HBA-RBT H.B. 801 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 801 By: Uher Environmental Regulation 2/10/1999 Introduced BACKGROUND AND PURPOSE Currently, if an application to issue, amend, or renew a permit for which public notice and an opportunity for public hearing is required or allowed under Chapter 26 (Water Quality Control) or 27 (Injection Wells), Water Code, or required or allowed under Chapter 361 (Solid Waste Disposal Act) or 382 (Clean Air Act), Health and Safety Code, and the application is contested, Chapter 2001 (Administrative Procedure) of the Government Code applies. H.B. 801 establishes that Subchapter C (Contested Cases: General Rights and Procedures), Subchapter D (Contested Cases: Evidence, Witnesses, and Discovery), Subchapter E (Contested Cases: Testimony of Child), Subchapter F (Contested Cases: Final Decisions and Orders; Motions for Rehearing), Subchapter G (Contested Cases: Judicial Review), and Subchapter H (Court Enforcement) of Chapter 2001 do not apply to the aforementioned permit applications. The bill establishes an alternative procedure for such proceedings. It delegates rulemaking authority to the Texas Natural Resource Conservation Commission (commission). The bill requires the commission to set criteria with which to decide when and how a public hearing will be held on an application. The bill provides that there is no judicial review if the commission denies a request for public hearing; establishes time limits for requesting a hearing and for judicial review; prohibits a reviewing court from substituting its judgment for the commission's judgment on the weight of any information related to the commission's discretion; and provides that failure to observe the time limits will preclude judicial review. 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 in SECTION 1 (Sections 5.552, 5.554, and 5.555, Water Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 5, Water Code, by adding Subchapter M, as follows: SUBCHAPTER M. ENVIRONMENTAL PERMITTING PROCEDURES Sec. 5.551. DEFINITION. Defines "permit." Sec. 5.552. GENERAL PERMITTING PROCEDURES; APPLICABILITY. (a) Provides that this chapter applies to Texas Natural Resource Conservation Commission (commission) procedures for an application to issue, amend, or renew a permit for which public notice and an opportunity for public hearing is required by or allowed under Chapter 26 (Water Quality Control) or 27 (Injection Wells), Water Code, or required by or allowed under Chapter 361 (Solid Waste Disposal Act) or 382 (Clean Air Act), Health and Safety Code. Provides that Subchapters C-H, Chapter 2001, Government Code (Administrative Procedure), do not apply to a proceeding under this subchapter. (b) Requires the commission, by rule, to identify the types of permit applications subject to the public notice and hearing provisions of these statutes. (c) Requires the commission, by rule, to provide for additional notice, opportunity for public comment, or opportunity for hearing to the extent necessary to satisfy a requirement for United States Environmental Protection Agency authorization of a state permit program. Sec. 5.553. PUBLIC NOTICE; OPPORTUNITY TO COMMENT AND REQUEST PUBLIC HEARING. Requires the executive director of the Texas Natural Resource Conservation Commission (executive director) to, after receiving a permit application, prepare and direct the applicant to issue public notice of the permit application. Provides that the notice must provide the public an opportunity to comment and request a public hearing. Requires the commission to determine the content and timing of the notice and the period for comment or requesting a public hearing for each type of permit application, consistent with Chapters 26 (Water Quality Control) and 27 (Injection Wells), Water Code, and Chapters 361 (Solid Waste Disposal Act) and 382 (Clean Air Act), Health and Safety Code. Sec. 5.554. PUBLIC HEARING. Requires the commission to determine whether to grant a public hearing. Requires the commission, when determining whether to grant a request for a public hearing, to consider whether the request was filed within the time period specified in the notice and by a person who states a reasonable basis for the request or by a member of the legislature whose district is located in the general area related to the permit application. Provides that the commission is not required to hold a public hearing if the basis for the hearing request is unreasonable. Requires the commission, by rule, to establish procedures for public hearings. Provides that a public hearing under this subchapter is intended to be a public forum that encourages public participation through the receipt of oral and written comments on the permit application. Sec. 5.555. SUPPLEMENTAL INFORMATION PROCESS. (a) Requires the commission, by rule, to establish a formal process by which a person can get more information relating to permit applications. (b) Provides that the supplemental information process is limited to obtaining documents from the executive director, the applicant, or an affected person, and taking the deposition of the applicant, an affected person, a witness on whom the applicant or an affected person relies, or an individual designated by the executive director, an applicant, or an affected person as being knowledgeable regarding a document produced in connection with or an issue raised by the application. (c) Requires the commission to protect information which would be considered confidential under applicable law. Authorizes the commission to allow disclosure of confidential information only under an appropriate protective order. (d) Provides that a person must file a request for information under the supplemental information process with the commission within the period specified for public comment in the public notice or within ten days after the date the hearing closes if the commission holds a public hearing under Section 5.554. (e) Requires the commission to grant a request to obtain information under the supplemental information process if the request was timely filed, was filed by the applicant or an affected person, and seeks information described by Subsection (b) regarding an issue that was either raised during the comment period or was not raised for good and demonstrated cause, that is material to issuance or denial of the permit, on which there remains a substantial question of fact, that is not otherwise available to the person making the request and is likely to be available through the supplemental information process. (f) Provides that a person whose request is granted by the commission must complete the supplemental information process within 60 days after the request is granted. Authorizes the commission to extend the time if it is demonstrably necessary. (g) Authorizes a person who obtains information in a supplemental information process to submit the information and any comments to the executive director. (h) Authorizes the applicant to submit additional information or comments to the executive director in response to any information or comments submitted by another person under the supplemental information process. Sec. 5.556. DECISION BY EXECUTIVE DIRECTOR. Requires the executive director to issue a decision on the permit application at the close of the permit application record. Sets forth the criteria for the executive director's decision and the contents of the accompanying documentation. Sets forth the content of the permit application record. Sec. 5.557. COMMISSION REVIEW. Authorizes the commission to review the executive director's decision on the petition of the applicant or a person who commented during the public comment period, or at the request of one or more of the members of the commission or the general counsel to the commission. Provides that the petition or request for review must be filed within 15 days of the executive director's decision. Requires the commission to grant or deny the petition or request within 15 days of its filing. Provides that if the commission does not grant or deny the petition or request within 15 days the petition or request is denied and the executive director's decision is final. Sec. 5.558. EX PARTE CONTACTS. Prohibits a member of the commission, after the permit application is filed, from communicating ex parte with the applicant, a person seeking to communicate on a matter in dispute with respect to an application or the decision of the executive director, the public interest counsel, the executive director, a member of the executive director's staff who participated in the review of the application, or any other interested or affected person. Sec. 5.559. JUDICIAL REVIEW. (a) Authorizes the applicant or an affected person who commented during the public comment period to appeal the executive director's decision on a permit application or the commission's decision by filing an action in a district court in Travis County within 30 days after the commission issues its decision on review of the executive director's decision or denies the petition for review of the executive director's decision. (b) Provides that failure to observe the time limits when filing a petition for commission review of the executive director's decision precludes judicial review of the executive director's decision. Provides that failure to participate in the commission review precludes judicial review of the commission's decision. (c) Prohibits a court from substituting its judgment for the commission's judgment on the weight of information in the permit application record related to a question committed to the commission's discretion. Authorizes the court to affirm the decision in whole or part, and requires the court to reverse or remand the case for further proceedings if a substantial right of the appellant has been prejudiced because the decision of the commission is unconstitutional or in violation of law, in excess of the commission's authority, made through unlawful procedure, affected by other error of law, or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (d) Provides that the denial of a request for a public hearing or a petition for commission review of the executive director's decision can not be appealed. SECTION 2. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 3. Emergency clause.