83R9122 SLB-D
By: Fraser S.B. No. 957
A BILL TO BE ENTITLED
AN ACT
relating to the procedure for action by the Texas Commission on
Environmental Quality on applications for certain environmental
permits and administrative and judicial review of the commission's
action.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 2001, Government Code, is amended by
adding Subchapter J to read as follows:
SUBCHAPTER J. ADMINISTRATIVE REVIEW OF CERTAIN ENVIRONMENTAL
PERMITS
Sec. 2001.301. PURPOSE. It is the public policy of this
state and the purpose of this subchapter to continue leading the
country in maintaining protection of public health and the
environment while providing stability and certainty for the state's
economy.
Sec. 2001.302. DEFINITIONS. In this subchapter:
(1) "Commission" means the Texas Commission on
Environmental Quality.
(2) "Interested person" means a person who resides or
operates in this state, and includes an applicant for a permit,
permit amendment, or permit renewal.
(3) "Office" means the State Office of Administrative
Hearings.
(4) "Permit" includes a permit, license, certificate,
registration, approval, or other form of authorization issued by
the commission.
Sec. 2001.303. APPLICABILITY. (a) This subchapter applies
to a final commission decision issued under Section 5.5553, Water
Code, following a public hearing under Section 5.5541, Water Code,
for:
(1) a national pollutant discharge elimination system
permit under Chapter 26, Water Code;
(2) a Class I injection well permit under Chapter 27,
Water Code;
(3) an in situ uranium mining permit under Chapter 27,
Water Code;
(4) a permit under Chapter 28, Water Code;
(5) a solid waste facility permit under Chapter 361,
Health and Safety Code;
(6) a hazardous waste management facility permit under
Chapter 361, Health and Safety Code;
(7) a preconstruction permit under Chapter 382, Health
and Safety Code;
(8) a standard permit for a concrete batch plant under
Chapter 382, Health and Safety Code; and
(9) a license under Chapter 401, Health and Safety
Code.
(b) This subchapter does not apply to a permit for which a
hearing under Section 5.5541(d), Water Code, is not held.
Sec. 2001.304. REVIEW OF FINAL PERMIT DECISIONS. (a) Not
later than the 30th day after the date notice of the commission's
final decision on a permit application under Section 5.5553, Water
Code, is published in the Texas Register, an interested person who
filed a comment on the permit application or participated in a
public hearing on the permit application may file a petition for
administrative review of the permit decision by the office.
(b) A person who failed to file a comment or participate in
the public hearing on the permit application may petition for
administrative review of the permit decision only with regard to
any changes made to the draft permit in the permit decision.
(c) The petition must be filed with the chief clerk of the
commission. Not later than the fifth calendar day after the date
the commission receives the petition, the chief clerk shall forward
the petition to the office for review. The chief clerk shall
include with the petition:
(1) if the permit was issued, the final permit and the
administrative record for the final permit, including:
(A) the findings of fact and conclusions of law
that support the issuance of the permit;
(B) the draft permit and the findings of fact and
conclusions of law that support the draft permit; and
(C) the executive director's preliminary
decision on the permit application;
(2) all comments received during the public comment
period other than comments received in a public meeting held under
Section 5.554, Water Code;
(3) the tape or transcript of any public hearing held
under Section 5.5541, Water Code;
(4) the response to the comments required by Section
5.555, Water Code; and
(5) any other documents contained in the supporting
materials for the permit.
(d) The petition must include a statement of the reasons
supporting review by the office, including a demonstration that any
issues raised in the petition:
(1) were raised during the public comment period or at
a public hearing; or
(2) relate to changes made to the draft permit in the
permit decision.
(e) The office may grant the petition only if the petitioner
demonstrates that the basis for the review is:
(1) a finding of fact or conclusion of law that is
clearly erroneous; or
(2) an exercise of discretion or an important policy
consideration that the office should, in its discretion, review.
(f) The commission and permit applicant, if applicable, may
each file a response to the petition not later than the 30th day
after the date the petition is filed.
(g) The petitioner may file a reply brief not later than the
15th day after the date of the service of a response described by
Subsection (f).
(h) The office may, in its discretion, deny the petition,
even if the petition satisfies the requirements of Subsection (e).
(i) The scope of review on a petition is limited to the
administrative record provided to the office by the chief clerk of
the commission. New evidence may not be raised or considered by the
office in reviewing the petition.
(j) Not later than the 60th day after the date the office
receives the petition, it shall issue an order granting or denying
the petition. An issue raised in a denied petition is eligible for
judicial review of the issue in the Court of Appeals for the Third
Court of Appeals District.
Sec. 2001.305. ADMINISTRATIVE REVIEW. (a) If the office
grants a petition for review under Section 2001.304, the office
shall give public notice of the review not later than the 10th day
before the date set for the review that includes:
(1) a statement of the time, place, and nature of the
review;
(2) a statement of the legal authority and
jurisdiction under which the review is to be held;
(3) a reference to the specific sections of the
statutes and rules involved in the matter under review;
(4) a short, plain statement of the matters asserted;
and
(5) at the discretion of the office, a briefing
schedule for the review that may allow the submission of briefs by a
petitioner, the permit applicant, the commission, and the office of
public interest counsel of the commission.
(b) If the office determines that the briefing provided with
the petition for review is sufficient to make a final decision, it
may conclude that additional briefing is not necessary.
(c) The office may allow for the filing of amicus briefs. If
applicable, the notice required under Subsection (a) must include
instructions for any interested person to file an amicus brief.
(d) The office may, in addition to establishing a briefing
schedule, direct the parties to present oral argument on a
specified issue.
(e) The scope of review by the office shall be limited to
review of the administrative record, briefs provided by the
parties, and any oral arguments presented to the office.
(f) The office shall issue a decision not later than the
60th day after the date it grants the petition.
(g) The office is limited to the following actions with
regard to a final decision issued by the commission:
(1) affirm the commission's final decision; or
(2) remand the final decision to the commission with
recommendations to address:
(A) clearly erroneous findings of fact or
conclusions of law identified by the office;
(B) an exercise of discretion; or
(C) an important policy consideration.
(h) If the office affirms the commission's final decision,
that final decision is eligible for judicial review in the Court of
Appeals for the Third Court of Appeals District.
Sec. 2001.306. ISSUES REMANDED TO THE COMMISSION. (a) Not
later than the 30th day after the date the office remands a decision
to the commission, the commission shall:
(1) modify the decision accordingly; or
(2) decline to modify the decision.
(b) An action taken by the commission under Subsection (a)
must:
(1) be published in the Texas Register; and
(2) include an explanation describing the commission's
reasoning for the action.
(c) The commission's action on a decision remanded to the
commission by the office is eligible for judicial review in the
Court of Appeals for the Third Court of Appeals District.
SECTION 2. The heading to Subchapter G, Chapter 2001,
Government Code, is amended to read as follows:
SUBCHAPTER G. [CONTESTED CASES:] JUDICIAL REVIEW
SECTION 3. Section 2001.171, Government Code, is amended to
read as follows:
Sec. 2001.171. JUDICIAL REVIEW. (a) A person who has
exhausted all administrative remedies available within a state
agency and who is aggrieved by a final decision in a contested case
or in an administrative review under Subchapter J of an
environmental permit decision is entitled to judicial review under
this chapter.
(b) Except as provided by Section 2001.227, this subchapter
applies to an administrative review under Subchapter J of an
environmental permit in the same manner as it applies to a contested
case.
SECTION 4. Subchapter I, Chapter 2001, Government Code, is
amended by adding Section 2001.227 to read as follows:
Sec. 2001.227. VENUE AND STANDARD OF REVIEW FOR CERTAIN
ENVIRONMENTAL CASES. (a) The venue for judicial review of an
action or decision identified under Subchapter J as eligible for
judicial review is in the Court of Appeals for the Third Court of
Appeals District.
(b) The standard of review of an action or decision under
Subchapter J is whether the action or decision was:
(1) arbitrary and capricious; or
(2) characterized by abuse or a clearly unwarranted
exercise of discretion.
(c) Under the arbitrary and capricious standard of review, a
court may not substitute its judgment for the judgment of the Texas
Commission on Environmental Quality but:
(1) may affirm the decision in whole or in part; or
(2) shall reverse and remand the case for further
proceedings if substantial rights of the permit applicant have been
prejudiced because the findings, inferences, conclusions, or
decisions of the Texas Commission on Environmental Quality are:
(A) in violation of a constitutional or statutory
provision;
(B) in excess of the agency's statutory
authority;
(C) made through unlawful approval;
(D) affected by other error of law;
(E) arbitrary or capricious; or
(F) characterized by abuse or clearly
unwarranted exercise of discretion.
SECTION 5. Section 2003.024(d), Government Code, is amended
to read as follows:
(d) This section does not apply to hearings conducted:
(1) by the environmental quality [natural resource
conservation] division or the utility division; or
(2) under the administrative license revocation
program.
SECTION 6. The heading to Section 2003.047, Government
Code, is amended to read as follows:
Sec. 2003.047. ENVIRONMENTAL QUALITY [NATURAL RESOURCE
CONSERVATION] DIVISION.
SECTION 7. Section 2003.047, Government Code, is amended by
amending Subsections (a), (b), and (m) and adding Subsection (p) to
read as follows:
(a) The office shall establish an environmental quality [a
natural resource conservation] division to perform the contested
case hearings and administrative review of certain permit decisions
for the Texas Commission on Environmental Quality [Natural Resource
Conservation Commission].
(b) The division shall conduct hearings relating to
contested cases before the commission, other than a hearing
conducted by one or more commissioners, and shall conduct
administrative review of commission permit application decisions
to which Subchapter J, Chapter 2001, applies. The commission by
rule may delegate to the division the responsibility to hear any
other matter before the commission if consistent with the
responsibilities of the division.
(m) The [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.
(p) The chief administrative law judge shall adopt rules
that govern the procedure to be used by the environmental quality
division for the administrative review of a commission decision on
an environmental permit to which Subchapter J, Chapter 2001,
applies.
SECTION 8. Section 2003.048, Government Code, is amended to
read as follows:
Sec. 2003.048. TEXAS [NATURAL RESOURCE CONSERVATION]
COMMISSION ON ENVIRONMENTAL QUALITY HEARINGS FEE. The office shall
charge the Texas [Natural Resource Conservation] Commission on
Environmental Quality a fixed annual fee rather than an hourly rate
for services rendered by the office to the commission. The amount
of the fee may not be less than the amount appropriated to the Texas
[Natural Resource Conservation] Commission on Environmental
Quality in the General Appropriations Act for payment to the
environmental quality [natural resource conservation] division to
conduct commission hearings. The amount of the fee shall be based
on the costs of conducting the hearings, the costs of travel
expenses and telephone charges directly related to the hearings,
docketing costs, and other applicable administrative costs of the
office including the administrative costs of the environmental
quality [natural resource conservation] division. The office and
the Texas [Natural Resource Conservation] Commission on
Environmental Quality shall negotiate the amount of the fixed fee
biennially, subject to the approval of the governor, to coincide
with the commission's legislative appropriations request.
SECTION 9. Section 5.311(a), Water Code, is amended to read
as follows:
(a) The commission may delegate to an administrative law
judge of the State Office of Administrative Hearings the
responsibility to:
(1) hear any matter before the commission other than a
matter that is the subject of a public hearing under Section 5.5541;
and
(2) [to] issue interlocutory orders related to interim
rates under Chapter 13.
SECTION 10. Section 5.313, Water Code, is amended to read as
follows:
Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. Any
reference in law to a hearing examiner who has a duty related to a
case pending before the commission, other than a case involving a
matter that is the subject of a public hearing under Section 5.5541,
means an administrative law judge of the State Office of
Administrative Hearings.
SECTION 11. Subchapter H, Chapter 5, Water Code, is amended
by adding Section 5.316 to read as follows:
Sec. 5.316. APPLICABILITY OF CONTESTED CASE PROCEDURE TO
CERTAIN HEARINGS. Subchapters C, D, E, and F, Chapter 2001,
Government Code, do not apply to an application for an original
permit, permit amendment, or permit renewal to which Subchapter J,
Chapter 2001, Government Code, applies.
SECTION 12. Subchapter I, Chapter 5, Water Code, is amended
by adding Section 5.358 to read as follows:
Sec. 5.358. JUDICIAL REVIEW OF PERMITS SUBJECT TO
ADMINISTRATIVE REVIEW. Except as provided by Section 2001.227,
Government Code, Subchapter G, Chapter 2001, Government Code,
applies to the judicial review of a permit action or decision under
Subchapter J, Chapter 2001, Government Code, instead of this
subchapter.
SECTION 13. Sections 5.402(a) and (b), Water Code, are
amended to read as follows:
(a) At any time before the public notice of the opportunity
to request a public hearing on a permit application, the applicant
may request that consolidated applications be processed separately
as determined by the executive director. The executive director
shall process the applications separately if the applicant submits
a timely request under this subsection.
(b) At any time after the notice of opportunity to request a
public hearing [but before referral of the matter to the State
Office of Administrative Hearings], the executive director may
separate the applications for processing on a showing of good cause
by the applicant that the applications should be processed
separately. For purposes of this subsection, "good cause" includes
a change in the statutory or regulatory requirements governing a
permit or a substantial change in the factual circumstances
surrounding the applications for permits.
SECTION 14. 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 public hearing [under Subchapters C-H, Chapter
2001, Government Code,] regarding commission actions relating to a
permit issued under Chapter 26, [or] 27, or 28 of this code or
Chapter 361, 382, or 401, 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 public hearing are provided
under Chapter 26, [or] 27, or 28 of this code or Chapter 361, 382, or
401, Health and Safety Code.
(b) The commission by rule shall provide for additional
notice, opportunity for public comment, or opportunity for public
hearing to the extent necessary to satisfy a requirement for United
States Environmental Protection Agency authorization of a state
permit program.
SECTION 15. Subchapter M, Chapter 5, Water Code, is amended
by adding Section 5.5515 to read as follows:
Sec. 5.5515. DEFINITIONS. In this subchapter:
(1) "Interested person" means a person who resides or
operates in this state, and includes an applicant for a permit,
permit amendment, or permit renewal.
(2) "Permit" includes a permit, license, certificate,
registration, approval, or other form of authorization issued by
the commission.
SECTION 16. Sections 5.552(a) and (d), Water Code, are
amended to read as follows:
(a) Not later than the 30th day after the date the
commission receives the application, the [The] executive director
shall determine whether [when] an application is administratively
complete.
(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, and 28 of this
code, Chapters [Chapter] 361, 382, and 401, Health and Safety Code,
and rules adopted under those chapters.
SECTION 17. Section 5.553, Water Code, is amended by
amending Subsections (c) and (d) and adding Subsections (f) and (g)
to read as follows:
(c) The commission by rule shall establish the form and
content of the notice, the manner of publication, and the duration
of the public comment period. The notice must include:
(1) the information required by Sections
5.552(c)(1)-(5);
(2) a summary of the preliminary decision;
(3) the location at which a copy of the preliminary
decision is available for review and copying as provided by
Subsection (e);
(4) a description of the manner in which comments
regarding the preliminary decision may be submitted; [and]
(5) if applicable, a description of the procedure for
requesting a public hearing on the preliminary decision; and
(6) any other information the commission by rule
requires.
(d) In addition to providing notice under this section, the
applicant shall comply with any applicable public notice
requirements under Chapters 26, [and] 27, and 28 of this code,
Chapters [Chapter] 361, 382, and 401, Health and Safety Code, and
rules adopted under those chapters.
(f) The duration of the public comment period shall extend
to the later of:
(1) the close of a public hearing on the matter, if
applicable; or
(2) the 45th day after the date the public comment
period begins.
(g) If the executive director determines that there is
substantial public interest in extending the public comment period,
the executive director may extend the public comment period
described by Subsection (f) for a period not to exceed 30 days.
SECTION 18. Section 5.554, Water Code, is amended to read as
follows:
Sec. 5.554. PUBLIC MEETING. (a) In this section, "public
meeting" means an informal meeting open to any interested person at
which the permit applicant, the executive director, and members of
the public may discuss issues related to the permit application.
(b) During the public comment period, the executive
director or the applicant, in cooperation with the executive
director, may hold one or more public meetings in the county in
which the facility is located or proposed to be located or in an
adjacent county.
(c) The executive director shall hold a public meeting:
(1) on the request of a member of the legislature who
represents the general area in which the facility is located or
proposed to be located; or
(2) if the executive director determines that there is
substantial public interest in the proposed activity.
SECTION 19. Subchapter M, Chapter 5, Water Code, is amended
by adding Sections 5.5541 and 5.5542 to read as follows:
Sec. 5.5541. PUBLIC HEARING. (a) In this section, "public
hearing" means a formal meeting at which any interested person may
make comments on the record relating to a proposed agency decision
on a permit application.
(b) An interested person may request a public hearing after
a preliminary decision has been issued on an application for a
permit, permit renewal, or permit amendment for:
(1) a national pollutant discharge elimination system
permit under Chapter 26;
(2) a Class I injection well permit under Chapter 27;
(3) an in situ uranium mining permit under Chapter 27;
(4) a permit under Chapter 28;
(5) a solid waste facility permit under Chapter 361,
Health and Safety Code;
(6) a hazardous waste management facility permit under
Chapter 361, Health and Safety Code;
(7) a preconstruction permit under Chapter 382, Health
and Safety Code;
(8) a standard permit for a concrete batch plant under
Chapter 382, Health and Safety Code; or
(9) a license under Chapter 401, Health and Safety
Code.
(c) The executive director shall hold a public hearing not
later than the 35th day after the date the request is made under
Subsection (b).
(d) The following permits are not eligible for a public
hearing:
(1) a general permit under Chapter 26;
(2) any of the following permits under Chapter 382,
Health and Safety Code:
(A) a standard permit, other than a standard
permit for a concrete batch plant; or
(B) a permit by rule;
(3) any of the following permits under Chapter 26, 27,
or 28 of this code or Chapter 361, 382, or 401, Health and Safety
Code:
(A) an administrative permit or a minor permit,
minor permit amendment, or minor permit modification, as those
terms are defined by commission rule; or
(B) a registration; and
(4) any permit determined by commission rule to be
ineligible for a hearing.
(e) A public hearing must be held in the county in which the
facility is located or proposed to be located or in an adjacent
county.
(f) For a permit application not listed in Subsection (b) or
(d), a public hearing may be held if the executive director
determines that there is a substantial public interest in the
proposed activity.
(g) Notice of a public hearing must be given not later than
the 30th day before the date of the hearing and in the same form and
manner as is required for notice of a preliminary decision under
Section 5.553(c).
(h) The executive director is responsible for the
scheduling and orderly conduct of a public hearing.
(i) The commission by rule shall establish the procedures
for requesting and conducting a public hearing, including
reasonable time limits for oral statements and provisions for
asking and answering questions.
(j) At a public hearing, any person may submit oral or
written comments and data concerning the preliminary decision.
Sec. 5.5542. OBLIGATION TO RAISE ISSUES AND PROVIDE
INFORMATION DURING PUBLIC COMMENT PERIOD. (a) An interested person
must raise all reasonably ascertainable issues and submit all
reasonably available arguments supporting the person's position on
the executive director's preliminary decision before the close of
the public comment period.
(b) Supporting materials submitted during the public
comment period must be included in full in the administrative
record for the application and may not be incorporated by reference
unless the materials:
(1) are already part of the administrative record in
the same proceeding; or
(2) consist of:
(A) state or federal statutes or rules; or
(B) generally available reference materials.
(c) The commission by rule shall establish procedures to
make supporting materials not already included in the
administrative record available to the executive director.
SECTION 20. Section 5.555, Water Code, is amended to read as
follows:
Sec. 5.555. RESPONSE TO PUBLIC COMMENTS. (a) The executive
director, in accordance with procedures provided by commission
rule, shall file with the chief clerk of the commission a response
to each relevant and material public comment on the preliminary
decision filed during the public comment period, including an oral
or written comment delivered at a public hearing, but not including
an oral or written comment raised solely at a public meeting. The
executive director is required to respond to only those comments
that substantially relate to the permit application.
(b) Not later than the 60th day after the date the public
comment period ends, the [The] chief clerk of the commission shall
transmit the executive director's decision, the executive
director's response to public comments, a draft permit under
Section 5.5551, if applicable, and instructions for filing a
petition for an administrative review of a final commission
decision [requesting that the commission reconsider the executive
director's decision or 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.
(c) If, after the close of the public comment period, the
executive director determines that additional time is necessary to
respond to public comments, the time limit described by Subsection
(b) may be extended for a period not to exceed 30 days.
SECTION 21. Subchapter M, Chapter 5, Water Code, is amended
by adding Sections 5.5551, 5.5552, and 5.5553 to read as follows:
Sec. 5.5551. DRAFT PERMIT. (a) If the executive director
approves a permit application, the executive director shall prepare
a draft permit that includes the findings of fact and conclusions of
law that support the issuance of the draft permit. The chief clerk
of the commission shall include the draft permit with the
information transmitted under Section 5.555(b).
(b) The commission by rule shall develop a procedure for an
interested person to file proposed findings of fact and conclusions
of law for consideration by the executive director for the purpose
of preparing the draft permit.
Sec. 5.5552. UNCONTESTED APPLICATIONS. If a public hearing
is not requested and comments are not filed on an application, that
application is considered uncontested and the executive director
may issue the final permit. A final permit issued under this
section is not subject to administrative or judicial review.
Sec. 5.5553. FINAL COMMISSION DECISION ON CERTAIN PERMIT
APPLICATIONS; PETITION FOR ADMINISTRATIVE REVIEW. (a) Not later
than the 30th day after the date the chief clerk transmits the
executive director's decision as described by Section 5.555(b), the
commission shall approve, disapprove, or approve with
modifications the executive director's decision and publish notice
of the decision in the Texas Register.
(b) If the commission approves the draft permit, the
commission shall issue a final permit that includes the findings of
fact and conclusions of law that support the issuance of the final
permit.
(c) A final permit issued by the commission is effective on
the date of approval by the commission. The permit applicant may
rely on the final permit to conduct the authorized activity.
(d) The commission's action under Subsection (a) is subject
to administrative review by the State Office of Administrative
Hearings under Subchapter J, Chapter 2001, Government Code.
(e) A petition for administrative review by the State Office
of Administrative Hearings is a prerequisite to seeking judicial
review of a final commission action on a permit application.
SECTION 22. Sections 27.018(a) and (b), Water Code, are
amended to read as follows:
(a) [If it is considered necessary and in the public
interest, the commission may hold a public hearing on the
application.] The commission on request shall hold a public
hearing on a permit application for a Class I [an] injection well
[to dispose of industrial and municipal waste if a hearing is
requested by a local government located in the county of the
proposed disposal well site or by an affected person. In this
subsection, "local government" has the meaning provided for that
term by Chapter 26 of this code].
(b) The commission by rule shall provide for giving notice
of [the opportunity to request] a public hearing on a permit
application. The rules for notice shall include provisions for
giving notice to local governments and affected persons. The
commission shall define "affected person" by rule.
SECTION 23. Sections 27.0513(a) 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.
(d) Notwithstanding Sections 5.551, [5.556,] 27.011, and
27.018, an application for an authorization submitted after
September 1, 2007, is an uncontested matter not subject to an
administrative review under Subchapter J, [a contested case hearing
or the hearing requirements of] Chapter 2001, Government Code,
unless the authorization seeks any of the following:
(1) an amendment to a restoration table value;
(2) the initial establishment of monitoring wells for
any area covered by the authorization, including the location,
number, depth, spacing, and design of the monitoring wells, unless
the executive director uses the recommendation of an independent
third-party expert chosen by the commission; or
(3) an amendment to the type or amount of bond required
for groundwater restoration or by Section 27.073 to assure that
there are sufficient funds available to the state for groundwater
restoration or the plugging of abandoned wells in the area by a
third-party contractor.
SECTION 24. Section 361.082(b), Health and Safety Code, is
amended to read as follows:
(b) The [On its own motion or the request of a person
affected, the] commission on request shall [may] hold a public
hearing on an application for a hazardous waste permit in
accordance with this subchapter.
SECTION 25. Section 361.0831, Health and Safety Code, is
amended to read as follows:
Sec. 361.0831. EX PARTE CONTACTS PROHIBITED. (a) Unless
required for the disposition of ex parte matters authorized by law,
[or unless permitted by Section 2001.061, Government Code,] a
hearings examiner conducting a public hearing on a permit
application may not communicate, directly or indirectly, with any
employee of the commission, any commissioner, or any party to a
hearing conducted by the commission in connection with any issue of
fact or law pertaining to an administrative review [a contested
case] in which the commission or party is involved.
(b) Except for communications allowed under Subsection (a),
an employee of the commission, a commissioner, or a party to a
hearing conducted by the commission may not attempt to influence
the finding of facts or the application of law or rules by a
hearings examiner conducting a public hearing except [by proper
evidence, pleadings, and legal argument] with notice and
opportunity for all parties to participate.
(c) If a prohibited contact is made, the hearings examiner
conducting the public hearing shall notify all parties with a
summary of that contact and notice of their opportunity to respond
and shall give all parties an opportunity to respond.
SECTION 26. Sections 361.088(c) and (d), Health and Safety
Code, are amended to read as follows:
(c) Except as provided by Subsection (e), before a permit is
issued, amended, extended, or renewed, the commission on request
shall hold [provide an opportunity for] a public hearing [to the
applicant and persons affected]. The commission may also hold a
hearing on its own motion.
(d) The [In addition to providing an opportunity for a
hearing held under this section, the] commission shall hold a
public meeting as described by Section 5.554, Water Code, and give
notice as provided by Section 361.0791.
SECTION 27. Section 361.089(b), Health and Safety Code, is
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 public hearing to the permit holder
or applicant and persons affected. The commission may also hold a
public hearing on its own motion.
SECTION 28. Section 361.121(c), Health and Safety Code, is
amended to read as follows:
(c) The notice and 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 29. Section 361.321(a), Health and Safety Code, is
amended to read as follows:
(a) A person affected by a ruling, order, decision, or other
act of the commission may appeal the action by filing a petition in
a district court of Travis County, except that a final decision by
the commission on an application for a permit, permit renewal, or
permit amendment that is subject to administrative review under
Subchapter J, Chapter 2001, Government Code, may be appealed to the
court of appeals for the Third Court of Appeals District.
SECTION 30. Section 382.032(a), Health and Safety Code, is
amended to read as follows:
(a) A person affected by a ruling, order, decision, or other
act of the commission or of the executive director, if an appeal to
the commission is not provided, may appeal the action by filing a
petition in a district court of Travis County, except that a final
decision by the commission on an application for a permit, permit
renewal, or permit amendment that is subject to administrative
review under Subchapter J, Chapter 2001, Government Code, may be
appealed to the court of appeals for the Third Court of Appeals
District.
SECTION 31. 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 public
hearing conducted by the commission [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 public hearing [contested case proceeding] held under
this section.
SECTION 32. Sections 382.056(b), (g), (h), and (m), 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 informs the public of
the executive director's obligation under Section 5.5541(b), Water
Code, to hold a public hearing on the application [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];
(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.
(g) If, in response to the notice published under Subsection
(a) for a permit or permit amendment under Section 382.0518 or a
permit renewal review under Section 382.055, a person requests
during the period provided by commission rule that the commission
hold a public hearing and the request is not withdrawn before the
date the preliminary decision is issued, the applicant shall
publish notice of the preliminary decision in a newspaper, and the
commission shall seek public comment on the preliminary decision.
The commission shall consider the request for public hearing under
the procedures provided by Subsections (i)-(m) [(i)-(n)]. The
commission may not seek further public comment or hold a public
hearing under the procedures provided by Subsections (i)-(m)
[(i)-(n)] in response to a request for a public hearing on an
amendment, modification, or renewal that would not result in an
increase in allowable emissions and would not result in the
emission of an air contaminant not previously emitted.
(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 (i)-(m) [(i)-(n)].
(m) The chief clerk of the commission shall transmit the
executive director's decision and[,] the executive director's
response to public comments[, and instructions for requesting that
the commission reconsider the executive director's decision or 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).
SECTION 33. Section 382.059(d), Health and Safety Code, is
amended to read as follows:
(d) Not later than the 30th day after the date of issuance of
the draft permit under Subsection (c), parties may submit to the
commission any legitimate issues of material fact regarding whether
the choice of technology approved in the draft permit is the maximum
achievable control technology required under Section 112 of the
federal Clean Air Act (42 U.S.C. Section 7412) and may request a
public [contested case] hearing before the commission under Section
5.5541, Water Code. If a party requests a public [contested case]
hearing under this subsection, the commission shall conduct a
public [contested case] hearing and issue a final order issuing or
denying the permit amendment not later than the 120th day after the
date of issuance of the draft permit under Subsection (c).
SECTION 34. Sections 401.114(a) and (c), Health and Safety
Code, are amended to read as follows:
(a) Before the commission grants or renews a license to
process or dispose of low-level radioactive waste from other
persons, the commission shall give notice and shall provide an
opportunity for a public hearing in the manner provided by Section
5.5541, Water [the commission's formal hearing procedure and
Chapter 2001, Government] Code.
(c) The commission shall mail, by certified mail in the
manner provided by the commission's rules, written notice to each
person who owns property adjacent to the proposed site. The notice
must be mailed not later than the 31st day before the date of the
hearing and must include the same information that is in the
published notice. [If true, the commission or the applicant must
certify that the notice was mailed as required by this subsection,
and at the hearing the certificate is conclusive evidence of the
mailing.]
SECTION 35. Section 401.116(d), Health and Safety Code, is
amended to read as follows:
(d) The agency shall give notice and hold a public hearing
to consider the license amendment if a person [affected] files a
written complaint with the agency before the 31st day after the date
on which notice is published under Subsection (b). The agency shall
give notice of the hearing as provided by Section 401.114.
SECTION 36. Section 401.227(a), Health and Safety Code, is
amended to read as follows:
(a) In selecting an application for the compact waste
disposal facility license, the commission shall:
(1) issue notice of the opportunity to submit an
application to dispose of low-level radioactive waste in accordance
with Section 401.228;
(2) review all applications received under
Subdivision (1) for administrative completeness;
(3) evaluate all administratively complete
applications in accordance with the evaluation criteria
established by Sections 401.233-401.236 and shall select the
application that has the highest comparative merit in accordance
with Section 401.232; and
(4) review the selected application under Subdivision
(3) for technical completeness in accordance with Section 401.237
and issue a draft license [in accordance with Sections 401.237 and
401.238].
SECTION 37. Section 401.240(a), Health and Safety Code, is
amended to read as follows:
(a) Notwithstanding any other law, a person affected by an
action of the commission under this subchapter may file a petition
for judicial review of the action only after the commission takes
final action on a license application [under Section 401.239(d)].
A petition must be filed not later than the 30th day after the date
of the final action.
SECTION 38. Sections 401.264(a) and (e), Health and Safety
Code, are amended to read as follows:
(a) The commission on its own motion may or on [the] written
request [of a person affected] shall provide an opportunity for a
public hearing on an application over which the commission has
jurisdiction to determine whether to issue, renew, or amend a
license to process materials that produce by-product materials or a
license to dispose of by-product materials [in the manner provided
by Chapter 2001, Government Code, and permit appearances with or
without counsel and the examination and cross-examination of
witnesses under oath].
(e) The determination is subject to administrative
[judicial] review under Subchapter J, Chapter 2001, Government
Code, and following administrative review or the denial of a
petition for administrative review, is subject to judicial review
in the court of appeals for the Third Court of Appeals District [in
a district court of Travis County].
SECTION 39. The following provisions are repealed:
(1) Sections 361.068(b) and (c), Health and Safety
Code;
(2) Section 361.079(b), Health and Safety Code;
(3) Section 361.082(g), Health and Safety Code;
(4) Section 361.083, Health and Safety Code;
(5) Section 361.0832, Health and Safety Code;
(6) Section 361.0833, Health and Safety Code;
(7) Section 361.085(b), Health and Safety Code;
(8) Sections 361.088(e) and (f), Health and Safety
Code;
(9) Section 361.089(d), Health and Safety Code;
(10) Sections 382.056(n) and (o), Health and Safety
Code;
(11) Section 382.0566(c), Health and Safety Code;
(12) Section 382.058(c), Health and Safety Code;
(13) Section 382.059(f), Health and Safety Code;
(14) Section 401.003(15), Health and Safety Code;
(15) Section 401.238, Health and Safety Code;
(16) Section 401.239, Health and Safety Code;
(17) Sections 401.245(g) and (h), Health and Safety
Code;
(18) Section 401.2455(b), Health and Safety Code;
(19) Section 401.264(b), Health and Safety Code;
(20) Section 5.115, Water Code;
(21) Sections 5.228(c) and (d), Water Code;
(22) Section 5.315, Water Code;
(23) Section 5.402(c), Water Code;
(24) Section 5.552(f), Water Code;
(25) Section 5.556, Water Code;
(26) Section 5.557, Water Code;
(27) Section 5.558(c), Water Code;
(28) Sections 27.018(c) and (e), Water Code;
(29) Section 27.0513(f), Water Code; and
(30) Section 28.028, Water Code.
SECTION 40. (a) Not later than January 1, 2014, the chief
administrative law judge of the State Office of Administrative
Hearings shall adopt rules to implement Subchapter J, Chapter 2001,
Government Code, as added by this Act, and Section 2003.047,
Government Code, as amended by this Act.
(b) The changes in law made by this Act apply only to an
application for a permit to which Subchapter J, Chapter 2001,
Government Code, as added by this Act, applies that is filed on or
after the date the rules described by Subsection (a) of this section
take effect. An application for a permit filed before the date the
rules described by Subsection (a) of this section take effect is
governed by the law in effect on the date of filing, and that law is
continued in effect for that purpose.
SECTION 41. This Act takes effect September 1, 2013.