has been issued and that was: |
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(i) filed before the effective date of this |
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Act; and |
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(ii) withdrawn at the request of the permit |
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applicant; or |
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(2) a judicial proceeding: |
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(A) initiated after the effective date of this |
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Act; and |
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(B) that is substantially similar to a judicial |
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proceeding initiated before the effective date of this Act that has |
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been dismissed at the request of the permit applicant. |
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(d) Not later than January 1, 2016, the Texas Commission on |
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Environmental Quality shall adopt rules to implement the changes in |
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law made by this Act. For an application filed after the effective |
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date of this Act but before the adoption of rules to implement the |
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changes in law made by this Act, the commission shall provide |
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sufficient notice to the applicant and other participants in the |
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permit proceeding that the changes in law made by this Act apply to |
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the proceeding. |
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SECTION 6. This Act takes effect September 1, 2015. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 709 passed the Senate on |
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April 16, 2015, by the following vote: Yeas 22, Nays 9; and that |
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the Senate concurred in House amendments on May 13, 2015, by the |
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following vote: Yeas 21, Nays 10. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 709 passed the House, with |
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amendments, on May 1, 2015, by the following vote: Yeas 83, |
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Nays 37, one present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |