By: Schwertner, et al.  S.B. No. 1397
         (In the Senate - Filed March 1, 2023; March 16, 2023, read
  first time and referred to Committee on Natural Resources &
  Economic Development; April 11, 2023, reported adversely, with
  favorable Committee Substitute by the following vote:  Yeas 9,
  Nays 0; April 11, 2023, sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR S.B. No. 1397 By:  Hancock
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the continuation and functions of the Texas Commission
  on Environmental Quality.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 361.0666(d), Health and Safety Code, is
  amended to read as follows:
         (d)  The published notice may not be smaller than 96.8 square
  centimeters or 15 square inches, with the shortest dimension not
  less than 7.5 centimeters or 3 inches.  The notice must contain at
  least the following information:
               (1)  the permit application number;
               (2)  the applicant's name; and
               (3)  the proposed location of the facility[; and
               [(4)  the location and availability of copies of the
  application].
         SECTION 2.  Section 361.0791(f), Health and Safety Code, is
  amended to read as follows:
         (f)  The published notice may not be smaller than 96.8 square
  centimeters or 15 square inches with the shortest dimension at
  least 7.6 centimeters or three inches and shall contain, at a
  minimum, the following information:
               (1)  the permit application number;
               (2)  the applicant's name; and
               (3)  the proposed location of the facility[; and
               [(4)  the location and availability of copies of the
  permit application].
         SECTION 3.  Section 382.05101, Health and Safety Code, is
  amended to read as follows:
         Sec. 382.05101.  DE MINIMIS AIR CONTAMINANTS.  The
  commission may develop by rule the criteria to establish a de
  minimis level of air contaminants for facilities or groups of
  facilities below which the following types of permits are not
  required:
               (1)  a permit under Section 382.0518 or 382.0519;
               (2)  [,] a standard permit under Section 382.05195,
  [or] 382.05198, or 382.051985; or
               (3)  [, or] a permit by rule under Section 382.05196 [is
  not required].
         SECTION 4.  Section 382.0511(c), Health and Safety Code, is
  amended to read as follows:
         (c)  The commission may authorize changes in a federal source
  to proceed before the owner or operator obtains a federal operating
  permit or revisions to a federal operating permit if:
               (1)  the changes are de minimis under Section
  382.05101; or
               (2)  the owner or operator:
                     (A)  has obtained a preconstruction permit or
  permit amendment required by Section 382.0518; or
                     (B)  is operating under:
                           (i)  a standard permit under Section
  382.05195, [or] 382.05198, or 382.051985;
                           (ii)  a permit by rule under Section
  382.05196; or
                           (iii)  an exemption allowed under Section
  382.057.
         SECTION 5.  Subchapter C, Chapter 382, Health and Safety
  Code, is amended by adding Section 382.051985 to read as follows:
         Sec. 382.051985.  STANDARD PERMIT FOR CERTAIN TEMPORARY
  CONCRETE PLANTS FOR PUBLIC WORKS. (a)  The commission shall issue a
  standard permit that meets the requirements of Section 382.05195
  for a temporary concrete plant that performs wet batching, dry
  batching, or central mixing to support a public works project. A
  plant operating under the permit:
               (1)  may not support a project that is not related to
  the public works project; and
               (2)  must be located in or contiguous to the
  right-of-way of the public works project.
         (b)  A plant permitted under this section may occupy a
  designated site for not more than 180 consecutive days or to supply
  material for a single project, but not other unrelated projects.
         SECTION 6.  Section 382.056, Health and Safety Code, is
  amended by amending Subsection (b) and adding Subsection (k-2) to
  read as follows:
         (b)  The notice must include:
               (1)  a description of the location or proposed location
  of the facility or federal source;
               (2)  [the location at which a copy of the application is
  available for review and copying as provided by Subsection (d);
               [(3)]  a description, including a telephone number, of
  the manner in which the commission may be contacted for further
  information;
               (3) [(4)]  a description, including a telephone
  number, of the manner in which the applicant may be contacted for
  further information;
               (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, that includes a statement that a person who may be
  affected by emissions of air contaminants from the facility,
  proposed facility, or federal source is entitled to request a
  hearing from the commission;
               (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 (e); and
               (7) [(8)]  any other information the commission by rule
  requires.
         (k-2)  Notwithstanding any other law, if the commission
  holds a public meeting for a permit application for which
  consolidated notice was issued under this subchapter, the
  commission shall hold open the public comment period and the period
  for which a contested case hearing may be requested for the permit
  application for at least 36 hours after the end of the meeting.
         SECTION 7.  Section 5.014, Water Code, is amended to read as
  follows:
         Sec. 5.014.  SUNSET PROVISION.  The Texas Commission on
  Environmental Quality is subject to Chapter 325, Government Code
  (Texas Sunset Act).  Unless continued in existence as provided by
  that chapter, the commission is abolished [and this chapter
  expires] September 1, 2035 [2023].
         SECTION 8.  Section 5.0535, Water Code, is amended by
  amending Subsection (b) and adding Subsection (d) to read as
  follows:
         (b)  The training program must provide the person with
  information regarding:
               (1)  the law governing [legislation that created the]
  commission operations;
               (2)  the programs, functions, rules, and budget of
  [operated by] the commission;
               (3)  the scope of and limitations on the rulemaking
  authority of the commission [the role and functions of the
  commission];
               (4)  [the rules of the commission, with an emphasis on
  the rules that relate to disciplinary and investigatory authority;
               [(5)  the current budget for the commission;
               [(6)]  the results of the most recent formal audit
  [significant internal and external audits] of the commission;
               (5) [(7)]  the requirements of:
                     (A)  laws relating to [the] open meetings, [law,
  Chapter 551, Government Code;
                     [(B)  the] public information, [law, Chapter 552,
  Government Code;
                     [(C)  the] administrative procedure, and
  disclosing conflicts-of-interest [law, Chapter 2001, Government
  Code; and
                     [(D)  other laws relating to public officials,
  including conflict-of-interest laws]; and
                     (B)  other laws applicable to members of a state
  policy-making body in performing their duties; and
               (6) [(8)]  any applicable ethics policies adopted by
  the commission or the Texas Ethics Commission.
         (d)  The executive director shall create a training manual
  that includes the information required by Subsection (b). The
  executive director shall distribute a copy of the training manual
  annually to each member of the commission. Each member of the
  commission shall sign and submit to the executive director a
  statement acknowledging that the member received and has reviewed
  the training manual.
         SECTION 9.  Section 5.113, Water Code, is amended to read as
  follows:
         Sec. 5.113.  COMMISSION AND STAFF RESPONSIBILITY POLICY.  
  The commission shall develop and implement policies that clearly
  separate the policy-making [the respective] responsibilities of
  the commission and the management responsibilities of the executive
  director and the staff of the commission.
         SECTION 10.  The heading to Section 5.129, Water Code, is
  amended to read as follows:
         Sec. 5.129.  SUMMARY OF AND INFORMATION PROVIDED BY [FOR]
  PUBLIC NOTICES.
         SECTION 11.  Section 5.129, Water Code, is amended by
  amending Subsection (a) and adding Subsection (a-1) to read as
  follows:
         (a)  The commission by rule shall provide for each public
  notice issued or published by the commission or by a person under
  the jurisdiction of the commission as required by law or by
  commission rule to include:
               (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
  applicant, the type of permit applied for, and the location of each
  proposed or existing site subject to the proposed permit.
         (a-1)  Rules adopted under this section [The rules] must
  provide that a summary statement must be designed to inform the
  reader of the subject matter of the notice without having to read
  the entire text of the notice.
         SECTION 12.  Subchapter D, Chapter 5, Water Code, is amended
  by adding Section 5.136 to read as follows:
         Sec. 5.136.  COMMUNITY OUTREACH. The commission shall
  provide outreach and education to the public on participating in
  the permitting process under the air, waste, and water programs
  within the commission's jurisdiction.
         SECTION 13.  Subchapter E, Chapter 5, Water Code, is amended
  by adding Section 5.1734 to read as follows:
         Sec. 5.1734.  ELECTRONIC POSTING OF PERMIT APPLICATIONS.  
  (a)  The commission shall post on its website at the time a permit
  application becomes administratively complete:
               (1)  the permit application and any associated
  materials; and
               (2)  for a permit application under Subchapter D,
  Chapter 11, any map accompanying the permit application.
         (b)  If a permit application is revised or amended after the
  permit application has become administratively complete, the
  commission shall post on its website the revised or amended permit
  application.
         (c)  The commission may exempt any associated materials from
  being posted on its website under Subsection (a) if the commission
  determines that:
               (1)  posting the materials on the website would be
  unduly burdensome; or
               (2)  the materials are too large to be posted on the
  website.
         (d)  Notwithstanding any other law, the commission shall
  require each applicant for a permit, permit amendment, or permit
  renewal that requires notice be published to include in the notice
  the address of the website where the public can access information
  about the permit as described by Subsection (a).
         (e)  In implementing this section, 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 the application and associated materials
  because of a lack of access to Internet services, particularly when
  there is a heightened public interest or in response to public
  comment.
         (f)  The posting of a permit application under this section
  is in lieu of a requirement that a physical copy of the permit be
  made available in a public place.
         SECTION 14.  Section 5.552(c), Water Code, is amended to
  read as follows:
         (c)  The commission by rule shall establish the form and
  content of the notice.  The notice must include:
               (1)  the location and nature of the proposed activity;
               (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;
               (3) [(4)]  a description, including a telephone
  number, of the manner in which a person may contact the applicant
  for further information;
               (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.
         SECTION 15.  Chapter 5, Water Code, is amended by adding
  Subchapter M-1 to read as follows:
  SUBCHAPTER M-1. PERMITTING PROCEDURES GENERALLY
         Sec. 5.581.  APPLICABILITY. This subchapter applies to
  programs and permits arising under the air, waste, or water
  programs within the commission's jurisdiction.
         Sec. 5.582.  MEANS OF PUBLICATION OF NOTICE. (a)  
  Notwithstanding any other law, the commission may publish notice of
  a permit application by electronic means instead of by printed
  means.
         (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 public interest
  or in response to public comment.
         (d)  This section does not authorize the commission to use an
  electronic means of notice instead of newspaper publication or
  another form of notice if an applicable federal law requires a
  particular form of notice.
         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 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 public interest
  or in response to public 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.
         Sec. 5.584.  TEMPORARY AND INDEFINITE PERMIT REPORTING. (a)  
  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 16.  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 executive director may review, suspend, or
  reclassify a person's compliance history in accordance with
  commission rules if the executive director determines that exigent
  circumstances exist.
         SECTION 17.  Section 7.052(c), Water Code, is amended to
  read as follows:
         (c)  Except as provided by this subsection, the [The] amount
  of the penalty for all other violations within the jurisdiction of
  the commission to enforce may not exceed $25,000 a day for each
  violation. The amount of the penalty for such a violation may not
  exceed $40,000 a day if:
               (1)  the violation involves:
                     (A)  an actual release of pollutants to the air,
  water, or land that exceeds levels that are protective of human
  health or environmental receptors; or
                     (B)  an actual unauthorized diversion, taking, or
  storage of state water or an unauthorized change in the flood
  elevation of a stream that deprives others of water, severely
  affects aquatic life, or results in a safety hazard, property
  damage, or economic loss;
               (2)  the person previously committed a violation of the
  same nature that resulted in the assessment of an administrative
  penalty; and
               (3)  the commission determines the person could have
  reasonably anticipated and avoided the violation.
         SECTION 18.  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" means a legal entity, including a corporation,
  partnership, or sole proprietorship, that:
               (1)  is formed for the purpose of making a profit;
               (2)  is independently owned and operated; and
               (3)  has fewer than 100 employees.
         (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 enroll a small business or local
  government into the enforcement diversion program if an enforcement
  action against the business or government is required by federal
  law.
         (e)  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.
         (f)  A small business or local government is not eligible to
  enroll in the enforcement diversion program if the business or
  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 19.  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
  STANDARDS; 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 regime
  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 20.  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 flow standards by the advisory
  group under Section 11.02363(a) when altering an environmental flow
  standard or environmental flow set-aside.  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 21.  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 22.  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 23.  (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 24.  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 25.  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
  continued in effect for that purpose.
         SECTION 26.  (a)  The Texas Commission on Environmental
  Quality shall submit to the environmental flows advisory group the
  first biennial report on the implementation and effectiveness of
  environmental flow standards under Section 11.1471(g), Water Code,
  as added by this Act, not later than January 1, 2024.
         (b)  The environmental flows advisory group shall produce
  and deliver to the commission the first biennial statewide work
  plan developed under Section 11.02363, Water Code, as added by this
  Act, not later than January 1, 2025.
         SECTION 27.  This Act takes effect September 1, 2023.
 
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