S.B. No. 1397
AN ACT
relating to the continuation and functions of the Texas Commission
on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 382.05101, Health and Safety Code, is
amended to read as follows:
Sec. 382.05101. DE MINIMIS AIR CONTAMINANTS. The
commission may develop by rule the criteria to establish a de
minimis level of air contaminants for facilities or groups of
facilities below which the following types of permits are not
required:
(1) a permit under Section 382.0518 or 382.0519;
(2) [,] a standard permit under Section 382.05195,
[or] 382.05198, or 382.051985; or
(3) [, or] a permit by rule under Section 382.05196 [is
not required].
SECTION 2. Section 382.0511(c), Health and Safety Code, is
amended to read as follows:
(c) The commission may authorize changes in a federal source
to proceed before the owner or operator obtains a federal operating
permit or revisions to a federal operating permit if:
(1) the changes are de minimis under Section
382.05101; or
(2) the owner or operator:
(A) has obtained a preconstruction permit or
permit amendment required by Section 382.0518; or
(B) is operating under:
(i) a standard permit under Section
382.05195, [or] 382.05198, or 382.051985;
(ii) a permit by rule under Section
382.05196; or
(iii) an exemption allowed under Section
382.057.
SECTION 3. Subchapter C, Chapter 382, Health and Safety
Code, is amended by adding Section 382.051985 to read as follows:
Sec. 382.051985. STANDARD PERMIT FOR CERTAIN TEMPORARY
CONCRETE PLANTS FOR PUBLIC WORKS. (a) The commission shall issue a
standard permit that meets the requirements of Section 382.05195
for a temporary concrete plant that performs wet batching, dry
batching, or central mixing to support a public works project. A
plant operating under the permit:
(1) may not support a project that is not related to
the public works project; and
(2) must be located in or contiguous to the
right-of-way of the public works project.
(b) A plant permitted under this section may occupy a
designated site for not more than 180 consecutive days or to supply
material for a single project, but not other unrelated projects.
SECTION 4. Section 382.056, Health and Safety Code, is
amended by adding Subsection (k-2) to read as follows:
(k-2) Notwithstanding any other law, if the commission
holds a public meeting for a permit application for which
consolidated notice was issued under this subchapter, the
commission shall hold open the public comment period and the period
for which a contested case hearing may be requested for the permit
application for at least 36 hours after the end of the meeting.
SECTION 5. Section 5.014, Water Code, is amended to read as
follows:
Sec. 5.014. SUNSET PROVISION. The Texas Commission on
Environmental Quality is subject to Chapter 325, Government Code
(Texas Sunset Act). Unless continued in existence as provided by
that chapter, the commission is abolished [and this chapter
expires] September 1, 2035 [2023].
SECTION 6. Section 5.0535, Water Code, is amended by
amending Subsection (b) and adding Subsection (d) to read as
follows:
(b) The training program must provide the person with
information regarding:
(1) the law governing [legislation that created the]
commission operations;
(2) the programs, functions, rules, and budget of
[operated by] the commission;
(3) the scope of and limitations on the rulemaking
authority of the commission [the role and functions of the
commission];
(4) [the rules of the commission, with an emphasis on
the rules that relate to disciplinary and investigatory authority;
[(5) the current budget for the commission;
[(6)] the results of the most recent formal audit
[significant internal and external audits] of the commission;
(5) [(7)] the requirements of:
(A) laws relating to [the] open meetings, [law,
Chapter 551, Government Code;
[(B) the] public information, [law, Chapter 552,
Government Code;
[(C) the] administrative procedure, and
disclosing conflicts-of-interest [law, Chapter 2001, Government
Code; and
[(D) other laws relating to public officials,
including conflict-of-interest laws]; and
(B) other laws applicable to members of a state
policy-making body in performing their duties; and
(6) [(8)] any applicable ethics policies adopted by
the commission or the Texas Ethics Commission.
(d) The executive director shall create a training manual
that includes the information required by Subsection (b). The
executive director shall distribute a copy of the training manual
annually to each member of the commission. Each member of the
commission shall sign and submit to the executive director a
statement acknowledging that the member received and has reviewed
the training manual.
SECTION 7. Section 5.113, Water Code, is amended to read as
follows:
Sec. 5.113. COMMISSION AND STAFF RESPONSIBILITY POLICY.
The commission shall develop and implement policies that clearly
separate the policy-making [the respective] responsibilities of
the commission and the management responsibilities of the executive
director and the staff of the commission.
SECTION 8. The heading to Section 5.129, Water Code, is
amended to read as follows:
Sec. 5.129. SUMMARY OF AND INFORMATION PROVIDED BY [FOR]
PUBLIC NOTICES.
SECTION 9. Section 5.129, Water Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) The commission by rule shall provide for each public
notice issued or published by the commission or by a person under
the jurisdiction of the commission as required by law or by
commission rule to include:
(1) at the beginning of the notice a succinct
statement of the subject of the notice; and
(2) to the extent applicable, the name of the permit
applicant, the type of permit applied for, and the location of each
proposed or existing site subject to the proposed permit.
(a-1) Rules adopted under this section [The rules] must
provide that a summary statement must be designed to inform the
reader of the subject matter of the notice without having to read
the entire text of the notice.
SECTION 10. Subchapter D, Chapter 5, Water Code, is amended
by adding Section 5.136 to read as follows:
Sec. 5.136. COMMUNITY OUTREACH. The commission shall
provide outreach and education to the public on participating in
the permitting process under the air, waste, and water programs
within the commission's jurisdiction.
SECTION 11. Subchapter E, Chapter 5, Water Code, is amended
by adding Section 5.1734 to read as follows:
Sec. 5.1734. ELECTRONIC POSTING OF PERMIT APPLICATIONS.
(a) The commission shall post on its website at the time a permit
application becomes administratively complete:
(1) the permit application and any associated
materials; and
(2) for a permit application under Subchapter D,
Chapter 11, any map accompanying the permit application.
(b) If a permit application is revised or amended after the
permit application has become administratively complete, the
commission shall post on its website the revised or amended permit
application.
(c) The commission may exempt any associated materials from
being posted on its website under Subsections (a) and (b) if the
commission determines that:
(1) posting the materials on the website would be
unduly burdensome; or
(2) the materials are too large to be posted on the
website.
(d) Notwithstanding any other law, the commission shall
require each applicant for a permit, permit amendment, or permit
renewal that requires notice be published to include in the notice
the address of the website where the public can access information
about the permit as described by Subsection (a).
(e) In implementing this section, the commission shall
consider and accommodate residents of each area affected by a
proposed permit, permit amendment, or permit renewal who may need
assistance accessing the application and associated materials
because of a lack of access to Internet services, particularly when
there is a heightened public interest or in response to public
comment.
SECTION 12. Chapter 5, Water Code, is amended by adding
Subchapter M-1 to read as follows:
SUBCHAPTER M-1. PERMITTING PROCEDURES GENERALLY
Sec. 5.581. DEFINITION. In this subchapter, "permit" means
a permit, approval, registration, or other form of authorization
required by law for a person to engage in an action.
Sec. 5.582. APPLICABILITY. This subchapter applies to
programs and permits arising under the air, waste, or water
programs within the commission's jurisdiction.
Sec. 5.583. ELECTRONIC PUBLICATION OF NOTICE. (a) The
commission shall publish notice of a permit application on the
commission’s website and may provide additional electronic notice
through other means, including direct e-mail. Notice published
under this section is in addition to any other notice requirement.
(b) The commission shall consider and accommodate residents
of each area affected by a proposed permit, permit amendment, or
permit renewal who may need assistance accessing notice published
by electronic means because of a lack of access to Internet
services, particularly when there is a heightened public interest
or in response to public comment.
Sec. 5.584. VERIFICATION OF NOTICE BY NEWSPAPER. If an
applicant for a permit is required to publish notice in a newspaper,
the applicant shall provide to the commission a copy of the
published notice and an affidavit from the publisher certifying
that the notice was published and the publication meets all
applicable requirements, including newspaper circulation.
Sec. 5.585. SECURITY AT PUBLIC MEETING OR PUBLIC HEARING.
The commission may request that an applicant for a permit that is
the subject of a public meeting or public hearing provide uniformed
security at the meeting or hearing sufficient to provide for the
safety of all attendees and orderly conduct at the meeting or
hearing.
Sec. 5.586. NOTICE TO STATE SENATOR AND STATE
REPRESENTATIVE. (a) This section applies only to a permit
application for which public notice is required.
(b) The commission shall send notice of receipt of the
application for a permit to each state senator and state
representative who represent the area in which the facility or
activity to which the application relates is or will be located.
Sec. 5.587. TEMPORARY AND INDEFINITE PERMIT REPORTING. (a)
This section does not apply to a person who holds a temporary permit
or permit with an indefinite term that has a regular reporting
requirement.
(b) A person who holds a temporary permit or permit with an
indefinite term shall report to the commission annually whether the
activity subject to the permit is ongoing.
SECTION 13. Section 5.754, Water Code, is amended by
amending Subsection (c) and adding Subsection (c-1) to read as
follows:
(c) In classifying a person's compliance history, the
commission shall:
(1) determine whether a violation of an applicable
legal requirement is of major, moderate, or minor significance;
(2) establish criteria for classifying a repeat
violator, including:
(A) setting the number of major, moderate, and
minor violations needed to be classified as a repeat violator; and
(B) giving consideration to the size and
complexity of the site at which the violations occurred, and
limiting consideration to violations of the same nature and the
same environmental media that occurred in the preceding five years;
and
(3) consider:
(A) the significance of the violation and whether
the person is a repeat violator;
(B) the size and complexity of the site,
including whether the site is subject to Title V of the federal
Clean Air Act (42 U.S.C. Section 7661 et seq.); and
(C) the potential for a violation at the site
that is attributable to the nature and complexity of the site.
(c-1) The executive director may review, suspend, or
reclassify a person's compliance history in accordance with
commission rules if the executive director determines that exigent
circumstances exist.
SECTION 14. Section 7.052(c), Water Code, is amended to
read as follows:
(c) Except as provided by this subsection, the [The] amount
of the penalty for all other violations within the jurisdiction of
the commission to enforce may not exceed $25,000 a day for each
violation. The amount of the penalty for such a violation may not
exceed $40,000 a day if:
(1) the violation involves:
(A) an actual release of pollutants to the air,
water, or land that exceeds levels that are protective of human
health or environmental receptors; or
(B) an actual unauthorized diversion, taking, or
storage of state water or an unauthorized change in the flood
elevation of a stream that deprives others of water, severely
affects aquatic life, or results in a safety hazard, property
damage, or economic loss;
(2) the person previously committed a violation of the
same nature that resulted in the assessment of an administrative
penalty; and
(3) the commission determines the person could have
reasonably anticipated and avoided the violation.
SECTION 15. Subchapter C, Chapter 7, Water Code, is amended
by adding Section 7.0675 to read as follows:
Sec. 7.0675. ENFORCEMENT DIVERSION PROGRAM FOR SMALL
BUSINESSES AND LOCAL GOVERNMENTS. (a) In this section, "small
business" means a legal entity, including a corporation,
partnership, or sole proprietorship, that:
(1) is formed for the purpose of making a profit;
(2) is independently owned and operated; and
(3) has fewer than 100 employees.
(b) The commission shall establish an enforcement diversion
program for small businesses and local governments. The program
must include:
(1) resources developed for the small business
compliance assistance program under Section 5.135;
(2) compliance assistance training; and
(3) on-site technical assistance and training
performed by commission staff.
(c) Before the commission initiates an enforcement action
for a violation committed by a small business or local government,
the commission may enroll the business or government into the
enforcement diversion program.
(d) The commission may not enroll a small business or local
government into the enforcement diversion program if an enforcement
action against the business or government is required by federal
law.
(e) The commission may not initiate against a small business
or local government an enforcement action for a violation that
prompted enrollment in the enforcement diversion program after the
business or government has successfully completed the program.
(f) A small business or local government is not eligible to
enroll in the enforcement diversion program if the business or
government:
(1) committed a violation that:
(A) resulted in an imminent threat to public
health; or
(B) was a major violation, as classified under
Section 5.754; or
(2) was enrolled in the program in the two years
preceding the date of the violation.
SECTION 16. Subchapter B, Chapter 11, Water Code, is
amended by adding Section 11.02363 to read as follows:
Sec. 11.02363. PERIODIC REVIEW OF ENVIRONMENTAL FLOW
STANDARDS; STATEWIDE WORK PLAN. (a) Periodically, the advisory
group shall review the environmental flow standards for each river
basin and bay system adopted by the commission under Section
11.1471. In conducting a review of the environmental flow
standards, the advisory group shall:
(1) work with the science advisory committee and the
pertinent basin and bay area stakeholder committees and basin and
bay expert science teams in a manner similar to that provided by
Section 11.02362;
(2) take into consideration the work plans developed
under Section 11.02362(p);
(3) analyze previous environmental flow
recommendations and standards;
(4) prescribe future monitoring, studies, and
activities needed to better understand the environmental flow; and
(5) validate or refine:
(A) the environmental flow recommendations;
(B) the environmental flow standards adopted by
the commission; and
(C) strategies to achieve the environmental flow
standards.
(b) The advisory group shall develop a biennial statewide
work plan to prioritize and schedule the review of environmental
flow standards under Subsection (a). The work plan must establish:
(1) the methodology used to prioritize the review of
the environmental flow standards of each river basin and bay
system; and
(2) a timeline for the review of the environmental
flow standards of each river basin and bay system.
(c) The advisory group shall submit to the commission:
(1) any review conducted under Subsection (a),
including recommendations to the commission for use in adopting
rules under Section 11.1471; and
(2) the biennial work plan developed under Subsection
(b).
SECTION 17. Section 11.1471, Water Code, is amended by
amending Subsection (f) and adding Subsection (g) to read as
follows:
(f) An environmental flow standard or environmental flow
set-aside adopted under Subsection (a) may be altered by the
commission in a rulemaking process undertaken in accordance with a
schedule established by the commission. The commission shall
consider the review of environmental flow standards by the advisory
group under Section 11.02363(a) when altering an environmental flow
standard or environmental flow set-aside. In establishing a
schedule, the commission shall consider the work plan developed by
the advisory group under Section 11.02363(b) and the applicable
work plan approved by the advisory group under Section 11.02362(p).
The commission's schedule may not provide for the rulemaking
process to occur more frequently than once every 10 years unless the
work plans provide [plan provides] for a periodic review under
Sections 11.02363(a) and [Section] 11.02362(p) to occur more
frequently than once every 10 years. In that event, the commission
may provide for the rulemaking process to be undertaken in
conjunction with the periodic review if the commission determines
that schedule to be appropriate. A rulemaking process undertaken
under this subsection must provide for the participation of
stakeholders having interests in the particular river basin and bay
system for which the process is undertaken.
(g) The commission shall submit a biennial report to the
advisory group on the implementation and effectiveness of
environmental flow standards. The report must include:
(1) a description of progress made over the previous
biennium in implementing environmental flow standards, including
the status of any efforts to set aside unappropriated water for
environmental flow protection;
(2) input provided by the board and the Parks and
Wildlife Department on their:
(A) activities related to environmental flow
standards; and
(B) recommendations for the work plan developed
under Section 11.02363(b); and
(3) recommendations for the work plan developed under
Section 11.02363(b).
SECTION 18. The heading to Chapter 28A, Water Code, is
amended to read as follows:
CHAPTER 28A. [REGISTRATION AND INSPECTION OF] CERTAIN AGGREGATE
PRODUCTION OPERATIONS
SECTION 19. Chapter 28A, Water Code, is amended by adding
Subchapter D to read as follows:
SUBCHAPTER D. BEST MANAGEMENT PRACTICES
Sec. 28A.151. BEST MANAGEMENT PRACTICES. (a) The
commission shall develop and make accessible on the commission's
Internet website recommended best management practices for
aggregate production operations that operate under the
jurisdiction of the commission. The best management practices must
include operational issues related to:
(1) dust control;
(2) water use; and
(3) water storage.
(b) The commission may coordinate with other agencies when
developing the best management practices under this section.
(c) The best management practices developed under this
section are not subject to enforcement by the commission.
SECTION 20. Section 49.011(b), Water Code, is amended to
read as follows:
(b) The commission by rule shall establish a procedure for
public notice and hearing of applications. The rules must require
an applicant to publish the notice issued by the commission under
Subsection (a) once a week for two consecutive weeks in a newspaper
regularly published or circulated in the county where the district
is proposed to be located not later than the 30th day before the
date on which the commission may act on the application. The
commission shall provide the notice to each state representative
and state senator who represents an area inside the proposed
district's boundaries.
SECTION 21. The following provisions are repealed:
(1) Section 11.0236(m), Water Code;
(2) Section 11.02361(g), Water Code; and
(3) Section 11.02362(s), Water Code.
SECTION 22. (a) Except as provided by Subsection (b) of
this section, Section 5.0535, Water Code, as amended by this Act,
applies to a member of the Texas Commission on Environmental
Quality appointed before, on, or after the effective date of this
Act.
(b) A member of the Texas Commission on Environmental
Quality who, before the effective date of this Act, completed the
training program required by Section 5.0535, Water Code, as that
law existed before the effective date of this Act, is only required
to complete additional training on the subjects added by this Act to
the training program required by Section 5.0535, Water Code. A
member described by this subsection may not vote, deliberate, or be
counted as a member in attendance at a meeting of the commission
held on or after December 1, 2023, until the member completes the
additional training.
SECTION 23. A permit holder subject to Section 5.587, Water
Code, as added by this Act, shall first report to the Texas
Commission on Environmental Quality the status of the permitted
activity not later than December 31, 2024.
SECTION 24. The change in law made by this Act to Section
7.052, Water Code, applies only to a violation that occurs on or
after the effective date of this Act. A violation that occurs
before the effective date of this Act is governed by the law in
effect on the date the violation occurred, and the former law is
continued in effect for that purpose.
SECTION 25. (a) The Texas Commission on Environmental
Quality shall submit to the environmental flows advisory group the
first biennial report on the implementation and effectiveness of
environmental flow standards under Section 11.1471(g), Water Code,
as added by this Act, not later than January 1, 2024.
(b) The environmental flows advisory group shall produce
and deliver to the commission the first biennial statewide work
plan developed under Section 11.02363, Water Code, as added by this
Act, not later than January 1, 2025.
SECTION 26. This Act takes effect September 1, 2023.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1397 passed the Senate on
April 17, 2023, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 23, 2023, by the
following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1397 passed the House, with
amendment, on May 17, 2023, by the following vote: Yeas 142,
Nays 2, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor