Bill Text: TX SB1397 | 2023-2024 | 88th Legislature | Enrolled
Bill Title: Relating to the continuation and functions of the Texas Commission on Environmental Quality.
Spectrum: Slight Partisan Bill (Republican 9-3)
Status: (Passed) 2023-06-18 - Effective on 9/1/23 [SB1397 Detail]
Download: Texas-2023-SB1397-Enrolled.html
S.B. No. 1397 |
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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 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) [ |
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(3) [ |
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SECTION 2. 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, [ |
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(ii) a permit by rule under Section | ||
382.05196; or | ||
(iii) an exemption allowed under Section | ||
382.057. | ||
SECTION 3. 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 4. Section 382.056, Health and Safety Code, is | ||
amended by adding Subsection (k-2) to read as follows: | ||
(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 5. 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 [ |
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SECTION 6. 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 [ |
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commission operations; | ||
(2) the programs, functions, rules, and budget of | ||
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(3) the scope of and limitations on the rulemaking | ||
authority of the commission [ |
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(4) [ |
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(5) [ |
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(A) laws relating to [ |
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disclosing conflicts-of-interest [ |
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(B) other laws applicable to members of a state | ||
policy-making body in performing their duties; and | ||
(6) [ |
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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 7. 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 [ |
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the commission and the management responsibilities of the executive | ||
director and the staff of the commission. | ||
SECTION 8. The heading to Section 5.129, Water Code, is | ||
amended to read as follows: | ||
Sec. 5.129. SUMMARY OF AND INFORMATION PROVIDED BY [ |
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PUBLIC NOTICES. | ||
SECTION 9. 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 [ |
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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 10. 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 11. 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 Subsections (a) and (b) 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. | ||
SECTION 12. Chapter 5, Water Code, is amended by adding | ||
Subchapter M-1 to read as follows: | ||
SUBCHAPTER M-1. PERMITTING PROCEDURES GENERALLY | ||
Sec. 5.581. DEFINITION. In this subchapter, "permit" means | ||
a permit, approval, registration, or other form of authorization | ||
required by law for a person to engage in an action. | ||
Sec. 5.582. APPLICABILITY. This subchapter applies to | ||
programs and permits arising under the air, waste, or water | ||
programs within the commission's jurisdiction. | ||
Sec. 5.583. ELECTRONIC PUBLICATION OF NOTICE. (a) The | ||
commission shall publish notice of a permit application on the | ||
commission’s website and may provide additional electronic notice | ||
through other means, including direct e-mail. Notice published | ||
under this section is in addition to any other notice requirement. | ||
(b) 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. | ||
Sec. 5.584. VERIFICATION OF NOTICE BY NEWSPAPER. If an | ||
applicant for a permit is required to publish notice in a newspaper, | ||
the applicant shall provide to the commission a copy of the | ||
published notice and an affidavit from the publisher certifying | ||
that the notice was published and the publication meets all | ||
applicable requirements, including newspaper circulation. | ||
Sec. 5.585. SECURITY AT PUBLIC MEETING OR PUBLIC HEARING. | ||
The commission may request that an applicant for a permit that is | ||
the subject of a public meeting or public hearing provide uniformed | ||
security at the meeting or hearing sufficient to provide for the | ||
safety of all attendees and orderly conduct at the meeting or | ||
hearing. | ||
Sec. 5.586. NOTICE TO STATE SENATOR AND STATE | ||
REPRESENTATIVE. (a) This section applies only to a permit | ||
application for which public notice is required. | ||
(b) The commission shall send notice of receipt of the | ||
application for a permit to each state senator and state | ||
representative who represent the area in which the facility or | ||
activity to which the application relates is or will be located. | ||
Sec. 5.587. TEMPORARY AND INDEFINITE PERMIT REPORTING. (a) | ||
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. | ||
(b) 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 13. 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 14. Section 7.052(c), Water Code, is amended to | ||
read as follows: | ||
(c) Except as provided by this subsection, the [ |
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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 15. 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 16. 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 | ||
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 17. 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 [ |
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Sections 11.02363(a) and [ |
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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 18. The heading to Chapter 28A, Water Code, is | ||
amended to read as follows: | ||
CHAPTER 28A. [ |
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PRODUCTION OPERATIONS | ||
SECTION 19. Chapter 28A, Water Code, is amended by adding | ||
Subchapter D to read as follows: | ||
SUBCHAPTER D. BEST MANAGEMENT PRACTICES | ||
Sec. 28A.151. BEST MANAGEMENT PRACTICES. (a) The | ||
commission shall develop and make accessible on the commission's | ||
Internet website recommended best management practices for | ||
aggregate production operations that operate under the | ||
jurisdiction of the commission. The best management practices must | ||
include operational issues related to: | ||
(1) dust control; | ||
(2) water use; and | ||
(3) water storage. | ||
(b) The commission may coordinate with other agencies when | ||
developing the best management practices under this section. | ||
(c) The best management practices developed under this | ||
section are not subject to enforcement by the commission. | ||
SECTION 20. 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 21. The following provisions are repealed: | ||
(1) Section 11.0236(m), Water Code; | ||
(2) Section 11.02361(g), Water Code; and | ||
(3) Section 11.02362(s), Water Code. | ||
SECTION 22. (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 23. A permit holder subject to Section 5.587, 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 24. 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 25. (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 26. This Act takes effect September 1, 2023. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I hereby certify that S.B. No. 1397 passed the Senate on | ||
April 17, 2023, by the following vote: Yeas 31, Nays 0; and that | ||
the Senate concurred in House amendment on May 23, 2023, by the | ||
following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
I hereby certify that S.B. No. 1397 passed the House, with | ||
amendment, on May 17, 2023, by the following vote: Yeas 142, | ||
Nays 2, one present not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
Approved: | ||
______________________________ | ||
Date | ||
______________________________ | ||
Governor |