By: Fraser S.B. No. 957
(In the Senate - Filed February 28, 2013; March 12, 2013,
read first time and referred to Committee on Natural Resources;
April 22, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 3; April 22, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 957 By: Fraser
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.
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. CONTESTED CASES: 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) "Office" means the State Office of Administrative
Hearings.
(3) "Permit" includes a permit, license, certificate,
registration, approval, or other form of authorization issued by
the commission, including the amendment or renewal of an
authorization.
Sec. 2001.303. APPLICABILITY. This subchapter applies to a
permit issued by the commission for:
(1) a national pollutant discharge elimination system
permit under Chapter 26, Water Code;
(2) a Class I or Class III injection well permit under
Chapter 27, Water Code;
(3) an in situ uranium mining production area
authorization 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.
Sec. 2001.304. BURDEN OF PROOF. A person who requests a
contested case hearing to which this subchapter applies has the
burden of proof to demonstrate that:
(1) the person has a right to a contested case hearing
as an affected person as described by Section 5.115, Water Code; and
(2) the commission erred in its decision on a permit
application based on the issues and arguments raised by the person
requesting the hearing during the public comment period.
Sec. 2001.305. SCOPE OF REVIEW. (a) The scope of review of
a contested case hearing under this subchapter is limited to the
administrative record provided to the office by the chief clerk of
the commission.
(b) The office may not consider any issue outside of those
described by Section 5.556, Water Code, unless the matter was
directly referred to the office for a contested case hearing under
Section 5.557, Water Code.
Sec. 2001.306. PARTIES. A person may join as a party to a
contested case hearing only if the person requested a contested
case hearing in compliance with any applicable deadlines
established by commission rule.
Sec. 2001.307. HEARINGS. (a) In the event of a conflict
between the provisions of this section and another provision of
this chapter, this section prevails.
(b) Not later than the 120th day after the date the office
conducts a preliminary hearing on the matter, the office shall
conclude the hearing and submit a proposal for decision to the
commission that includes findings of fact and conclusions of law.
The deadline prescribed by this subsection may not be extended
unless all parties agree to an extension of time. An extension of
time granted under this subsection may not exceed 60 days.
SECTION 2. Subsection (d), Section 2003.024, 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 3. The heading to Section 2003.047, Government
Code, is amended to read as follows:
Sec. 2003.047. ENVIRONMENTAL QUALITY [NATURAL RESOURCE
CONSERVATION] DIVISION.
SECTION 4. Subsection (a), Section 2003.047, Government
Code, is amended to read as follows:
(a) The office shall establish an environmental quality [a
natural resource conservation] division to perform the contested
case hearings of certain permit decisions for the Texas Commission
on Environmental Quality [Natural Resource Conservation
Commission].
SECTION 5. 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 6. Section 5.115, Water Code, is amended by adding
Subsections (a-1) and (a-2) to read as follows:
(a-1) An association is not entitled to standing in a
contested case hearing unless the association:
(1) expressly identifies each member of the
association who would otherwise have standing to request a hearing
in the member's own right; and
(2) submits with the hearing request documentation
demonstrating that:
(A) the interests of the association are germane
to the matter that is the subject of the contested case; and
(B) at least part of the association's purpose is
to contest permit applications.
(a-2) The commission shall deny a hearing request submitted
by an association that does not satisfy the requirements of
Subsection (a-1). The information required by Subsection (a-1) may
not be submitted after the hearing request.
SECTION 7. Subsection (a), Section 5.551, Water Code, is
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 and J, Chapter
2001, Government Code, regarding commission actions relating to a
permit issued under Chapter 26 or 27 of this code or Chapter 361,
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 of this code or
Chapter 361, Health and Safety Code.
SECTION 8. Subchapter M, Chapter 5, Water Code, is amended
by adding Sections 5.5541 and 5.5551 to read as follows:
Sec. 5.5541. OBLIGATION TO RAISE ISSUES AND PROVIDE
INFORMATION DURING PUBLIC COMMENT PERIOD. (a) A 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.
Sec. 5.5551. UNCONTESTED APPLICATIONS. (a) If a contested
case hearing has not been requested in the time and manner required
by applicable law, that application is considered uncontested and
the executive director may issue a final decision on the permit
application.
(b) A person may file with the commission a motion to
overturn as described by commission rule to challenge an executive
director's final decision under this section.
(c) A final permit decision issued under this section is not
subject to a contested case hearing.
SECTION 9. Section 5.556, Water Code, is amended by adding
Subsection (g) to read as follows:
(g) Granting a request for a contested case hearing on a
draft permit issued by the executive director creates a rebuttable
presumption that the draft permit:
(1) meets all state and federal legal and technical
requirements; and
(2) is protective of human health and safety.
SECTION 10. Subchapter M, Chapter 5, Water Code, is amended
by adding Section 5.5571 to read as follows:
Sec. 5.5571. FINAL COMMISSION DECISION. (a) Not later
than the 45th day after the date the commission receives a proposal
for decision from the State Office of Administrative Hearings, the
commission shall consider the proposal.
(b) In considering the proposal for decision, the
commission shall limit each of the parties in the proceeding to:
(1) one exceptions brief; and
(2) one reply brief that may only include arguments in
reply to another party's exceptions.
(c) An exceptions brief must be submitted not later than the
20th day after the date the commission receives the proposal for
decision. A reply brief must be submitted not later than the 30th
day after the date the commission receives the proposal for
decision.
SECTION 11. The changes in law made by this Act apply only
to an application for a permit that is filed with the Texas
Commission on Environmental Quality on or after the effective date
of this Act. An application for a permit filed before the effective
date of this Act is governed by the law in effect on the date of
filing, and that law is continued in effect for that purpose.
SECTION 12. This Act takes effect September 1, 2013.
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