82R20298 SLB-F
By: Chisum H.B. No. 3037
Substitute the following for H.B. No. 3037:
By: Chisum C.S.H.B. No. 3037
A BILL TO BE ENTITLED
AN ACT
relating to contested case hearings for environmental permits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 382.056(n), Health and Safety Code, is
amended to read as follows:
(n) In this subsection, "affected person" has the meaning
assigned by Section 5.115, Water Code. Except as provided by
Section 382.0561, the commission shall consider a request that the
commission reconsider the executive director's decision or hold a
public hearing in accordance with the applicable procedures
provided by Sections 5.315, 5.316, 5.556, and 5.557, Water Code. In
a public hearing or contested case hearing granted in response to an
affected person's request under Section 5.556, Water Code,
regarding the issuance of a permit under Section 382.0518, a permit
renewal under Section 382.055, or a related permit condition, the
burden of proof is on the affected person to show that the permit
should not be issued or renewed or that a related permit condition
should be imposed, modified, or omitted.
SECTION 2. Section 5.115(b), Water Code, is amended to read
as follows:
(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.
SECTION 3. Sections 5.228(c) and (d), Water Code, are
amended to read as follows:
(c) The executive director shall [may] participate as a
party in contested case permit hearings before the commission or
the State Office of Administrative Hearings to:
(1) provide information [for the sole purpose of
providing information] to complete the administrative record; and
(2) support the executive director's position
developed in the underlying proceeding. [The commission by rule
shall specify the factors the executive director must consider in
determining, case by case, whether to participate as a party in a
contested case permit hearing. In developing the rules under this
subsection the commission shall consider, among other factors:
[(1) the technical, legal, and financial capacity of
the parties to the proceeding;
[(2) whether the parties to the proceeding have
participated in a previous contested case hearing;
[(3) the complexity of the issues presented; and
[(4) the available resources of commission staff.]
(d) In a contested case hearing relating to a permit
application, the executive director or the executive director's
designated representative may not rehabilitate the testimony of a
witness unless the witness is a commission employee [testifying for
the sole purpose of providing information to complete the
administrative record].
SECTION 4. Subchapter H, Chapter 5, Water Code, is amended
by adding Sections 5.315 and 5.316 to read as follows:
Sec. 5.315. DISCOVERY IN CASES USING PREFILED WRITTEN
TESTIMONY. In a contested case hearing delegated by the commission
to the State Office of Administrative Hearings that uses prefiled
written testimony, all discovery must be completed before the
deadline for the submission of that testimony.
Sec. 5.316. DELEGATED CASES REGARDING PERMIT APPLICATION.
In a contested case hearing delegated by the commission to the State
Office of Administrative Hearings regarding a permit application,
the rules, guidance, and policies in effect at the time the
technical review portion of the application process closes are the
applicable rules, guidance, and policies for the contested case
hearing.
SECTION 5. Section 5.556, Water Code, is amended by adding
Subsection (g) to read as follows:
(g) In a contested case hearing regarding the issuance of a
permit or specific conditions in a permit, the burden of proof is on
the affected person who requested the hearing to show that the
permit should not be issued or renewed or that a related permit
condition should be imposed, modified, or omitted.
SECTION 6. Section 5.228(e), Water Code, is repealed.
SECTION 7. (a) Section 5.115(b), Water Code, as amended by
this Act, applies only to an application for the issuance,
amendment, extension, or renewal of a permit or license that is
received by the Texas Commission on Environmental Quality on or
after the effective date of this Act. An application that is
received before that date is governed by the law in effect at the
time the application is received, and the former law is continued in
effect for that purpose.
(b) The changes in law made by this Act apply to a proceeding
before the State Office of Administrative Hearings that is pending
or filed on or after September 1, 2011.
SECTION 8. This Act takes effect September 1, 2011.