Texas 2017 - 85th Regular

Texas Senate Bill SB1628 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	85R4829 SLB-D
2	2	By: Estes S.B. No. 1628
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the replacement of contested case hearings for certain
8	8	environmental permits with a petition for administrative review.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	ARTICLE 1. PETITION TO ADMINISTRATIVELY REVIEW CERTAIN
11	11	ENVIRONMENTAL PERMITS
12	12	SECTION 1.01. The heading to Section 2003.047, Government
13	13	Code, is amended to read as follows:
14	14	Sec. 2003.047. [HEARINGS FOR] TEXAS COMMISSION ON
15	15	ENVIRONMENTAL QUALITY: GENERAL PROVISIONS.
16	16	SECTION 1.02. Sections 2003.047(a), (b), and (d),
17	17	Government Code, are amended to read as follows:
18	18	(a) In this section, Section 2003.0475, and Section
19	19	2003.0478, "commission" means the Texas Commission on
20	20	Environmental Quality.
21	21	(b) The office shall perform contested case hearings for the
22	22	commission and administrative review of commission decisions
23	23	regarding permits subject to Subchapter M, Chapter 5, Water Code
24	24	[the Texas Commission on Environmental Quality].
25	25	[(b) The office shall conduct hearings relating to
26	26	contested cases before the commission, other than a hearing
27	27	conducted by one or more commissioners.] The commission by rule may
28	28	delegate to the office the responsibility to hear any other matter
29	29	before the commission if consistent with the responsibilities of
30	30	the office.
31	31	(d) To be eligible to preside at a hearing on behalf of the
32	32	commission or conduct an administrative review under Section
33	33	2003.0478, an administrative law judge, regardless of temporary or
34	34	permanent status, must be licensed to practice law in this state and
35	35	have the expertise necessary to conduct hearings or administrative
36	36	review regarding technical or other specialized subjects that may
37	37	come before the commission.
38	38	SECTION 1.03. Sections 2003.047(e), (f), (g), (h), (i),
39	39	(j), (k), (l), (m), (n), and (o), Government Code, are redesignated
40	40	as Section 2003.0475, Government Code, and amended to read as
41	41	follows:
42	42	Sec. 2003.0475. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY:
43	43	HEARINGS. (a) The office shall conduct hearings relating to
44	44	contested cases before the commission, other than a hearing
45	45	conducted by one or more commissioners.
46	46	(b) [(e)] In referring a matter for hearing, the commission
47	47	shall provide to the administrative law judge a list of disputed
48	48	issues. The commission shall specify the date by which the
49	49	administrative law judge is expected to complete the proceeding and
50	50	provide a proposal for decision to the commission. The
51	51	administrative law judge may extend the proceeding if the
52	52	administrative law judge determines that failure to grant an
53	53	extension would deprive a party of due process or another
54	54	constitutional right. The administrative law judge shall establish
55	55	a docket control order designed to complete the proceeding by the
56	56	date specified by the commission.
57	57	(c) [(f)] Except as otherwise provided by this subsection,
58	58	the scope of the hearing is limited to the issues referred by the
59	59	commission. On the request of a party, the administrative law judge
60	60	may consider an issue that was not referred by the commission if the
61	61	administrative law judge determines that:
62	62	(1) the issue is material;
63	63	(2) the issue is supported by evidence; and
64	64	(3) there are good reasons for the failure to supply
65	65	available information regarding the issue during the public comment
66	66	period.
67	67	(d) [(g)] The scope of permissible discovery is limited to:
68	68	(1) any matter reasonably calculated to lead to the
69	69	discovery of admissible evidence regarding any issue referred to
70	70	the administrative law judge by the commission or that the
71	71	administrative law judge has agreed to consider; and
72	72	(2) the production of documents:
73	73	(A) reviewed or relied on in preparing
74	74	application materials [or selecting the site of the proposed
75	75	facility]; or
76	76	(B) relating to the ownership of the [applicant
77	77	or the] owner or operator of the facility [or proposed facility].
78	78	(e) [(h)] The commission by rule shall:
79	79	(1) provide for subpoenas and commissions for
80	80	depositions; and
81	81	(2) require that discovery be conducted in accordance
82	82	with the Texas Rules of Civil Procedure, except that the commission
83	83	by rule shall determine the level of discovery under Rule 190, Texas
84	84	Rules of Civil Procedure, appropriate for each type of case
85	85	considered by the commission, taking into account the nature and
86	86	complexity of the case.
87	87	(f) [(i)] The office and the commission jointly shall adopt
88	88	rules providing for certification to the commission of an issue
89	89	that involves an ultimate finding of compliance with or
90	90	satisfaction of a statutory standard the determination of which is
91	91	committed to the discretion or judgment of the commission by law.
92	92	The rules must address, at a minimum, the issues that are
93	93	appropriate for certification and the procedure to be used in
94	94	certifying the issue. Each agency shall publish the jointly
95	95	adopted rules.
96	96	(g) [(j)] An administrative law judge hearing a case on
97	97	behalf of the commission, on the judge's own motion or on motion of
98	98	a party and after notice and an opportunity for a hearing, may
99	99	impose appropriate sanctions as provided by Subsection (h) [(k)]
100	100	against a party or its representative for:
101	101	(1) filing a motion or pleading that is groundless and
102	102	brought:
103	103	(A) in bad faith;
104	104	(B) for the purpose of harassment; or
105	105	(C) for any other improper purpose, such as to
106	106	cause unnecessary delay or needless increase in the cost of the
107	107	proceeding;
108	108	(2) abuse of the discovery process in seeking, making,
109	109	or resisting discovery; or
110	110	(3) failure to obey an order of the administrative law
111	111	judge or the commission.
112	112	(h) [(k)] A sanction imposed under Subsection (g) [(j)] may
113	113	include, as appropriate and justified, issuance of an order:
114	114	(1) disallowing further discovery of any kind or of a
115	115	particular kind by the offending party;
116	116	(2) charging all or any part of the expenses of
117	117	discovery against the offending party or its representatives;
118	118	(3) holding that designated facts be considered
119	119	admitted for purposes of the proceeding;
120	120	(4) refusing to allow the offending party to support
121	121	or oppose a designated claim or defense or prohibiting the party
122	122	from introducing designated matters in evidence;
123	123	(5) disallowing in whole or in part requests for
124	124	relief by the offending party and excluding evidence in support of
125	125	those requests; and
126	126	(6) striking pleadings or testimony, or both, in whole
127	127	or in part.
128	128	(i) [(l)] After hearing evidence and receiving legal
129	129	argument, an administrative law judge shall make findings of fact,
130	130	conclusions of law, and any ultimate findings required by statute,
131	131	all of which shall be separately stated. The administrative law
132	132	judge shall make a proposal for decision to the commission and shall
133	133	serve the proposal for decision on all parties. An opportunity
134	134	shall be given to each party to file exceptions to the proposal for
135	135	decision and briefs related to the issues addressed in the proposal
136	136	for decision. The commission shall consider and act on the proposal
137	137	for decision.
138	138	(j) The [(m) Except as provided in Section 361.0832, Health
139	139	and Safety Code, the] commission shall consider the proposal for
140	140	decision prepared by the administrative law judge, the exceptions
141	141	of the parties, and the briefs and argument of the parties. The
142	142	commission may amend the proposal for decision, including any
143	143	finding of fact, but any such amendment thereto and order shall be
144	144	based solely on the record made before the administrative law
145	145	judge. Any such amendment by the commission shall be accompanied by
146	146	an explanation of the basis of the amendment. The commission may
147	147	also refer the matter back to the administrative law judge to
148	148	reconsider any findings and conclusions set forth in the proposal
149	149	for decision or take additional evidence or to make additional
150	150	findings of fact or conclusions of law. The commission shall serve
151	151	a copy of the commission's order, including its finding of facts and
152	152	conclusions of law, on each party.
153	153	(k) [(n)] The provisions of Chapter 2001 shall apply to
154	154	contested case hearings for the commission to the extent not
155	155	inconsistent with this section.
156	156	(l) [(o)] An administrative law judge hearing a case on
157	157	behalf of the commission may not, without the agreement of all
158	158	parties, issue an order referring the case to an alternative
159	159	dispute resolution procedure if the commission has already
160	160	conducted an unsuccessful alternative dispute resolution
161	161	procedure. If the commission has not already conducted an
162	162	alternative dispute resolution procedure, the administrative law
163	163	judge shall consider the commission's recommendation in
164	164	determining whether to issue an order referring the case to the
165	165	procedure.
166	166	SECTION 1.04. Subchapter C, Chapter 2003, Government Code,
167	167	is amended by adding Section 2003.0478 to read as follows:
168	168	Sec. 2003.0478. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY:
169	169	ADMINISTRATIVE REVIEW OF EXECUTIVE DIRECTOR PRELIMINARY DECISION
170	170	ON PERMIT APPLICATION. (a) In this section:
171	171	(1) "Applicant" means the person who submitted the
172	172	permit application on which a preliminary decision by the executive
173	173	director recommending issuance of the permit has been challenged by
174	174	a petition.
175	175	(2) "Executive director" means the executive director
176	176	of the commission.
177	177	(3) "Permit application" means an application for an
178	178	environmental permit that:
179	179	(A) is subject to Subchapter M, Chapter 5, Water
180	180	Code; and
181	181	(B) has been challenged by a petition.
182	182	(4) "Petition" means a petition for administrative
183	183	review of a decision by the executive director to recommend
184	184	issuance of a permit that is submitted under Section 5.5565, Water
185	185	Code.
186	186	(5) "Petitioner" means the person who submitted a
187	187	petition.
188	188	(b) On receipt of a petition and related materials from the
189	189	commission, the administrative law judge considering the petition
190	190	shall set a briefing schedule according to rules adopted under this
191	191	section. The administrative law judge may request oral argument on
192	192	a matter covered in the petition.
193	193	(c) The filing with the office of the application, the draft
194	194	permit prepared by the executive director, the preliminary decision
195	195	issued by the executive director, and other sufficient supporting
196	196	documentation in the administrative record of the permit
197	197	application establishes a presumption that:
198	198	(1) the draft permit meets all state and federal legal
199	199	and technical requirements; and
200	200	(2) a permit, if issued consistent with the draft
201	201	permit, would protect human health and safety, the environment, and
202	202	physical property.
203	203	(d) The administrative law judge considering a petition
204	204	under this section may consider only:
205	205	(1) the materials forwarded to the office under
206	206	Section 5.5565, Water Code;
207	207	(2) the petition;
208	208	(3) a response brief filed by the applicant;
209	209	(4) a response brief filed by the executive director;
210	210	and
211	211	(5) an amicus brief that the administrative law judge
212	212	has consented to accept under Subsection (e).
213	213	(e) An interested person may seek leave from the
214	214	administrative law judge to submit an amicus brief for
215	215	consideration in conjunction with the petition. An amicus brief
216	216	approved by the administrative law judge must be submitted not
217	217	later than the 15th day after the date the executive director
218	218	submits a response brief. The submission of an amicus brief may not
219	219	extend the period of consideration of the petition beyond the
220	220	120-day limit described by Subsection (h).
221	221	(f) After consideration of the items described by
222	222	Subsection (d) and any oral argument, and within the time described
223	223	by Subsection (h), the administrative law judge shall transmit a
224	224	decision on the petition to the executive director, the petitioner,
225	225	and the applicant. The judge may:
226	226	(1) order the commission to issue the permit
227	227	consistent with the draft permit;
228	228	(2) order the commission to deny the permit
229	229	application; or
230	230	(3) remand the issue to the commission for further
231	231	action.
232	232	(g) An administrative law judge may find that the permit
233	233	should not be issued consistent with the draft permit only if the
234	234	petitioner has:
235	235	(1) demonstrated that the petitioner is an affected
236	236	person under the standard described by Section 5.115, Water Code,
237	237	and rules adopted under that section;
238	238	(2) identified a specific issue raised in a comment
239	239	submitted by the petitioner during the public comment period for
240	240	the permit application;
241	241	(3) demonstrated that the executive director's
242	242	decision on the issue described by Subdivision (2) is based on a
243	243	clearly erroneous finding of fact or conclusion of law; and
244	244	(4) rebutted the presumption created under Subsection
245	245	(c) by presenting evidence that demonstrates that the issue
246	246	described by Subdivision (2) violates a specifically applicable
247	247	state or federal requirement.
248	248	(h) The office shall adopt rules concerning filing briefs,
249	249	hearing oral arguments, and issuing a decision on a petition. The
250	250	rules adopted under this section:
251	251	(1) must require the administrative law judge who
252	252	considers the petition to transmit a decision on the petition to the
253	253	commission not later than the 120th day after the date the office
254	254	receives the petition from the commission;
255	255	(2) may allow for varying deadlines for the filing of
256	256	briefs and the hearing of oral argument based on the type of permit
257	257	application; and
258	258	(3) may not create a deadline for the filing of a
259	259	document or the hearing of oral argument that exceeds a deadline set
260	260	for a similar action under federal law.
261	261	SECTION 1.05. The heading to Section 5.115, Water Code, is
262	262	amended to read as follows:
263	263	Sec. 5.115. PERSONS AFFECTED IN ADMINISTRATIVE REVIEW OF
264	264	COMMISSION DECISIONS AND COMMISSION HEARINGS; NOTICE OF
265	265	APPLICATION.
266	266	SECTION 1.06. Sections 5.115(a), (a-1), and (b), Water
267	267	Code, are amended to read as follows:
268	268	(a) For the purpose of an administrative hearing held by or
269	269	for the commission involving a contested case for a water rights
270	270	permit application or an administrative review of a decision on a
271	271	permit application that is subject to Subchapter M, "affected
272	272	person," or "person affected," or "person who may be affected"
273	273	means a person who has a personal justiciable interest related to a
274	274	legal right, duty, privilege, power, or economic interest affected
275	275	by the administrative hearing. An interest common to members of
276	276	the general public does not qualify as a personal justiciable
277	277	interest.
278	278	(a-1) The commission shall adopt rules specifying factors
279	279	which must be considered in determining whether a person is an
280	280	affected person [in any contested case arising under the air,
281	281	waste, or water programs within the commission's jurisdiction] and
282	282	whether a group or [an affected] association is an affected person
283	283	[entitled to standing in contested case hearings]. For an
284	284	administrative review of a decision on a permit application that is
285	285	subject to Subchapter M, [a matter referred under Section 5.556,
286	286	the commission:
287	287	[(1) may consider:
288	288	[(A) the merits of the underlying application,
289	289	including whether the application meets the requirements for permit
290	290	issuance;
291	291	[(B) the likely impact of regulated activity on
292	292	the health, safety, and use of the property of the hearing
293	293	requestor;
294	294	[(C) the administrative record, including the
295	295	permit application and any supporting documentation;
296	296	[(D) the analysis and opinions of the executive
297	297	director; and
298	298	[(E) any other expert reports, affidavits,
299	299	opinions, or data submitted on or before any applicable deadline to
300	300	the commission by the executive director, the applicant, or a
301	301	hearing requestor; and
302	302	[(2) may not find that:
303	303	[(A)] a group or association is an affected
304	304	person only if [unless] the group or association identifies, by
305	305	name and physical address in a comment made during the public
306	306	comment period [timely request for a contested case hearing], a
307	307	member of the group or association who would be an affected person
308	308	in the person's own right[; or
309	309	[(B) a hearing requestor is an affected person
310	310	unless the hearing requestor timely submitted comments on the
311	311	permit application].
312	312	(b) At the time an application for a permit or license under
313	313	this code is filed with the executive director and is
314	314	administratively complete, the commission shall give notice of the
315	315	application to any person who may be affected by the granting of the
316	316	permit or license. A state agency that receives notice under this
317	317	subsection may submit comments to the commission in response to the
318	318	notice [but may not contest the issuance of a permit or license by
319	319	the commission]. For the purposes of this subsection, "state
320	320	agency" does not include a river authority.
321	321	SECTION 1.07. Sections 5.551(a) and (b), Water Code, are
322	322	amended to read as follows:
323	323	(a) This subchapter establishes procedures for providing
324	324	public notice, an opportunity for public comment, and an
325	325	opportunity for administrative review [public hearing] under
326	326	Section 2003.0478 [Subchapters C-H, Chapter 2001], Government
327	327	Code, regarding commission actions relating to a permit issued
328	328	under Chapter 26 or 27 of this code or Chapter 361 or 382, Health and
329	329	Safety Code. This subchapter is procedural and does not expand or
330	330	restrict the types of commission actions for which public notice,
331	331	an opportunity for public comment, and an opportunity for
332	332	administrative review [public hearing] are provided under Chapter
333	333	26 or 27 of this code or Chapter 361 or 382, Health and Safety Code.
334	334	(b) The commission by rule shall provide for additional
335	335	notice, opportunity for public comment, or opportunity for
336	336	administrative review [hearing] to the extent necessary to satisfy
337	337	a requirement for United States Environmental Protection Agency
338	338	authorization of a state permit program.
339	339	SECTION 1.08. Section 5.552(d), Water Code, is amended to
340	340	read as follows:
341	341	(d) In addition to providing notice under Subsection
342	342	(b)(1), the applicant shall comply with any applicable public
343	343	notice requirements under Chapters 26 and 27 of this code, Chapters
344	344	[Chapter] 361 and 382, Health and Safety Code, and rules adopted
345	345	under those chapters.
346	346	SECTION 1.09. Sections 5.553(a) and (d), Water Code, are
347	347	amended to read as follows:
348	348	(a) The executive director shall conduct a technical review
349	349	of and issue a preliminary decision on the application and a draft
350	350	permit if the executive director determines that a permit should be
351	351	issued.
352	352	(d) In addition to providing notice under this section, the
353	353	applicant shall comply with any applicable public notice
354	354	requirements under Chapters 26 and 27 of this code, Chapter 361 or
355	355	382, Health and Safety Code, and rules adopted under those
356	356	chapters.
357	357	SECTION 1.10. Section 5.555(b), Water Code, is amended to
358	358	read as follows:
359	359	(b) The chief clerk of the commission shall transmit the
360	360	executive director's decision, the executive director's response to
361	361	public comments, and instructions for requesting that the
362	362	commission reconsider the executive director's decision or
363	363	petitioning for administrative review of the executive director's
364	364	decision [hold a contested case hearing] to:
365	365	(1) the applicant;
366	366	(2) any person who submitted comments during the
367	367	public comment period; and
368	368	(3) any person who requested to be on the mailing list
369	369	for the permit action.
370	370	SECTION 1.11. Section 5.5553, Water Code, is amended to
371	371	read as follows:
372	372	Sec. 5.5553. NOTICE OF DRAFT PERMIT. [(a) This section
373	373	applies only to a permit application that is eligible to be referred
374	374	for a contested case hearing under Section 5.556 or 5.557.
375	375	[(b)] Notwithstanding any other law, not later than the 30th
376	376	day before the date the commission issues a draft permit in
377	377	connection with a permit application, the executive director shall
378	378	provide written notice to the state senator and state
379	379	representative of the area in which the facility that is the subject
380	380	of the permit is located.
381	381	SECTION 1.12. The heading to Section 5.556, Water Code, is
382	382	amended to read as follows:
383	383	Sec. 5.556. REQUEST FOR RECONSIDERATION [OR CONTESTED CASE
384	384	HEARING].
385	385	SECTION 1.13. Section 5.556(a), Water Code, is amended to
386	386	read as follows:
387	387	(a) A person may request that the commission reconsider the
388	388	executive director's decision [or hold a contested case hearing].
389	389	A request must be filed with the commission during the period
390	390	provided by commission rule.
391	391	SECTION 1.14. Subchapter M, Chapter 5, Water Code, is
392	392	amended by adding Section 5.5565 to read as follows:
393	393	Sec. 5.5565. PETITION FOR ADMINISTRATIVE REVIEW. (a) Not
394	394	later than the 30th day after the date the executive director issues
395	395	a preliminary decision on an application and draft permit under
396	396	Section 5.553 recommending issuance of the permit, an affected
397	397	person may file a request with the commission for an administrative
398	398	review of the decision. On receipt of a petition to
399	399	administratively review a decision, the commission shall:
400	400	(1) forward the application, the draft permit prepared
401	401	by the executive director, the preliminary decision issued by the
402	402	executive director, and other sufficient supporting documentation
403	403	in the administrative record of the permit application to the State
404	404	Office of Administrative Hearings; and
405	405	(2) notify the applicant in writing that a petition
406	406	for administrative review has been filed.
407	407	(b) The executive director shall file a response to the
408	408	petition within the period allowed by a rule adopted by the State
409	409	Office of Administrative Hearings under Section 2003.0478,
410	410	Government Code.
411	411	(c) Not later than the 30th day after the date the executive
412	412	director files a response under Subsection (b), the executive
413	413	director may withdraw the preliminary decision and draft permit and
414	414	prepare a new preliminary decision and draft permit.
415	415	(d) On receipt of a decision of an administrative law judge
416	416	regarding an administrative review of a decision under Section
417	417	2003.0478, Government Code, the commission shall:
418	418	(1) issue or deny the permit consistent with the
419	419	decision; or
420	420	(2) take further action as specified by the decision,
421	421	if the administrative law judge remands the issue.
422	422	(e) A commission order implementing a decision by an
423	423	administrative law judge to deny a permit is a final act of the
424	424	commission that is subject to judicial review under Subchapter I.
425	425	SECTION 1.15. Section 5.558(c), Water Code, is amended to
426	426	read as follows:
427	427	(c) The permit processes authorized by this section are not
428	428	subject to the requirements relating to a contested case hearing or
429	429	an administrative review under Section 5.5565 [under this chapter,
430	430	Chapter 382, Health and Safety Code, or Subchapters C-G, Chapter
431	431	2001, Government Code].
432	432	ARTICLE 2. CONFORMING AMENDMENTS
433	433	SECTION 2.01. Section 2003.0421(c), Government Code, is
434	434	amended to read as follows:
435	435	(c) This section applies to any contested case hearing
436	436	conducted by the office, except hearings conducted on behalf of the
437	437	Texas Commission on Environmental Quality or the Public Utility
438	438	Commission of Texas which are governed by Sections 2003.0475
439	439	[2003.047] and 2003.049.
440	440	SECTION 2.02. Sections 361.063(b) and (f), Health and
441	441	Safety Code, are amended to read as follows:
442	442	(b) The agreement shall be made through participation in a
443	443	local review committee process that includes a good faith effort to
444	444	identify issues of concern, describe them to the applicant, and
445	445	attempt to resolve those issues [before the hearing on the permit
446	446	application begins]. A person is not required to be a local review
447	447	committee member to participate in a local review committee
448	448	process.
449	449	(f) The commission, as appropriate, may award to a person,
450	450	other than the applicant, who has participated in the local review
451	451	committee process under this section concerning an application for
452	452	a hazardous waste management facility all or a part of the person's
453	453	reasonable costs for technical studies and reports and expert
454	454	witnesses associated with the presentation of evidence [at the
455	455	public hearing] concerning issues that are raised by the person in
456	456	the local review committee process [and that are unresolved at the
457	457	beginning of the hearing on the permit application]. The total
458	458	amount of awards granted to all persons under this subsection
459	459	concerning an application may not exceed $25,000. In determining
460	460	the appropriateness of the award, the commission shall consider
461	461	whether:
462	462	(1) the evidence or analysis provided by the studies,
463	463	reports, and witnesses is significant to the evaluation of the
464	464	application;
465	465	(2) the evidence or analysis would otherwise not have
466	466	been provided [in the proceeding]; and
467	467	(3) the local review committee was established in
468	468	accordance with commission rules.
469	469	SECTION 2.03. Section 361.0665(b), Health and Safety Code,
470	470	is amended to read as follows:
471	471	(b) Notice must include:
472	472	(1) a description of the location or proposed location
473	473	of the facility;
474	474	(2) a statement that a person who may be affected by
475	475	the facility or proposed facility is entitled to petition for
476	476	administrative review of a preliminary decision on the permit
477	477	application [request a hearing from the commission];
478	478	(3) the manner in which the commission may be
479	479	contacted for further information; and
480	480	(4) any other information that the commission by rule
481	481	requires.
482	482	SECTION 2.04. Section 361.068(b), Health and Safety Code,
483	483	is amended to read as follows:
484	484	(b) Once a determination that an application is
485	485	administratively and technically complete has been made [and the
486	486	permit application has become the subject of a contested case under
487	487	Section 2001.003, Government Code]:
488	488	(1) the commission may not revoke the determination
489	489	that an application is administratively or technically complete;
490	490	(2) the commission may request additional information
491	491	from the applicant only if the information is necessary to clarify,
492	492	modify, or supplement previously submitted material [provided that
493	493	all parties may engage in discovery against all other parties, as
494	494	provided by applicable law]; and
495	495	(3) a request for additional information does not
496	496	render the application incomplete.
497	497	SECTION 2.05. Section 361.069, Health and Safety Code, is
498	498	amended to read as follows:
499	499	Sec. 361.069. DETERMINATION OF LAND USE COMPATIBILITY. The
500	500	commission in its discretion may, in processing a permit
501	501	application, make a separate determination on the question of land
502	502	use compatibility, and, if the site location is acceptable, may at
503	503	another time consider other technical matters concerning the
504	504	application. [A public hearing may be held for each determination
505	505	in accordance with Section 361.088.] In making a determination on
506	506	the question of land use compatibility, the commission shall not
507	507	consider the position of a state or federal agency unless the
508	508	position is fully supported by credible evidence from that agency
509	509	[during the public hearing].
510	510	SECTION 2.06. The heading to Section 361.079, Health and
511	511	Safety Code, is amended to read as follows:
512	512	Sec. 361.079. NOTICE CONCERNING RECEIPT OF PERMIT
513	513	APPLICATION[; HEARING PROCEDURES].
514	514	SECTION 2.07. Section 361.079(a), Health and Safety Code,
515	515	is amended to read as follows:
516	516	(a) Except as provided by Section [Sections 361.080(b) and]
517	517	361.081(c), the commission by rule shall establish procedures for
518	518	public notice [and a public hearing] under Section [361.080 or]
519	519	361.081.
520	520	SECTION 2.08. The heading to Section 361.081, Health and
521	521	Safety Code, is amended to read as follows:
522	522	Sec. 361.081. NOTICE [OF HEARING] CONCERNING APPLICATION
523	523	FOR A SOLID WASTE FACILITY.
524	524	SECTION 2.09. Sections 361.081(a) and (b), Health and
525	525	Safety Code, are amended to read as follows:
526	526	(a) The commission shall require the applicant to mail
527	527	notice to each residential or business address located within
528	528	one-half mile of a new solid waste management facility and to each
529	529	owner of real property located within one-half mile of a new solid
530	530	waste management facility listed in the real property appraisal
531	531	records of the appraisal district in which the solid waste
532	532	management facility is sought to be permitted as of the date the
533	533	commission determines the permit application is administratively
534	534	complete. The notice must be sent by mail [and must be deposited
535	535	with the United States postal service not more than 45 days or less
536	536	than 30 days before the date of the hearing].
537	537	(b) [The applicant must certify to the commission that the
538	538	mailings were deposited as required by Subsection (a). Acceptance
539	539	of the certification creates a rebuttable presumption that the
540	540	applicant has complied with this section.] Substantial compliance
541	541	with the notice requirements of Subsection (a) is sufficient for
542	542	the commission to exercise jurisdiction over an application for a
543	543	solid waste facility.
544	544	SECTION 2.10. The heading to Section 361.082, Health and
545	545	Safety Code, is amended to read as follows:
546	546	Sec. 361.082. APPLICATION FOR HAZARDOUS WASTE PERMIT;
547	547	NOTICE [AND HEARING].
548	548	SECTION 2.11. Sections 361.082(c), (d), and (g), Health and
549	549	Safety Code, are amended to read as follows:
550	550	(c) The commission by rule shall establish procedures for
551	551	public notice [and public hearing]. At a minimum, the rules shall
552	552	include the public notice requirements set forth in Section
553	553	361.081.
554	554	(d) The [In addition to the hearing held under this section,
555	555	the] commission may hold a public meeting and the applicant shall
556	556	give notice as provided by Section 361.0791.
557	557	(g) On petition for administrative review of a preliminary
558	558	decision on the permit application [request under Section 361.082]
559	559	by a person affected [for a hearing on the permit application], the
560	560	applicant for a permit for a new hazardous waste management
561	561	facility shall furnish a bond or other financial assurance
562	562	authorized by the commission to guarantee payment of the costs of a
563	563	person affected who provides information to the commission on the
564	564	question of the issuance of the permit and who is entitled to those
565	565	costs under an order made as provided by Section 361.0833. For
566	566	applications involving commercial hazardous waste management
567	567	facilities, the bond or other financial assurance must be in the
568	568	amount of $100,000. For applications that do not involve commercial
569	569	hazardous waste management facilities, the bond or other financial
570	570	assurance must be in the amount of $20,000.
571	571	SECTION 2.12. Sections 361.0833(b), (d), (e), and (f),
572	572	Health and Safety Code, are amended to read as follows:
573	573	(b) Information for which an award of costs under Subsection
574	574	(a) may be made includes:
575	575	(1) technical studies of the area in which the new
576	576	hazardous waste facility is proposed to be located; and
577	577	(2) [expert testimony given at a hearing on the permit
578	578	application; and
579	579	[(3)] surveys of land use and potential use in the
580	580	hazardous waste facility area.
581	581	(d) The total costs awarded to all persons affected under
582	582	Subsection (a) may not exceed $100,000 for a new commercial
583	583	hazardous waste management facility or $20,000 for a new
584	584	noncommercial hazardous waste management facility. [The total
585	585	costs awarded to all persons affected under Subsection (c) may not
586	586	exceed $150,000 for a new commercial hazardous waste management
587	587	facility or $30,000 for a new noncommercial hazardous waste
588	588	management facility.]
589	589	(e) In determining the appropriateness of an award under
590	590	Subsection (a) [or (c)], the commission shall consider:
591	591	(1) whether the information provided is material to
592	592	the commission's determination to deny the permit or to require the
593	593	applicant to make significant changes in the facility's design or
594	594	operation; and
595	595	(2) whether the information would otherwise not have
596	596	been presented to the commission while the commission is
597	597	considering its decision.
598	598	(f) If the applicant fails or refuses to pay the amount of
599	599	costs ordered not later than the 30th day after the date of entry of
600	600	the final order granting payment of costs, the commission shall
601	601	order the applicant's bond or other financial assurance forfeited
602	602	in the amount of the costs ordered reimbursed under Subsection (a)
603	603	[or (c)] up to and including the full amount of the bond or other
604	604	financial assurance. The commission shall forward the forfeited
605	605	amount to the person affected.
606	606	SECTION 2.13. Section 361.084(b), Health and Safety Code,
607	607	is amended to read as follows:
608	608	(b) The compliance summaries shall be made available to the
609	609	applicant and any interested person after the commission has
610	610	completed its technical review of the permit application [and
611	611	before the issuance of the public notice concerning an opportunity
612	612	for a hearing on the permit application].
613	613	SECTION 2.14. Section 361.085(a), Health and Safety Code,
614	614	is amended to read as follows:
615	615	(a) Before a permit may be issued, amended, transferred,
616	616	extended, or renewed for a hazardous waste management facility, the
617	617	commission shall require as a part of each application information
618	618	it deems necessary to demonstrate that an applicant has sufficient
619	619	financial resources to operate the facility in a safe manner and in
620	620	compliance with the permit and all applicable rules, including how
621	621	an applicant intends to obtain financing for construction of the
622	622	facility, and to close the facility in accordance with applicable
623	623	rules. That information may include balance sheets, financial
624	624	statements, and disclosure of relevant information regarding
625	625	investors and stockholders, or information required by [Title] 40
626	626	C.F.R.[, Code of Federal Regulations,] Part 264, Subpart H. If the
627	627	information would be considered confidential under applicable law,
628	628	the commission shall protect the information accordingly. [During
629	629	hearings on contested applications, the commission may allow
630	630	disclosure of confidential information only under an appropriate
631	631	protective order.]
632	632	SECTION 2.15. The heading to Section 361.088, Health and
633	633	Safety Code, is amended to read as follows:
634	634	Sec. 361.088. PERMIT ISSUANCE, AMENDMENT, EXTENSION AND
635	635	RENEWAL; NOTICE [AND HEARING].
636	636	SECTION 2.16. Section 361.088(d), Health and Safety Code,
637	637	is amended to read as follows:
638	638	(d) The [In addition to providing an opportunity for a
639	639	hearing held under this section, the] commission shall hold a
640	640	public meeting and give notice as provided by Section 361.0791.
641	641	SECTION 2.17. Section 361.0885(a), Health and Safety Code,
642	642	is amended to read as follows:
643	643	(a) A [After providing an opportunity for a hearing to an
644	644	applicant, the] state agency shall deny an application for the
645	645	issuance, amendment, renewal, or transfer of a permit within its
646	646	jurisdiction and may not issue, amend, renew, or transfer the
647	647	permit if the state agency determines that a former employee:
648	648	(1) participated personally and substantially as a
649	649	former employee in the state agency's review, evaluation, or
650	650	processing of that application before leaving employment with the
651	651	state agency; and
652	652	(2) after leaving employment with the state agency,
653	653	provided assistance on the same application for the issuance,
654	654	amendment, renewal, or transfer of a permit, including assistance
655	655	with preparation or presentation of the application or legal
656	656	representation of the applicant.
657	657	SECTION 2.18. The heading to Section 361.089, Health and
658	658	Safety Code, is amended to read as follows:
659	659	Sec. 361.089. PERMIT DENIAL OR AMENDMENT; NOTICE [AND
660	660	HEARING].
661	661	SECTION 2.19. Sections 361.089(b), (c), and (e), Health and
662	662	Safety Code, are amended to read as follows:
663	663	(b) Except as provided by Section 361.110, the commission
664	664	shall notify each governmental entity listed under Section 361.067
665	665	[and provide an opportunity for a hearing to the permit holder or
666	666	applicant and persons affected. The commission may also hold a
667	667	hearing on its own motion].
668	668	(c) The commission by rule shall establish procedures for
669	669	public notice [and any public hearing] under this section.
670	670	(e) The commission may deny an original or renewal permit if
671	671	it is found[, after notice and hearing,] that:
672	672	(1) the applicant or permit holder has a compliance
673	673	history that is classified as unsatisfactory according to
674	674	commission standards under Sections 5.753 and 5.754, Water Code,
675	675	and rules adopted and procedures developed under those sections;
676	676	(2) the permit holder or applicant made a false or
677	677	misleading statement in connection with an original or renewal
678	678	application, either in the formal application or in any other
679	679	written instrument relating to the application submitted to the
680	680	commission, its officers, or its employees;
681	681	(3) the permit holder or applicant is indebted to the
682	682	state for fees, payment of penalties, or taxes imposed by this title
683	683	or by a rule of the commission; or
684	684	(4) the permit holder or applicant is unable to ensure
685	685	that the management of the hazardous waste management facility
686	686	conforms or will conform to this title and the rules of the
687	687	commission.
688	688	SECTION 2.20. Section 361.112(i), Health and Safety Code,
689	689	is amended to read as follows:
690	690	(i) The notice [and hearing] procedures provided by this
691	691	subchapter apply to a permit issued, amended, extended, or renewed
692	692	under this section.
693	693	SECTION 2.21. The heading to Section 361.120, Health and
694	694	Safety Code, is amended to read as follows:
695	695	Sec. 361.120. NOTICE [OF HEARING AND] REQUIREMENTS FOR
696	696	REOPENING OF CLOSED OR INACTIVE LANDFILLS.
697	697	SECTION 2.22. Section 361.120(c), Health and Safety Code,
698	698	is amended to read as follows:
699	699	(c) Except as provided in Subsection [Subsections] (d) [and
700	700	(e)], the reopening of any such facility shall be considered a major
701	701	amendment as such is defined by commission rules and shall subject
702	702	the permittee to all of the procedural and substantive obligations
703	703	imposed by the rules applicable to major amendments.
704	704	SECTION 2.23. Section 361.121(c), Health and Safety Code,
705	705	is amended to read as follows:
706	706	(c) The notice and administrative review [hearing]
707	707	provisions of Subchapter M, Chapter 5, Water Code, [as added by
708	708	Chapter 1350, Acts of the 76th Legislature, Regular Session, 1999,]
709	709	apply to an application under this section for a permit, a permit
710	710	amendment, or a permit renewal. In addition, at the time published
711	711	notice of intent to obtain a permit is required under Section 5.552,
712	712	Water Code, an applicant for a permit, permit amendment, or permit
713	713	renewal under this section must notify by registered or certified
714	714	mail each owner of land located within one-quarter mile of the
715	715	proposed land application unit who lives on that land of the intent
716	716	to obtain the permit, amendment, or renewal. Notice to landowners
717	717	must include the information required by Section 5.552(c), Water
718	718	Code, and information regarding the anticipated date of the first
719	719	application of the sludge to the proposed land application unit. An
720	720	owner of land located within one-quarter mile of the proposed land
721	721	application unit who lives on that land is an affected person for
722	722	purposes of Section 5.115, Water Code.
723	723	SECTION 2.24. The heading to Section 361.184, Health and
724	724	Safety Code, is amended to read as follows:
725	725	Sec. 361.184. REGISTRY LISTING PROCEDURE: NOTICES AND
726	726	MEETING [HEARING].
727	727	SECTION 2.25. Section 361.186(c), Health and Safety Code,
728	728	is amended to read as follows:
729	729	(c) If, within 30 days after the date of the notice, the
730	730	executive director determines that the proposed substantial change
731	731	in use will interfere significantly with a proposed or ongoing
732	732	remedial investigation/feasibility study or similar study approved
733	733	by the executive director or expose the public health and safety or
734	734	the environment to a significantly increased threat of harm, the
735	735	executive director shall notify the owner or operator of the
736	736	determination. After the determination is made and notification
737	737	given, the owner or operator may not proceed with the proposed
738	738	substantial change in use. The owner or operator may request that
739	739	the commission reconsider the executive director's determination
740	740	[a hearing before the commission on whether the determination
741	741	should be modified or set aside] by submitting a request under
742	742	Section 5.556, Water Code, not later than the 30th day after the
743	743	receipt of the executive director's determination. [If a hearing
744	744	is requested, the commission shall initiate the hearing not later
745	745	than the 45th day after the receipt of the request. The hearing
746	746	shall be conducted in accordance with Chapter 2001, Government
747	747	Code.] The executive director's determination becomes
748	748	unappealable on the 31st day after issuance if reconsideration by
749	749	the commission [a hearing] is not requested.
750	750	SECTION 2.26. Section 382.05102(d), Health and Safety Code,
751	751	is amended to read as follows:
752	752	(d) The permit processes authorized by this section are not
753	753	subject to the requirements relating to a contested case hearing
754	754	under [this chapter, Chapter 5, Water Code, or] Subchapters C-G,
755	755	Chapter 2001, Government Code.
756	756	SECTION 2.27. Section 382.05155(c), Health and Safety Code,
757	757	is amended to read as follows:
758	758	(c) The expediting of an application under this section does
759	759	not affect [a contested case hearing or] applicable federal, state,
760	760	and regulatory requirements, including the notice and [,]
761	761	opportunity for [a public hearing, and] submission of public
762	762	comment required under this chapter.
763	763	SECTION 2.28. Section 382.0517, Health and Safety Code, is
764	764	amended to read as follows:
765	765	Sec. 382.0517. DETERMINATION OF ADMINISTRATIVE COMPLETION
766	766	OF APPLICATION. The commission shall determine when an application
767	767	filed under Section 382.054 or Section 382.0518 is administratively
768	768	complete. On determination, the commission by mail shall notify
769	769	the applicant and any interested party who has requested
770	770	notification. If the number of interested parties who have
771	771	requested notification makes it impracticable for the commission to
772	772	notify those parties by mail, the commission shall notify those
773	773	parties by publishing the notice at least once in a newspaper of
774	774	general circulation in the municipality in which the facility is
775	775	located or is proposed to be located or in the municipality nearest
776	776	to the location or proposed location of the facility [publication
777	777	using the method prescribed by Section 382.031(a)].
778	778	SECTION 2.29. Section 382.0518(b), Health and Safety Code,
779	779	is amended to read as follows:
780	780	(b) The commission shall grant within a reasonable time a
781	781	permit or permit amendment to construct or modify a facility if,
782	782	from the information available to the commission, including
783	783	information presented at any public meeting [hearing] held under
784	784	Section 382.056(k), the commission finds:
785	785	(1) the proposed facility for which a permit, permit
786	786	amendment, or a special permit is sought will use at least the best
787	787	available control technology, considering the technical
788	788	practicability and economic reasonableness of reducing or
789	789	eliminating the emissions resulting from the facility; and
790	790	(2) no indication that the emissions from the facility
791	791	will contravene the intent of this chapter, including protection of
792	792	the public's health and physical property.
793	793	SECTION 2.30. Section 382.05181(h), Health and Safety Code,
794	794	is amended to read as follows:
795	795	(h) A permit application under this chapter for a facility
796	796	affected by Section 382.0518(g) is subject to the notice [and
797	797	hearing] requirements as provided by Section 382.05191.
798	798	SECTION 2.31. Section 382.05185(h), Health and Safety Code,
799	799	is amended to read as follows:
800	800	(h) A permit application under this section is subject to
801	801	notice [and hearing] requirements as provided by Section 382.05191.
802	802	SECTION 2.32. Section 382.05186(g), Health and Safety Code,
803	803	is amended to read as follows:
804	804	(g) A permit application under this section is subject to
805	805	notice [and hearing] requirements as provided by Section 382.05191.
806	806	SECTION 2.33. Section 382.0519(b), Health and Safety Code,
807	807	is amended to read as follows:
808	808	(b) The commission shall grant within a reasonable time a
809	809	permit under this section if, from the information available to the
810	810	commission, including information presented at any public meeting
811	811	[hearing] or through written comment:
812	812	(1) the commission finds that the facility will use an
813	813	air pollution control method at least as beneficial as that
814	814	described in Section 382.003(9)(E)(ii), considering the age and
815	815	remaining useful life of the facility, except as provided by
816	816	Subdivision (2); or
817	817	(2) for a facility located in a near-nonattainment or
818	818	nonattainment area for a national ambient air quality standard, the
819	819	commission finds that the facility will use the more stringent of:
820	820	(A) a control method at least as beneficial as
821	821	that described in Section 382.003(9)(E)(ii), considering the age
822	822	and remaining useful life of the facility; or
823	823	(B) a control technology that the commission
824	824	finds is demonstrated to be generally achievable for facilities in
825	825	that area of the same type that are permitted under this section,
826	826	considering the age and remaining useful life of the facility.
827	827	SECTION 2.34. The heading to Section 382.05191, Health and
828	828	Safety Code, is amended to read as follows:
829	829	Sec. 382.05191. EMISSIONS REDUCTION PERMITS: NOTICE [AND
830	830	HEARING].
831	831	SECTION 2.35. Section 382.05191(c), Health and Safety Code,
832	832	is amended to read as follows:
833	833	(c) The commission shall provide an opportunity for [a
834	834	public hearing and] the submission of public comment and send
835	835	notice of a decision on an application for a permit under Section
836	836	382.05183, 382.05185(c) or (d), 382.05186, or 382.0519 in the same
837	837	manner as provided by Sections 382.0561 and 382.0562.
838	838	SECTION 2.36. The heading to Section 382.05197, Health and
839	839	Safety Code, is amended to read as follows:
840	840	Sec. 382.05197. MULTIPLE PLANT PERMIT: NOTICE [AND
841	841	HEARING].
842	842	SECTION 2.37. Section 382.05197(c), Health and Safety Code,
843	843	is amended to read as follows:
844	844	(c) The commission shall provide an opportunity for [a
845	845	public hearing and] the submission of public comment and send
846	846	notice of a decision on an application for a permit under Section
847	847	382.05194 in the same manner as provided by Sections 382.0561 and
848	848	382.0562.
849	849	SECTION 2.38. Section 382.055(g), Health and Safety Code,
850	850	is amended to read as follows:
851	851	(g) If the applicant meets the commission's requirements in
852	852	accordance with the schedule, the commission shall renew the
853	853	permit. If the applicant does not meet those requirements in
854	854	accordance with the schedule, the applicant must show [in a
855	855	contested case proceeding] why the permit should not expire
856	856	immediately. The applicant's permit is effective until:
857	857	(1) the final date specified by the commission's
858	858	report to the applicant;
859	859	(2) the existing permit is renewed; or
860	860	(3) the date specified by a commission order issued
861	861	[following a contested case proceeding held] under this section.
862	862	SECTION 2.39. The heading to Section 382.056, Health and
863	863	Safety Code, is amended to read as follows:
864	864	Sec. 382.056. NOTICE OF INTENT TO OBTAIN PERMIT OR PERMIT
865	865	REVIEW[; HEARING].
866	866	SECTION 2.40. Sections 382.056(b), (h), (m), (n), and (p),
867	867	Health and Safety Code, are amended to read as follows:
868	868	(b) The notice must include:
869	869	(1) a description of the location or proposed location
870	870	of the facility or federal source;
871	871	(2) the location at which a copy of the application is
872	872	available for review and copying as provided by Subsection (d);
873	873	(3) a description, including a telephone number, of
874	874	the manner in which the commission may be contacted for further
875	875	information;
876	876	(4) a description, including a telephone number, of
877	877	the manner in which the applicant may be contacted for further
878	878	information;
879	879	(5) a description of the procedural rights and
880	880	obligations of the public, printed in a font style or size that
881	881	clearly provides emphasis and distinguishes it from the remainder
882	882	of the notice, that includes a statement that a person who may be
883	883	affected by emissions of air contaminants from the facility,
884	884	proposed facility, or federal source is entitled to request a
885	885	hearing from the commission or petition for review of a commission
886	886	decision, as applicable;
887	887	(6) a description of the procedure by which a person
888	888	may be placed on a mailing list in order to receive additional
889	889	information about the application;
890	890	(7) the time and location of any public meeting to be
891	891	held under Subsection (e); and
892	892	(8) any other information the commission by rule
893	893	requires.
894	894	(h) If, in response to the notice published under Subsection
895	895	(a) for a permit under Section 382.054, a person requests during the
896	896	public comment period provided by commission rule that the
897	897	commission hold a public hearing, the commission shall consider the
898	898	request under the procedures provided by Section 382.0561 and not
899	899	under the procedures provided by Subsections (j)-(n) [(i)-(n)].
900	900	(m) The chief clerk of the commission shall transmit the
901	901	executive director's decision, the executive director's response to
902	902	public comments, and instructions for, as applicable, requesting
903	903	reconsideration of or petitioning for administrative review of
904	904	[that the commission reconsider] the executive director's
905	905	decision, or requesting [hold] a contested case hearing to:
906	906	(1) the applicant;
907	907	(2) any person who submitted comments during the
908	908	public comment period;
909	909	(3) any person who requested to be on the mailing list
910	910	for the permit action; and
911	911	(4) any person who timely filed a request for a public
912	912	hearing in response to the notice published under Subsection (a).
913	913	(n) Except as provided by Section 382.0561, the commission
914	914	shall consider a request to [that the commission] reconsider or a
915	915	petition to review the executive director's decision [or hold a
916	916	public hearing] in accordance with the procedures provided by
917	917	Sections 5.556 and 5.5565 [5.557], Water Code.
918	918	(p) The commission by rule shall provide for additional
919	919	notice or [,] opportunity for public comment, administrative
920	920	review, or [opportunity for] public hearing to the extent necessary
921	921	to satisfy a requirement to obtain or maintain delegation or
922	922	approval of a federal program.
923	923	SECTION 2.41. The heading to Section 382.058, Health and
924	924	Safety Code, is amended to read as follows:
925	925	Sec. 382.058. NOTICE OF [AND HEARING ON] CONSTRUCTION OF
926	926	CONCRETE PLANT UNDER PERMIT BY RULE, STANDARD PERMIT, OR EXEMPTION.
927	927	SECTION 2.42. Sections 382.058(a), (c), and (d), Health and
928	928	Safety Code, are amended to read as follows:
929	929	(a) A person may not begin construction on any concrete
930	930	plant that performs wet batching, dry batching, or central mixing
931	931	under a standard permit under Section 382.05195 or a permit by rule
932	932	adopted by the commission under Section 382.05196 unless the person
933	933	has complied with the notice [and opportunity for hearing]
934	934	provisions under Section 382.056.
935	935	(c) For purposes of this section, only those persons
936	936	actually residing in a permanent residence within 440 yards of the
937	937	proposed plant may be an affected person [request a hearing under
938	938	Section 382.056 as a person who may be affected].
939	939	(d) If the commission considers air dispersion modeling
940	940	information in the course of adopting an exemption under Section
941	941	382.057 for a concrete plant that performs wet batching, dry
942	942	batching, or central mixing, the commission may not require that a
943	943	person who qualifies for the exemption conduct air dispersion
944	944	modeling before beginning construction of a concrete plant[, and
945	945	evidence regarding air dispersion modeling may not be submitted at
946	946	a hearing under Section 382.056].
947	947	SECTION 2.43. The heading to Section 382.059, Health and
948	948	Safety Code, is amended to read as follows:
949	949	Sec. 382.059. [HEARING AND] DECISION ON PERMIT AMENDMENT
950	950	APPLICATION OF CERTAIN ELECTRIC GENERATING FACILITIES.
951	951	SECTION 2.44. Section 382.059(b), Health and Safety Code,
952	952	is amended to read as follows:
953	953	(b) The commission shall provide an opportunity for [a
954	954	public hearing and] the submission of public comment on the
955	955	application in the manner provided by Section 382.0561.
956	956	SECTION 2.45. Section 26.029(b), Water Code, is amended to
957	957	read as follows:
958	958	(b) The [After a public hearing, notice of which shall be
959	959	given to the permittee, the] commission may require the permittee,
960	960	from time to time, for good cause, in conformance with applicable
961	961	laws, to conform to new or additional conditions.
962	962	SECTION 2.46. Section 27.021(b), Water Code, is amended to
963	963	read as follows:
964	964	(b) The commission by rule shall provide for public notice
965	965	and comment on an application for a permit authorized by this
966	966	section. [Notwithstanding Section 27.018, an application for a
967	967	permit authorized by this section is not subject to the hearing
968	968	requirements of Chapter 2001, Government Code.]
969	969	SECTION 2.47. Section 27.023(c), Water Code, is amended to
970	970	read as follows:
971	971	(c) If a well described by Subsection (a) is included in an
972	972	area permit issued by the commission:
973	973	(1) the registration status of the well ceases; and
974	974	(2) the well is subject to all rules applicable to the
975	975	area permit, including notice [and hearing] requirements.
976	976	SECTION 2.48. Section 27.051(e), Water Code, as amended by
977	977	Chapters 347 (S.B. 324), 965 (H.B. 2912), and 1161 (H.B. 2997), Acts
978	978	of the 77th Legislature, Regular Session, 2001, is reenacted and
979	979	amended to read as follows:
980	980	(e) Consistent with Sections 5.753 and 5.754 and rules
981	981	adopted and procedures developed under those sections, the
982	982	commission shall establish a procedure for the preparation of
983	983	comprehensive summaries of the applicant's compliance history,
984	984	including the compliance history of any corporation or business
985	985	entity managed, owned, or otherwise closely related to the
986	986	applicant. A compliance summary must include as evidence of
987	987	compliance information regarding the applicant's implementation of
988	988	an environmental management system at the facility for which an
989	989	authorization is sought. The summaries shall be made available to
990	990	the applicant and any interested person after the commission has
991	991	completed its technical review of the permit application and prior
992	992	to the promulgation of the public notice relating to the issuance of
993	993	the permit. [Evidence of compliance or noncompliance by an
994	994	applicant for an injection well permit with environmental statutes
995	995	and the rules adopted or orders or permits issued by the commission
996	996	may be offered by any party at a hearing on the applicant's
997	997	application and admitted into evidence subject to applicable rules
998	998	of evidence. In accordance with this subsection and Sections 5.753
999	999	and 5.754 and rules adopted and procedures developed under those
1000	1000	sections, evidence of the compliance history of an applicant for an
1001	1001	injection well may be offered at a hearing on the application and
1002	1002	may be admitted into evidence, subject to the rules of evidence.
1003	1003	Evidence of the compliance history of an applicant for an injection
1004	1004	well permit may be offered by the executive director at a hearing on
1005	1005	the application and admitted into evidence subject to the rules of
1006	1006	evidence.] All evidence submitted [admitted], including
1007	1007	compliance history, shall be considered by the commission in
1008	1008	determining whether to issue, amend, extend, or renew a permit. If
1009	1009	the commission concludes that the applicant's compliance history is
1010	1010	unacceptable, the commission shall deny the permit. In this
1011	1011	subsection, "environmental management system" has the meaning
1012	1012	assigned by Section 5.127.
1013	1013	SECTION 2.49. Sections 27.0513(a), (c), and (d), Water
1014	1014	Code, are amended to read as follows:
1015	1015	(a) The commission may issue a permit pursuant to Section
1016	1016	27.011 that authorizes the construction and operation of two or
1017	1017	more similar injection wells within a specified area for mining of
1018	1018	uranium. [An application for a new permit issued pursuant to
1019	1019	Section 27.011, a major amendment of such a permit, or a renewal of
1020	1020	such a permit for mining of uranium is subject to the public notice
1021	1021	requirements and opportunity for contested case hearing provided
1022	1022	under Section 27.018.] A new, amended, or renewed permit must
1023	1023	incorporate a table of pre-mining low and high values representing
1024	1024	the range of groundwater quality within the permit boundary and
1025	1025	area of review, as provided by commission rule, for each water
1026	1026	quality parameter used to measure groundwater restoration in a
1027	1027	commission-required restoration table. The values in the permit
1028	1028	range table must be established from pre-mining baseline wells and
1029	1029	all available wells within the area of review, including those in
1030	1030	the existing or proposed permit boundary and any existing or
1031	1031	proposed production areas. Wells used for that purpose are limited
1032	1032	to those that have documented completion depths and screened
1033	1033	intervals that correspond to a uranium production zone aquifer
1034	1034	identified within the permit boundary.
1035	1035	(c) The commission may issue a holder of a permit issued
1036	1036	pursuant to Section 27.011 for mining of uranium an authorization
1037	1037	that allows the permit holder to conduct mining and restoration
1038	1038	activities in production zones within the boundary established in
1039	1039	the permit. The commission by rule shall establish application
1040	1040	requirements, technical requirements, including the methods for
1041	1041	determining restoration table values, and procedural requirements
1042	1042	for any authorization. If a restoration table value for a proposed
1043	1043	or amended authorization exceeds the range listed in the permit
1044	1044	range table such that it falls above the upper limit of the range,
1045	1045	the value within the permit range table must be used or a major
1046	1046	amendment to the permit range table must be obtained[, subject to an
1047	1047	opportunity for a contested case hearing or the hearing
1048	1048	requirements of Chapter 2001, Government Code].
1049	1049	(d) Notwithstanding Sections 5.551, 5.556, and 27.011, [and
1050	1050	27.018,] an application for an authorization is an uncontested
1051	1051	matter not subject to a contested case hearing or the hearing
1052	1052	requirements of Chapter 2001, Government Code, if:
1053	1053	(1) the authorization is for a production zone located
1054	1054	within the boundary of a permit that incorporates a range table of
1055	1055	groundwater quality restoration values used to measure groundwater
1056	1056	restoration by the commission;
1057	1057	(2) the application includes groundwater quality
1058	1058	restoration values falling at or below the upper limit of the range
1059	1059	established in Subdivision (1); and
1060	1060	(3) the authorization is for a production zone located
1061	1061	within the boundary of a permit that incorporates groundwater
1062	1062	baseline characteristics of the wells for the application required
1063	1063	by commission rule.
1064	1064	ARTICLE 3. REPEALER
1065	1065	SECTION 3.01. Sections 2003.047(e-1), (e-2), (e-3), (e-4),
1066	1066	(e-5), (i-1), (i-2), and (i-3), Government Code, are repealed.
1067	1067	SECTION 3.02. The following sections of the Health and
1068	1068	Safety Code are repealed:
1069	1069	(1) Section 361.068(c);
1070	1070	(2) Sections 361.079(b) and (c);
1071	1071	(3) Section 361.080;
1072	1072	(4) Section 361.082(b);
1073	1073	(5) Section 361.083;
1074	1074	(6) Section 361.0831;
1075	1075	(7) Section 361.0832;
1076	1076	(8) Section 361.0833(c);
1077	1077	(9) Section 361.084(c);
1078	1078	(10) Section 361.085(b);
1079	1079	(11) Sections 361.088(c), (e), and (f);
1080	1080	(12) Section 361.089(d);
1081	1081	(13) Section 361.120(e);
1082	1082	(14) Sections 382.0291(d) and (e);
1083	1083	(15) Section 382.031;
1084	1084	(16) Sections 382.056(g), (i), and (o);
1085	1085	(17) Section 382.0566(c);
1086	1086	(18) Section 382.059(d); and
1087	1087	(19) Section 382.0591(c).
1088	1088	SECTION 3.03. The following sections of the Water Code are
1089	1089	repealed:
1090	1090	(1) Section 5.228(d);
1091	1091	(2) Sections 5.556(c), (d), (e), and (f);
1092	1092	(3) Section 5.557;
1093	1093	(4) Sections 26.028(c), (d), (e), (f), (g), and (h);
1094	1094	(5) Section 26.0283(c);
1095	1095	(6) Section 27.015(b);
1096	1096	(7) Section 27.018; and
1097	1097	(8) Sections 27.0513(e), (f), and (g).
1098	1098	ARTICLE 4. TRANSITION; EFFECTIVE DATE
1099	1099	SECTION 4.01. (a) Not later than January 1, 2018:
1100	1100	(1) the State Office of Administrative Hearings shall
1101	1101	adopt rules to implement Section 2003.0478, Government Code, as
1102	1102	added by this Act; and
1103	1103	(2) the Texas Commission on Environmental Quality
1104	1104	shall adopt rules to implement Section 5.5565, Water Code, as added
1105	1105	by this Act.
1106	1106	(b) The changes in law made by this Act apply only to an
1107	1107	application for a permit, license, registration, or other
1108	1108	authorization that is filed with the Texas Commission on
1109	1109	Environmental Quality on or before the effective date of rules
1110	1110	adopted under Subsection (a). An application for a permit,
1111	1111	license, registration, or other authorization that is filed before
1112	1112	the effective date of rules adopted under Subsection (a) is
1113	1113	governed by the law in effect on the date of filing, and that law is
1114	1114	continued in effect for that purpose.
1115	1115	SECTION 4.02. This Act takes effect September 1, 2017.