Texas 2023 - 88th Regular

Texas Senate Bill SB1397 Compare Versions

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1	1	S.B. No. 1397
2	2
3	3
4	4	AN ACT
5	5	relating to the continuation and functions of the Texas Commission
6	6	on Environmental Quality.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Section 382.05101, Health and Safety Code, is
9	9	amended to read as follows:
10	10	Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The
11	11	commission may develop by rule the criteria to establish a de
12	12	minimis level of air contaminants for facilities or groups of
13	13	facilities below which the following types of permits are not
14	14	required:
15	15	(1) a permit under Section 382.0518 or 382.0519;
16	16	(2) [,] a standard permit under Section 382.05195,
17	17	[or] 382.05198, or 382.051985; or
18	18	(3) [, or] a permit by rule under Section 382.05196 [is
19	19	not required].
20	20	SECTION 2. Section 382.0511(c), Health and Safety Code, is
21	21	amended to read as follows:
22	22	(c) The commission may authorize changes in a federal source
23	23	to proceed before the owner or operator obtains a federal operating
24	24	permit or revisions to a federal operating permit if:
25	25	(1) the changes are de minimis under Section
26	26	382.05101; or
27	27	(2) the owner or operator:
28	28	(A) has obtained a preconstruction permit or
29	29	permit amendment required by Section 382.0518; or
30	30	(B) is operating under:
31	31	(i) a standard permit under Section
32	32	382.05195, [or] 382.05198, or 382.051985;
33	33	(ii) a permit by rule under Section
34	34	382.05196; or
35	35	(iii) an exemption allowed under Section
36	36	382.057.
37	37	SECTION 3. Subchapter C, Chapter 382, Health and Safety
38	38	Code, is amended by adding Section 382.051985 to read as follows:
39	39	Sec. 382.051985. STANDARD PERMIT FOR CERTAIN TEMPORARY
40	40	CONCRETE PLANTS FOR PUBLIC WORKS. (a) The commission shall issue a
41	41	standard permit that meets the requirements of Section 382.05195
42	42	for a temporary concrete plant that performs wet batching, dry
43	43	batching, or central mixing to support a public works project. A
44	44	plant operating under the permit:
45	45	(1) may not support a project that is not related to
46	46	the public works project; and
47	47	(2) must be located in or contiguous to the
48	48	right-of-way of the public works project.
49	49	(b) A plant permitted under this section may occupy a
50	50	designated site for not more than 180 consecutive days or to supply
51	51	material for a single project, but not other unrelated projects.
52	52	SECTION 4. Section 382.056, Health and Safety Code, is
53	53	amended by adding Subsection (k-2) to read as follows:
54	54	(k-2) Notwithstanding any other law, if the commission
55	55	holds a public meeting for a permit application for which
56	56	consolidated notice was issued under this subchapter, the
57	57	commission shall hold open the public comment period and the period
58	58	for which a contested case hearing may be requested for the permit
59	59	application for at least 36 hours after the end of the meeting.
60	60	SECTION 5. Section 5.014, Water Code, is amended to read as
61	61	follows:
62	62	Sec. 5.014. SUNSET PROVISION. The Texas Commission on
63	63	Environmental Quality is subject to Chapter 325, Government Code
64	64	(Texas Sunset Act). Unless continued in existence as provided by
65	65	that chapter, the commission is abolished [and this chapter
66	66	expires] September 1, 2035 [2023].
67	67	SECTION 6. Section 5.0535, Water Code, is amended by
68	68	amending Subsection (b) and adding Subsection (d) to read as
69	69	follows:
70	70	(b) The training program must provide the person with
71	71	information regarding:
72	72	(1) the law governing [legislation that created the]
73	73	commission operations;
74	74	(2) the programs, functions, rules, and budget of
75	75	[operated by] the commission;
76	76	(3) the scope of and limitations on the rulemaking
77	77	authority of the commission [the role and functions of the
78	78	commission];
79	79	(4) [the rules of the commission, with an emphasis on
80	80	the rules that relate to disciplinary and investigatory authority;
81	81	[(5) the current budget for the commission;
82	82	[(6)] the results of the most recent formal audit
83	83	[significant internal and external audits] of the commission;
84	84	(5) [(7)] the requirements of:
85	85	(A) laws relating to [the] open meetings, [law,
86	86	Chapter 551, Government Code;
87	87	[(B) the] public information, [law, Chapter 552,
88	88	Government Code;
89	89	[(C) the] administrative procedure, and
90	90	disclosing conflicts-of-interest [law, Chapter 2001, Government
91	91	Code; and
92	92	[(D) other laws relating to public officials,
93	93	including conflict-of-interest laws]; and
94	94	(B) other laws applicable to members of a state
95	95	policy-making body in performing their duties; and
96	96	(6) [(8)] any applicable ethics policies adopted by
97	97	the commission or the Texas Ethics Commission.
98	98	(d) The executive director shall create a training manual
99	99	that includes the information required by Subsection (b). The
100	100	executive director shall distribute a copy of the training manual
101	101	annually to each member of the commission. Each member of the
102	102	commission shall sign and submit to the executive director a
103	103	statement acknowledging that the member received and has reviewed
104	104	the training manual.
105	105	SECTION 7. Section 5.113, Water Code, is amended to read as
106	106	follows:
107	107	Sec. 5.113. COMMISSION AND STAFF RESPONSIBILITY POLICY.
108	108	The commission shall develop and implement policies that clearly
109	109	separate the policy-making [the respective] responsibilities of
110	110	the commission and the management responsibilities of the executive
111	111	director and the staff of the commission.
112	112	SECTION 8. The heading to Section 5.129, Water Code, is
113	113	amended to read as follows:
114	114	Sec. 5.129. SUMMARY OF AND INFORMATION PROVIDED BY [FOR]
115	115	PUBLIC NOTICES.
116	116	SECTION 9. Section 5.129, Water Code, is amended by
117	117	amending Subsection (a) and adding Subsection (a-1) to read as
118	118	follows:
119	119	(a) The commission by rule shall provide for each public
120	120	notice issued or published by the commission or by a person under
121	121	the jurisdiction of the commission as required by law or by
122	122	commission rule to include:
123	123	(1) at the beginning of the notice a succinct
124	124	statement of the subject of the notice; and
125	125	(2) to the extent applicable, the name of the permit
126	126	applicant, the type of permit applied for, and the location of each
127	127	proposed or existing site subject to the proposed permit.
128	128	(a-1) Rules adopted under this section [The rules] must
129	129	provide that a summary statement must be designed to inform the
130	130	reader of the subject matter of the notice without having to read
131	131	the entire text of the notice.
132	132	SECTION 10. Subchapter D, Chapter 5, Water Code, is amended
133	133	by adding Section 5.136 to read as follows:
134	134	Sec. 5.136. COMMUNITY OUTREACH. The commission shall
135	135	provide outreach and education to the public on participating in
136	136	the permitting process under the air, waste, and water programs
137	137	within the commission's jurisdiction.
138	138	SECTION 11. Subchapter E, Chapter 5, Water Code, is amended
139	139	by adding Section 5.1734 to read as follows:
140	140	Sec. 5.1734. ELECTRONIC POSTING OF PERMIT APPLICATIONS.
141	141	(a) The commission shall post on its website at the time a permit
142	142	application becomes administratively complete:
143	143	(1) the permit application and any associated
144	144	materials; and
145	145	(2) for a permit application under Subchapter D,
146	146	Chapter 11, any map accompanying the permit application.
147	147	(b) If a permit application is revised or amended after the
148	148	permit application has become administratively complete, the
149	149	commission shall post on its website the revised or amended permit
150	150	application.
151	151	(c) The commission may exempt any associated materials from
152	152	being posted on its website under Subsections (a) and (b) if the
153	153	commission determines that:
154	154	(1) posting the materials on the website would be
155	155	unduly burdensome; or
156	156	(2) the materials are too large to be posted on the
157	157	website.
158	158	(d) Notwithstanding any other law, the commission shall
159	159	require each applicant for a permit, permit amendment, or permit
160	160	renewal that requires notice be published to include in the notice
161	161	the address of the website where the public can access information
162	162	about the permit as described by Subsection (a).
163	163	(e) In implementing this section, the commission shall
164	164	consider and accommodate residents of each area affected by a
165	165	proposed permit, permit amendment, or permit renewal who may need
166	166	assistance accessing the application and associated materials
167	167	because of a lack of access to Internet services, particularly when
168	168	there is a heightened public interest or in response to public
169	169	comment.
170	170	SECTION 12. Chapter 5, Water Code, is amended by adding
171	171	Subchapter M-1 to read as follows:
172	172	SUBCHAPTER M-1. PERMITTING PROCEDURES GENERALLY
173	173	Sec. 5.581. DEFINITION. In this subchapter, "permit" means
174	174	a permit, approval, registration, or other form of authorization
175	175	required by law for a person to engage in an action.
176	176	Sec. 5.582. APPLICABILITY. This subchapter applies to
177	177	programs and permits arising under the air, waste, or water
178	178	programs within the commission's jurisdiction.
179	179	Sec. 5.583. ELECTRONIC PUBLICATION OF NOTICE. (a) The
180	180	commission shall publish notice of a permit application on the
181	181	commission’s website and may provide additional electronic notice
182	182	through other means, including direct e-mail. Notice published
183	183	under this section is in addition to any other notice requirement.
184	184	(b) The commission shall consider and accommodate residents
185	185	of each area affected by a proposed permit, permit amendment, or
186	186	permit renewal who may need assistance accessing notice published
187	187	by electronic means because of a lack of access to Internet
188	188	services, particularly when there is a heightened public interest
189	189	or in response to public comment.
190	190	Sec. 5.584. VERIFICATION OF NOTICE BY NEWSPAPER. If an
191	191	applicant for a permit is required to publish notice in a newspaper,
192	192	the applicant shall provide to the commission a copy of the
193	193	published notice and an affidavit from the publisher certifying
194	194	that the notice was published and the publication meets all
195	195	applicable requirements, including newspaper circulation.
196	196	Sec. 5.585. SECURITY AT PUBLIC MEETING OR PUBLIC HEARING.
197	197	The commission may request that an applicant for a permit that is
198	198	the subject of a public meeting or public hearing provide uniformed
199	199	security at the meeting or hearing sufficient to provide for the
200	200	safety of all attendees and orderly conduct at the meeting or
201	201	hearing.
202	202	Sec. 5.586. NOTICE TO STATE SENATOR AND STATE
203	203	REPRESENTATIVE. (a) This section applies only to a permit
204	204	application for which public notice is required.
205	205	(b) The commission shall send notice of receipt of the
206	206	application for a permit to each state senator and state
207	207	representative who represent the area in which the facility or
208	208	activity to which the application relates is or will be located.
209	209	Sec. 5.587. TEMPORARY AND INDEFINITE PERMIT REPORTING. (a)
210	210	This section does not apply to a person who holds a temporary permit
211	211	or permit with an indefinite term that has a regular reporting
212	212	requirement.
213	213	(b) A person who holds a temporary permit or permit with an
214	214	indefinite term shall report to the commission annually whether the
215	215	activity subject to the permit is ongoing.
216	216	SECTION 13. Section 5.754, Water Code, is amended by
217	217	amending Subsection (c) and adding Subsection (c-1) to read as
218	218	follows:
219	219	(c) In classifying a person's compliance history, the
220	220	commission shall:
221	221	(1) determine whether a violation of an applicable
222	222	legal requirement is of major, moderate, or minor significance;
223	223	(2) establish criteria for classifying a repeat
224	224	violator, including:
225	225	(A) setting the number of major, moderate, and
226	226	minor violations needed to be classified as a repeat violator; and
227	227	(B) giving consideration to the size and
228	228	complexity of the site at which the violations occurred, and
229	229	limiting consideration to violations of the same nature and the
230	230	same environmental media that occurred in the preceding five years;
231	231	and
232	232	(3) consider:
233	233	(A) the significance of the violation and whether
234	234	the person is a repeat violator;
235	235	(B) the size and complexity of the site,
236	236	including whether the site is subject to Title V of the federal
237	237	Clean Air Act (42 U.S.C. Section 7661 et seq.); and
238	238	(C) the potential for a violation at the site
239	239	that is attributable to the nature and complexity of the site.
240	240	(c-1) The executive director may review, suspend, or
241	241	reclassify a person's compliance history in accordance with
242	242	commission rules if the executive director determines that exigent
243	243	circumstances exist.
244	244	SECTION 14. Section 7.052(c), Water Code, is amended to
245	245	read as follows:
246	246	(c) Except as provided by this subsection, the [The] amount
247	247	of the penalty for all other violations within the jurisdiction of
248	248	the commission to enforce may not exceed $25,000 a day for each
249	249	violation. The amount of the penalty for such a violation may not
250	250	exceed $40,000 a day if:
251	251	(1) the violation involves:
252	252	(A) an actual release of pollutants to the air,
253	253	water, or land that exceeds levels that are protective of human
254	254	health or environmental receptors; or
255	255	(B) an actual unauthorized diversion, taking, or
256	256	storage of state water or an unauthorized change in the flood
257	257	elevation of a stream that deprives others of water, severely
258	258	affects aquatic life, or results in a safety hazard, property
259	259	damage, or economic loss;
260	260	(2) the person previously committed a violation of the
261	261	same nature that resulted in the assessment of an administrative
262	262	penalty; and
263	263	(3) the commission determines the person could have
264	264	reasonably anticipated and avoided the violation.
265	265	SECTION 15. Subchapter C, Chapter 7, Water Code, is amended
266	266	by adding Section 7.0675 to read as follows:
267	267	Sec. 7.0675. ENFORCEMENT DIVERSION PROGRAM FOR SMALL
268	268	BUSINESSES AND LOCAL GOVERNMENTS. (a) In this section, "small
269	269	business" means a legal entity, including a corporation,
270	270	partnership, or sole proprietorship, that:
271	271	(1) is formed for the purpose of making a profit;
272	272	(2) is independently owned and operated; and
273	273	(3) has fewer than 100 employees.
274	274	(b) The commission shall establish an enforcement diversion
275	275	program for small businesses and local governments. The program
276	276	must include:
277	277	(1) resources developed for the small business
278	278	compliance assistance program under Section 5.135;
279	279	(2) compliance assistance training; and
280	280	(3) on-site technical assistance and training
281	281	performed by commission staff.
282	282	(c) Before the commission initiates an enforcement action
283	283	for a violation committed by a small business or local government,
284	284	the commission may enroll the business or government into the
285	285	enforcement diversion program.
286	286	(d) The commission may not enroll a small business or local
287	287	government into the enforcement diversion program if an enforcement
288	288	action against the business or government is required by federal
289	289	law.
290	290	(e) The commission may not initiate against a small business
291	291	or local government an enforcement action for a violation that
292	292	prompted enrollment in the enforcement diversion program after the
293	293	business or government has successfully completed the program.
294	294	(f) A small business or local government is not eligible to
295	295	enroll in the enforcement diversion program if the business or
296	296	government:
297	297	(1) committed a violation that:
298	298	(A) resulted in an imminent threat to public
299	299	health; or
300	300	(B) was a major violation, as classified under
301	301	Section 5.754; or
302	302	(2) was enrolled in the program in the two years
303	303	preceding the date of the violation.
304	304	SECTION 16. Subchapter B, Chapter 11, Water Code, is
305	305	amended by adding Section 11.02363 to read as follows:
306	306	Sec. 11.02363. PERIODIC REVIEW OF ENVIRONMENTAL FLOW
307	307	STANDARDS; STATEWIDE WORK PLAN. (a) Periodically, the advisory
308	308	group shall review the environmental flow standards for each river
309	309	basin and bay system adopted by the commission under Section
310	310	11.1471. In conducting a review of the environmental flow
311	311	standards, the advisory group shall:
312	312	(1) work with the science advisory committee and the
313	313	pertinent basin and bay area stakeholder committees and basin and
314	314	bay expert science teams in a manner similar to that provided by
315	315	Section 11.02362;
316	316	(2) take into consideration the work plans developed
317	317	under Section 11.02362(p);
318	318	(3) analyze previous environmental flow
319	319	recommendations and standards;
320	320	(4) prescribe future monitoring, studies, and
321	321	activities needed to better understand the environmental flow; and
322	322	(5) validate or refine:
323	323	(A) the environmental flow recommendations;
324	324	(B) the environmental flow standards adopted by
325	325	the commission; and
326	326	(C) strategies to achieve the environmental flow
327	327	standards.
328	328	(b) The advisory group shall develop a biennial statewide
329	329	work plan to prioritize and schedule the review of environmental
330	330	flow standards under Subsection (a). The work plan must establish:
331	331	(1) the methodology used to prioritize the review of
332	332	the environmental flow standards of each river basin and bay
333	333	system; and
334	334	(2) a timeline for the review of the environmental
335	335	flow standards of each river basin and bay system.
336	336	(c) The advisory group shall submit to the commission:
337	337	(1) any review conducted under Subsection (a),
338	338	including recommendations to the commission for use in adopting
339	339	rules under Section 11.1471; and
340	340	(2) the biennial work plan developed under Subsection
341	341	(b).
342	342	SECTION 17. Section 11.1471, Water Code, is amended by
343	343	amending Subsection (f) and adding Subsection (g) to read as
344	344	follows:
345	345	(f) An environmental flow standard or environmental flow
346	346	set-aside adopted under Subsection (a) may be altered by the
347	347	commission in a rulemaking process undertaken in accordance with a
348	348	schedule established by the commission. The commission shall
349	349	consider the review of environmental flow standards by the advisory
350	350	group under Section 11.02363(a) when altering an environmental flow
351	351	standard or environmental flow set-aside. In establishing a
352	352	schedule, the commission shall consider the work plan developed by
353	353	the advisory group under Section 11.02363(b) and the applicable
354	354	work plan approved by the advisory group under Section 11.02362(p).
355	355	The commission's schedule may not provide for the rulemaking
356	356	process to occur more frequently than once every 10 years unless the
357	357	work plans provide [plan provides] for a periodic review under
358	358	Sections 11.02363(a) and [Section] 11.02362(p) to occur more
359	359	frequently than once every 10 years. In that event, the commission
360	360	may provide for the rulemaking process to be undertaken in
361	361	conjunction with the periodic review if the commission determines
362	362	that schedule to be appropriate. A rulemaking process undertaken
363	363	under this subsection must provide for the participation of
364	364	stakeholders having interests in the particular river basin and bay
365	365	system for which the process is undertaken.
366	366	(g) The commission shall submit a biennial report to the
367	367	advisory group on the implementation and effectiveness of
368	368	environmental flow standards. The report must include:
369	369	(1) a description of progress made over the previous
370	370	biennium in implementing environmental flow standards, including
371	371	the status of any efforts to set aside unappropriated water for
372	372	environmental flow protection;
373	373	(2) input provided by the board and the Parks and
374	374	Wildlife Department on their:
375	375	(A) activities related to environmental flow
376	376	standards; and
377	377	(B) recommendations for the work plan developed
378	378	under Section 11.02363(b); and
379	379	(3) recommendations for the work plan developed under
380	380	Section 11.02363(b).
381	381	SECTION 18. The heading to Chapter 28A, Water Code, is
382	382	amended to read as follows:
383	383	CHAPTER 28A. [REGISTRATION AND INSPECTION OF] CERTAIN AGGREGATE
384	384	PRODUCTION OPERATIONS
385	385	SECTION 19. Chapter 28A, Water Code, is amended by adding
386	386	Subchapter D to read as follows:
387	387	SUBCHAPTER D. BEST MANAGEMENT PRACTICES
388	388	Sec. 28A.151. BEST MANAGEMENT PRACTICES. (a) The
389	389	commission shall develop and make accessible on the commission's
390	390	Internet website recommended best management practices for
391	391	aggregate production operations that operate under the
392	392	jurisdiction of the commission. The best management practices must
393	393	include operational issues related to:
394	394	(1) dust control;
395	395	(2) water use; and
396	396	(3) water storage.
397	397	(b) The commission may coordinate with other agencies when
398	398	developing the best management practices under this section.
399	399	(c) The best management practices developed under this
400	400	section are not subject to enforcement by the commission.
401	401	SECTION 20. Section 49.011(b), Water Code, is amended to
402	402	read as follows:
403	403	(b) The commission by rule shall establish a procedure for
404	404	public notice and hearing of applications. The rules must require
405	405	an applicant to publish the notice issued by the commission under
406	406	Subsection (a) once a week for two consecutive weeks in a newspaper
407	407	regularly published or circulated in the county where the district
408	408	is proposed to be located not later than the 30th day before the
409	409	date on which the commission may act on the application. The
410	410	commission shall provide the notice to each state representative
411	411	and state senator who represents an area inside the proposed
412	412	district's boundaries.
413	413	SECTION 21. The following provisions are repealed:
414	414	(1) Section 11.0236(m), Water Code;
415	415	(2) Section 11.02361(g), Water Code; and
416	416	(3) Section 11.02362(s), Water Code.
417	417	SECTION 22. (a) Except as provided by Subsection (b) of
418	418	this section, Section 5.0535, Water Code, as amended by this Act,
419	419	applies to a member of the Texas Commission on Environmental
420	420	Quality appointed before, on, or after the effective date of this
421	421	Act.
422	422	(b) A member of the Texas Commission on Environmental
423	423	Quality who, before the effective date of this Act, completed the
424	424	training program required by Section 5.0535, Water Code, as that
425	425	law existed before the effective date of this Act, is only required
426	426	to complete additional training on the subjects added by this Act to
427	427	the training program required by Section 5.0535, Water Code. A
428	428	member described by this subsection may not vote, deliberate, or be
429	429	counted as a member in attendance at a meeting of the commission
430	430	held on or after December 1, 2023, until the member completes the
431	431	additional training.
432	432	SECTION 23. A permit holder subject to Section 5.587, Water
433	433	Code, as added by this Act, shall first report to the Texas
434	434	Commission on Environmental Quality the status of the permitted
435	435	activity not later than December 31, 2024.
436	436	SECTION 24. The change in law made by this Act to Section
437	437	7.052, Water Code, applies only to a violation that occurs on or
438	438	after the effective date of this Act. A violation that occurs
439	439	before the effective date of this Act is governed by the law in
440	440	effect on the date the violation occurred, and the former law is
441	441	continued in effect for that purpose.
442	442	SECTION 25. (a) The Texas Commission on Environmental
443	443	Quality shall submit to the environmental flows advisory group the
444	444	first biennial report on the implementation and effectiveness of
445	445	environmental flow standards under Section 11.1471(g), Water Code,
446	446	as added by this Act, not later than January 1, 2024.
447	447	(b) The environmental flows advisory group shall produce
448	448	and deliver to the commission the first biennial statewide work
449	449	plan developed under Section 11.02363, Water Code, as added by this
450	450	Act, not later than January 1, 2025.
451	451	SECTION 26. This Act takes effect September 1, 2023.
452	452	______________________________ ______________________________
453	453	President of the Senate Speaker of the House
454	454	I hereby certify that S.B. No. 1397 passed the Senate on
455	455	April 17, 2023, by the following vote: Yeas 31, Nays 0; and that
456	456	the Senate concurred in House amendment on May 23, 2023, by the
457	457	following vote: Yeas 31, Nays 0.
458	458	______________________________
459	459	Secretary of the Senate
460	460	I hereby certify that S.B. No. 1397 passed the House, with
461	461	amendment, on May 17, 2023, by the following vote: Yeas 142,
462	462	Nays 2, one present not voting.
463	463	______________________________
464	464	Chief Clerk of the House
465	465	Approved:
466	466	______________________________
467	467	Date
468	468	______________________________
469	469	Governor