S.B. No. 709
AN ACT
relating to procedures for certain environmental permit
applications.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2003.047, Government Code, is amended by
adding Subsections (e-1), (e-2), (e-3), (e-4), (e-5), (i-1), (i-2),
and (i-3) to read as follows:
(e-1) This subsection applies only to a matter referred
under Section 5.556, Water Code. Each issue referred by the
commission must have been raised by an affected person in a comment
submitted by that affected person in response to a permit
application in a timely manner. The list of issues submitted under
Subsection (e) must:
(1) be detailed and complete; and
(2) contain either:
(A) only factual questions; or
(B) mixed questions of fact and law.
(e-2) For a matter referred under Section 5.556 or 5.557,
Water Code, the administrative law judge must complete the
proceeding and provide a proposal for decision to the commission
not later than the earlier of:
(1) the 180th day after the date of the preliminary
hearing; or
(2) the date specified by the commission.
(e-3) The deadline specified by Subsection (e-2) may be
extended:
(1) by agreement of the parties with the approval of
the administrative law judge; or
(2) by the administrative law judge if the judge
determines that failure to extend the deadline would unduly deprive
a party of due process or another constitutional right.
(e-4) For the purposes of Subsection (e-3)(2), a political
subdivision has the same constitutional rights as an individual.
(e-5) This subsection applies only to a matter referred
under Section 5.557, Water Code. The administrative law judge may
not hold a preliminary hearing until after the executive director
has issued a response to public comments under Section 5.555, Water
Code.
(i-1) In a contested case regarding a permit application
referred under Section 5.556 or 5.557, Water Code, the filing with
the office of the application, the draft permit prepared by the
executive director of the commission, the preliminary decision
issued by the executive director, and other sufficient supporting
documentation in the administrative record of the permit
application establishes a prima facie demonstration that:
(1) the draft permit meets all state and federal legal
and technical requirements; and
(2) a permit, if issued consistent with the draft
permit, would protect human health and safety, the environment, and
physical property.
(i-2) A party may rebut a demonstration under Subsection
(i-1) by presenting evidence that:
(1) relates to a matter referred under Section 5.557,
Water Code, or an issue included in a list submitted under
Subsection (e) in connection with a matter referred under Section
5.556, Water Code; and
(2) demonstrates that one or more provisions in the
draft permit violate a specifically applicable state or federal
requirement.
(i-3) If in accordance with Subsection (i-2) a party rebuts
a presumption established under Subsection (i-1), the applicant and
the executive director may present additional evidence to support
the draft permit.
SECTION 2. Section 5.115, Water Code, is amended by
amending Subsections (a) and (d) and adding Subsection (a-1) to
read as follows:
(a) For the purpose of an administrative hearing held by or
for the commission involving a contested case, "affected person,"
or "person affected," or "person who may be affected" means a person
who has a personal justiciable interest related to a legal right,
duty, privilege, power, or economic interest affected by the
administrative hearing. An interest common to members of the
general public does not qualify as a personal justiciable interest.
(a-1) The commission shall adopt rules specifying factors
which must be considered in determining whether a person is an
affected person in any contested case arising under the air, waste,
or water programs within the commission's jurisdiction and whether
an affected association is entitled to standing in contested case
hearings. For a matter referred under Section 5.556, the
commission:
(1) may consider:
(A) the merits of the underlying application,
including whether the application meets the requirements for permit
issuance;
(B) the likely impact of regulated activity on
the health, safety, and use of the property of the hearing
requestor;
(C) the administrative record, including the
permit application and any supporting documentation;
(D) the analysis and opinions of the executive
director; and
(E) any other expert reports, affidavits,
opinions, or data submitted on or before any applicable deadline to
the commission by the executive director, the applicant, or a
hearing requestor; and
(2) may not find that:
(A) a group or association is an affected person
unless the group or association identifies, by name and physical
address in a timely request for a contested case hearing, a member
of the group or association who would be an affected person in the
person's own right; or
(B) a hearing requestor is an affected person
unless the hearing requestor timely submitted comments on the
permit application.
(d) The commission shall adopt rules for the notice required
by this section. The rules must provide for the notice required by
this section to be posted on the Internet by the commission.
SECTION 3. Section 5.228(c), Water Code, is amended to read
as follows:
(c) The executive director shall participate as a party in
contested case permit hearings before the commission or the State
Office of Administrative Hearings to:
(1) provide information to complete the
administrative record; and
(2) support the executive director's position
developed in the underlying proceeding, unless the executive
director has revised or reversed that position.
SECTION 4. Subchapter M, Chapter 5, Water Code, is amended
by adding Section 5.5553 to read as follows:
Sec. 5.5553. NOTICE OF DRAFT PERMIT. (a) This section
applies only to a permit application that is eligible to be referred
for a contested case hearing under Section 5.556 or 5.557.
(b) Notwithstanding any other law, not later than the 30th
day before the date the commission issues a draft permit in
connection with a permit application, the executive director shall
provide written notice to the state senator and state
representative of the area in which the facility that is the subject
of the permit is located.
SECTION 5. (a) The changes in law made by this Act apply
only to:
(1) a permit application that is filed with the Texas
Commission on Environmental Quality on or after the effective date
of this Act; or
(2) a judicial proceeding initiated on or after the
effective date of this Act that challenges an act or decision of the
Texas Commission on Environmental Quality made during a permit
proceeding.
(b) A permit application filed or a judicial proceeding
initiated before the effective date of this Act is governed by the
law in effect when the permit application was filed or the judicial
proceeding was initiated, and the former law is continued in effect
for that purpose.
(c) Notwithstanding Subsection (a), the changes in law made
by this Act do not apply to:
(1) a permit application:
(A) filed after the effective date of this Act;
and
(B) that is substantially similar to a permit
application for which a draft permit has been issued and that was:
(i) filed before the effective date of this
Act; and
(ii) withdrawn at the request of the permit
applicant; or
(2) a judicial proceeding:
(A) initiated after the effective date of this
Act; and
(B) that is substantially similar to a judicial
proceeding initiated before the effective date of this Act that has
been dismissed at the request of the permit applicant.
(d) Not later than January 1, 2016, the Texas Commission on
Environmental Quality shall adopt rules to implement the changes in
law made by this Act. For an application filed after the effective
date of this Act but before the adoption of rules to implement the
changes in law made by this Act, the commission shall provide
sufficient notice to the applicant and other participants in the
permit proceeding that the changes in law made by this Act apply to
the proceeding.
SECTION 6. This Act takes effect September 1, 2015.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 709 passed the Senate on
April 16, 2015, by the following vote: Yeas 22, Nays 9; and that
the Senate concurred in House amendments on May 13, 2015, by the
following vote: Yeas 21, Nays 10.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 709 passed the House, with
amendments, on May 1, 2015, by the following vote: Yeas 83,
Nays 37, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor