83R10572 JTS-F
By: Harper-Brown H.B. No. 2949
A BILL TO BE ENTITLED
AN ACT
relating to a performance-based program for permits issued by the
Texas Commission on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 5, Water Code, is amended by adding
Subchapter S to read as follows:
SUBCHAPTER S. PERFORMANCE-BASED PERMIT PROGRAM
Sec. 5.851. DEFINITIONS. In this subchapter:
(1) "Applicant":
(A) means:
(i) a person who, as owner or operator, is
responsible for an installation, facility, or activity seeking an
environmental permit;
(ii) the proposed permittee if different
from the owner or operator of the installation, facility, or
activity; or
(iii) the proposed permit transferee, if
applicable; and
(B) includes any person who has the legal or
actual authority to control the owner, operator, permittee, or
transferee if a permit has not been issued to the owner, operator,
permittee, or transferee of the installation, facility, or activity
in the five-year period preceding the date of the application.
(2) "Site" means a single parcel or multiple
contiguous or adjacent parcels of land on which the applicant:
(A) proposes to construct or operate, or has
constructed or operated, an installation or facility for which a
permit is required under commission rules and regulations; or
(B) conducts or proposes to conduct an activity
for which a permit is required under commission rules and
regulations.
Sec. 5.852. PERFORMANCE-BASED PERMIT PROGRAM. (a) The
commission by rule may establish a performance-based permit program
that makes permit applicants with a history of compliance with
environmental laws and regulations eligible for:
(1) expedited permit issuance;
(2) extended periods before renewal;
(3) automatic renewal of permits; and
(4) other incentives for compliance.
(b) Rules under Subsection (a) must identify the permit
applicants eligible for the program.
Sec. 5.853. CATEGORY A: FELONY CRIMINAL VIOLATIONS. (a)
The commission shall categorize as a Category A violation:
(1) a felony criminal violation of any environmental
statute:
(A) of which the applicant has been convicted;
(B) to which the applicant entered a plea of
guilty or nolo contendere; or
(C) for which the applicant had adjudication
withheld; or
(2) a violation of a commission statute, rule, consent
order, final order, or agreement that resulted in actual harm to
human health and the environment.
(b) For purposes of Subsection (a)(1), an applicant that is
a business entity is considered to have committed a felony criminal
violation of an environmental statute if an applicant's officer,
director, trustee, partner, or employee who has legal or actual
operational control over the installation, facility, or activity
for which the permit is being sought committed the violation.
Sec. 5.854. CATEGORY B: OTHER CRIMINAL VIOLATIONS. (a)
The commission shall categorize as a Category B violation:
(1) a misdemeanor criminal violation of any
environmental statute:
(A) of which the applicant has been convicted;
(B) to which the applicant entered a plea of
guilty or nolo contendere; or
(C) for which the applicant had adjudication
withheld;
(2) a violation involving the knowing submittal of any
false statement, representation, or certification in any
application, record, report, plan, or other document filed or
required to be maintained by commission rules, statutes, orders, or
permit conditions;
(3) a violation involving falsifying, tampering with,
or knowingly rendering inaccurate any monitoring device or method
required to be maintained by commission rules, statutes, orders, or
permit conditions; or
(4) a violation of a commission statute, rule, consent
order, final order, or agreement that resulted in actual harm to
human health or the environment.
(b) For purposes of Subsection (a)(1), (2), or (3), an
applicant that is a business entity is considered to have committed
a misdemeanor criminal violation of an environmental statute if an
applicant's officer, director, trustee, partner, or employee who
has legal or actual operational control over the installation,
facility, or activity for which the permit is being sought
committed the violation.
Sec. 5.855. CATEGORY C: SIGNIFICANT RISK TO HUMAN HEALTH OR
THE ENVIRONMENT. The commission shall consider as a Class C
violation a violation of a commission statute, rule, consent order,
final order, or agreement that resulted in a significant risk to
human health or the environment.
Sec. 5.856. PATTERN OF NONCOMPLIANCE. The commission shall
consider an applicant to have a pattern of noncompliance if the
applicant has committed multiple violations of commission
statutes, rules, consent orders, final orders, or agreements that
establish a pattern of noncompliance indicating that the applicant
is unwilling or unable to comply with applicable commission
standards and criteria.
Sec. 5.857. CIVIL VIOLATIONS. The commission may consider
as part of its compliance history review civil violations that were
committed during the relevant review period and that resulted in
the initiation of a formal enforcement action by the commission.
However, if a civil violation has not been resolved by consent order
or formally adjudicated before the commission makes its
determination on the application, the civil violation must be
established by appropriate evidence in any subsequent proceeding
challenging the commission's proposed action. In any subsequent
proceeding:
(1) the permit applicant has the initial burden in any
proceeding challenging the proposed agency action of establishing a
prima facie case that it has provided reasonable assurance and is
entitled to the permit; and
(2) the commission, or any party seeking to establish
violations under this subsection, has the subsequent burden of
presenting by appropriate evidence of violations by the permit
applicant a prima facie case supporting the contention that denial
of the permit is warranted.
Sec. 5.858. EXPEDITED ISSUANCE OF EXTENDED-TERM PERMIT IF
NO EVIDENCE OF NONCOMPLIANCE. (a) If after consideration of the
compliance history of an applicant for the issuance of a permit the
commission determines that the applicant has a history of
compliance for the five years preceding the date of the application
or there is no evidence of noncompliance in the that period, the
commission shall consider the applicant eligible for an expedited
process for permit approval for a period of five years.
(b) In reviewing an application for the issuance of a permit
at a site where the applicant has held a commission permit for at
least five years, the commission shall consider only compliance
history at that site.
Sec. 5.859. ISSUANCE OF EXTENDED-TERM PERMIT AFTER FURTHER
COMPLIANCE HISTORY REVIEW. (a) If the commission determines that
the applicant is responsible for a Category A, B, or C violation or
has a pattern of noncompliance, the commission shall conduct a
further review of the applicant's performance history for the five
years preceding the date of the application to determine whether
the applicant has provided reasonable assurance of future
compliance with commission rules and statutes. In conducting the
review, the commission shall consider:
(1) the number of violations and the seriousness of
the violations;
(2) the number of other installations or facilities
controlled by the applicant that have violations and the types of
permits authorizing activities at those installations or
facilities;
(3) the extent to which the violations involved
activities that are the same as or similar to the activity for which
a permit is being requested;
(4) the extent to which the applicant has resolved or
in good faith participated in a process to resolve any previous
violations by the applicant; and
(5) whether the applicant has developed an internal
compliance program designed to eliminate or reduce the likelihood
of a recurrence of similar violations.
(b) After considering the applicant's compliance history
under Subsection (a), including any mitigating factors, the
commission may:
(1) issue a permit valid for five years;
(2) issue a permit valid for five years with special
conditions that address compliance issues;
(3) issue a permit valid for five years with an
accompanying administrative order, which may include:
(A) a schedule for coming into compliance with
commission statutes, rules, consent orders, final orders,
agreements, or permit conditions;
(B) additional operating, training, or auditing
procedures necessary to ensure compliance; or
(C) specified penalties for future
noncompliance;
(4) issue a permit valid for less than five years, if
not prohibited by federal law; or
(5) deny the application for the permit and:
(A) if the applicant is responsible for a
Category A violation, prohibit the applicant from applying for a
permit for that installation, facility, or activity for one year;
or
(B) if the applicant is responsible for two or
more Category B violations, prohibit the applicant from applying
for a permit for that installation, facility, or activity for six
months from the time a final order denying the permit has been
entered.
Sec. 5.860. AUTOMATIC PERMIT RENEWAL. (a) Unless
otherwise prohibited by state or federal statute, commission rule,
or federal regulation, and provided that the applicant meets all
other applicable criteria for the renewal of a permit, the
commission may issue a renewal of an operation or closure permit,
including expansions or modifications involving construction,
valid for five years if:
(1) not less than 180 days before the end of the
five-year period, the applicant submits a complete application to
the commission;
(2) not less than 30 days after the date the
application is submitted under Subdivision (1), the commission
conducts a review of the compliance history of the applicant and
determines that the applicant:
(A) has operated the installation, facility, or
activity for at least two years; and
(B) has not been responsible for a Category A, B,
or C violation and does not have a pattern of noncompliance in the
five years preceding the date of the application; and
(3) the commission conducts at least one public
hearing not later than the 60th day after the date the application
was submitted to allow the public the opportunity to present
concerns regarding the compliance history of the applicant.
(b) In reviewing an application for a permit renewal at a
site where the applicant has held a commission permit for at least
five years, the commission shall consider only compliance history
at that site.
(c) If the commission determines that the applicant does not
meet the criteria under Subsection (a)(2), the commission shall:
(1) deny the automatic permit renewal; and
(2) require the applicant to submit a permit renewal
application in accordance with otherwise applicable commission
statutes and rules.
Sec. 5.861. AUTOMATIC TRANSFER OF PERMIT. Unless otherwise
prohibited by state or federal statute, commission rule, or federal
regulation, and provided that the applicant meets all other
applicable criteria for the transfer of a permit, an applicant who
seeks to have an extended permit transferred from another entity
shall submit an application for transfer and the commission shall
conduct a compliance history review and hold a hearing in the time
provided for a permit renewal under Section 5.860. The commission
shall agree to the transfer of the extended permit if the transfer
complies with all other applicable criteria and if the commission
determines that the transferee:
(1) has operated a similar installation or facility or
conducted a similar activity under a commission permit for at least
two years; and
(2) has not been responsible for a Category A, B, or C
violation and does not have a pattern of noncompliance in the five
years preceding the date of the application.
Sec. 5.862. ADDITIONAL COMPLIANCE INCENTIVES. An applicant
who meets the requirements for an automatic permit renewal under
Section 5.860 and has implemented an environmental management
system that results in the applicant's compliance performance
surpassing the commission's minimum compliance standards is
eligible for:
(1) extended permits and short-form renewal
applications;
(2) fewer routing inspections;
(3) expedited review of requests for permit
modifications; and
(4) other incentives as may be provided by the
commission, which may include special recognition or
program-specific incentives.
SECTION 2. This Act takes effect September 1, 2013.