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A BILL TO BE ENTITLED
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AN ACT
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relating to the continuation and functions of the Texas Commission |
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on Environmental Quality. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 382.05101, Health and Safety Code, is |
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amended to read as follows: |
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Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The |
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commission may develop by rule the criteria to establish a de |
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minimis level of air contaminants for facilities or groups of |
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facilities below which the following types of permits are not |
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required: |
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(1) a permit under Section 382.0518 or 382.0519; |
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(2) [,] a standard permit under Section 382.05195, |
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[or] 382.05198, or 382.051985; or |
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(3) [, or] a permit by rule under Section 382.05196 [is |
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not required]. |
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SECTION 2. Section 382.0511(c), Health and Safety Code, is |
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amended to read as follows: |
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(c) The commission may authorize changes in a federal source |
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to proceed before the owner or operator obtains a federal operating |
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permit or revisions to a federal operating permit if: |
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(1) the changes are de minimis under Section |
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382.05101; or |
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(2) the owner or operator: |
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(A) has obtained a preconstruction permit or |
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permit amendment required by Section 382.0518; or |
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(B) is operating under: |
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(i) a standard permit under Section |
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382.05195, [or] 382.05198, or 382.051985; |
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(ii) a permit by rule under Section |
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382.05196; or |
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(iii) an exemption allowed under Section |
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382.057. |
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SECTION 3. Subchapter C, Chapter 382, Health and Safety |
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Code, is amended by adding Section 382.051985 to read as follows: |
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Sec. 382.051985. STANDARD PERMIT FOR CERTAIN TEMPORARY |
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CONCRETE PLANTS. (a) The commission shall issue a standard permit |
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for a temporary concrete plant that performs wet batching, dry |
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batching, or central mixing to support a public works project. A |
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plant operating under the permit: |
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(1) may not support a project that is not related to |
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the public works project; |
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(2) must be located in or contiguous to the |
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right-of-way of the public works project; and |
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(3) must meet the requirements of Section 382.05198. |
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(b) A permit issued under this section: |
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(1) may not have an initial term that exceeds one year; |
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(2) may be renewed for an additional term not to exceed |
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one year; |
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(3) may be renewed for a second additional term not to |
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exceed one year only on a finding of good cause by the commission; |
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and |
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(4) may not be renewed a third time. |
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SECTION 4. Sections 382.05199(a), (b), and (h), Health and |
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Safety Code, are amended to read as follows: |
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(a) A person may not begin construction of a permanent |
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concrete plant that performs wet batching, dry batching, or central |
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mixing under a standard permit issued under Section 382.05198 or a |
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temporary concrete plant that performs wet batching, dry batching, |
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or central mixing under a standard permit issued under Section |
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382.051985 unless the commission authorizes the person to use the |
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permit as provided by this section. The notice and hearing |
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requirements of Subsections (b)-(g) apply only to an applicant for |
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authorization to use a standard permit issued under Section |
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382.05198 or 382.051985. An applicant for a permit for a concrete |
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plant that does not meet the requirements of a standard permit |
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issued under Section 382.05198 or 382.051985 must comply with: |
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(1) Section 382.058 to obtain authorization to use a |
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standard permit issued under Section 382.05195 or a permit by rule |
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adopted under Section 382.05196; or |
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(2) Section 382.056 to obtain a permit issued under |
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Section 382.0518. |
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(b) An applicant for an authorization to use a standard |
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permit under Section 382.05198 or 382.051985 must publish notice |
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under this section not later than the earlier of: |
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(1) the 30th day after the date the applicant receives |
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written notice from the executive director that the application is |
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technically complete; or |
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(2) the 75th day after the date the executive director |
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receives the application. |
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(h) Not later than the 35th day after the date the public |
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hearing is held, the executive director shall approve or deny the |
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application for authorization to use the standard permit. The |
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executive director shall base the decision on whether the |
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application meets the requirements of Section 382.05198 or |
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382.051985. The executive director shall consider all comments |
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received during the public comment period and at the public hearing |
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in determining whether to approve the application. If the |
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executive director denies the application, the executive director |
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shall state the reasons for the denial and any modifications to the |
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application that are necessary for the proposed plant to qualify |
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for the authorization. |
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SECTION 5. Section 382.056, Health and Safety Code, is |
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amended by amending Subsection (b) and adding Subsection (k-2) to |
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read as follows: |
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(b) The notice must include: |
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(1) a description of the location or proposed location |
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of the facility or federal source; |
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(2) [the location at which a copy of the application is |
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available for review and copying as provided by Subsection (d); |
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[(3)] a description, including a telephone number, of |
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the manner in which the commission may be contacted for further |
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information; |
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(3) [(4)] a description, including a telephone |
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number, of the manner in which the applicant may be contacted for |
|
further information; |
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(4) [(5)] a description of the procedural rights and |
|
obligations of the public, printed in a font style or size that |
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clearly provides emphasis and distinguishes it from the remainder |
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of the notice, that includes a statement that a person who may be |
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affected by emissions of air contaminants from the facility, |
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proposed facility, or federal source is entitled to request a |
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hearing from the commission; |
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(5) [(6)] a description of the procedure by which a |
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person may be placed on a mailing list in order to receive |
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additional information about the application; |
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(6) [(7)] the time and location of any public meeting |
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to be held under Subsection (e); and |
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(7) [(8)] any other information the commission by rule |
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requires. |
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(k-2) Notwithstanding any other law, if the commission |
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holds a public meeting for a permit application under this |
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subchapter the commission shall hold open the public comment period |
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for the permit application for at least 36 hours after the end of |
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the meeting. |
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SECTION 6. Section 5.014, Water Code, is amended to read as |
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follows: |
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Sec. 5.014. SUNSET PROVISION. The Texas Commission on |
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Environmental Quality is subject to Chapter 325, Government Code |
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(Texas Sunset Act). Unless continued in existence as provided by |
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that chapter, the commission is abolished [and this chapter |
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expires] September 1, 2035 [2023]. |
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SECTION 7. Section 5.0535, Water Code, is amended by |
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amending Subsection (b) and adding Subsection (d) to read as |
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follows: |
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(b) The training program must provide the person with |
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information regarding: |
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(1) the law governing [legislation that created the] |
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commission operations; |
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(2) the programs, functions, rules, and budget of |
|
[operated by] the commission; |
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(3) the scope of and limitations on the rulemaking |
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authority of the commission [the role and functions of the |
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commission]; |
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(4) [the rules of the commission, with an emphasis on |
|
the rules that relate to disciplinary and investigatory authority; |
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[(5) the current budget for the commission; |
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[(6)] the results of the most recent formal audit |
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[significant internal and external audits] of the commission; |
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(5) [(7)] the requirements of: |
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(A) laws relating to [the] open meetings, [law, |
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Chapter 551, Government Code; |
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[(B) the] public information, [law, Chapter 552, |
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Government Code; |
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[(C) the] administrative procedure, and |
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disclosing conflicts-of-interest [law, Chapter 2001, Government |
|
Code; and |
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[(D) other laws relating to public officials, |
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including conflict-of-interest laws]; and |
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(B) other laws applicable to members of a state |
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policy-making body in performing their duties; and |
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(6) [(8)] any applicable ethics policies adopted by |
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the commission or the Texas Ethics Commission. |
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(d) The executive director of the commission shall create a |
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training manual that includes the information required by |
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Subsection (b). The executive director shall distribute a copy of |
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the training manual annually to each member of the commission. Each |
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member of the commission shall sign and submit to the executive |
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director a statement acknowledging that the member received and has |
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reviewed the training manual. |
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SECTION 8. Section 5.113, Water Code, is amended to read as |
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follows: |
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Sec. 5.113. COMMISSION AND STAFF RESPONSIBILITY POLICY. |
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The commission shall develop and implement policies that clearly |
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separate the policy-making [the respective] responsibilities of |
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the commission and the management responsibilities of the executive |
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director and the staff of the commission. |
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SECTION 9. The heading to Section 5.129, Water Code, is |
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amended to read as follows: |
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Sec. 5.129. SUMMARY OF AND INFORMATION PROVIDED BY [FOR] |
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PUBLIC NOTICES. |
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SECTION 10. Section 5.129, Water Code, is amended by |
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amending Subsection (a) and adding Subsection (a-1) to read as |
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follows: |
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(a) The commission by rule shall provide for each public |
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notice issued or published by the commission or by a person under |
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the jurisdiction of the commission as required by law or by |
|
commission rule to include: |
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(1) at the beginning of the notice a succinct |
|
statement of the subject of the notice; and |
|
(2) to the extent applicable, the name of the permit |
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applicant, the type of permit applied for, and the address of each |
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proposed or existing site subject to the proposed permit. |
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(a-1) Rules adopted under this section [The rules] must |
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provide that a summary statement must be designed to inform the |
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reader of the subject matter of the notice without having to read |
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the entire text of the notice. |
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SECTION 11. Subchapter E, Chapter 5, Water Code, is amended |
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by adding Section 5.1734 to read as follows: |
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Sec. 5.1734. ELECTRONIC POSTING OF PERMIT APPLICATIONS. |
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(a) The commission shall post on its website at the time a permit |
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application becomes administratively complete: |
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(1) the permit application and any associated |
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materials; and |
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(2) for a permit application under Subchapter D, |
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Chapter 11, any map accompanying the permit application. |
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(b) Notwithstanding any other law, the commission shall |
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require each applicant for a permit, permit amendment, or permit |
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renewal that requires notice be published to include in the notice |
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the address of the website where the public can access information |
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about the permit as described by Subsection (a). |
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(c) In implementing this section, the commission shall |
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consider and accommodate residents of each area affected by a |
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proposed permit, permit amendment, or permit renewal who may need |
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assistance accessing the application and associated materials |
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because of a lack of access to Internet services, particularly when |
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there is a heightened interest in or response to public notice or |
|
comment. |
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(d) Notice posted under this section shall be in lieu of a |
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requirement that a physical copy of the permit be made available in |
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a public place. |
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SECTION 12. Section 5.552(c), Water Code, is amended to |
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read as follows: |
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(c) The commission by rule shall establish the form and |
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content of the notice. The notice must include: |
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(1) the location and nature of the proposed activity; |
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(2) [the location at which a copy of the application is |
|
available for review and copying as provided by Subsection (e); |
|
[(3)] a description, including a telephone number, of |
|
the manner in which a person may contact the commission for further |
|
information; |
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(3) [(4)] a description, including a telephone |
|
number, of the manner in which a person may contact the applicant |
|
for further information; |
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(4) [(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; |
|
(5) [(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; |
|
(6) [(7)] the time and location of any public meeting |
|
to be held under Subsection (f); and |
|
(7) [(8)] any other information the commission by rule |
|
requires. |
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SECTION 13. Chapter 5, Water Code, is amended by adding |
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Subchapter M-1 to read as follows: |
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SUBCHAPTER M-1. PERMITTING PROCEDURES GENERALLY |
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Sec. 5.581. APPLICABILITY. This subchapter applies to |
|
programs and permits arising under the air, waste, or water |
|
programs within the commission's jurisdiction. |
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Sec. 5.582. MEANS OF PUBLICATION OF NOTICE. (a) |
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Notwithstanding any other law, the commission may publish notice of |
|
a permit application by electronic means instead of by printed |
|
means. |
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(b) If the commission publishes notice of a permit |
|
application by electronic means, the commission shall post the |
|
notice on the commission's website and may provide additional |
|
electronic notice through other means, including direct e-mail. |
|
(c) The commission shall consider and accommodate residents |
|
of each area affected by a proposed permit, permit amendment, or |
|
permit renewal who may need assistance accessing notice published |
|
by electronic means because of a lack of access to Internet |
|
services, particularly when there is a heightened interest in or |
|
response to public notice or comment. |
|
(d) This section does not authorize the commission to use an |
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electronic means of notice instead of newspaper publication or |
|
another form of notice if an applicable federal law requires a |
|
particular form of notice. |
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Sec. 5.583. VIRTUAL PUBLIC MEETING. (a) Notwithstanding |
|
any other law, the commission may hold a public meeting virtually |
|
through the Internet provided that members of the general public |
|
are able to participate in the meeting. |
|
(b) The commission shall consider and accommodate members |
|
of the public who may need assistance participating in a virtually |
|
held public meeting because of a lack of access to Internet |
|
services, particularly when there is a heightened interest in or |
|
response to public notice or comment. |
|
(c) This section does not authorize the commission to hold a |
|
public meeting virtually instead of an in-person public meeting if |
|
an applicable federal law requires an in-person public meeting. |
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Sec. 5.584. TEMPORARY AND INDEFINITE PERMIT REPORTING. (a) |
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In this section, "permit" means a permit, approval, registration, |
|
or other form of authorization required by law for a person to |
|
engage in an action. |
|
(b) This section does not apply to a person who holds a |
|
temporary permit or permit with an indefinite term that has a |
|
regular reporting requirement. |
|
(c) A person who holds a temporary permit or permit with an |
|
indefinite term shall report to the commission annually whether the |
|
activity subject to the permit is ongoing. |
|
SECTION 14. Section 5.754, Water Code, is amended by |
|
amending Subsection (c) and adding Subsection (c-1) to read as |
|
follows: |
|
(c) In classifying a person's compliance history, the |
|
commission shall: |
|
(1) determine whether a violation of an applicable |
|
legal requirement is of major, moderate, or minor significance; |
|
(2) establish criteria for classifying a repeat |
|
violator, including: |
|
(A) setting the number of major, moderate, and |
|
minor violations needed to be classified as a repeat violator; and |
|
(B) giving consideration to the size and |
|
complexity of the site at which the violations occurred, and |
|
limiting consideration to violations of the same nature and the |
|
same environmental media that occurred in the preceding five years; |
|
and |
|
(3) consider: |
|
(A) the significance of the violation and whether |
|
the person is a repeat violator; |
|
(B) the size and complexity of the site, |
|
including whether the site is subject to Title V of the federal |
|
Clean Air Act (42 U.S.C. Section 7661 et seq.); and |
|
(C) the potential for a violation at the site |
|
that is attributable to the nature and complexity of the site. |
|
(c-1) The commission may review, suspend, or reclassify a |
|
person's compliance history at any time if the commission |
|
determines that exigent circumstances exist. |
|
SECTION 15. Sections 7.052(b-1) and (c), Water Code, are |
|
amended to read as follows: |
|
(b-1) The amount of the penalty assessed against a |
|
manufacturer that does not label its computer equipment or covered |
|
television equipment or adopt and implement a recovery plan as |
|
required by Section 361.955, 361.975, or 361.978, Health and Safety |
|
Code, as applicable, may not exceed $10,000 for the second |
|
violation or $40,000 [$25,000] for each subsequent violation. A |
|
penalty under this subsection is in addition to any other penalty |
|
that may be assessed for a violation of Subchapter Y or Z, Chapter |
|
361, Health and Safety Code. |
|
(c) The amount of the penalty for all other violations |
|
within the jurisdiction of the commission to enforce may not exceed |
|
$40,000 [$25,000] a day for each violation. |
|
SECTION 16. Subchapter C, Chapter 7, Water Code, is amended |
|
by adding Section 7.0675 to read as follows: |
|
Sec. 7.0675. ENFORCEMENT DIVERSION PROGRAM FOR SMALL |
|
BUSINESSES AND LOCAL GOVERNMENTS. (a) In this section, "small |
|
business" has the meaning assigned by Section 5.135. |
|
(b) The commission shall establish an enforcement diversion |
|
program for small businesses and local governments. The program |
|
must include: |
|
(1) resources developed for the small business |
|
compliance assistance program under Section 5.135; |
|
(2) compliance assistance training; and |
|
(3) on-site technical assistance and training |
|
performed by commission staff. |
|
(c) Before the commission initiates an enforcement action |
|
for a violation committed by a small business or local government, |
|
the commission may enroll the business or government into the |
|
enforcement diversion program. |
|
(d) The commission may not initiate against a small business |
|
or local government an enforcement action for a violation that |
|
prompted enrollment in the enforcement diversion program after the |
|
business or government has successfully completed the program. |
|
(e) A small business or local government is not eligible to |
|
enroll in the enforcement diversion program if the small business |
|
or local government: |
|
(1) committed a violation that: |
|
(A) resulted in an imminent threat to public |
|
health; or |
|
(B) was a major violation, as classified under |
|
Section 5.754; or |
|
(2) was enrolled in the program in the two years |
|
preceding the date of the violation. |
|
SECTION 17. Subchapter B, Chapter 11, Water Code, is |
|
amended by adding Section 11.02363 to read as follows: |
|
Sec. 11.02363. PERIODIC REVIEW OF ENVIRONMENTAL FLOW |
|
RECOMMENDATIONS; STATEWIDE WORK PLAN. (a) Periodically, the |
|
advisory group shall review the environmental flow standards for |
|
each river basin and bay system adopted by the commission under |
|
Section 11.1471. In conducting a review of the environmental flow |
|
standards, the advisory group shall: |
|
(1) work with the science advisory committee and the |
|
pertinent basin and bay area stakeholder committees and basin and |
|
bay expert science teams in a manner similar to that provided by |
|
Section 11.02362; |
|
(2) take into consideration the work plans developed |
|
under Section 11.02362(p); |
|
(3) analyze previous environmental flow regime |
|
recommendations and standards; |
|
(4) prescribe future monitoring, studies, and |
|
activities needed to better understand the environmental flow; and |
|
(5) validate or refine: |
|
(A) the environmental flow recommendations; |
|
(B) the environmental flow standards adopted by |
|
the commission; and |
|
(C) strategies to achieve the environmental flow |
|
standards. |
|
(b) The advisory group shall develop a biennial statewide |
|
work plan to prioritize and schedule the review of environmental |
|
flow standards under Subsection (a). The work plan must establish: |
|
(1) the methodology used to prioritize the review of |
|
the environmental flow standards of each river basin and bay |
|
system; and |
|
(2) a timeline for the review of the environmental |
|
flow standards of each river basin and bay system. |
|
(c) The advisory group shall submit to the commission: |
|
(1) any review conducted under Subsection (a), |
|
including recommendations to the commission for use in adopting |
|
rules under Section 11.1471; and |
|
(2) the biennial work plan developed under Subsection |
|
(b). |
|
SECTION 18. Section 11.1471, Water Code, is amended by |
|
amending Subsection (f) and adding Subsection (g) to read as |
|
follows: |
|
(f) An environmental flow standard or environmental flow |
|
set-aside adopted under Subsection (a) may be altered by the |
|
commission in a rulemaking process undertaken in accordance with a |
|
schedule established by the commission. The commission shall |
|
consider the review of environmental flows by the advisory group |
|
under Section 11.02363(a) when altering an environmental flow. In |
|
establishing a schedule, the commission shall consider the work |
|
plan developed by the advisory group under Section 11.02363(b) and |
|
the applicable work plan approved by the advisory group under |
|
Section 11.02362(p). The commission's schedule may not provide for |
|
the rulemaking process to occur more frequently than once every 10 |
|
years unless the work plans provide [plan provides] for a periodic |
|
review under Sections 11.02363(a) and [Section] 11.02362(p) to |
|
occur more frequently than once every 10 years. In that event, the |
|
commission may provide for the rulemaking process to be undertaken |
|
in conjunction with the periodic review if the commission |
|
determines that schedule to be appropriate. A rulemaking process |
|
undertaken under this subsection must provide for the participation |
|
of stakeholders having interests in the particular river basin and |
|
bay system for which the process is undertaken. |
|
(g) The commission shall submit a biennial report to the |
|
advisory group on the implementation and effectiveness of |
|
environmental flow standards. The report must include: |
|
(1) a description of progress made over the previous |
|
biennium in implementing environmental flow standards, including |
|
the status of any efforts to set aside unappropriated water for |
|
environmental flow protection; |
|
(2) input provided by the board and the Parks and |
|
Wildlife Department on their: |
|
(A) activities related to environmental flow |
|
standards; and |
|
(B) recommendations for the work plan developed |
|
under Section 11.02363(b); and |
|
(3) recommendations for the work plan developed under |
|
Section 11.02363(b). |
|
SECTION 19. Section 49.011(b), Water Code, is amended to |
|
read as follows: |
|
(b) The commission by rule shall establish a procedure for |
|
public notice and hearing of applications. The rules must require |
|
an applicant to publish the notice issued by the commission under |
|
Subsection (a) once a week for two consecutive weeks in a newspaper |
|
regularly published or circulated in the county where the district |
|
is proposed to be located not later than the 30th day before the |
|
date on which the commission may act on the application. The |
|
commission shall provide the notice to each state representative |
|
and state senator who represents an area inside the proposed |
|
district's boundaries. |
|
SECTION 20. The following provisions are repealed: |
|
(1) Section 382.056(d), Health and Safety Code; |
|
(2) Section 5.552(e), Water Code; |
|
(3) Section 11.0236(m), Water Code; |
|
(4) Section 11.02361(g), Water Code; and |
|
(5) Section 11.02362(s), Water Code. |
|
SECTION 21. (a) Except as provided by Subsection (b) of |
|
this section, Section 5.0535, Water Code, as amended by this Act, |
|
applies to a member of the Texas Commission on Environmental |
|
Quality appointed before, on, or after the effective date of this |
|
Act. |
|
(b) A member of the Texas Commission on Environmental |
|
Quality who, before the effective date of this Act, completed the |
|
training program required by Section 5.0535, Water Code, as that |
|
law existed before the effective date of this Act, is only required |
|
to complete additional training on the subjects added by this Act to |
|
the training program required by Section 5.0535, Water Code. A |
|
member described by this subsection may not vote, deliberate, or be |
|
counted as a member in attendance at a meeting of the commission |
|
held on or after December 1, 2023, until the member completes the |
|
additional training. |
|
SECTION 22. A permit holder subject to Section 5.584, Water |
|
Code, as added by this Act, shall first report to the Texas |
|
Commission on Environmental Quality the status of the permitted |
|
activity not later than December 31, 2024. |
|
SECTION 23. The change in law made by this Act to Section |
|
7.052, Water Code, applies only to a violation that occurs on or |
|
after the effective date of this Act. A violation that occurs |
|
before the effective date of this Act is governed by the law in |
|
effect on the date the violation occurred, and the former law is |
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continued in effect for that purpose. |
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SECTION 24. (a) The Texas Commission on Environmental |
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Quality shall submit to the environmental flows advisory group the |
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first biennial report on the implementation and effectiveness of |
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environmental flow standards under Section 11.1471(g), Water Code, |
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as added by this Act, not later than January 1, 2024. |
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(b) The environmental flows advisory group shall produce |
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and deliver to the commission the first biennial statewide work |
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plan developed under Section 11.02363, Water Code, as added by this |
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Act, not later than January 1, 2025. |
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SECTION 25. This Act takes effect September 1, 2023. |