Texas 2013 - 83rd Regular

Texas Senate Bill SB957 Compare Versions

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1	1	By: Fraser S.B. No. 957
2	2	(In the Senate - Filed February 28, 2013; March 12, 2013,
3	3	read first time and referred to Committee on Natural Resources;
4	4	April 22, 2013, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 6, Nays 3; April 22, 2013,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 957 By: Fraser
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the procedure for action by the Texas Commission on
13	13	Environmental Quality on applications for certain environmental
14	14	permits.
15	15	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
16	16	SECTION 1. Chapter 2001, Government Code, is amended by
17	17	adding Subchapter J to read as follows:
18	18	SUBCHAPTER J. CONTESTED CASES: CERTAIN ENVIRONMENTAL PERMITS
19	19	Sec. 2001.301. PURPOSE. It is the public policy of this
20	20	state and the purpose of this subchapter to continue leading the
21	21	country in maintaining protection of public health and the
22	22	environment while providing stability and certainty for the state's
23	23	economy.
24	24	Sec. 2001.302. DEFINITIONS. In this subchapter:
25	25	(1) "Commission" means the Texas Commission on
26	26	Environmental Quality.
27	27	(2) "Office" means the State Office of Administrative
28	28	Hearings.
29	29	(3) "Permit" includes a permit, license, certificate,
30	30	registration, approval, or other form of authorization issued by
31	31	the commission, including the amendment or renewal of an
32	32	authorization.
33	33	Sec. 2001.303. APPLICABILITY. This subchapter applies to a
34	34	permit issued by the commission for:
35	35	(1) a national pollutant discharge elimination system
36	36	permit under Chapter 26, Water Code;
37	37	(2) a Class I or Class III injection well permit under
38	38	Chapter 27, Water Code;
39	39	(3) an in situ uranium mining production area
40	40	authorization under Chapter 27, Water Code;
41	41	(4) a permit under Chapter 28, Water Code;
42	42	(5) a solid waste facility permit under Chapter 361,
43	43	Health and Safety Code;
44	44	(6) a hazardous waste management facility permit under
45	45	Chapter 361, Health and Safety Code;
46	46	(7) a preconstruction permit under Chapter 382, Health
47	47	and Safety Code;
48	48	(8) a standard permit for a concrete batch plant under
49	49	Chapter 382, Health and Safety Code; and
50	50	(9) a license under Chapter 401, Health and Safety
51	51	Code.
52	52	Sec. 2001.304. BURDEN OF PROOF. A person who requests a
53	53	contested case hearing to which this subchapter applies has the
54	54	burden of proof to demonstrate that:
55	55	(1) the person has a right to a contested case hearing
56	56	as an affected person as described by Section 5.115, Water Code; and
57	57	(2) the commission erred in its decision on a permit
58	58	application based on the issues and arguments raised by the person
59	59	requesting the hearing during the public comment period.
60	60	Sec. 2001.305. SCOPE OF REVIEW. (a) The scope of review of
61	61	a contested case hearing under this subchapter is limited to the
62	62	administrative record provided to the office by the chief clerk of
63	63	the commission.
64	64	(b) The office may not consider any issue outside of those
65	65	described by Section 5.556, Water Code, unless the matter was
66	66	directly referred to the office for a contested case hearing under
67	67	Section 5.557, Water Code.
68	68	Sec. 2001.306. PARTIES. A person may join as a party to a
69	69	contested case hearing only if the person requested a contested
70	70	case hearing in compliance with any applicable deadlines
71	71	established by commission rule.
72	72	Sec. 2001.307. HEARINGS. (a) In the event of a conflict
73	73	between the provisions of this section and another provision of
74	74	this chapter, this section prevails.
75	75	(b) Not later than the 120th day after the date the office
76	76	conducts a preliminary hearing on the matter, the office shall
77	77	conclude the hearing and submit a proposal for decision to the
78	78	commission that includes findings of fact and conclusions of law.
79	79	The deadline prescribed by this subsection may not be extended
80	80	unless all parties agree to an extension of time. An extension of
81	81	time granted under this subsection may not exceed 60 days.
82	82	SECTION 2. Subsection (d), Section 2003.024, Government
83	83	Code, is amended to read as follows:
84	84	(d) This section does not apply to hearings conducted:
85	85	(1) by the environmental quality [natural resource
86	86	conservation] division or the utility division; or
87	87	(2) under the administrative license revocation
88	88	program.
89	89	SECTION 3. The heading to Section 2003.047, Government
90	90	Code, is amended to read as follows:
91	91	Sec. 2003.047. ENVIRONMENTAL QUALITY [NATURAL RESOURCE
92	92	CONSERVATION] DIVISION.
93	93	SECTION 4. Subsection (a), Section 2003.047, Government
94	94	Code, is amended to read as follows:
95	95	(a) The office shall establish an environmental quality [a
96	96	natural resource conservation] division to perform the contested
97	97	case hearings of certain permit decisions for the Texas Commission
98	98	on Environmental Quality [Natural Resource Conservation
99	99	Commission].
100	100	SECTION 5. Section 2003.048, Government Code, is amended to
101	101	read as follows:
102	102	Sec. 2003.048. TEXAS [NATURAL RESOURCE CONSERVATION]
103	103	COMMISSION ON ENVIRONMENTAL QUALITY HEARINGS FEE. The office shall
104	104	charge the Texas [Natural Resource Conservation] Commission on
105	105	Environmental Quality a fixed annual fee rather than an hourly rate
106	106	for services rendered by the office to the commission. The amount
107	107	of the fee may not be less than the amount appropriated to the Texas
108	108	[Natural Resource Conservation] Commission on Environmental
109	109	Quality in the General Appropriations Act for payment to the
110	110	environmental quality [natural resource conservation] division to
111	111	conduct commission hearings. The amount of the fee shall be based
112	112	on the costs of conducting the hearings, the costs of travel
113	113	expenses and telephone charges directly related to the hearings,
114	114	docketing costs, and other applicable administrative costs of the
115	115	office including the administrative costs of the environmental
116	116	quality [natural resource conservation] division. The office and
117	117	the Texas [Natural Resource Conservation] Commission on
118	118	Environmental Quality shall negotiate the amount of the fixed fee
119	119	biennially, subject to the approval of the governor, to coincide
120	120	with the commission's legislative appropriations request.
121	121	SECTION 6. Section 5.115, Water Code, is amended by adding
122	122	Subsections (a-1) and (a-2) to read as follows:
123	123	(a-1) An association is not entitled to standing in a
124	124	contested case hearing unless the association:
125	125	(1) expressly identifies each member of the
126	126	association who would otherwise have standing to request a hearing
127	127	in the member's own right; and
128	128	(2) submits with the hearing request documentation
129	129	demonstrating that:
130	130	(A) the interests of the association are germane
131	131	to the matter that is the subject of the contested case; and
132	132	(B) at least part of the association's purpose is
133	133	to contest permit applications.
134	134	(a-2) The commission shall deny a hearing request submitted
135	135	by an association that does not satisfy the requirements of
136	136	Subsection (a-1). The information required by Subsection (a-1) may
137	137	not be submitted after the hearing request.
138	138	SECTION 7. Subsection (a), Section 5.551, Water Code, is
139	139	amended to read as follows:
140	140	(a) This subchapter establishes procedures for providing
141	141	public notice, an opportunity for public comment, and an
142	142	opportunity for public hearing under Subchapters C-H and J, Chapter
143	143	2001, Government Code, regarding commission actions relating to a
144	144	permit issued under Chapter 26 or 27 of this code or Chapter 361,
145	145	Health and Safety Code. This subchapter is procedural and does not
146	146	expand or restrict the types of commission actions for which public
147	147	notice, an opportunity for public comment, and an opportunity for
148	148	public hearing are provided under Chapter 26 or 27 of this code or
149	149	Chapter 361, Health and Safety Code.
150	150	SECTION 8. Subchapter M, Chapter 5, Water Code, is amended
151	151	by adding Sections 5.5541 and 5.5551 to read as follows:
152	152	Sec. 5.5541. OBLIGATION TO RAISE ISSUES AND PROVIDE
153	153	INFORMATION DURING PUBLIC COMMENT PERIOD. (a) A person must raise
154	154	all reasonably ascertainable issues and submit all reasonably
155	155	available arguments supporting the person's position on the
156	156	executive director's preliminary decision before the close of the
157	157	public comment period.
158	158	(b) Supporting materials submitted during the public
159	159	comment period must be included in full in the administrative
160	160	record for the application and may not be incorporated by reference
161	161	unless the materials:
162	162	(1) are already part of the administrative record in
163	163	the same proceeding; or
164	164	(2) consist of:
165	165	(A) state or federal statutes or rules; or
166	166	(B) generally available reference materials.
167	167	(c) The commission by rule shall establish procedures to
168	168	make supporting materials not already included in the
169	169	administrative record available to the executive director.
170	170	Sec. 5.5551. UNCONTESTED APPLICATIONS. (a) If a contested
171	171	case hearing has not been requested in the time and manner required
172	172	by applicable law, that application is considered uncontested and
173	173	the executive director may issue a final decision on the permit
174	174	application.
175	175	(b) A person may file with the commission a motion to
176	176	overturn as described by commission rule to challenge an executive
177	177	director's final decision under this section.
178	178	(c) A final permit decision issued under this section is not
179	179	subject to a contested case hearing.
180	180	SECTION 9. Section 5.556, Water Code, is amended by adding
181	181	Subsection (g) to read as follows:
182	182	(g) Granting a request for a contested case hearing on a
183	183	draft permit issued by the executive director creates a rebuttable
184	184	presumption that the draft permit:
185	185	(1) meets all state and federal legal and technical
186	186	requirements; and
187	187	(2) is protective of human health and safety.
188	188	SECTION 10. Subchapter M, Chapter 5, Water Code, is amended
189	189	by adding Section 5.5571 to read as follows:
190	190	Sec. 5.5571. FINAL COMMISSION DECISION. (a) Not later
191	191	than the 45th day after the date the commission receives a proposal
192	192	for decision from the State Office of Administrative Hearings, the
193	193	commission shall consider the proposal.
194	194	(b) In considering the proposal for decision, the
195	195	commission shall limit each of the parties in the proceeding to:
196	196	(1) one exceptions brief; and
197	197	(2) one reply brief that may only include arguments in
198	198	reply to another party's exceptions.
199	199	(c) An exceptions brief must be submitted not later than the
200	200	20th day after the date the commission receives the proposal for
201	201	decision. A reply brief must be submitted not later than the 30th
202	202	day after the date the commission receives the proposal for
203	203	decision.
204	204	SECTION 11. The changes in law made by this Act apply only
205	205	to an application for a permit that is filed with the Texas
206	206	Commission on Environmental Quality on or after the effective date
207	207	of this Act. An application for a permit filed before the effective
208	208	date of this Act is governed by the law in effect on the date of
209	209	filing, and that law is continued in effect for that purpose.
210	210	SECTION 12. This Act takes effect September 1, 2013.
211	211	* * * * *