Texas 2011 - 82nd Regular

Texas House Bill HB3037 Compare Versions

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Old	New	Differences
1	1	82R20298 SLB-F
2	2	By: Chisum H.B. No. 3037
3	3	Substitute the following for H.B. No. 3037:
4	4	By: Chisum C.S.H.B. No. 3037
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to contested case hearings for environmental permits.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 382.056(n), Health and Safety Code, is
12	12	amended to read as follows:
13	13	(n) In this subsection, "affected person" has the meaning
14	14	assigned by Section 5.115, Water Code. Except as provided by
15	15	Section 382.0561, the commission shall consider a request that the
16	16	commission reconsider the executive director's decision or hold a
17	17	public hearing in accordance with the applicable procedures
18	18	provided by Sections 5.315, 5.316, 5.556, and 5.557, Water Code. In
19	19	a public hearing or contested case hearing granted in response to an
20	20	affected person's request under Section 5.556, Water Code,
21	21	regarding the issuance of a permit under Section 382.0518, a permit
22	22	renewal under Section 382.055, or a related permit condition, the
23	23	burden of proof is on the affected person to show that the permit
24	24	should not be issued or renewed or that a related permit condition
25	25	should be imposed, modified, or omitted.
26	26	SECTION 2. Section 5.115(b), Water Code, is amended to read
27	27	as follows:
28	28	(b) At the time an application for a permit or license under
29	29	this code is filed with the executive director and is
30	30	administratively complete, the commission shall give notice of the
31	31	application to any person who may be affected by the granting of the
32	32	permit or license. A state agency that receives notice under this
33	33	subsection may submit comments to the commission in response to the
34	34	notice but may not contest the issuance of a permit or license by
35	35	the commission.
36	36	SECTION 3. Sections 5.228(c) and (d), Water Code, are
37	37	amended to read as follows:
38	38	(c) The executive director shall [may] participate as a
39	39	party in contested case permit hearings before the commission or
40	40	the State Office of Administrative Hearings to:
41	41	(1) provide information [for the sole purpose of
42	42	providing information] to complete the administrative record; and
43	43	(2) support the executive director's position
44	44	developed in the underlying proceeding. [The commission by rule
45	45	shall specify the factors the executive director must consider in
46	46	determining, case by case, whether to participate as a party in a
47	47	contested case permit hearing. In developing the rules under this
48	48	subsection the commission shall consider, among other factors:
49	49	[(1) the technical, legal, and financial capacity of
50	50	the parties to the proceeding;
51	51	[(2) whether the parties to the proceeding have
52	52	participated in a previous contested case hearing;
53	53	[(3) the complexity of the issues presented; and
54	54	[(4) the available resources of commission staff.]
55	55	(d) In a contested case hearing relating to a permit
56	56	application, the executive director or the executive director's
57	57	designated representative may not rehabilitate the testimony of a
58	58	witness unless the witness is a commission employee [testifying for
59	59	the sole purpose of providing information to complete the
60	60	administrative record].
61	61	SECTION 4. Subchapter H, Chapter 5, Water Code, is amended
62	62	by adding Sections 5.315 and 5.316 to read as follows:
63	63	Sec. 5.315. DISCOVERY IN CASES USING PREFILED WRITTEN
64	64	TESTIMONY. In a contested case hearing delegated by the commission
65	65	to the State Office of Administrative Hearings that uses prefiled
66	66	written testimony, all discovery must be completed before the
67	67	deadline for the submission of that testimony.
68	68	Sec. 5.316. DELEGATED CASES REGARDING PERMIT APPLICATION.
69	69	In a contested case hearing delegated by the commission to the State
70	70	Office of Administrative Hearings regarding a permit application,
71	71	the rules, guidance, and policies in effect at the time the
72	72	technical review portion of the application process closes are the
73	73	applicable rules, guidance, and policies for the contested case
74	74	hearing.
75	75	SECTION 5. Section 5.556, Water Code, is amended by adding
76	76	Subsection (g) to read as follows:
77	77	(g) In a contested case hearing regarding the issuance of a
78	78	permit or specific conditions in a permit, the burden of proof is on
79	79	the affected person who requested the hearing to show that the
80	80	permit should not be issued or renewed or that a related permit
81	81	condition should be imposed, modified, or omitted.
82	82	SECTION 6. Section 5.228(e), Water Code, is repealed.
83	83	SECTION 7. (a) Section 5.115(b), Water Code, as amended by
84	84	this Act, applies only to an application for the issuance,
85	85	amendment, extension, or renewal of a permit or license that is
86	86	received by the Texas Commission on Environmental Quality on or
87	87	after the effective date of this Act. An application that is
88	88	received before that date is governed by the law in effect at the
89	89	time the application is received, and the former law is continued in
90	90	effect for that purpose.
91	91	(b) The changes in law made by this Act apply to a proceeding
92	92	before the State Office of Administrative Hearings that is pending
93	93	or filed on or after September 1, 2011.
94	94	SECTION 8. This Act takes effect September 1, 2011.