Bill Text: TX SB1628 | 2017-2018 | 85th Legislature | Introduced

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Bill Title: Relating to the replacement of contested case hearings for certain environmental permits with a petition for administrative review.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2017-03-22 - Referred to Natural Resources & Economic Development [SB1628 Detail]

Download: Texas-2017-SB1628-Introduced.html

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85R4829 SLB-D
By: Estes S.B. No. 1628

A BILL TO BE ENTITLED
AN ACT
relating to the replacement of contested case hearings for certain
environmental permits with a petition for administrative review.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. PETITION TO ADMINISTRATIVELY REVIEW CERTAIN
ENVIRONMENTAL PERMITS
SECTION 1.01. The heading to Section 2003.047, Government
Code, is amended to read as follows:
Sec. 2003.047. [HEARINGS FOR] TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY: GENERAL PROVISIONS.
SECTION 1.02. Sections 2003.047(a), (b), and (d),
Government Code, are amended to read as follows:
(a) In this section, Section 2003.0475, and Section
2003.0478, "commission" means the Texas Commission on
Environmental Quality.
(b) The office shall perform contested case hearings for the
commission and administrative review of commission decisions
regarding permits subject to Subchapter M, Chapter 5, Water Code
[the Texas Commission on Environmental Quality].
[(b) The office shall conduct hearings relating to
contested cases before the commission, other than a hearing
conducted by one or more commissioners.] The commission by rule may
delegate to the office the responsibility to hear any other matter
before the commission if consistent with the responsibilities of
the office.
(d) To be eligible to preside at a hearing on behalf of the
commission or conduct an administrative review under Section
2003.0478, an administrative law judge, regardless of temporary or
permanent status, must be licensed to practice law in this state and
have the expertise necessary to conduct hearings or administrative
review regarding technical or other specialized subjects that may
come before the commission.
SECTION 1.03. Sections 2003.047(e), (f), (g), (h), (i),
(j), (k), (l), (m), (n), and (o), Government Code, are redesignated
as Section 2003.0475, Government Code, and amended to read as
follows:
Sec. 2003.0475. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY:
HEARINGS. (a) The office shall conduct hearings relating to
contested cases before the commission, other than a hearing
conducted by one or more commissioners.
(b) [(e)] In referring a matter for hearing, the commission
shall provide to the administrative law judge a list of disputed
issues. The commission shall specify the date by which the
administrative law judge is expected to complete the proceeding and
provide a proposal for decision to the commission. The
administrative law judge may extend the proceeding if the
administrative law judge determines that failure to grant an
extension would deprive a party of due process or another
constitutional right. The administrative law judge shall establish
a docket control order designed to complete the proceeding by the
date specified by the commission.
(c) [(f)] Except as otherwise provided by this subsection,
the scope of the hearing is limited to the issues referred by the
commission. On the request of a party, the administrative law judge
may consider an issue that was not referred by the commission if the
administrative law judge determines that:
(1) the issue is material;
(2) the issue is supported by evidence; and
(3) there are good reasons for the failure to supply
available information regarding the issue during the public comment
period.
(d) [(g)] The scope of permissible discovery is limited to:
(1) any matter reasonably calculated to lead to the
discovery of admissible evidence regarding any issue referred to
the administrative law judge by the commission or that the
administrative law judge has agreed to consider; and
(2) the production of documents:
(A) reviewed or relied on in preparing
application materials [or selecting the site of the proposed
facility]; or
(B) relating to the ownership of the [applicant
or the] owner or operator of the facility [or proposed facility].
(e) [(h)] The commission by rule shall:
(1) provide for subpoenas and commissions for
depositions; and
(2) require that discovery be conducted in accordance
with the Texas Rules of Civil Procedure, except that the commission
by rule shall determine the level of discovery under Rule 190, Texas
Rules of Civil Procedure, appropriate for each type of case
considered by the commission, taking into account the nature and
complexity of the case.
(f) [(i)] The office and the commission jointly shall adopt
rules providing for certification to the commission of an issue
that involves an ultimate finding of compliance with or
satisfaction of a statutory standard the determination of which is
committed to the discretion or judgment of the commission by law.
The rules must address, at a minimum, the issues that are
appropriate for certification and the procedure to be used in
certifying the issue. Each agency shall publish the jointly
adopted rules.
(g) [(j)] An administrative law judge hearing a case on
behalf of the commission, on the judge's own motion or on motion of
a party and after notice and an opportunity for a hearing, may
impose appropriate sanctions as provided by Subsection (h) [(k)]
against a party or its representative for:
(1) filing a motion or pleading that is groundless and
brought:
(A) in bad faith;
(B) for the purpose of harassment; or
(C) for any other improper purpose, such as to
cause unnecessary delay or needless increase in the cost of the
proceeding;
(2) abuse of the discovery process in seeking, making,
or resisting discovery; or
(3) failure to obey an order of the administrative law
judge or the commission.
(h) [(k)] A sanction imposed under Subsection (g) [(j)] may
include, as appropriate and justified, issuance of an order:
(1) disallowing further discovery of any kind or of a
particular kind by the offending party;
(2) charging all or any part of the expenses of
discovery against the offending party or its representatives;
(3) holding that designated facts be considered
admitted for purposes of the proceeding;
(4) refusing to allow the offending party to support
or oppose a designated claim or defense or prohibiting the party
from introducing designated matters in evidence;
(5) disallowing in whole or in part requests for
relief by the offending party and excluding evidence in support of
those requests; and
(6) striking pleadings or testimony, or both, in whole
or in part.
(i) [(l)] After hearing evidence and receiving legal
argument, an administrative law judge shall make findings of fact,
conclusions of law, and any ultimate findings required by statute,
all of which shall be separately stated. The administrative law
judge shall make a proposal for decision to the commission and shall
serve the proposal for decision on all parties. An opportunity
shall be given to each party to file exceptions to the proposal for
decision and briefs related to the issues addressed in the proposal
for decision. The commission shall consider and act on the proposal
for decision.
(j) The [(m) Except as provided in Section 361.0832, Health
and Safety Code, the] commission shall consider the proposal for
decision prepared by the administrative law judge, the exceptions
of the parties, and the briefs and argument of the parties. The
commission may amend the proposal for decision, including any
finding of fact, but any such amendment thereto and order shall be
based solely on the record made before the administrative law
judge. Any such amendment by the commission shall be accompanied by
an explanation of the basis of the amendment. The commission may
also refer the matter back to the administrative law judge to
reconsider any findings and conclusions set forth in the proposal
for decision or take additional evidence or to make additional
findings of fact or conclusions of law. The commission shall serve
a copy of the commission's order, including its finding of facts and
conclusions of law, on each party.
(k) [(n)] The provisions of Chapter 2001 shall apply to
contested case hearings for the commission to the extent not
inconsistent with this section.
(l) [(o)] An administrative law judge hearing a case on
behalf of the commission may not, without the agreement of all
parties, issue an order referring the case to an alternative
dispute resolution procedure if the commission has already
conducted an unsuccessful alternative dispute resolution
procedure. If the commission has not already conducted an
alternative dispute resolution procedure, the administrative law
judge shall consider the commission's recommendation in
determining whether to issue an order referring the case to the
procedure.
SECTION 1.04. Subchapter C, Chapter 2003, Government Code,
is amended by adding Section 2003.0478 to read as follows:
Sec. 2003.0478. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY:
ADMINISTRATIVE REVIEW OF EXECUTIVE DIRECTOR PRELIMINARY DECISION
ON PERMIT APPLICATION. (a) In this section:
(1) "Applicant" means the person who submitted the
permit application on which a preliminary decision by the executive
director recommending issuance of the permit has been challenged by
a petition.
(2) "Executive director" means the executive director
of the commission.
(3) "Permit application" means an application for an
environmental permit that:
(A) is subject to Subchapter M, Chapter 5, Water
Code; and
(B) has been challenged by a petition.
(4) "Petition" means a petition for administrative
review of a decision by the executive director to recommend
issuance of a permit that is submitted under Section 5.5565, Water
Code.
(5) "Petitioner" means the person who submitted a
petition.
(b) On receipt of a petition and related materials from the
commission, the administrative law judge considering the petition
shall set a briefing schedule according to rules adopted under this
section. The administrative law judge may request oral argument on
a matter covered in the petition.
(c) The filing with the office of the application, the draft
permit prepared by the executive director, the preliminary decision
issued by the executive director, and other sufficient supporting
documentation in the administrative record of the permit
application establishes a presumption that:
(1) the draft permit meets all state and federal legal
and technical requirements; and
(2) a permit, if issued consistent with the draft
permit, would protect human health and safety, the environment, and
physical property.
(d) The administrative law judge considering a petition
under this section may consider only:
(1) the materials forwarded to the office under
Section 5.5565, Water Code;
(2) the petition;
(3) a response brief filed by the applicant;
(4) a response brief filed by the executive director;
and
(5) an amicus brief that the administrative law judge
has consented to accept under Subsection (e).
(e) An interested person may seek leave from the
administrative law judge to submit an amicus brief for
consideration in conjunction with the petition. An amicus brief
approved by the administrative law judge must be submitted not
later than the 15th day after the date the executive director
submits a response brief. The submission of an amicus brief may not
extend the period of consideration of the petition beyond the
120-day limit described by Subsection (h).
(f) After consideration of the items described by
Subsection (d) and any oral argument, and within the time described
by Subsection (h), the administrative law judge shall transmit a
decision on the petition to the executive director, the petitioner,
and the applicant. The judge may:
(1) order the commission to issue the permit
consistent with the draft permit;
(2) order the commission to deny the permit
application; or
(3) remand the issue to the commission for further
action.
(g) An administrative law judge may find that the permit
should not be issued consistent with the draft permit only if the
petitioner has:
(1) demonstrated that the petitioner is an affected
person under the standard described by Section 5.115, Water Code,
and rules adopted under that section;
(2) identified a specific issue raised in a comment
submitted by the petitioner during the public comment period for
the permit application;
(3) demonstrated that the executive director's
decision on the issue described by Subdivision (2) is based on a
clearly erroneous finding of fact or conclusion of law; and
(4) rebutted the presumption created under Subsection
(c) by presenting evidence that demonstrates that the issue
described by Subdivision (2) violates a specifically applicable
state or federal requirement.
(h) The office shall adopt rules concerning filing briefs,
hearing oral arguments, and issuing a decision on a petition. The
rules adopted under this section:
(1) must require the administrative law judge who
considers the petition to transmit a decision on the petition to the
commission not later than the 120th day after the date the office
receives the petition from the commission;
(2) may allow for varying deadlines for the filing of
briefs and the hearing of oral argument based on the type of permit
application; and
(3) may not create a deadline for the filing of a
document or the hearing of oral argument that exceeds a deadline set
for a similar action under federal law.
SECTION 1.05. The heading to Section 5.115, Water Code, is
amended to read as follows:
Sec. 5.115. PERSONS AFFECTED IN ADMINISTRATIVE REVIEW OF
COMMISSION DECISIONS AND COMMISSION HEARINGS; NOTICE OF
APPLICATION.
SECTION 1.06. Sections 5.115(a), (a-1), and (b), Water
Code, are amended to read as follows:
(a) For the purpose of an administrative hearing held by or
for the commission involving a contested case for a water rights
permit application or an administrative review of a decision on a
permit application that is subject to Subchapter M, "affected
person," or "person affected," or "person who may be affected"
means a person who has a personal justiciable interest related to a
legal right, duty, privilege, power, or economic interest affected
by the administrative hearing. An interest common to members of
the general public does not qualify as a personal justiciable
interest.
(a-1) The commission shall adopt rules specifying factors
which must be considered in determining whether a person is an
affected person [in any contested case arising under the air,
waste, or water programs within the commission's jurisdiction] and
whether a group or [an affected] association is an affected person
[entitled to standing in contested case hearings]. For an
administrative review of a decision on a permit application that is
subject to Subchapter M, [a matter referred under Section 5.556,
the commission:
[(1) may consider:
[(A) the merits of the underlying application,
including whether the application meets the requirements for permit
issuance;
[(B) the likely impact of regulated activity on
the health, safety, and use of the property of the hearing
requestor;
[(C) the administrative record, including the
permit application and any supporting documentation;
[(D) the analysis and opinions of the executive
director; and
[(E) any other expert reports, affidavits,
opinions, or data submitted on or before any applicable deadline to
the commission by the executive director, the applicant, or a
hearing requestor; and
[(2) may not find that:
[(A)] a group or association is an affected
person only if [unless] the group or association identifies, by
name and physical address in a comment made during the public
comment period [timely request for a contested case hearing], a
member of the group or association who would be an affected person
in the person's own right[; or
[(B) a hearing requestor is an affected person
unless the hearing requestor timely submitted comments on the
permit application].
(b) At the time an application for a permit or license under
this code is filed with the executive director and is
administratively complete, the commission shall give notice of the
application to any person who may be affected by the granting of the
permit or license. A state agency that receives notice under this
subsection may submit comments to the commission in response to the
notice [but may not contest the issuance of a permit or license by
the commission]. For the purposes of this subsection, "state
agency" does not include a river authority.
SECTION 1.07. Sections 5.551(a) and (b), Water Code, are
amended to read as follows:
(a) This subchapter establishes procedures for providing
public notice, an opportunity for public comment, and an
opportunity for administrative review [public hearing] under
Section 2003.0478 [Subchapters C-H, Chapter 2001], Government
Code, regarding commission actions relating to a permit issued
under Chapter 26 or 27 of this code or Chapter 361 or 382, Health and
Safety Code. This subchapter is procedural and does not expand or
restrict the types of commission actions for which public notice,
an opportunity for public comment, and an opportunity for
administrative review [public hearing] are provided under Chapter
26 or 27 of this code or Chapter 361 or 382, Health and Safety Code.
(b) The commission by rule shall provide for additional
notice, opportunity for public comment, or opportunity for
administrative review [hearing] to the extent necessary to satisfy
a requirement for United States Environmental Protection Agency
authorization of a state permit program.
SECTION 1.08. Section 5.552(d), Water Code, is amended to
read as follows:
(d) In addition to providing notice under Subsection
(b)(1), the applicant shall comply with any applicable public
notice requirements under Chapters 26 and 27 of this code, Chapters
[Chapter] 361 and 382, Health and Safety Code, and rules adopted
under those chapters.
SECTION 1.09. Sections 5.553(a) and (d), Water Code, are
amended to read as follows:
(a) The executive director shall conduct a technical review
of and issue a preliminary decision on the application and a draft
permit if the executive director determines that a permit should be
issued.
(d) In addition to providing notice under this section, the
applicant shall comply with any applicable public notice
requirements under Chapters 26 and 27 of this code, Chapter 361 or
382, Health and Safety Code, and rules adopted under those
chapters.
SECTION 1.10. Section 5.555(b), Water Code, is amended to
read as follows:
(b) The chief clerk of the commission shall transmit the
executive director's decision, the executive director's response to
public comments, and instructions for requesting that the
commission reconsider the executive director's decision or
petitioning for administrative review of the executive director's
decision [hold a contested case hearing] to:
(1) the applicant;
(2) any person who submitted comments during the
public comment period; and
(3) any person who requested to be on the mailing list
for the permit action.
SECTION 1.11. Section 5.5553, Water Code, is amended to
read as follows:
Sec. 5.5553. NOTICE OF DRAFT PERMIT. [(a) This section
applies only to a permit application that is eligible to be referred
for a contested case hearing under Section 5.556 or 5.557.
[(b)] Notwithstanding any other law, not later than the 30th
day before the date the commission issues a draft permit in
connection with a permit application, the executive director shall
provide written notice to the state senator and state
representative of the area in which the facility that is the subject
of the permit is located.
SECTION 1.12. The heading to Section 5.556, Water Code, is
amended to read as follows:
Sec. 5.556. REQUEST FOR RECONSIDERATION [OR CONTESTED CASE
HEARING].
SECTION 1.13. Section 5.556(a), Water Code, is amended to
read as follows:
(a) A person may request that the commission reconsider the
executive director's decision [or hold a contested case hearing].
A request must be filed with the commission during the period
provided by commission rule.
SECTION 1.14. Subchapter M, Chapter 5, Water Code, is
amended by adding Section 5.5565 to read as follows:
Sec. 5.5565. PETITION FOR ADMINISTRATIVE REVIEW. (a) Not
later than the 30th day after the date the executive director issues
a preliminary decision on an application and draft permit under
Section 5.553 recommending issuance of the permit, an affected
person may file a request with the commission for an administrative
review of the decision. On receipt of a petition to
administratively review a decision, the commission shall:
(1) forward the application, the draft permit prepared
by the executive director, the preliminary decision issued by the
executive director, and other sufficient supporting documentation
in the administrative record of the permit application to the State
Office of Administrative Hearings; and
(2) notify the applicant in writing that a petition
for administrative review has been filed.
(b) The executive director shall file a response to the
petition within the period allowed by a rule adopted by the State
Office of Administrative Hearings under Section 2003.0478,
Government Code.
(c) Not later than the 30th day after the date the executive
director files a response under Subsection (b), the executive
director may withdraw the preliminary decision and draft permit and
prepare a new preliminary decision and draft permit.
(d) On receipt of a decision of an administrative law judge
regarding an administrative review of a decision under Section
2003.0478, Government Code, the commission shall:
(1) issue or deny the permit consistent with the
decision; or
(2) take further action as specified by the decision,
if the administrative law judge remands the issue.
(e) A commission order implementing a decision by an
administrative law judge to deny a permit is a final act of the
commission that is subject to judicial review under Subchapter I.
SECTION 1.15. Section 5.558(c), Water Code, is amended to
read as follows:
(c) The permit processes authorized by this section are not
subject to the requirements relating to a contested case hearing or
an administrative review under Section 5.5565 [under this chapter,
Chapter 382, Health and Safety Code, or Subchapters C-G, Chapter
2001, Government Code].
ARTICLE 2. CONFORMING AMENDMENTS
SECTION 2.01. Section 2003.0421(c), Government Code, is
amended to read as follows:
(c) This section applies to any contested case hearing
conducted by the office, except hearings conducted on behalf of the
Texas Commission on Environmental Quality or the Public Utility
Commission of Texas which are governed by Sections 2003.0475
[2003.047] and 2003.049.
SECTION 2.02. Sections 361.063(b) and (f), Health and
Safety Code, are amended to read as follows:
(b) The agreement shall be made through participation in a
local review committee process that includes a good faith effort to
identify issues of concern, describe them to the applicant, and
attempt to resolve those issues [before the hearing on the permit
application begins]. A person is not required to be a local review
committee member to participate in a local review committee
process.
(f) The commission, as appropriate, may award to a person,
other than the applicant, who has participated in the local review
committee process under this section concerning an application for
a hazardous waste management facility all or a part of the person's
reasonable costs for technical studies and reports and expert
witnesses associated with the presentation of evidence [at the
public hearing] concerning issues that are raised by the person in
the local review committee process [and that are unresolved at the
beginning of the hearing on the permit application]. The total
amount of awards granted to all persons under this subsection
concerning an application may not exceed $25,000. In determining
the appropriateness of the award, the commission shall consider
whether:
(1) the evidence or analysis provided by the studies,
reports, and witnesses is significant to the evaluation of the
application;
(2) the evidence or analysis would otherwise not have
been provided [in the proceeding]; and
(3) the local review committee was established in
accordance with commission rules.
SECTION 2.03. Section 361.0665(b), Health and Safety Code,
is amended to read as follows:
(b) Notice must include:
(1) a description of the location or proposed location
of the facility;
(2) a statement that a person who may be affected by
the facility or proposed facility is entitled to petition for
administrative review of a preliminary decision on the permit
application [request a hearing from the commission];
(3) the manner in which the commission may be
contacted for further information; and
(4) any other information that the commission by rule
requires.
SECTION 2.04. Section 361.068(b), Health and Safety Code,
is amended to read as follows:
(b) Once a determination that an application is
administratively and technically complete has been made [and the
permit application has become the subject of a contested case under
Section 2001.003, Government Code]:
(1) the commission may not revoke the determination
that an application is administratively or technically complete;
(2) the commission may request additional information
from the applicant only if the information is necessary to clarify,
modify, or supplement previously submitted material [provided that
all parties may engage in discovery against all other parties, as
provided by applicable law]; and
(3) a request for additional information does not
render the application incomplete.
SECTION 2.05. Section 361.069, Health and Safety Code, is
amended to read as follows:
Sec. 361.069. DETERMINATION OF LAND USE COMPATIBILITY. The
commission in its discretion may, in processing a permit
application, make a separate determination on the question of land
use compatibility, and, if the site location is acceptable, may at
another time consider other technical matters concerning the
application. [A public hearing may be held for each determination
in accordance with Section 361.088.] In making a determination on
the question of land use compatibility, the commission shall not
consider the position of a state or federal agency unless the
position is fully supported by credible evidence from that agency
[during the public hearing].
SECTION 2.06. The heading to Section 361.079, Health and
Safety Code, is amended to read as follows:
Sec. 361.079. NOTICE CONCERNING RECEIPT OF PERMIT
APPLICATION[; HEARING PROCEDURES].
SECTION 2.07. Section 361.079(a), Health and Safety Code,
is amended to read as follows:
(a) Except as provided by Section [Sections 361.080(b) and]
361.081(c), the commission by rule shall establish procedures for
public notice [and a public hearing] under Section [361.080 or]
361.081.
SECTION 2.08. The heading to Section 361.081, Health and
Safety Code, is amended to read as follows:
Sec. 361.081. NOTICE [OF HEARING] CONCERNING APPLICATION
FOR A SOLID WASTE FACILITY.
SECTION 2.09. Sections 361.081(a) and (b), Health and
Safety Code, are amended to read as follows:
(a) The commission shall require the applicant to mail
notice to each residential or business address located within
one-half mile of a new solid waste management facility and to each
owner of real property located within one-half mile of a new solid
waste management facility listed in the real property appraisal
records of the appraisal district in which the solid waste
management facility is sought to be permitted as of the date the
commission determines the permit application is administratively
complete. The notice must be sent by mail [and must be deposited
with the United States postal service not more than 45 days or less
than 30 days before the date of the hearing].
(b) [The applicant must certify to the commission that the
mailings were deposited as required by Subsection (a). Acceptance
of the certification creates a rebuttable presumption that the
applicant has complied with this section.] Substantial compliance
with the notice requirements of Subsection (a) is sufficient for
the commission to exercise jurisdiction over an application for a
solid waste facility.
SECTION 2.10. The heading to Section 361.082, Health and
Safety Code, is amended to read as follows:
Sec. 361.082. APPLICATION FOR HAZARDOUS WASTE PERMIT;
NOTICE [AND HEARING].
SECTION 2.11. Sections 361.082(c), (d), and (g), Health and
Safety Code, are amended to read as follows:
(c) The commission by rule shall establish procedures for
public notice [and public hearing]. At a minimum, the rules shall
include the public notice requirements set forth in Section
361.081.
(d) The [In addition to the hearing held under this section,
the] commission may hold a public meeting and the applicant shall
give notice as provided by Section 361.0791.
(g) On petition for administrative review of a preliminary
decision on the permit application [request under Section 361.082]
by a person affected [for a hearing on the permit application], the
applicant for a permit for a new hazardous waste management
facility shall furnish a bond or other financial assurance
authorized by the commission to guarantee payment of the costs of a
person affected who provides information to the commission on the
question of the issuance of the permit and who is entitled to those
costs under an order made as provided by Section 361.0833. For
applications involving commercial hazardous waste management
facilities, the bond or other financial assurance must be in the
amount of $100,000. For applications that do not involve commercial
hazardous waste management facilities, the bond or other financial
assurance must be in the amount of $20,000.
SECTION 2.12. Sections 361.0833(b), (d), (e), and (f),
Health and Safety Code, are amended to read as follows:
(b) Information for which an award of costs under Subsection
(a) may be made includes:
(1) technical studies of the area in which the new
hazardous waste facility is proposed to be located; and
(2) [expert testimony given at a hearing on the permit
application; and
[(3)] surveys of land use and potential use in the
hazardous waste facility area.
(d) The total costs awarded to all persons affected under
Subsection (a) may not exceed $100,000 for a new commercial
hazardous waste management facility or $20,000 for a new
noncommercial hazardous waste management facility. [The total
costs awarded to all persons affected under Subsection (c) may not
exceed $150,000 for a new commercial hazardous waste management
facility or $30,000 for a new noncommercial hazardous waste
management facility.]
(e) In determining the appropriateness of an award under
Subsection (a) [or (c)], the commission shall consider:
(1) whether the information provided is material to
the commission's determination to deny the permit or to require the
applicant to make significant changes in the facility's design or
operation; and
(2) whether the information would otherwise not have
been presented to the commission while the commission is
considering its decision.
(f) If the applicant fails or refuses to pay the amount of
costs ordered not later than the 30th day after the date of entry of
the final order granting payment of costs, the commission shall
order the applicant's bond or other financial assurance forfeited
in the amount of the costs ordered reimbursed under Subsection (a)
[or (c)] up to and including the full amount of the bond or other
financial assurance. The commission shall forward the forfeited
amount to the person affected.
SECTION 2.13. Section 361.084(b), Health and Safety Code,
is amended to read as follows:
(b) The compliance summaries shall be made available to the
applicant and any interested person after the commission has
completed its technical review of the permit application [and
before the issuance of the public notice concerning an opportunity
for a hearing on the permit application].
SECTION 2.14. Section 361.085(a), Health and Safety Code,
is amended to read as follows:
(a) Before a permit may be issued, amended, transferred,
extended, or renewed for a hazardous waste management facility, the
commission shall require as a part of each application information
it deems necessary to demonstrate that an applicant has sufficient
financial resources to operate the facility in a safe manner and in
compliance with the permit and all applicable rules, including how
an applicant intends to obtain financing for construction of the
facility, and to close the facility in accordance with applicable
rules. That information may include balance sheets, financial
statements, and disclosure of relevant information regarding
investors and stockholders, or information required by [Title] 40
C.F.R.[, Code of Federal Regulations,] Part 264, Subpart H. If the
information would be considered confidential under applicable law,
the commission shall protect the information accordingly. [During
hearings on contested applications, the commission may allow
disclosure of confidential information only under an appropriate
protective order.]
SECTION 2.15. The heading to Section 361.088, Health and
Safety Code, is amended to read as follows:
Sec. 361.088. PERMIT ISSUANCE, AMENDMENT, EXTENSION AND
RENEWAL; NOTICE [AND HEARING].
SECTION 2.16. Section 361.088(d), Health and Safety Code,
is amended to read as follows:
(d) The [In addition to providing an opportunity for a
hearing held under this section, the] commission shall hold a
public meeting and give notice as provided by Section 361.0791.
SECTION 2.17. Section 361.0885(a), Health and Safety Code,
is amended to read as follows:
(a) A [After providing an opportunity for a hearing to an
applicant, the] state agency shall deny an application for the
issuance, amendment, renewal, or transfer of a permit within its
jurisdiction and may not issue, amend, renew, or transfer the
permit if the state agency determines that a former employee:
(1) participated personally and substantially as a
former employee in the state agency's review, evaluation, or
processing of that application before leaving employment with the
state agency; and
(2) after leaving employment with the state agency,
provided assistance on the same application for the issuance,
amendment, renewal, or transfer of a permit, including assistance
with preparation or presentation of the application or legal
representation of the applicant.
SECTION 2.18. The heading to Section 361.089, Health and
Safety Code, is amended to read as follows:
Sec. 361.089. PERMIT DENIAL OR AMENDMENT; NOTICE [AND
HEARING].
SECTION 2.19. Sections 361.089(b), (c), and (e), Health and
Safety Code, are amended to read as follows:
(b) Except as provided by Section 361.110, the commission
shall notify each governmental entity listed under Section 361.067
[and provide an opportunity for a hearing to the permit holder or
applicant and persons affected. The commission may also hold a
hearing on its own motion].
(c) The commission by rule shall establish procedures for
public notice [and any public hearing] under this section.
(e) The commission may deny an original or renewal permit if
it is found[, after notice and hearing,] that:
(1) the applicant or permit holder has a compliance
history that is classified as unsatisfactory according to
commission standards under Sections 5.753 and 5.754, Water Code,
and rules adopted and procedures developed under those sections;
(2) the permit holder or applicant made a false or
misleading statement in connection with an original or renewal
application, either in the formal application or in any other
written instrument relating to the application submitted to the
commission, its officers, or its employees;
(3) the permit holder or applicant is indebted to the
state for fees, payment of penalties, or taxes imposed by this title
or by a rule of the commission; or
(4) the permit holder or applicant is unable to ensure
that the management of the hazardous waste management facility
conforms or will conform to this title and the rules of the
commission.
SECTION 2.20. Section 361.112(i), Health and Safety Code,
is amended to read as follows:
(i) The notice [and hearing] procedures provided by this
subchapter apply to a permit issued, amended, extended, or renewed
under this section.
SECTION 2.21. The heading to Section 361.120, Health and
Safety Code, is amended to read as follows:
Sec. 361.120. NOTICE [OF HEARING AND] REQUIREMENTS FOR
REOPENING OF CLOSED OR INACTIVE LANDFILLS.
SECTION 2.22. Section 361.120(c), Health and Safety Code,
is amended to read as follows:
(c) Except as provided in Subsection [Subsections] (d) [and
(e)], the reopening of any such facility shall be considered a major
amendment as such is defined by commission rules and shall subject
the permittee to all of the procedural and substantive obligations
imposed by the rules applicable to major amendments.
SECTION 2.23. Section 361.121(c), Health and Safety Code,
is amended to read as follows:
(c) The notice and administrative review [hearing]
provisions of Subchapter M, Chapter 5, Water Code, [as added by
Chapter 1350, Acts of the 76th Legislature, Regular Session, 1999,]
apply to an application under this section for a permit, a permit
amendment, or a permit renewal. In addition, at the time published
notice of intent to obtain a permit is required under Section 5.552,
Water Code, an applicant for a permit, permit amendment, or permit
renewal under this section must notify by registered or certified
mail each owner of land located within one-quarter mile of the
proposed land application unit who lives on that land of the intent
to obtain the permit, amendment, or renewal. Notice to landowners
must include the information required by Section 5.552(c), Water
Code, and information regarding the anticipated date of the first
application of the sludge to the proposed land application unit. An
owner of land located within one-quarter mile of the proposed land
application unit who lives on that land is an affected person for
purposes of Section 5.115, Water Code.
SECTION 2.24. The heading to Section 361.184, Health and
Safety Code, is amended to read as follows:
Sec. 361.184. REGISTRY LISTING PROCEDURE: NOTICES AND
MEETING [HEARING].
SECTION 2.25. Section 361.186(c), Health and Safety Code,
is amended to read as follows:
(c) If, within 30 days after the date of the notice, the
executive director determines that the proposed substantial change
in use will interfere significantly with a proposed or ongoing
remedial investigation/feasibility study or similar study approved
by the executive director or expose the public health and safety or
the environment to a significantly increased threat of harm, the
executive director shall notify the owner or operator of the
determination. After the determination is made and notification
given, the owner or operator may not proceed with the proposed
substantial change in use. The owner or operator may request that
the commission reconsider the executive director's determination
[a hearing before the commission on whether the determination
should be modified or set aside] by submitting a request under
Section 5.556, Water Code, not later than the 30th day after the
receipt of the executive director's determination. [If a hearing
is requested, the commission shall initiate the hearing not later
than the 45th day after the receipt of the request. The hearing
shall be conducted in accordance with Chapter 2001, Government
Code.] The executive director's determination becomes
unappealable on the 31st day after issuance if reconsideration by
the commission [a hearing] is not requested.
SECTION 2.26. Section 382.05102(d), Health and Safety Code,
is amended to read as follows:
(d) The permit processes authorized by this section are not
subject to the requirements relating to a contested case hearing
under [this chapter, Chapter 5, Water Code, or] Subchapters C-G,
Chapter 2001, Government Code.
SECTION 2.27. Section 382.05155(c), Health and Safety Code,
is amended to read as follows:
(c) The expediting of an application under this section does
not affect [a contested case hearing or] applicable federal, state,
and regulatory requirements, including the notice and [,]
opportunity for [a public hearing, and] submission of public
comment required under this chapter.
SECTION 2.28. Section 382.0517, Health and Safety Code, is
amended to read as follows:
Sec. 382.0517. DETERMINATION OF ADMINISTRATIVE COMPLETION
OF APPLICATION. The commission shall determine when an application
filed under Section 382.054 or Section 382.0518 is administratively
complete. On determination, the commission by mail shall notify
the applicant and any interested party who has requested
notification. If the number of interested parties who have
requested notification makes it impracticable for the commission to
notify those parties by mail, the commission shall notify those
parties by publishing the notice at least once in a newspaper of
general circulation in the municipality in which the facility is
located or is proposed to be located or in the municipality nearest
to the location or proposed location of the facility [publication
using the method prescribed by Section 382.031(a)].
SECTION 2.29. Section 382.0518(b), Health and Safety Code,
is amended to read as follows:
(b) The commission shall grant within a reasonable time a
permit or permit amendment to construct or modify a facility if,
from the information available to the commission, including
information presented at any public meeting [hearing] held under
Section 382.056(k), the commission finds:
(1) the proposed facility for which a permit, permit
amendment, or a special permit is sought will use at least the best
available control technology, considering the technical
practicability and economic reasonableness of reducing or
eliminating the emissions resulting from the facility; and
(2) no indication that the emissions from the facility
will contravene the intent of this chapter, including protection of
the public's health and physical property.
SECTION 2.30. Section 382.05181(h), Health and Safety Code,
is amended to read as follows:
(h) A permit application under this chapter for a facility
affected by Section 382.0518(g) is subject to the notice [and
hearing] requirements as provided by Section 382.05191.
SECTION 2.31. Section 382.05185(h), Health and Safety Code,
is amended to read as follows:
(h) A permit application under this section is subject to
notice [and hearing] requirements as provided by Section 382.05191.
SECTION 2.32. Section 382.05186(g), Health and Safety Code,
is amended to read as follows:
(g) A permit application under this section is subject to
notice [and hearing] requirements as provided by Section 382.05191.
SECTION 2.33. Section 382.0519(b), Health and Safety Code,
is amended to read as follows:
(b) The commission shall grant within a reasonable time a
permit under this section if, from the information available to the
commission, including information presented at any public meeting
[hearing] or through written comment:
(1) the commission finds that the facility will use an
air pollution control method at least as beneficial as that
described in Section 382.003(9)(E)(ii), considering the age and
remaining useful life of the facility, except as provided by
Subdivision (2); or
(2) for a facility located in a near-nonattainment or
nonattainment area for a national ambient air quality standard, the
commission finds that the facility will use the more stringent of:
(A) a control method at least as beneficial as
that described in Section 382.003(9)(E)(ii), considering the age
and remaining useful life of the facility; or
(B) a control technology that the commission
finds is demonstrated to be generally achievable for facilities in
that area of the same type that are permitted under this section,
considering the age and remaining useful life of the facility.
SECTION 2.34. The heading to Section 382.05191, Health and
Safety Code, is amended to read as follows:
Sec. 382.05191. EMISSIONS REDUCTION PERMITS: NOTICE [AND
HEARING].
SECTION 2.35. Section 382.05191(c), Health and Safety Code,
is amended to read as follows:
(c) The commission shall provide an opportunity for [a
public hearing and] the submission of public comment and send
notice of a decision on an application for a permit under Section
382.05183, 382.05185(c) or (d), 382.05186, or 382.0519 in the same
manner as provided by Sections 382.0561 and 382.0562.
SECTION 2.36. The heading to Section 382.05197, Health and
Safety Code, is amended to read as follows:
Sec. 382.05197. MULTIPLE PLANT PERMIT: NOTICE [AND
HEARING].
SECTION 2.37. Section 382.05197(c), Health and Safety Code,
is amended to read as follows:
(c) The commission shall provide an opportunity for [a
public hearing and] the submission of public comment and send
notice of a decision on an application for a permit under Section
382.05194 in the same manner as provided by Sections 382.0561 and
382.0562.
SECTION 2.38. Section 382.055(g), Health and Safety Code,
is amended to read as follows:
(g) If the applicant meets the commission's requirements in
accordance with the schedule, the commission shall renew the
permit. If the applicant does not meet those requirements in
accordance with the schedule, the applicant must show [in a
contested case proceeding] why the permit should not expire
immediately. The applicant's permit is effective until:
(1) the final date specified by the commission's
report to the applicant;
(2) the existing permit is renewed; or
(3) the date specified by a commission order issued
[following a contested case proceeding held] under this section.
SECTION 2.39. The heading to Section 382.056, Health and
Safety Code, is amended to read as follows:
Sec. 382.056. NOTICE OF INTENT TO OBTAIN PERMIT OR PERMIT
REVIEW[; HEARING].
SECTION 2.40. Sections 382.056(b), (h), (m), (n), and (p),
Health and Safety Code, are amended 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;
(4) a description, including a telephone number, of
the manner in which the applicant may be contacted for further
information;
(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 or petition for review of a commission
decision, as applicable;
(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;
(7) the time and location of any public meeting to be
held under Subsection (e); and
(8) any other information the commission by rule
requires.
(h) If, in response to the notice published under Subsection
(a) for a permit under Section 382.054, a person requests during the
public comment period provided by commission rule that the
commission hold a public hearing, the commission shall consider the
request under the procedures provided by Section 382.0561 and not
under the procedures provided by Subsections (j)-(n) [(i)-(n)].
(m) The chief clerk of the commission shall transmit the
executive director's decision, the executive director's response to
public comments, and instructions for, as applicable, requesting
reconsideration of or petitioning for administrative review of
[that the commission reconsider] the executive director's
decision, or requesting [hold] a contested case hearing to:
(1) the applicant;
(2) any person who submitted comments during the
public comment period;
(3) any person who requested to be on the mailing list
for the permit action; and
(4) any person who timely filed a request for a public
hearing in response to the notice published under Subsection (a).
(n) Except as provided by Section 382.0561, the commission
shall consider a request to [that the commission] reconsider or a
petition to review the executive director's decision [or hold a
public hearing] in accordance with the procedures provided by
Sections 5.556 and 5.5565 [5.557], Water Code.
(p) The commission by rule shall provide for additional
notice or [,] opportunity for public comment, administrative
review, or [opportunity for] public hearing to the extent necessary
to satisfy a requirement to obtain or maintain delegation or
approval of a federal program.
SECTION 2.41. The heading to Section 382.058, Health and
Safety Code, is amended to read as follows:
Sec. 382.058. NOTICE OF [AND HEARING ON] CONSTRUCTION OF
CONCRETE PLANT UNDER PERMIT BY RULE, STANDARD PERMIT, OR EXEMPTION.
SECTION 2.42. Sections 382.058(a), (c), and (d), Health and
Safety Code, are amended to read as follows:
(a) A person may not begin construction on any concrete
plant that performs wet batching, dry batching, or central mixing
under a standard permit under Section 382.05195 or a permit by rule
adopted by the commission under Section 382.05196 unless the person
has complied with the notice [and opportunity for hearing]
provisions under Section 382.056.
(c) For purposes of this section, only those persons
actually residing in a permanent residence within 440 yards of the
proposed plant may be an affected person [request a hearing under
Section 382.056 as a person who may be affected].
(d) If the commission considers air dispersion modeling
information in the course of adopting an exemption under Section
382.057 for a concrete plant that performs wet batching, dry
batching, or central mixing, the commission may not require that a
person who qualifies for the exemption conduct air dispersion
modeling before beginning construction of a concrete plant[, and
evidence regarding air dispersion modeling may not be submitted at
a hearing under Section 382.056].
SECTION 2.43. The heading to Section 382.059, Health and
Safety Code, is amended to read as follows:
Sec. 382.059. [HEARING AND] DECISION ON PERMIT AMENDMENT
APPLICATION OF CERTAIN ELECTRIC GENERATING FACILITIES.
SECTION 2.44. Section 382.059(b), Health and Safety Code,
is amended to read as follows:
(b) The commission shall provide an opportunity for [a
public hearing and] the submission of public comment on the
application in the manner provided by Section 382.0561.
SECTION 2.45. Section 26.029(b), Water Code, is amended to
read as follows:
(b) The [After a public hearing, notice of which shall be
given to the permittee, the] commission may require the permittee,
from time to time, for good cause, in conformance with applicable
laws, to conform to new or additional conditions.
SECTION 2.46. Section 27.021(b), Water Code, is amended to
read as follows:
(b) The commission by rule shall provide for public notice
and comment on an application for a permit authorized by this
section. [Notwithstanding Section 27.018, an application for a
permit authorized by this section is not subject to the hearing
requirements of Chapter 2001, Government Code.]
SECTION 2.47. Section 27.023(c), Water Code, is amended to
read as follows:
(c) If a well described by Subsection (a) is included in an
area permit issued by the commission:
(1) the registration status of the well ceases; and
(2) the well is subject to all rules applicable to the
area permit, including notice [and hearing] requirements.
SECTION 2.48. Section 27.051(e), Water Code, as amended by
Chapters 347 (S.B. 324), 965 (H.B. 2912), and 1161 (H.B. 2997), Acts
of the 77th Legislature, Regular Session, 2001, is reenacted and
amended to read as follows:
(e) Consistent with Sections 5.753 and 5.754 and rules
adopted and procedures developed under those sections, the
commission shall establish a procedure for the preparation of
comprehensive summaries of the applicant's compliance history,
including the compliance history of any corporation or business
entity managed, owned, or otherwise closely related to the
applicant. A compliance summary must include as evidence of
compliance information regarding the applicant's implementation of
an environmental management system at the facility for which an
authorization is sought. The summaries shall be made available to
the applicant and any interested person after the commission has
completed its technical review of the permit application and prior
to the promulgation of the public notice relating to the issuance of
the permit. [Evidence of compliance or noncompliance by an
applicant for an injection well permit with environmental statutes
and the rules adopted or orders or permits issued by the commission
may be offered by any party at a hearing on the applicant's
application and admitted into evidence subject to applicable rules
of evidence. In accordance with this subsection and Sections 5.753
and 5.754 and rules adopted and procedures developed under those
sections, evidence of the compliance history of an applicant for an
injection well may be offered at a hearing on the application and
may be admitted into evidence, subject to the rules of evidence.
Evidence of the compliance history of an applicant for an injection
well permit may be offered by the executive director at a hearing on
the application and admitted into evidence subject to the rules of
evidence.] All evidence submitted [admitted], including
compliance history, shall be considered by the commission in
determining whether to issue, amend, extend, or renew a permit. If
the commission concludes that the applicant's compliance history is
unacceptable, the commission shall deny the permit. In this
subsection, "environmental management system" has the meaning
assigned by Section 5.127.
SECTION 2.49. Sections 27.0513(a), (c), and (d), Water
Code, are amended to read as follows:
(a) The commission may issue a permit pursuant to Section
27.011 that authorizes the construction and operation of two or
more similar injection wells within a specified area for mining of
uranium. [An application for a new permit issued pursuant to
Section 27.011, a major amendment of such a permit, or a renewal of
such a permit for mining of uranium is subject to the public notice
requirements and opportunity for contested case hearing provided
under Section 27.018.] A new, amended, or renewed permit must
incorporate a table of pre-mining low and high values representing
the range of groundwater quality within the permit boundary and
area of review, as provided by commission rule, for each water
quality parameter used to measure groundwater restoration in a
commission-required restoration table. The values in the permit
range table must be established from pre-mining baseline wells and
all available wells within the area of review, including those in
the existing or proposed permit boundary and any existing or
proposed production areas. Wells used for that purpose are limited
to those that have documented completion depths and screened
intervals that correspond to a uranium production zone aquifer
identified within the permit boundary.
(c) The commission may issue a holder of a permit issued
pursuant to Section 27.011 for mining of uranium an authorization
that allows the permit holder to conduct mining and restoration
activities in production zones within the boundary established in
the permit. The commission by rule shall establish application
requirements, technical requirements, including the methods for
determining restoration table values, and procedural requirements
for any authorization. If a restoration table value for a proposed
or amended authorization exceeds the range listed in the permit
range table such that it falls above the upper limit of the range,
the value within the permit range table must be used or a major
amendment to the permit range table must be obtained[, subject to an
opportunity for a contested case hearing or the hearing
requirements of Chapter 2001, Government Code].
(d) Notwithstanding Sections 5.551, 5.556, and 27.011, [and
27.018,] an application for an authorization is an uncontested
matter not subject to a contested case hearing or the hearing
requirements of Chapter 2001, Government Code, if:
(1) the authorization is for a production zone located
within the boundary of a permit that incorporates a range table of
groundwater quality restoration values used to measure groundwater
restoration by the commission;
(2) the application includes groundwater quality
restoration values falling at or below the upper limit of the range
established in Subdivision (1); and
(3) the authorization is for a production zone located
within the boundary of a permit that incorporates groundwater
baseline characteristics of the wells for the application required
by commission rule.
ARTICLE 3. REPEALER
SECTION 3.01. Sections 2003.047(e-1), (e-2), (e-3), (e-4),
(e-5), (i-1), (i-2), and (i-3), Government Code, are repealed.
SECTION 3.02. The following sections of the Health and
Safety Code are repealed:
(1) Section 361.068(c);
(2) Sections 361.079(b) and (c);
(3) Section 361.080;
(4) Section 361.082(b);
(5) Section 361.083;
(6) Section 361.0831;
(7) Section 361.0832;
(8) Section 361.0833(c);
(9) Section 361.084(c);
(10) Section 361.085(b);
(11) Sections 361.088(c), (e), and (f);
(12) Section 361.089(d);
(13) Section 361.120(e);
(14) Sections 382.0291(d) and (e);
(15) Section 382.031;
(16) Sections 382.056(g), (i), and (o);
(17) Section 382.0566(c);
(18) Section 382.059(d); and
(19) Section 382.0591(c).
SECTION 3.03. The following sections of the Water Code are
repealed:
(1) Section 5.228(d);
(2) Sections 5.556(c), (d), (e), and (f);
(3) Section 5.557;
(4) Sections 26.028(c), (d), (e), (f), (g), and (h);
(5) Section 26.0283(c);
(6) Section 27.015(b);
(7) Section 27.018; and
(8) Sections 27.0513(e), (f), and (g).
ARTICLE 4. TRANSITION; EFFECTIVE DATE
SECTION 4.01. (a) Not later than January 1, 2018:
(1) the State Office of Administrative Hearings shall
adopt rules to implement Section 2003.0478, Government Code, as
added by this Act; and
(2) the Texas Commission on Environmental Quality
shall adopt rules to implement Section 5.5565, Water Code, as added
by this Act.
(b) The changes in law made by this Act apply only to an
application for a permit, license, registration, or other
authorization that is filed with the Texas Commission on
Environmental Quality on or before the effective date of rules
adopted under Subsection (a). An application for a permit,
license, registration, or other authorization that is filed before
the effective date of rules adopted under Subsection (a) is
governed by the law in effect on the date of filing, and that law is
continued in effect for that purpose.
SECTION 4.02. This Act takes effect September 1, 2017.