Texas 2023 - 88th Regular

Texas House Bill HB1505 Compare Versions

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11 88R6549 MP-D
22 By: Bell of Kaufman H.B. No. 1505
33
44
55 A BILL TO BE ENTITLED
66 AN ACT
77 relating to the continuation and functions of the Texas Commission
88 on Environmental Quality.
99 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1010 SECTION 1. Section 382.05101, Health and Safety Code, is
1111 amended to read as follows:
1212 Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The
1313 commission may develop by rule the criteria to establish a de
1414 minimis level of air contaminants for facilities or groups of
1515 facilities below which the following types of permits are not
1616 required:
1717 (1) a permit under Section 382.0518 or 382.0519;
1818 (2) [,] a standard permit under Section 382.05195,
1919 [or] 382.05198, or 382.051985; or
2020 (3) [, or] a permit by rule under Section 382.05196 [is
2121 not required].
2222 SECTION 2. Section 382.0511(c), Health and Safety Code, is
2323 amended to read as follows:
2424 (c) The commission may authorize changes in a federal source
2525 to proceed before the owner or operator obtains a federal operating
2626 permit or revisions to a federal operating permit if:
2727 (1) the changes are de minimis under Section
2828 382.05101; or
2929 (2) the owner or operator:
3030 (A) has obtained a preconstruction permit or
3131 permit amendment required by Section 382.0518; or
3232 (B) is operating under:
3333 (i) a standard permit under Section
3434 382.05195, [or] 382.05198, or 382.051985;
3535 (ii) a permit by rule under Section
3636 382.05196; or
3737 (iii) an exemption allowed under Section
3838 382.057.
3939 SECTION 3. Subchapter C, Chapter 382, Health and Safety
4040 Code, is amended by adding Section 382.051985 to read as follows:
4141 Sec. 382.051985. STANDARD PERMIT FOR CERTAIN TEMPORARY
4242 CONCRETE PLANTS. (a) The commission shall issue a standard permit
4343 for a temporary concrete plant that performs wet batching, dry
4444 batching, or central mixing to support a public works project. A
4545 plant operating under the permit:
4646 (1) may not support a project that is not related to
4747 the public works project;
4848 (2) must be located in or contiguous to the
4949 right-of-way of the public works project; and
5050 (3) must meet the requirements of Section 382.05198.
5151 (b) A permit issued under this section:
5252 (1) may not have an initial term that exceeds one year;
5353 (2) may be renewed for an additional term not to exceed
5454 one year;
5555 (3) may be renewed for a second additional term not to
5656 exceed one year only on a finding of good cause by the commission;
5757 and
5858 (4) may not be renewed a third time.
5959 SECTION 4. Sections 382.05199(a), (b), and (h), Health and
6060 Safety Code, are amended to read as follows:
6161 (a) A person may not begin construction of a permanent
6262 concrete plant that performs wet batching, dry batching, or central
6363 mixing under a standard permit issued under Section 382.05198 or a
6464 temporary concrete plant that performs wet batching, dry batching,
6565 or central mixing under a standard permit issued under Section
6666 382.051985 unless the commission authorizes the person to use the
6767 permit as provided by this section. The notice and hearing
6868 requirements of Subsections (b)-(g) apply only to an applicant for
6969 authorization to use a standard permit issued under Section
7070 382.05198 or 382.051985. An applicant for a permit for a concrete
7171 plant that does not meet the requirements of a standard permit
7272 issued under Section 382.05198 or 382.051985 must comply with:
7373 (1) Section 382.058 to obtain authorization to use a
7474 standard permit issued under Section 382.05195 or a permit by rule
7575 adopted under Section 382.05196; or
7676 (2) Section 382.056 to obtain a permit issued under
7777 Section 382.0518.
7878 (b) An applicant for an authorization to use a standard
7979 permit under Section 382.05198 or 382.051985 must publish notice
8080 under this section not later than the earlier of:
8181 (1) the 30th day after the date the applicant receives
8282 written notice from the executive director that the application is
8383 technically complete; or
8484 (2) the 75th day after the date the executive director
8585 receives the application.
8686 (h) Not later than the 35th day after the date the public
8787 hearing is held, the executive director shall approve or deny the
8888 application for authorization to use the standard permit. The
8989 executive director shall base the decision on whether the
9090 application meets the requirements of Section 382.05198 or
9191 382.051985. The executive director shall consider all comments
9292 received during the public comment period and at the public hearing
9393 in determining whether to approve the application. If the
9494 executive director denies the application, the executive director
9595 shall state the reasons for the denial and any modifications to the
9696 application that are necessary for the proposed plant to qualify
9797 for the authorization.
9898 SECTION 5. Section 382.056, Health and Safety Code, is
9999 amended by amending Subsection (b) and adding Subsection (k-2) to
100100 read as follows:
101101 (b) The notice must include:
102102 (1) a description of the location or proposed location
103103 of the facility or federal source;
104104 (2) [the location at which a copy of the application is
105105 available for review and copying as provided by Subsection (d);
106106 [(3)] a description, including a telephone number, of
107107 the manner in which the commission may be contacted for further
108108 information;
109109 (3) [(4)] a description, including a telephone
110110 number, of the manner in which the applicant may be contacted for
111111 further information;
112112 (4) [(5)] a description of the procedural rights and
113113 obligations of the public, printed in a font style or size that
114114 clearly provides emphasis and distinguishes it from the remainder
115115 of the notice, that includes a statement that a person who may be
116116 affected by emissions of air contaminants from the facility,
117117 proposed facility, or federal source is entitled to request a
118118 hearing from the commission;
119119 (5) [(6)] a description of the procedure by which a
120120 person may be placed on a mailing list in order to receive
121121 additional information about the application;
122122 (6) [(7)] the time and location of any public meeting
123123 to be held under Subsection (e); and
124124 (7) [(8)] any other information the commission by rule
125125 requires.
126126 (k-2) Notwithstanding any other law, if the commission
127127 holds a public meeting for a permit application under this
128128 subchapter the commission shall hold open the public comment period
129129 for the permit application for at least 36 hours after the end of
130130 the meeting.
131131 SECTION 6. Section 5.014, Water Code, is amended to read as
132132 follows:
133133 Sec. 5.014. SUNSET PROVISION. The Texas Commission on
134134 Environmental Quality is subject to Chapter 325, Government Code
135135 (Texas Sunset Act). Unless continued in existence as provided by
136136 that chapter, the commission is abolished [and this chapter
137137 expires] September 1, 2035 [2023].
138138 SECTION 7. Section 5.0535, Water Code, is amended by
139139 amending Subsection (b) and adding Subsection (d) to read as
140140 follows:
141141 (b) The training program must provide the person with
142142 information regarding:
143143 (1) the law governing [legislation that created the]
144144 commission operations;
145145 (2) the programs, functions, rules, and budget of
146146 [operated by] the commission;
147147 (3) the scope of and limitations on the rulemaking
148148 authority of the commission [the role and functions of the
149149 commission];
150150 (4) [the rules of the commission, with an emphasis on
151151 the rules that relate to disciplinary and investigatory authority;
152152 [(5) the current budget for the commission;
153153 [(6)] the results of the most recent formal audit
154154 [significant internal and external audits] of the commission;
155155 (5) [(7)] the requirements of:
156156 (A) laws relating to [the] open meetings, [law,
157157 Chapter 551, Government Code;
158158 [(B) the] public information, [law, Chapter 552,
159159 Government Code;
160160 [(C) the] administrative procedure, and
161161 disclosing conflicts-of-interest [law, Chapter 2001, Government
162162 Code; and
163163 [(D) other laws relating to public officials,
164164 including conflict-of-interest laws]; and
165165 (B) other laws applicable to members of a state
166166 policy-making body in performing their duties; and
167167 (6) [(8)] any applicable ethics policies adopted by
168168 the commission or the Texas Ethics Commission.
169169 (d) The executive director of the commission shall create a
170170 training manual that includes the information required by
171171 Subsection (b). The executive director shall distribute a copy of
172172 the training manual annually to each member of the commission. Each
173173 member of the commission shall sign and submit to the executive
174174 director a statement acknowledging that the member received and has
175175 reviewed the training manual.
176176 SECTION 8. Section 5.113, Water Code, is amended to read as
177177 follows:
178178 Sec. 5.113. COMMISSION AND STAFF RESPONSIBILITY POLICY.
179179 The commission shall develop and implement policies that clearly
180180 separate the policy-making [the respective] responsibilities of
181181 the commission and the management responsibilities of the executive
182182 director and the staff of the commission.
183183 SECTION 9. The heading to Section 5.129, Water Code, is
184184 amended to read as follows:
185185 Sec. 5.129. SUMMARY OF AND INFORMATION PROVIDED BY [FOR]
186186 PUBLIC NOTICES.
187187 SECTION 10. Section 5.129, Water Code, is amended by
188188 amending Subsection (a) and adding Subsection (a-1) to read as
189189 follows:
190190 (a) The commission by rule shall provide for each public
191191 notice issued or published by the commission or by a person under
192192 the jurisdiction of the commission as required by law or by
193193 commission rule to include:
194194 (1) at the beginning of the notice a succinct
195195 statement of the subject of the notice; and
196196 (2) to the extent applicable, the name of the permit
197197 applicant, the type of permit applied for, and the address of each
198198 proposed or existing site subject to the proposed permit.
199199 (a-1) Rules adopted under this section [The rules] must
200200 provide that a summary statement must be designed to inform the
201201 reader of the subject matter of the notice without having to read
202202 the entire text of the notice.
203203 SECTION 11. Subchapter E, Chapter 5, Water Code, is amended
204204 by adding Section 5.1734 to read as follows:
205205 Sec. 5.1734. ELECTRONIC POSTING OF PERMIT APPLICATIONS.
206206 (a) The commission shall post on its website at the time a permit
207207 application becomes administratively complete:
208208 (1) the permit application and any associated
209209 materials; and
210210 (2) for a permit application under Subchapter D,
211211 Chapter 11, any map accompanying the permit application.
212212 (b) Notwithstanding any other law, the commission shall
213213 require each applicant for a permit, permit amendment, or permit
214214 renewal that requires notice be published to include in the notice
215215 the address of the website where the public can access information
216216 about the permit as described by Subsection (a).
217217 (c) In implementing this section, the commission shall
218218 consider and accommodate residents of each area affected by a
219219 proposed permit, permit amendment, or permit renewal who may need
220220 assistance accessing the application and associated materials
221221 because of a lack of access to Internet services, particularly when
222222 there is a heightened interest in or response to public notice or
223223 comment.
224224 (d) Notice posted under this section shall be in lieu of a
225225 requirement that a physical copy of the permit be made available in
226226 a public place.
227227 SECTION 12. Section 5.552(c), Water Code, is amended to
228228 read as follows:
229229 (c) The commission by rule shall establish the form and
230230 content of the notice. The notice must include:
231231 (1) the location and nature of the proposed activity;
232232 (2) [the location at which a copy of the application is
233233 available for review and copying as provided by Subsection (e);
234234 [(3)] a description, including a telephone number, of
235235 the manner in which a person may contact the commission for further
236236 information;
237237 (3) [(4)] a description, including a telephone
238238 number, of the manner in which a person may contact the applicant
239239 for further information;
240240 (4) [(5)] a description of the procedural rights and
241241 obligations of the public, printed in a font style or size that
242242 clearly provides emphasis and distinguishes it from the remainder
243243 of the notice;
244244 (5) [(6)] a description of the procedure by which a
245245 person may be placed on a mailing list in order to receive
246246 additional information about the application;
247247 (6) [(7)] the time and location of any public meeting
248248 to be held under Subsection (f); and
249249 (7) [(8)] any other information the commission by rule
250250 requires.
251251 SECTION 13. Chapter 5, Water Code, is amended by adding
252252 Subchapter M-1 to read as follows:
253253 SUBCHAPTER M-1. PERMITTING PROCEDURES GENERALLY
254254 Sec. 5.581. APPLICABILITY. This subchapter applies to
255255 programs and permits arising under the air, waste, or water
256256 programs within the commission's jurisdiction.
257257 Sec. 5.582. MEANS OF PUBLICATION OF NOTICE. (a)
258258 Notwithstanding any other law, the commission may publish notice of
259259 a permit application by electronic means instead of by printed
260260 means.
261261 (b) If the commission publishes notice of a permit
262262 application by electronic means, the commission shall post the
263263 notice on the commission's website and may provide additional
264264 electronic notice through other means, including direct e-mail.
265265 (c) The commission shall consider and accommodate residents
266266 of each area affected by a proposed permit, permit amendment, or
267267 permit renewal who may need assistance accessing notice published
268268 by electronic means because of a lack of access to Internet
269269 services, particularly when there is a heightened interest in or
270270 response to public notice or comment.
271271 (d) This section does not authorize the commission to use an
272272 electronic means of notice instead of newspaper publication or
273273 another form of notice if an applicable federal law requires a
274274 particular form of notice.
275275 Sec. 5.583. VIRTUAL PUBLIC MEETING. (a) Notwithstanding
276276 any other law, the commission may hold a public meeting virtually
277277 through the Internet provided that members of the general public
278278 are able to participate in the meeting.
279279 (b) The commission shall consider and accommodate members
280280 of the public who may need assistance participating in a virtually
281281 held public meeting because of a lack of access to Internet
282282 services, particularly when there is a heightened interest in or
283283 response to public notice or comment.
284284 (c) This section does not authorize the commission to hold a
285285 public meeting virtually instead of an in-person public meeting if
286286 an applicable federal law requires an in-person public meeting.
287287 Sec. 5.584. TEMPORARY AND INDEFINITE PERMIT REPORTING. (a)
288288 In this section, "permit" means a permit, approval, registration,
289289 or other form of authorization required by law for a person to
290290 engage in an action.
291291 (b) This section does not apply to a person who holds a
292292 temporary permit or permit with an indefinite term that has a
293293 regular reporting requirement.
294294 (c) A person who holds a temporary permit or permit with an
295295 indefinite term shall report to the commission annually whether the
296296 activity subject to the permit is ongoing.
297297 SECTION 14. Section 5.754, Water Code, is amended by
298298 amending Subsection (c) and adding Subsection (c-1) to read as
299299 follows:
300300 (c) In classifying a person's compliance history, the
301301 commission shall:
302302 (1) determine whether a violation of an applicable
303303 legal requirement is of major, moderate, or minor significance;
304304 (2) establish criteria for classifying a repeat
305305 violator, including:
306306 (A) setting the number of major, moderate, and
307307 minor violations needed to be classified as a repeat violator; and
308308 (B) giving consideration to the size and
309309 complexity of the site at which the violations occurred, and
310310 limiting consideration to violations of the same nature and the
311311 same environmental media that occurred in the preceding five years;
312312 and
313313 (3) consider:
314314 (A) the significance of the violation and whether
315315 the person is a repeat violator;
316316 (B) the size and complexity of the site,
317317 including whether the site is subject to Title V of the federal
318318 Clean Air Act (42 U.S.C. Section 7661 et seq.); and
319319 (C) the potential for a violation at the site
320320 that is attributable to the nature and complexity of the site.
321321 (c-1) The commission may review, suspend, or reclassify a
322322 person's compliance history at any time if the commission
323323 determines that exigent circumstances exist.
324324 SECTION 15. Sections 7.052(b-1) and (c), Water Code, are
325325 amended to read as follows:
326326 (b-1) The amount of the penalty assessed against a
327327 manufacturer that does not label its computer equipment or covered
328328 television equipment or adopt and implement a recovery plan as
329329 required by Section 361.955, 361.975, or 361.978, Health and Safety
330330 Code, as applicable, may not exceed $10,000 for the second
331331 violation or $40,000 [$25,000] for each subsequent violation. A
332332 penalty under this subsection is in addition to any other penalty
333333 that may be assessed for a violation of Subchapter Y or Z, Chapter
334334 361, Health and Safety Code.
335335 (c) The amount of the penalty for all other violations
336336 within the jurisdiction of the commission to enforce may not exceed
337337 $40,000 [$25,000] a day for each violation.
338338 SECTION 16. Subchapter C, Chapter 7, Water Code, is amended
339339 by adding Section 7.0675 to read as follows:
340340 Sec. 7.0675. ENFORCEMENT DIVERSION PROGRAM FOR SMALL
341341 BUSINESSES AND LOCAL GOVERNMENTS. (a) In this section, "small
342342 business" has the meaning assigned by Section 5.135.
343343 (b) The commission shall establish an enforcement diversion
344344 program for small businesses and local governments. The program
345345 must include:
346346 (1) resources developed for the small business
347347 compliance assistance program under Section 5.135;
348348 (2) compliance assistance training; and
349349 (3) on-site technical assistance and training
350350 performed by commission staff.
351351 (c) Before the commission initiates an enforcement action
352352 for a violation committed by a small business or local government,
353353 the commission may enroll the business or government into the
354354 enforcement diversion program.
355355 (d) The commission may not initiate against a small business
356356 or local government an enforcement action for a violation that
357357 prompted enrollment in the enforcement diversion program after the
358358 business or government has successfully completed the program.
359359 (e) A small business or local government is not eligible to
360360 enroll in the enforcement diversion program if the small business
361361 or local government:
362362 (1) committed a violation that:
363363 (A) resulted in an imminent threat to public
364364 health; or
365365 (B) was a major violation, as classified under
366366 Section 5.754; or
367367 (2) was enrolled in the program in the two years
368368 preceding the date of the violation.
369369 SECTION 17. Subchapter B, Chapter 11, Water Code, is
370370 amended by adding Section 11.02363 to read as follows:
371371 Sec. 11.02363. PERIODIC REVIEW OF ENVIRONMENTAL FLOW
372372 RECOMMENDATIONS; STATEWIDE WORK PLAN. (a) Periodically, the
373373 advisory group shall review the environmental flow standards for
374374 each river basin and bay system adopted by the commission under
375375 Section 11.1471. In conducting a review of the environmental flow
376376 standards, the advisory group shall:
377377 (1) work with the science advisory committee and the
378378 pertinent basin and bay area stakeholder committees and basin and
379379 bay expert science teams in a manner similar to that provided by
380380 Section 11.02362;
381381 (2) take into consideration the work plans developed
382382 under Section 11.02362(p);
383383 (3) analyze previous environmental flow regime
384384 recommendations and standards;
385385 (4) prescribe future monitoring, studies, and
386386 activities needed to better understand the environmental flow; and
387387 (5) validate or refine:
388388 (A) the environmental flow recommendations;
389389 (B) the environmental flow standards adopted by
390390 the commission; and
391391 (C) strategies to achieve the environmental flow
392392 standards.
393393 (b) The advisory group shall develop a biennial statewide
394394 work plan to prioritize and schedule the review of environmental
395395 flow standards under Subsection (a). The work plan must establish:
396396 (1) the methodology used to prioritize the review of
397397 the environmental flow standards of each river basin and bay
398398 system; and
399399 (2) a timeline for the review of the environmental
400400 flow standards of each river basin and bay system.
401401 (c) The advisory group shall submit to the commission:
402402 (1) any review conducted under Subsection (a),
403403 including recommendations to the commission for use in adopting
404404 rules under Section 11.1471; and
405405 (2) the biennial work plan developed under Subsection
406406 (b).
407407 SECTION 18. Section 11.1471, Water Code, is amended by
408408 amending Subsection (f) and adding Subsection (g) to read as
409409 follows:
410410 (f) An environmental flow standard or environmental flow
411411 set-aside adopted under Subsection (a) may be altered by the
412412 commission in a rulemaking process undertaken in accordance with a
413413 schedule established by the commission. The commission shall
414414 consider the review of environmental flows by the advisory group
415415 under Section 11.02363(a) when altering an environmental flow. In
416416 establishing a schedule, the commission shall consider the work
417417 plan developed by the advisory group under Section 11.02363(b) and
418418 the applicable work plan approved by the advisory group under
419419 Section 11.02362(p). The commission's schedule may not provide for
420420 the rulemaking process to occur more frequently than once every 10
421421 years unless the work plans provide [plan provides] for a periodic
422422 review under Sections 11.02363(a) and [Section] 11.02362(p) to
423423 occur more frequently than once every 10 years. In that event, the
424424 commission may provide for the rulemaking process to be undertaken
425425 in conjunction with the periodic review if the commission
426426 determines that schedule to be appropriate. A rulemaking process
427427 undertaken under this subsection must provide for the participation
428428 of stakeholders having interests in the particular river basin and
429429 bay system for which the process is undertaken.
430430 (g) The commission shall submit a biennial report to the
431431 advisory group on the implementation and effectiveness of
432432 environmental flow standards. The report must include:
433433 (1) a description of progress made over the previous
434434 biennium in implementing environmental flow standards, including
435435 the status of any efforts to set aside unappropriated water for
436436 environmental flow protection;
437437 (2) input provided by the board and the Parks and
438438 Wildlife Department on their:
439439 (A) activities related to environmental flow
440440 standards; and
441441 (B) recommendations for the work plan developed
442442 under Section 11.02363(b); and
443443 (3) recommendations for the work plan developed under
444444 Section 11.02363(b).
445445 SECTION 19. Section 49.011(b), Water Code, is amended to
446446 read as follows:
447447 (b) The commission by rule shall establish a procedure for
448448 public notice and hearing of applications. The rules must require
449449 an applicant to publish the notice issued by the commission under
450450 Subsection (a) once a week for two consecutive weeks in a newspaper
451451 regularly published or circulated in the county where the district
452452 is proposed to be located not later than the 30th day before the
453453 date on which the commission may act on the application. The
454454 commission shall provide the notice to each state representative
455455 and state senator who represents an area inside the proposed
456456 district's boundaries.
457457 SECTION 20. The following provisions are repealed:
458458 (1) Section 382.056(d), Health and Safety Code;
459459 (2) Section 5.552(e), Water Code;
460460 (3) Section 11.0236(m), Water Code;
461461 (4) Section 11.02361(g), Water Code; and
462462 (5) Section 11.02362(s), Water Code.
463463 SECTION 21. (a) Except as provided by Subsection (b) of
464464 this section, Section 5.0535, Water Code, as amended by this Act,
465465 applies to a member of the Texas Commission on Environmental
466466 Quality appointed before, on, or after the effective date of this
467467 Act.
468468 (b) A member of the Texas Commission on Environmental
469469 Quality who, before the effective date of this Act, completed the
470470 training program required by Section 5.0535, Water Code, as that
471471 law existed before the effective date of this Act, is only required
472472 to complete additional training on the subjects added by this Act to
473473 the training program required by Section 5.0535, Water Code. A
474474 member described by this subsection may not vote, deliberate, or be
475475 counted as a member in attendance at a meeting of the commission
476476 held on or after December 1, 2023, until the member completes the
477477 additional training.
478478 SECTION 22. A permit holder subject to Section 5.584, Water
479479 Code, as added by this Act, shall first report to the Texas
480480 Commission on Environmental Quality the status of the permitted
481481 activity not later than December 31, 2024.
482482 SECTION 23. The change in law made by this Act to Section
483483 7.052, Water Code, applies only to a violation that occurs on or
484484 after the effective date of this Act. A violation that occurs
485485 before the effective date of this Act is governed by the law in
486486 effect on the date the violation occurred, and the former law is
487487 continued in effect for that purpose.
488488 SECTION 24. (a) The Texas Commission on Environmental
489489 Quality shall submit to the environmental flows advisory group the
490490 first biennial report on the implementation and effectiveness of
491491 environmental flow standards under Section 11.1471(g), Water Code,
492492 as added by this Act, not later than January 1, 2024.
493493 (b) The environmental flows advisory group shall produce
494494 and deliver to the commission the first biennial statewide work
495495 plan developed under Section 11.02363, Water Code, as added by this
496496 Act, not later than January 1, 2025.
497497 SECTION 25. This Act takes effect September 1, 2023.