Bill Text: TX HB2082 | 2013-2014 | 83rd Legislature | Introduced


Bill Title: Relating to the procedure for action by the Texas Commission on Environmental Quality on applications for certain environmental permits and administrative and judicial review of the commission's action.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2013-03-05 - Referred to Environmental Regulation [HB2082 Detail]

Download: Texas-2013-HB2082-Introduced.html
  83R9122 SLB-D
 
  By: Ritter H.B. No. 2082
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the procedure for action by the Texas Commission on
  Environmental Quality on applications for certain environmental
  permits and administrative and judicial review of the commission's
  action.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 2001, Government Code, is amended by
  adding Subchapter J to read as follows:
  SUBCHAPTER J. ADMINISTRATIVE REVIEW OF CERTAIN ENVIRONMENTAL
  PERMITS
         Sec. 2001.301.  PURPOSE. It is the public policy of this
  state and the purpose of this subchapter to continue leading the
  country in maintaining protection of public health and the
  environment while providing stability and certainty for the state's
  economy.
         Sec. 2001.302.  DEFINITIONS. In this subchapter:
               (1)  "Commission" means the Texas Commission on
  Environmental Quality.
               (2)  "Interested person" means a person who resides or
  operates in this state, and includes an applicant for a permit,
  permit amendment, or permit renewal.
               (3)  "Office" means the State Office of Administrative
  Hearings.
               (4)  "Permit" includes a permit, license, certificate,
  registration, approval, or other form of authorization issued by
  the commission.
         Sec. 2001.303.  APPLICABILITY. (a)  This subchapter applies
  to a final commission decision issued under Section 5.5553, Water
  Code, following a public hearing under Section 5.5541, Water Code,
  for:
               (1)  a national pollutant discharge elimination system
  permit under Chapter 26, Water Code;
               (2)  a Class I injection well permit under Chapter 27,
  Water Code;
               (3)  an in situ uranium mining permit under Chapter 27,
  Water Code;
               (4)  a permit under Chapter 28, Water Code;
               (5)  a solid waste facility permit under Chapter 361,
  Health and Safety Code;
               (6)  a hazardous waste management facility permit under
  Chapter 361, Health and Safety Code;
               (7)  a preconstruction permit under Chapter 382, Health
  and Safety Code;
               (8)  a standard permit for a concrete batch plant under
  Chapter 382, Health and Safety Code; and
               (9)  a license under Chapter 401, Health and Safety
  Code.
         (b)  This subchapter does not apply to a permit for which a
  hearing under Section 5.5541(d), Water Code, is not held.
         Sec. 2001.304.  REVIEW OF FINAL PERMIT DECISIONS. (a)  Not
  later than the 30th day after the date notice of the commission's
  final decision on a permit application under Section 5.5553, Water
  Code, is published in the Texas Register, an interested person who
  filed a comment on the permit application or participated in a
  public hearing on the permit application may file a petition for
  administrative review of the permit decision by the office.
         (b)  A person who failed to file a comment or participate in
  the public hearing on the permit application may petition for
  administrative review of the permit decision only with regard to
  any changes made to the draft permit in the permit decision.
         (c)  The petition must be filed with the chief clerk of the
  commission. Not later than the fifth calendar day after the date
  the commission receives the petition, the chief clerk shall forward
  the petition to the office for review. The chief clerk shall
  include with the petition:
               (1)  if the permit was issued, the final permit and the
  administrative record for the final permit, including:
                     (A)  the findings of fact and conclusions of law
  that support the issuance of the permit;
                     (B)  the draft permit and the findings of fact and
  conclusions of law that support the draft permit; and
                     (C)  the executive director's preliminary
  decision on the permit application;
               (2)  all comments received during the public comment
  period other than comments received in a public meeting held under
  Section 5.554, Water Code;
               (3)  the tape or transcript of any public hearing held
  under Section 5.5541, Water Code;
               (4)  the response to the comments required by Section
  5.555, Water Code; and
               (5)  any other documents contained in the supporting
  materials for the permit.
         (d)  The petition must include a statement of the reasons
  supporting review by the office, including a demonstration that any
  issues raised in the petition:
               (1)  were raised during the public comment period or at
  a public hearing; or
               (2)  relate to changes made to the draft permit in the
  permit decision.
         (e)  The office may grant the petition only if the petitioner
  demonstrates that the basis for the review is:
               (1)  a finding of fact or conclusion of law that is
  clearly erroneous; or
               (2)  an exercise of discretion or an important policy
  consideration that the office should, in its discretion, review.
         (f)  The commission and permit applicant, if applicable, may
  each file a response to the petition not later than the 30th day
  after the date the petition is filed.
         (g)  The petitioner may file a reply brief not later than the
  15th day after the date of the service of a response described by
  Subsection (f).
         (h)  The office may, in its discretion, deny the petition,
  even if the petition satisfies the requirements of Subsection (e).
         (i)  The scope of review on a petition is limited to the
  administrative record provided to the office by the chief clerk of
  the commission. New evidence may not be raised or considered by the
  office in reviewing the petition.
         (j)  Not later than the 60th day after the date the office
  receives the petition, it shall issue an order granting or denying
  the petition. An issue raised in a denied petition is eligible for
  judicial review of the issue in the Court of Appeals for the Third
  Court of Appeals District.
         Sec. 2001.305.  ADMINISTRATIVE REVIEW. (a) If the office
  grants a petition for review under Section 2001.304, the office
  shall give public notice of the review not later than the 10th day
  before the date set for the review that includes:
               (1)  a statement of the time, place, and nature of the
  review;
               (2)  a statement of the legal authority and
  jurisdiction under which the review is to be held;
               (3)  a reference to the specific sections of the
  statutes and rules involved in the matter under review;
               (4)  a short, plain statement of the matters asserted;
  and
               (5)  at the discretion of the office, a briefing
  schedule for the review that may allow the submission of briefs by a
  petitioner, the permit applicant, the commission, and the office of
  public interest counsel of the commission.
         (b)  If the office determines that the briefing provided with
  the petition for review is sufficient to make a final decision, it
  may conclude that additional briefing is not necessary.
         (c)  The office may allow for the filing of amicus briefs. If
  applicable, the notice required under Subsection (a) must include
  instructions for any interested person to file an amicus brief.
         (d)  The office may, in addition to establishing a briefing
  schedule, direct the parties to present oral argument on a
  specified issue.
         (e)  The scope of review by the office shall be limited to
  review of the administrative record, briefs provided by the
  parties, and any oral arguments presented to the office.
         (f)  The office shall issue a decision not later than the
  60th day after the date it grants the petition.
         (g)  The office is limited to the following actions with
  regard to a final decision issued by the commission:
               (1)  affirm the commission's final decision; or
               (2)  remand the final decision to the commission with
  recommendations to address:
                     (A)  clearly erroneous findings of fact or
  conclusions of law identified by the office;
                     (B)  an exercise of discretion; or
                     (C)  an important policy consideration.
         (h)  If the office affirms the commission's final decision,
  that final decision is eligible for judicial review in the Court of
  Appeals for the Third Court of Appeals District.
         Sec. 2001.306.  ISSUES REMANDED TO THE COMMISSION. (a) Not
  later than the 30th day after the date the office remands a decision
  to the commission, the commission shall:
               (1)  modify the decision accordingly; or
               (2)  decline to modify the decision.
         (b)  An action taken by the commission under Subsection (a)
  must:
               (1)  be published in the Texas Register; and
               (2)  include an explanation describing the commission's
  reasoning for the action.
         (c)  The commission's action on a decision remanded to the
  commission by the office is eligible for judicial review in the
  Court of Appeals for the Third Court of Appeals District.
         SECTION 2.  The heading to Subchapter G, Chapter 2001,
  Government Code, is amended to read as follows:
  SUBCHAPTER G. [CONTESTED CASES:]  JUDICIAL REVIEW
         SECTION 3.  Section 2001.171, Government Code, is amended to
  read as follows:
         Sec. 2001.171.  JUDICIAL REVIEW. (a)  A person who has
  exhausted all administrative remedies available within a state
  agency and who is aggrieved by a final decision in a contested case
  or in an administrative review under Subchapter J of an
  environmental permit decision is entitled to judicial review under
  this chapter.
         (b)  Except as provided by Section 2001.227, this subchapter
  applies to an administrative review under Subchapter J of an
  environmental permit in the same manner as it applies to a contested
  case.
         SECTION 4.  Subchapter I, Chapter 2001, Government Code, is
  amended by adding Section 2001.227 to read as follows:
         Sec. 2001.227.  VENUE AND STANDARD OF REVIEW FOR CERTAIN
  ENVIRONMENTAL CASES. (a)  The venue for judicial review of an
  action or decision identified under Subchapter J as eligible for
  judicial review is in the Court of Appeals for the Third Court of
  Appeals District.
         (b)  The standard of review of an action or decision under
  Subchapter J is whether the action or decision was:
               (1)  arbitrary and capricious; or
               (2)  characterized by abuse or a clearly unwarranted
  exercise of discretion.
         (c)  Under the arbitrary and capricious standard of review, a
  court may not substitute its judgment for the judgment of the Texas
  Commission on Environmental Quality but:
               (1)  may affirm the decision in whole or in part; or
               (2)  shall reverse and remand the case for further
  proceedings if substantial rights of the permit applicant have been
  prejudiced because the findings, inferences, conclusions, or
  decisions of the Texas Commission on Environmental Quality are:
                     (A)  in violation of a constitutional or statutory
  provision;
                     (B)  in excess of the agency's statutory
  authority;
                     (C)  made through unlawful approval;
                     (D)  affected by other error of law;
                     (E)  arbitrary or capricious; or
                     (F)  characterized by abuse or clearly
  unwarranted exercise of discretion.
         SECTION 5.  Section 2003.024(d), Government Code, is amended
  to read as follows:
         (d)  This section does not apply to hearings conducted:
               (1)  by the environmental quality [natural resource
  conservation] division or the utility division; or
               (2)  under the administrative license revocation
  program.
         SECTION 6.  The heading to Section 2003.047, Government
  Code, is amended to read as follows:
         Sec. 2003.047.  ENVIRONMENTAL QUALITY [NATURAL RESOURCE
  CONSERVATION] DIVISION.
         SECTION 7.  Section 2003.047, Government Code, is amended by
  amending Subsections (a), (b), and (m) and adding Subsection (p) to
  read as follows:
         (a)  The office shall establish an environmental quality [a
  natural resource conservation] division to perform the contested
  case hearings and administrative review of certain permit decisions
  for the Texas Commission on Environmental Quality [Natural Resource
  Conservation Commission].
         (b)  The division shall conduct hearings relating to
  contested cases before the commission, other than a hearing
  conducted by one or more commissioners, and shall conduct
  administrative review of commission permit application decisions
  to which Subchapter J, Chapter 2001, applies. The commission by
  rule may delegate to the division the responsibility to hear any
  other matter before the commission if consistent with the
  responsibilities of the division.
         (m)  The [Except as provided in Section 361.0832, Health and
  Safety Code, the] commission shall consider the proposal for
  decision prepared by the administrative law judge, the exceptions
  of the parties, and the briefs and argument of the parties. The
  commission may amend the proposal for decision, including any
  finding of fact, but any such amendment thereto and order shall be
  based solely on the record made before the administrative law
  judge. Any such amendment by the commission shall be accompanied by
  an explanation of the basis of the amendment. The commission may
  also refer the matter back to the administrative law judge to
  reconsider any findings and conclusions set forth in the proposal
  for decision or take additional evidence or to make additional
  findings of fact or conclusions of law. The commission shall serve
  a copy of the commission's order, including its finding of facts and
  conclusions of law, on each party.
         (p)  The chief administrative law judge shall adopt rules
  that govern the procedure to be used by the environmental quality
  division for the administrative review of a commission decision on
  an environmental permit to which Subchapter J, Chapter 2001,
  applies.
         SECTION 8.  Section 2003.048, Government Code, is amended to
  read as follows:
         Sec. 2003.048.  TEXAS [NATURAL RESOURCE CONSERVATION]
  COMMISSION ON ENVIRONMENTAL QUALITY HEARINGS FEE. The office shall
  charge the Texas [Natural Resource Conservation] Commission on
  Environmental Quality a fixed annual fee rather than an hourly rate
  for services rendered by the office to the commission. The amount
  of the fee may not be less than the amount appropriated to the Texas
  [Natural Resource Conservation] Commission on Environmental
  Quality in the General Appropriations Act for payment to the
  environmental quality [natural resource conservation] division to
  conduct commission hearings. The amount of the fee shall be based
  on the costs of conducting the hearings, the costs of travel
  expenses and telephone charges directly related to the hearings,
  docketing costs, and other applicable administrative costs of the
  office including the administrative costs of the environmental
  quality [natural resource conservation] division. The office and
  the Texas [Natural Resource Conservation] Commission on
  Environmental Quality shall negotiate the amount of the fixed fee
  biennially, subject to the approval of the governor, to coincide
  with the commission's legislative appropriations request.
         SECTION 9.  Section 5.311(a), Water Code, is amended to read
  as follows:
         (a)  The commission may delegate to an administrative law
  judge of the State Office of Administrative Hearings the
  responsibility to:
               (1)  hear any matter before the commission other than a
  matter that is the subject of a public hearing under Section 5.5541;
  and
               (2)  [to] issue interlocutory orders related to interim
  rates under Chapter 13.
         SECTION 10.  Section 5.313, Water Code, is amended to read as
  follows:
         Sec. 5.313.  HEARING EXAMINERS REFERENCED IN LAW. Any
  reference in law to a hearing examiner who has a duty related to a
  case pending before the commission, other than a case involving a
  matter that is the subject of a public hearing under Section 5.5541,
  means an administrative law judge of the State Office of
  Administrative Hearings.
         SECTION 11.  Subchapter H, Chapter 5, Water Code, is amended
  by adding Section 5.316 to read as follows:
         Sec. 5.316.  APPLICABILITY OF CONTESTED CASE PROCEDURE TO
  CERTAIN HEARINGS. Subchapters C, D, E, and F, Chapter 2001,
  Government Code, do not apply to an application for an original
  permit, permit amendment, or permit renewal to which Subchapter J,
  Chapter 2001, Government Code, applies.
         SECTION 12.  Subchapter I, Chapter 5, Water Code, is amended
  by adding Section 5.358 to read as follows:
         Sec. 5.358.  JUDICIAL REVIEW OF PERMITS SUBJECT TO
  ADMINISTRATIVE REVIEW. Except as provided by Section 2001.227,
  Government Code, Subchapter G, Chapter 2001, Government Code,
  applies to the judicial review of a permit action or decision under
  Subchapter J, Chapter 2001, Government Code, instead of this
  subchapter.
         SECTION 13.  Sections 5.402(a) and (b), Water Code, are
  amended to read as follows:
         (a)  At any time before the public notice of the opportunity
  to request a public hearing on a permit application, the applicant
  may request that consolidated applications be processed separately
  as determined by the executive director. The executive director
  shall process the applications separately if the applicant submits
  a timely request under this subsection.
         (b)  At any time after the notice of opportunity to request a
  public hearing [but before referral of the matter to the State
  Office of Administrative Hearings], the executive director may
  separate the applications for processing on a showing of good cause
  by the applicant that the applications should be processed
  separately. For purposes of this subsection, "good cause" includes
  a change in the statutory or regulatory requirements governing a
  permit or a substantial change in the factual circumstances
  surrounding the applications for permits.
         SECTION 14.  Sections 5.551(a) and (b), Water Code, are
  amended to read as follows:
         (a)  This subchapter establishes procedures for providing
  public notice, an opportunity for public comment, and an
  opportunity for public hearing [under Subchapters C-H, Chapter
  2001, Government Code,] regarding commission actions relating to a
  permit issued under Chapter 26, [or] 27, or 28 of this code or
  Chapter 361, 382, or 401, Health and Safety Code. This subchapter
  is procedural and does not expand or restrict the types of
  commission actions for which public notice, an opportunity for
  public comment, and an opportunity for public hearing are provided
  under Chapter 26, [or] 27, or 28 of this code or Chapter 361, 382, or
  401, Health and Safety Code.
         (b)  The commission by rule shall provide for additional
  notice, opportunity for public comment, or opportunity for public
  hearing to the extent necessary to satisfy a requirement for United
  States Environmental Protection Agency authorization of a state
  permit program.
         SECTION 15.  Subchapter M, Chapter 5, Water Code, is amended
  by adding Section 5.5515 to read as follows:
         Sec. 5.5515.  DEFINITIONS. In this subchapter:
               (1)  "Interested person" means a person who resides or
  operates in this state, and includes an applicant for a permit,
  permit amendment, or permit renewal.
               (2)  "Permit" includes a permit, license, certificate,
  registration, approval, or other form of authorization issued by
  the commission.
         SECTION 16.  Sections 5.552(a) and (d), Water Code, are
  amended to read as follows:
         (a)  Not later than the 30th day after the date the
  commission receives the application, the [The] executive director
  shall determine whether [when] an application is administratively
  complete.
         (d)  In addition to providing notice under Subsection
  (b)(1), the applicant shall comply with any applicable public
  notice requirements under Chapters 26, [and] 27, and 28 of this
  code, Chapters [Chapter] 361, 382, and 401, Health and Safety Code,
  and rules adopted under those chapters.
         SECTION 17.  Section 5.553, Water Code, is amended by
  amending Subsections (c) and (d) and adding Subsections (f) and (g)
  to read as follows:
         (c)  The commission by rule shall establish the form and
  content of the notice, the manner of publication, and the duration
  of the public comment period. The notice must include:
               (1)  the information required by Sections
  5.552(c)(1)-(5);
               (2)  a summary of the preliminary decision;
               (3)  the location at which a copy of the preliminary
  decision is available for review and copying as provided by
  Subsection (e);
               (4)  a description of the manner in which comments
  regarding the preliminary decision may be submitted; [and]
               (5)  if applicable, a description of the procedure for
  requesting a public hearing on the preliminary decision; and
               (6)  any other information the commission by rule
  requires.
         (d)  In addition to providing notice under this section, the
  applicant shall comply with any applicable public notice
  requirements under Chapters 26, [and] 27, and 28 of this code,
  Chapters [Chapter] 361, 382, and 401, Health and Safety Code, and
  rules adopted under those chapters.
         (f)  The duration of the public comment period shall extend
  to the later of:
               (1)  the close of a public hearing on the matter, if
  applicable; or
               (2)  the 45th day after the date the public comment
  period begins.
         (g)  If the executive director determines that there is
  substantial public interest in extending the public comment period,
  the executive director may extend the public comment period
  described by Subsection (f) for a period not to exceed 30 days.
         SECTION 18.  Section 5.554, Water Code, is amended to read as
  follows:
         Sec. 5.554.  PUBLIC MEETING.  (a) In this section, "public
  meeting" means an informal meeting open to any interested person at
  which the permit applicant, the executive director, and members of
  the public may discuss issues related to the permit application.
         (b)  During the public comment period, the executive
  director or the applicant, in cooperation with the executive
  director, may hold one or more public meetings in the county in
  which the facility is located or proposed to be located or in an
  adjacent county.
         (c)  The executive director shall hold a public meeting:
               (1)  on the request of a member of the legislature who
  represents the general area in which the facility is located or
  proposed to be located; or
               (2)  if the executive director determines that there is
  substantial public interest in the proposed activity.
         SECTION 19.  Subchapter M, Chapter 5, Water Code, is amended
  by adding Sections 5.5541 and 5.5542 to read as follows:
         Sec. 5.5541.  PUBLIC HEARING. (a)  In this section, "public
  hearing" means a formal meeting at which any interested person may
  make comments on the record relating to a proposed agency decision
  on a permit application.
         (b)  An interested person may request a public hearing after
  a preliminary decision has been issued on an application for a
  permit, permit renewal, or permit amendment for:
               (1)  a national pollutant discharge elimination system
  permit under Chapter 26;
               (2)  a Class I injection well permit under Chapter 27;
               (3)  an in situ uranium mining permit under Chapter 27;
               (4)  a permit under Chapter 28;
               (5)  a solid waste facility permit under Chapter 361,
  Health and Safety Code;
               (6)  a hazardous waste management facility permit under
  Chapter 361, Health and Safety Code;
               (7)  a preconstruction permit under Chapter 382, Health
  and Safety Code;
               (8)  a standard permit for a concrete batch plant under
  Chapter 382, Health and Safety Code; or
               (9)  a license under Chapter 401, Health and Safety
  Code.
         (c)  The executive director shall hold a public hearing not
  later than the 35th day after the date the request is made under
  Subsection (b).
         (d)  The following permits are not eligible for a public
  hearing:
               (1)  a general permit under Chapter 26;
               (2)  any of the following permits under Chapter 382,
  Health and Safety Code:
                     (A)  a standard permit, other than a standard
  permit for a concrete batch plant; or
                     (B)  a permit by rule;
               (3)  any of the following permits under Chapter 26, 27,
  or 28 of this code or Chapter 361, 382, or 401, Health and Safety
  Code:
                     (A)  an administrative permit or a minor permit,
  minor permit amendment, or minor permit modification, as those
  terms are defined by commission rule; or
                     (B)  a registration; and
               (4)  any permit determined by commission rule to be
  ineligible for a hearing.
         (e)  A public hearing must be held in the county in which the
  facility is located or proposed to be located or in an adjacent
  county.
         (f)  For a permit application not listed in Subsection (b) or
  (d), a public hearing may be held if the executive director
  determines that there is a substantial public interest in the
  proposed activity.
         (g)  Notice of a public hearing must be given not later than
  the 30th day before the date of the hearing and in the same form and
  manner as is required for notice of a preliminary decision under
  Section 5.553(c).
         (h)  The executive director is responsible for the
  scheduling and orderly conduct of a public hearing.
         (i)  The commission by rule shall establish the procedures
  for requesting and conducting a public hearing, including
  reasonable time limits for oral statements and provisions for
  asking and answering questions.
         (j)  At a public hearing, any person may submit oral or
  written comments and data concerning the preliminary decision.
         Sec. 5.5542.  OBLIGATION TO RAISE ISSUES AND PROVIDE
  INFORMATION DURING PUBLIC COMMENT PERIOD. (a) An interested person
  must raise all reasonably ascertainable issues and submit all
  reasonably available arguments supporting the person's position on
  the executive director's preliminary decision before the close of
  the public comment period.
         (b)  Supporting materials submitted during the public
  comment period must be included in full in the administrative
  record for the application and may not be incorporated by reference
  unless the materials:
               (1)  are already part of the administrative record in
  the same proceeding; or
               (2)  consist of:
                     (A)  state or federal statutes or rules; or
                     (B)  generally available reference materials.
         (c)  The commission by rule shall establish procedures to
  make supporting materials not already included in the
  administrative record available to the executive director.
         SECTION 20.  Section 5.555, Water Code, is amended to read as
  follows:
         Sec. 5.555.  RESPONSE TO PUBLIC COMMENTS. (a) The executive
  director, in accordance with procedures provided by commission
  rule, shall 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, including an oral
  or written comment delivered at a public hearing, but not including
  an oral or written comment raised solely at a public meeting. The
  executive director is required to respond to only those comments
  that substantially relate to the permit application.
         (b)  Not later than the 60th day after the date the public
  comment period ends, the [The] chief clerk of the commission shall
  transmit the executive director's decision, the executive
  director's response to public comments, a draft permit under
  Section 5.5551, if applicable, and instructions for filing a
  petition for an administrative review of a final commission
  decision [requesting that the commission reconsider the executive
  director's decision or hold a contested case hearing] to:
               (1)  the applicant;
               (2)  any person who submitted comments during the
  public comment period; and
               (3)  any person who requested to be on the mailing list
  for the permit action.
         (c)  If, after the close of the public comment period, the
  executive director determines that additional time is necessary to
  respond to public comments, the time limit described by Subsection
  (b) may be extended for a period not to exceed 30 days.
         SECTION 21.  Subchapter M, Chapter 5, Water Code, is amended
  by adding Sections 5.5551, 5.5552, and 5.5553 to read as follows:
         Sec. 5.5551.  DRAFT PERMIT.  (a)  If the executive director
  approves a permit application, the executive director shall prepare
  a draft permit that includes the findings of fact and conclusions of
  law that support the issuance of the draft permit. The chief clerk
  of the commission shall include the draft permit with the
  information transmitted under Section 5.555(b).
         (b)  The commission by rule shall develop a procedure for an
  interested person to file proposed findings of fact and conclusions
  of law for consideration by the executive director for the purpose
  of preparing the draft permit.
         Sec. 5.5552.  UNCONTESTED APPLICATIONS.  If a public hearing
  is not requested and comments are not filed on an application, that
  application is considered uncontested and the executive director
  may issue the final permit. A final permit issued under this
  section is not subject to administrative or judicial review.
         Sec. 5.5553.  FINAL COMMISSION DECISION ON CERTAIN PERMIT
  APPLICATIONS; PETITION FOR ADMINISTRATIVE REVIEW. (a) Not later
  than the 30th day after the date the chief clerk transmits the
  executive director's decision as described by Section 5.555(b), the
  commission shall approve, disapprove, or approve with
  modifications the executive director's decision and publish notice
  of the decision in the Texas Register.
         (b)  If the commission approves the draft permit, the
  commission shall issue a final permit that includes the findings of
  fact and conclusions of law that support the issuance of the final
  permit.
         (c)  A final permit issued by the commission is effective on
  the date of approval by the commission.  The permit applicant may
  rely on the final permit to conduct the authorized activity.
         (d)  The commission's action under Subsection (a) is subject
  to administrative review by the State Office of Administrative
  Hearings under Subchapter J, Chapter 2001, Government Code.
         (e)  A petition for administrative review by the State Office
  of Administrative Hearings is a prerequisite to seeking judicial
  review of a final commission action on a permit application.
         SECTION 22.  Sections 27.018(a) and (b), Water Code, are
  amended to read as follows:
         (a)  [If it is considered necessary and in the public
  interest, the commission may hold a public hearing on the
  application.] The commission on request shall hold a public
  hearing on a permit application for a Class I [an] injection well
  [to dispose of industrial and municipal waste if a hearing is
  requested by a local government located in the county of the
  proposed disposal well site or by an affected person. In this
  subsection, "local government" has the meaning provided for that
  term by Chapter 26 of this code].
         (b)  The commission by rule shall provide for giving notice
  of [the opportunity to request] a public hearing on a permit
  application. The rules for notice shall include provisions for
  giving notice to local governments and affected persons. The
  commission shall define "affected person" by rule.
         SECTION 23.  Sections 27.0513(a) and (d), Water Code, are
  amended to read as follows:
         (a)  The commission may issue a permit pursuant to Section
  27.011 that authorizes the construction and operation of two or
  more similar injection wells within a specified area for mining of
  uranium.  An application for a new permit issued pursuant to Section
  27.011, a major amendment of such a permit, or a renewal of such a
  permit for mining of uranium is subject to the public notice
  requirements [and opportunity for contested case hearing] provided
  under Section 27.018.
         (d)  Notwithstanding Sections 5.551, [5.556,] 27.011, and
  27.018, an application for an authorization submitted after
  September 1, 2007, is an uncontested matter not subject to an
  administrative review under Subchapter J, [a contested case hearing
  or the hearing requirements of] Chapter 2001, Government Code,
  unless the authorization seeks any of the following:
               (1)  an amendment to a restoration table value;
               (2)  the initial establishment of monitoring wells for
  any area covered by the authorization, including the location,
  number, depth, spacing, and design of the monitoring wells, unless
  the executive director uses the recommendation of an independent
  third-party expert chosen by the commission; or
               (3)  an amendment to the type or amount of bond required
  for groundwater restoration or by Section 27.073 to assure that
  there are sufficient funds available to the state for groundwater
  restoration or the plugging of abandoned wells in the area by a
  third-party contractor.
         SECTION 24.  Section 361.082(b), Health and Safety Code, is
  amended to read as follows:
         (b)  The [On its own motion or the request of a person
  affected, the] commission on request shall [may] hold a public
  hearing on an application for a hazardous waste permit in
  accordance with this subchapter.
         SECTION 25.  Section 361.0831, Health and Safety Code, is
  amended to read as follows:
         Sec. 361.0831.  EX PARTE CONTACTS PROHIBITED. (a) Unless
  required for the disposition of ex parte matters authorized by law,
  [or unless permitted by Section 2001.061, Government Code,] a
  hearings examiner conducting a public hearing on a permit
  application may not communicate, directly or indirectly, with any
  employee of the commission, any commissioner, or any party to a
  hearing conducted by the commission in connection with any issue of
  fact or law pertaining to an administrative review [a contested
  case] in which the commission or party is involved.
         (b)  Except for communications allowed under Subsection (a),
  an employee of the commission, a commissioner, or a party to a
  hearing conducted by the commission may not attempt to influence
  the finding of facts or the application of law or rules by a
  hearings examiner conducting a public hearing except [by proper
  evidence, pleadings, and legal argument] with notice and
  opportunity for all parties to participate.
         (c)  If a prohibited contact is made, the hearings examiner
  conducting the public hearing shall notify all parties with a
  summary of that contact and notice of their opportunity to respond
  and shall give all parties an opportunity to respond.
         SECTION 26.  Sections 361.088(c) and (d), Health and Safety
  Code, are amended to read as follows:
         (c)  Except as provided by Subsection (e), before a permit is
  issued, amended, extended, or renewed, the commission on request 
  shall hold [provide an opportunity for] a public hearing [to the
  applicant and persons affected]. The commission may also hold a
  hearing on its own motion.
         (d)  The [In addition to providing an opportunity for a
  hearing held under this section, the] commission shall hold a
  public meeting as described by Section 5.554, Water Code, and give
  notice as provided by Section 361.0791.
         SECTION 27.  Section 361.089(b), Health and Safety Code, is
  amended to read as follows:
         (b)  Except as provided by Section 361.110, the commission
  shall notify each governmental entity listed under Section 361.067
  and provide an opportunity for a public hearing to the permit holder
  or applicant and persons affected. The commission may also hold a
  public hearing on its own motion.
         SECTION 28.  Section 361.121(c), Health and Safety Code, is
  amended to read as follows:
         (c)  The notice and hearing provisions of Subchapter M,
  Chapter 5, Water Code, [as added by Chapter 1350, Acts of the 76th
  Legislature, Regular Session, 1999,] apply to an application under
  this section for a permit, a permit amendment, or a permit renewal.
  In addition, at the time published notice of intent to obtain a
  permit is required under Section 5.552, Water Code, an applicant
  for a permit, permit amendment, or permit renewal under this
  section must notify by registered or certified mail each owner of
  land located within one-quarter mile of the proposed land
  application unit who lives on that land of the intent to obtain the
  permit, amendment, or renewal. Notice to landowners must include
  the information required by Section 5.552(c), Water Code, and
  information regarding the anticipated date of the first application
  of the sludge to the proposed land application unit. [An owner of
  land located within one-quarter mile of the proposed land
  application unit who lives on that land is an affected person for
  purposes of Section 5.115, Water Code.]
         SECTION 29.  Section 361.321(a), Health and Safety Code, is
  amended to read as follows:
         (a)  A person affected by a ruling, order, decision, or other
  act of the commission may appeal the action by filing a petition in
  a district court of Travis County, except that a final decision by
  the commission on an application for a permit, permit renewal, or
  permit amendment that is subject to administrative review under
  Subchapter J, Chapter 2001, Government Code, may be appealed to the
  court of appeals for the Third Court of Appeals District.
         SECTION 30.  Section 382.032(a), Health and Safety Code, is
  amended to read as follows:
         (a)  A person affected by a ruling, order, decision, or other
  act of the commission or of the executive director, if an appeal to
  the commission is not provided, may appeal the action by filing a
  petition in a district court of Travis County, except that a final
  decision by the commission on an application for a permit, permit
  renewal, or permit amendment that is subject to administrative
  review under Subchapter J, Chapter 2001, Government Code, may be
  appealed to the court of appeals for the Third Court of Appeals
  District.
         SECTION 31.  Section 382.055(g), Health and Safety Code, is
  amended to read as follows:
         (g)  If the applicant meets the commission's requirements in
  accordance with the schedule, the commission shall renew the
  permit. If the applicant does not meet those requirements in
  accordance with the schedule, the applicant must show in a public
  hearing conducted by the commission [contested case proceeding] why
  the permit should not expire immediately. The applicant's permit
  is effective until:
               (1)  the final date specified by the commission's
  report to the applicant;
               (2)  the existing permit is renewed; or
               (3)  the date specified by a commission order issued
  following a public hearing [contested case proceeding] held under
  this section.
         SECTION 32.  Sections 382.056(b), (g), (h), and (m), Health
  and Safety Code, are amended to read as follows:
         (b)  The notice must include:
               (1)  a description of the location or proposed location
  of the facility or federal source;
               (2)  the location at which a copy of the application is
  available for review and copying as provided by Subsection (d);
               (3)  a description, including a telephone number, of
  the manner in which the commission may be contacted for further
  information;
               (4)  a description, including a telephone number, of
  the manner in which the applicant may be contacted for further
  information;
               (5)  a description of the procedural rights and
  obligations of the public, printed in a font style or size that
  clearly provides emphasis and distinguishes it from the remainder
  of the notice, that includes a statement that informs the public of
  the executive director's obligation under Section 5.5541(b), Water
  Code, to hold a public hearing on the application [a person who may
  be affected by emissions of air contaminants from the facility,
  proposed facility, or federal source is entitled to request a
  hearing from the commission];
               (6)  a description of the procedure by which a person
  may be placed on a mailing list in order to receive additional
  information about the application;
               (7)  the time and location of any public meeting to be
  held under Subsection (e); and
               (8)  any other information the commission by rule
  requires.
         (g)  If, in response to the notice published under Subsection
  (a) for a permit or permit amendment under Section 382.0518 or a
  permit renewal review under Section 382.055, 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
  date the preliminary decision is issued, the applicant shall
  publish notice of the preliminary decision in a newspaper, and the
  commission shall seek public comment on the preliminary decision.
  The commission shall consider the request for public hearing under
  the procedures provided by Subsections (i)-(m) [(i)-(n)]. The
  commission may not seek further public comment or hold a public
  hearing under the procedures provided by Subsections (i)-(m)
  [(i)-(n)] in response to a request for a public hearing on an
  amendment, modification, or renewal that would not result in an
  increase in allowable emissions and would not result in the
  emission of an air contaminant not previously emitted.
         (h)  If, in response to the notice published under Subsection
  (a) for a permit under Section 382.054, a person requests during the
  public comment period provided by commission rule that the
  commission hold a public hearing, the commission shall consider the
  request under the procedures provided by Section 382.0561 and not
  under the procedures provided by Subsections (i)-(m) [(i)-(n)].
         (m)  The chief clerk of the commission shall transmit the
  executive director's decision and[,] the executive director's
  response to public comments[, and instructions for requesting that
  the commission reconsider the executive director's decision or hold
  a contested case hearing] to:
               (1)  the applicant;
               (2)  any person who submitted comments during the
  public comment period;
               (3)  any person who requested to be on the mailing list
  for the permit action; and
               (4)  any person who timely filed a request for a public
  hearing in response to the notice published under Subsection (a).
         SECTION 33.  Section 382.059(d), Health and Safety Code, is
  amended to read as follows:
         (d)  Not later than the 30th day after the date of issuance of
  the draft permit under Subsection (c), parties may submit to the
  commission any legitimate issues of material fact regarding whether
  the choice of technology approved in the draft permit is the maximum
  achievable control technology required under Section 112 of the
  federal Clean Air Act (42 U.S.C. Section 7412) and may request a
  public [contested case] hearing before the commission under Section
  5.5541, Water Code.  If a party requests a public [contested case]
  hearing under this subsection, the commission shall conduct a
  public [contested case] hearing and issue a final order issuing or
  denying the permit amendment not later than the 120th day after the
  date of issuance of the draft permit under Subsection (c).
         SECTION 34.  Sections 401.114(a) and (c), Health and Safety
  Code, are amended to read as follows:
         (a)  Before the commission grants or renews a license to
  process or dispose of low-level radioactive waste from other
  persons, the commission shall give notice and shall provide an
  opportunity for a public hearing in the manner provided by Section
  5.5541, Water [the commission's formal hearing procedure and
  Chapter 2001, Government] Code.
         (c)  The commission shall mail, by certified mail in the
  manner provided by the commission's rules, written notice to each
  person who owns property adjacent to the proposed site.  The notice
  must be mailed not later than the 31st day before the date of the
  hearing and must include the same information that is in the
  published notice.  [If true, the commission or the applicant must
  certify that the notice was mailed as required by this subsection,
  and at the hearing the certificate is conclusive evidence of the
  mailing.]
         SECTION 35.  Section 401.116(d), Health and Safety Code, is
  amended to read as follows:
         (d)  The agency shall give notice and hold a public hearing
  to consider the license amendment if a person [affected] files a
  written complaint with the agency before the 31st day after the date
  on which notice is published under Subsection (b). The agency shall
  give notice of the hearing as provided by Section 401.114.
         SECTION 36.  Section 401.227(a), Health and Safety Code, is
  amended to read as follows:
         (a)  In selecting an application for the compact waste
  disposal facility license, the commission shall:
               (1)  issue notice of the opportunity to submit an
  application to dispose of low-level radioactive waste in accordance
  with Section 401.228;
               (2)  review all applications received under
  Subdivision (1) for administrative completeness;
               (3)  evaluate all administratively complete
  applications in accordance with the evaluation criteria
  established by Sections 401.233-401.236 and shall select the
  application that has the highest comparative merit in accordance
  with Section 401.232; and
               (4)  review the selected application under Subdivision
  (3) for technical completeness in accordance with Section 401.237 
  and issue a draft license [in accordance with Sections 401.237 and
  401.238].
         SECTION 37.  Section 401.240(a), Health and Safety Code, is
  amended to read as follows:
         (a)  Notwithstanding any other law, a person affected by an
  action of the commission under this subchapter may file a petition
  for judicial review of the action only after the commission takes
  final action on a license application [under Section 401.239(d)].
  A petition must be filed not later than the 30th day after the date
  of the final action.
         SECTION 38.  Sections 401.264(a) and (e), Health and Safety
  Code, are amended to read as follows:
         (a)  The commission on its own motion may or on [the] written
  request [of a person affected] shall provide an opportunity for a
  public hearing on an application over which the commission has
  jurisdiction to determine whether to issue, renew, or amend a
  license to process materials that produce by-product materials or a
  license to dispose of by-product materials [in the manner provided
  by Chapter 2001, Government Code, and permit appearances with or
  without counsel and the examination and cross-examination of
  witnesses under oath].
         (e)  The determination is subject to administrative 
  [judicial] review under Subchapter J, Chapter 2001, Government
  Code, and following administrative review or the denial of a
  petition for administrative review, is subject to judicial review
  in the court of appeals for the Third Court of Appeals District [in
  a district court of Travis County].
         SECTION 39.  The following provisions are repealed:
               (1)  Sections 361.068(b) and (c), Health and Safety
  Code;
               (2)  Section 361.079(b), Health and Safety Code;
               (3)  Section 361.082(g), Health and Safety Code;
               (4)  Section 361.083, Health and Safety Code;
               (5)  Section 361.0832, Health and Safety Code;
               (6)  Section 361.0833, Health and Safety Code;
               (7)  Section 361.085(b), Health and Safety Code;
               (8)  Sections 361.088(e) and (f), Health and Safety
  Code;
               (9)  Section 361.089(d), Health and Safety Code;
               (10)  Sections 382.056(n) and (o), Health and Safety
  Code;
               (11)  Section 382.0566(c), Health and Safety Code;
               (12)  Section 382.058(c), Health and Safety Code;
               (13)  Section 382.059(f), Health and Safety Code;
               (14)  Section 401.003(15), Health and Safety Code;
               (15)  Section 401.238, Health and Safety Code;
               (16)  Section 401.239, Health and Safety Code;
               (17)  Sections 401.245(g) and (h), Health and Safety
  Code;
               (18)  Section 401.2455(b), Health and Safety Code;
               (19)  Section 401.264(b), Health and Safety Code;
               (20)  Section 5.115, Water Code;
               (21)  Sections 5.228(c) and (d), Water Code;
               (22)  Section 5.315, Water Code;
               (23)  Section 5.402(c), Water Code;
               (24)  Section 5.552(f), Water Code;
               (25)  Section 5.556, Water Code;
               (26)  Section 5.557, Water Code;
               (27)  Section 5.558(c), Water Code;
               (28)  Sections 27.018(c) and (e), Water Code;
               (29)  Section 27.0513(f), Water Code; and
               (30)  Section 28.028, Water Code.
         SECTION 40.  (a) Not later than January 1, 2014, the chief
  administrative law judge of the State Office of Administrative
  Hearings shall adopt rules to implement Subchapter J, Chapter 2001,
  Government Code, as added by this Act, and Section 2003.047,
  Government Code, as amended by this Act.
         (b)  The changes in law made by this Act apply only to an
  application for a permit to which Subchapter J, Chapter 2001,
  Government Code, as added by this Act, applies that is filed on or
  after the date the rules described by Subsection (a) of this section
  take effect. An application for a permit filed before the date the
  rules described by Subsection (a) of this section take effect is
  governed by the law in effect on the date of filing, and that law is
  continued in effect for that purpose.
         SECTION 41.  This Act takes effect September 1, 2013.
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