HBA-MPM, RBT H.B. 801 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 801
By: Uher
Environmental Regulation
7/26/1999
Enrolled



BACKGROUND AND PURPOSE 

The Texas Natural Resource Conservation Commission (commission) is
responsible for permitting programs which authorize wastewater discharges,
hazardous and solid waste management, underground injection, and air
emissions.  For certain commission actions, state law requires that the
public be afforded an opportunity to request a contested case hearing.  In
1975, the Legislature passed the Administrative Procedure and Texas
Register Act, which established the current process for contested case
hearings.  This process pre-dates many of the refinements to administrative
decision-making and public involvement that have occurred both at the
federal level and in other states.   

H.B. 801 modifies the current permitting process for certain environmental
permit programs administered by the commission for which public notice and
opportunity for hearing are currently required.  This bill requires early
public notice, encourages early public involvement, and requires
substantive public comment and agency response.  This bill establishes
criteria that would limit the scope of hearings by requiring referral of
discrete issues that are in dispute and material to the decision of the
commission.  In addition, the bill requires the commission to establish
hearing deadlines to prevent unnecessary delays in the permitting process.
This process will apply to applications for issuance, amendment, and
renewal of permits pursuant to Chapters 26 and 27 of the Water Code (water
quality permits, underground injection permits) and Chapters 361 and 382 of
the Health and Safety Code (solid waste permits, air permits). 
 
RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Natural Resource Conservation
Commission (commission) in SECTION 2 (Sections 5.551, 5.552, 5.553, and
5.555, Water Code); SECTION 3 (Section 26.0286, Water Code); SECTION 5
(Section 382.056, Health and Safety Code); and SECTION 6 (Section 2003.047,
Government Code; and that rulemaking authority previously delegated to the
commission is modified in SECTION 5 (Section 382.056, Health and Safety
Code), of this bill. 
 
SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 5.115(a), Water Code, to remove language which
states that the Texas Natural Resource Conservation Commission (commission)
is not required to hold a hearing if it determines that the basis of a
person's request for a hearing as an affected person is not reasonable or
not supported by competent evidence. 

SECTION 2.  Amends Chapter 5, Water Code, by adding Subchapter M, as
follows: 

SUBCHAPTER M.  ENVIRONMENTAL PERMITTING PROCEDURES

Sec. 5.551.  PERMITTING PROCEDURES; APPLICABILITY.  Establishes procedures
for providing public notice, an opportunity for public comment, and an
opportunity for public hearing under Subchapters C-H, Chapter 2001
(Administrative Procedure), Government Code, regarding commission actions
relating to a permit issued under Chapter 26 (Water Quality Control) or
Chapter 27 (Injection Wells), Water Code, or Chapter 361 (Solid Waste
Disposal Act), Health and Safety Code.  Provides that this subchapter is
procedural in nature  and does not expand or restrict commission actions
with respect to the procedures listed in this section.  Requires the
commission, by rule, to provide for additional notice, opportunity for
public comment or for hearing as necessary to satisfy a United States
Environmental Protection Agency's requirement for authorization of a state
permit program. Defines "permit" for purposes of this subchapter. 

Sec. 5.552.  NOTICE OF INTENT TO OBTAIN PERMIT.   Requires the executive
director of the commission to determine when an application is
administratively complete.  Requires the applicant and the chief clerk of
the commission to perform certain duties with respect to the notice of
intent to obtain a permit that is required to be filed as part of the
application process  no later than the 30th day after the executive
director determines the application to be complete.  Requires the
commission, by rule, to establish the form and content of the notice of
intent.  Sets forth the information that is required to be included in the
notice. Requires an applicant to comply with any public notice requirements
under Chapters 26 and 27, Water Code, Chapter 361, Health and Safety Code,
and rules adopted under those chapters.  Requires the applicant to make a
copy of the application available for review and copying at a public place
in the county where the facility is located or is proposed to be located.
Authorizes the applicant, in cooperation with the executive director, to
hold a public meeting in the relevant county to inform the public about the
application, as well as to obtain public input. 

Sec.  5.553.  PRELIMINARY DECISION; NOTICE AND PUBLIC COMMENT.   Requires
the executive director to conduct a technical review of the application and
issue a preliminary decision, and requires the applicant to publish notice
announcing this decision.  Requires the commission, by rule, to establish
the form and content of the notice, the manner of newspaper publication,
and the length of the comment period.  Specifies information that must be
included in the notice.  Requires the applicant to comply with any
applicable public notice requirements imposed by the applicable
requirements under Chapters 26 and 27, Water Code; Chapter 361, Health and
Safety Code; and rules adopted under those chapters. Requires the applicant
to make a copy of the preliminary decision available for review and copying
in a public place in the county in which the facility is located or
proposed to be located.  

Sec.  5.554.  PUBLIC MEETING.  Authorizes the executive director, during
the comment period, to hold one or more public meetings in the county where
the facility is located or proposed to be located.  Requires the executive
director to hold a public meeting if requested by a member of the
legislature representing the general area in which the facility is located
or proposed to be located, or if the executive director determines there is
substantial public interest. 

Section 5.555.  RESPONSE TO PUBLIC COMMENTS.  Requires the executive
director, according to procedures provided by commission rule, to file with
the chief clerk of the commission a response to each relevant and material
public comment on the preliminary decision filed during the public comment
period.  Requires the chief clerk to transmit the executive director's
decision,  response to public comments, and instructions for seeking
reconsideration to certain persons.  

Section 5.556.  REQUEST FOR RECONSIDERATION OR CONTESTED CASE HEARING.
Authorizes a person to request the commission reconsider the executive
director's decision or hold a contested case hearing.  Provides that the
request for reconsideration must be filed with the commission within the
time frame provided by commission rule.  Requires the commission to respond
to the request within the time frame allotted by rule, and prohibits it
from granting a request for a contested case hearing unless it is
determined that it was filed by an affected person as defined by Section
5.115 (Persons Affected in Commission Hearings; Notice of Application),
Water Code.  Prohibits the commission from referring an issue to the State
Office of Administrative Hearings (SOAH) for a hearing unless the
commission determines that the case meets certain criteria.  Requires the
commission, if granting a request for a contested case hearing, to limit
the number and scope of issues considered and specify the maximum expected
duration of the hearing.  Provides that this section does not preclude the
commission from holding a hearing if the public interest warrants doing so. 

SECTION 3.  Amends Subchapter B, Chapter 26, Water Code, by adding Section
26.0286, as follows: 

Sec. 26.286.  PROCEDURES APPLICABLE TO PERMITS FOR CERTAIN CONCENTRATED
ANIMAL FEEDING OPERATIONS.  Defines "sole-source surface drinking water
supply" for purposes of this section.  Requires the commission to process
an application for authorization to construct or operate a concentrated
animal feeding operations as a specific permit under Section 26.028 (Action
on Application), Water Code, subject to procedures provided by Subchapter
M, Chapter 5 (Texas Natural Resource Conservation Commission), if the
feeding operation is located or proposed to be located in the watershed of
a sole-source surface drinking water supply, and is sufficiently close, as
determined by commission rule, to an intake of a public water supply system
in the sole-surface drinking water supply that contaminants discharged from
the feeding operation could potentially affect the public drinking water
supply. 

SECTION 4.  Amends Section 361.088, Health and Safety Code, by amending
Subsection (c), and by adding Subsections (e) and (f), to authorize the
commission to act on certain types of applications without providing an
opportunity for a contested case hearing after early public notice and
notice of preliminary decision and public comment have been given as
required.   Requires the commission to provide an opportunity for a
contested case hearing if the applicant's compliance history for the
preceding five years raises an issue regarding the applicant's ability to
comply with a  material term of its permit.  

SECTION 5. Amends Section 382.056, Health and Safety Code, by amending
Subsections (a), (b), (d), and (e), and adding Subsections (f)-(p), as
follows: 

(a) Requires an applicant for a preconstruction permit, a federal operating
permit, or a permit renewal review who publishes notice of intent to obtain
the permit or permit review, to do so within 30 days following the
determination of the application's administrative completeness.  Requires,
rather than authorizes, the commission to require an applicant for a
federal operating permit under Section 382.054 (Federal Operating Permit),
Health and Safety Code, to publish notice of intent to obtain a permit or
permit review consistent with federal requirements and with the
requirements of Subsection (b), rather than this section. Requires the
commission, by rule, to prescribe the form and content of the notice of
intent, in addition to other information. Authorizes the commission, by
rule, to prescribe alternative procedures for publication of the notice in
a newspaper if the applicant is a small business stationary resource as
defined by Section 382.0365(Small Business Stationary Source Assistance
Program), Health and Safety Code, and will not have a significant effect on
air quality.  Provides that these alternatives must be cost-effective while
ensuring adequate notice. Makes conforming changes. 

(b) Provides additional information which must be included in a notice of
intent.  Deletes the requirement that a statement that a person who may be
affected by the emission of air contaminants from the facility or source is
entitled to request a hearing from the commission be included in the
notice.  Makes a nonsubstantive change. 

(d) Requires the permit applicant to place a copy of the application for
review and copying in a public place in the county in which the facility is
located or proposed to be located.   

(e) Authorizes an applicant, in cooperation with the executive director, to
hold a public meeting in the relevant county to inform the public about the
application and to seek the public's input.   

(f) Requires the executive director to conduct a technical review of the
application and issue a preliminary decision.   

 (g) Requires an applicant to publish notice of the preliminary decision in
a newspaper and the commission to seek public comment on the decision if,
in response to the notice published under Subsection (a) for a permit under
Section 382.0518 (Preconstruction Permit), Health and Safety Code, or a
permit renewal review under Section 382.055 (Review and Renewal of
Preconstruction Permit), Health and Safety Code, a person requests during
the period provided by commission rule that the commission hold a public
hearing and the request is not withdrawn before the preliminary decision is
issued.  Requires the commission to consider the request for public hearing
under the procedures provided by Subsections (i)(n), and prohibits it from
seeking further public comment or holding a request for a public hearing
under the procedures provided by these subsections in response to a public
hearing on an amendment, modification, or renewal that would not lead to an
increase in allowable emissions and would not result in the emission of an
air contaminant not previously emitted. Deletes existing procedural
language in this subsection, which requires the commission or its delegate,
except as provided by Section 382.0561 (Federal Operating Permit: Hearing),
Health and Safety Code, or Subsection (e), to hold a public hearing on the
permit application or renewal application prior to granting the permit or
renewal if a person who may be affected by emissions or a member or the
legislature from the relevant area requests a hearing in the period set by
commission rule.  Further deletes existing language prohibiting the
commission from holding a hearing if the basis of a request by such a
potentially affected person is deemed unreasonable.  Deletes the
requirement that reasons for which a request for a hearing on a permit be
considered unreasonable include but are not be limited to an amendment,
modification, or renewal that would not result in an increase in allowable
emissions or the emission of an air contaminant not previously emitted. 

(h)  Requires the commission to consider a request for a public hearing
under the procedures provided by Section 382.0561, Health and Safety Code,
and not under those provided by Subsections (i)-(n) if, in response to the
notice published under Subsection (a) for a permit under Section 382.054
(Federal Operating Permit), Health and Safety Code, a person requests
during the public comment period provided by commission rule that  such a
hearing take place. 

(i) Requires the commission, by rule, to establish the form and content of
the notice, the manner of the publication, and the duration of the public
comment period.  Requires the notice to contain certain information. 

(j) Requires the applicant to make a copy of the preliminary decision
available for review and copying at a public place in the county where the
facility is located or proposed to be located. 

(k)   Authorizes the executive director to hold one or more public
meetings, during the public comment period, in the county where the
facility is located or proposed to be located, and requires the executive
director to hold a public meeting under certain conditions. 

(l) Requires the executive director, according to procedures adopted by the
commission by rule, to file a response to each relevant and material public
comment on the preliminary decision filed during the public comment period
with the chief clerk of the commission. 

(m) Requires the chief clerk of the commission to transmit the executive
director's decision, response to public comments, and instructions for
requesting that the commission reconsider the decision or hold a contested
case hearing to certain parties. 

(n) Requires the commission to consider a request that it reconsider the
executive director's decision or hold a public hearing according to
procedures provided by Section 5.556, Water Code, except as provided by
Section 382.0561, Health and Safety Code. 

(o)   Makes a conforming change.

(p)  Requires the commission, by rule, to provide for additional notice or
opportunity for public comment or public hearing as necessary to satisfy a
requirement to obtain or maintain a delegation or approval of a federal
program. 
 
SECTION 6. Amends Section 2003.047, Government Code, by amending
Subsections (e)-(j), and adding Subsections (k)-(o), as follows: 

(e) Requires the commission to provide to the administrative law judge a
date by which the proceeding is expected to be completed and a proposal for
decision provided to the commission.  Specifies circumstances in which the
administrative law judge may extend the proceeding and requires the
administrative law judge to establish a docket control order designed to
complete the proceeding by the date the commission specifies.  Makes
conforming and nonsubstantive changes.   
 
(f) Limits the scope of the hearing to the issues referred by the
commission, except as provided by this subsection.  Authorizes the
administrative law judge to consider an unreferred issue under certain
circumstances. 
       
(g) Limits the scope of permissible discovery to certain matters and  the
production of certain documents. 

(h) Requires the commission, by rule, to provide for subpoenas and
commissions for depositions and require that discovery be conducted in a
specific manner.   

(i)  Deletes existing text to make conforming changes.  Redesignated from
existing Subsection (f). 

Redesignates Subsections (g)-(j) to (j)-(o).  Makes conforming changes
within these sections. 

SECTION 7.  Effective date: September 1, 1999.  Makes application of this
Act prospective to applications declared administratively complete on or
after the effective date.  Specifies that the changes in law made by
Section 5 of this Act do not expand or restrict the types of actions of the
commission for which public notice, an opportunity for public comment, and
an opportunity for public hearing are otherwise provided by existing code. 

SECTION 8.  Emergency clause.