Bill Text: TX HB2694 | 2011-2012 | 82nd Legislature | Enrolled

---

Bill Title: Relating to the continuation and functions of the Texas Commission on Environmental Quality and abolishing the On-site Wastewater Treatment Research Council.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB2694 Detail]

Download: Texas-2011-HB2694-Enrolled.html

---

H.B. No. 2694

AN ACT
relating to the continuation and functions of the Texas Commission
on Environmental Quality and abolishing the On-site Wastewater
Treatment Research Council.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. GENERAL PROVISIONS
SECTION 1.01. The heading to Chapter 5, Water Code, is
amended to read as follows:
CHAPTER 5. TEXAS [NATURAL RESOURCE CONSERVATION] COMMISSION ON
ENVIRONMENTAL QUALITY
SECTION 1.02. Section 5.014, Water Code, is amended to read
as follows:
Sec. 5.014. SUNSET PROVISION. The Texas [Natural Resource
Conservation] 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, 2023 [2011].
SECTION 1.03. Subchapter C, Chapter 5, Water Code, is
amended by adding Section 5.061 to read as follows:
Sec. 5.061. PROHIBITION ON ACCEPTING CAMPAIGN
CONTRIBUTIONS. A member of the commission may not accept a
contribution to a campaign for election to an elected office. If a
member of the commission accepts a campaign contribution, the
person is considered to have resigned from the office and the office
immediately becomes vacant. The vacancy shall be filled in the
manner provided by law.
SECTION 1.04. Subchapter D, Chapter 5, Water Code, is
amended by adding Section 5.1031 to read as follows:
Sec. 5.1031. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE
RESOLUTION. (a) The commission shall develop and implement a
policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of commission rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the commission's
jurisdiction.
(b) The commission's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commission shall:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) provide training as needed to implement the
procedures for negotiated rulemaking or alternative dispute
resolution; and
(3) collect data concerning the effectiveness of those
procedures.
SECTION 1.05. Section 5.2291(b), Water Code, is amended to
read as follows:
(b) Except as provided by Section 5.2292, the [The]
procurement of a contract for scientific and technical
environmental services shall be conducted under the procedures for
professional services selection provided in Subchapter A, Chapter
2254, Government Code.
SECTION 1.06. Subchapter F, Chapter 5, Water Code, is
amended by adding Section 5.2292 to read as follows:
Sec. 5.2292. CONTRACTS FOR SERVICES UNDER PETROLEUM STORAGE
TANK STATE-LEAD PROGRAM. (a) The executive director may directly
award a contract for scientific and technical environmental
services to a person if:
(1) the contract is for the performance of services
related to the remediation of a site that has been placed in the
state-lead program under Section 26.3573(r-1);
(2) the person has registered to perform corrective
action under Section 26.364;
(3) the person is eligible to receive a contract award
from the state;
(4) the person was performing related work at the site
on or before July 1, 2011; and
(5) the contract includes all contract provisions
required for state contracts.
(b) Notwithstanding Section 2254.004, Government Code, the
executive director may directly award a contract for engineering
services to a person if:
(1) the contract is for the performance of services
related to the remediation of a site that has been placed in the
state-lead program under Section 26.3573(r-1);
(2) the person is licensed under Chapter 1001,
Occupations Code;
(3) the person has registered to perform corrective
action under Section 26.364;
(4) the person is eligible to receive a contract award
from the state;
(5) the person was performing related work at the site
on or before July 1, 2011; and
(6) the contract includes all contract provisions
required for state contracts.
(c) Nothing in Subsection (a) or (b) requires the executive
director to make an award at a site or prevents the executive
director from negotiating additional contract terms, including
qualifications.
SECTION 1.07. Section 12.052, Water Code, is amended by
amending Subsection (a) and adding Subsections (b-1), (e-1), (e-2),
and (e-3) to read as follows:
(a) The commission shall make and enforce rules and orders
and shall perform all other acts necessary to provide for the safe
construction, maintenance, repair, and removal of dams located in
this state. In performing the commission's duties under this
subsection, the commission shall identify and focus on the most
hazardous dams in the state.
(b-1) The commission may enter into an agreement with an
owner of a dam who is required to reevaluate the adequacy of an
existing dam or spillway. The agreement may include timelines to
achieve compliance with the commission's design criteria and may
authorize deferral of compliance with the criteria, as appropriate.
(e-1) The commission shall exempt an owner of a dam located
on private property from meeting requirements related to dam safety
if the dam:
(1) at maximum capacity impounds less than 500
acre-feet;
(2) has a hazard classification of low or significant;
(3) is located in a county with a population of less
than 215,000; and
(4) is not located inside the corporate limits of a
municipality.
(e-2) Notwithstanding Subsection (e-1), an owner of a dam
shall comply with operation and maintenance requirements
established by commission rule.
(e-3) This subsection and Subsections (e-1) and (e-2)
expire August 31, 2015.
ARTICLE 2. TRANSFER OF CERTAIN DUTIES TO THE RAILROAD COMMISSION
SECTION 2.01. Section 91.011, Natural Resources Code, is
amended to read as follows:
Sec. 91.011. CASING. (a) Before drilling into the oil or
gas bearing rock, the owner or operator of a well being drilled for
oil or gas shall encase the well with good and sufficient wrought
iron or steel casing or with any other material that meets standards
adopted by the commission, particularly where wells could be
subjected to corrosive elements or high pressures and temperatures,
in a manner and to a depth that will exclude surface or fresh water
from the lower part of the well from penetrating the oil or gas
bearing rock, and if the well is drilled through the first into the
lower oil or gas bearing rock, the well shall be cased in a manner
and to a depth that will exclude fresh water above the last oil or
gas bearing rock penetrated.
(b) The commission shall adopt rules regarding the depth of
well casings necessary to meet the requirements of this section.
SECTION 2.02. Subchapter B, Chapter 91, Natural Resources
Code, is amended by adding Section 91.0115 to read as follows:
Sec. 91.0115. CASING; LETTER OF DETERMINATION. (a) The
commission shall issue, on request from an applicant for a permit
for a well to be drilled into oil or gas bearing rock, a letter of
determination stating the total depth of surface casing required
for the well by Section 91.011.
(b) The commission may charge a fee in an amount to be
determined by the commission for a letter of determination.
(c) The commission shall charge a fee not to exceed $75, in
addition to the fee required by Subsection (b), for processing a
request to expedite a letter of determination. Money collected
under this subsection may be used to study and evaluate electronic
access to geologic data and surface casing depths under Section
91.020.
SECTION 2.03. Subchapter B, Chapter 91, Natural Resources
Code, is amended by adding Section 91.020 to read as follows:
Sec. 91.020. ELECTRONIC GEOLOGIC DATA. The commission
shall work cooperatively with other appropriate state agencies to
study and evaluate electronic access to geologic data and surface
casing depths necessary to protect usable groundwater in this
state.
SECTION 2.04. Subchapter D, Chapter 91, Natural Resources
Code, is amended by adding Section 91.1015 to read as follows:
Sec. 91.1015. GROUNDWATER PROTECTION REQUIREMENTS. The
commission shall adopt rules to establish groundwater protection
requirements for operations that are within the jurisdiction of the
commission, including requirements relating to the depth of surface
casing for wells.
SECTION 2.05. Section 27.033, Water Code, is amended to
read as follows:
Sec. 27.033. LETTER OF DETERMINATION [FROM EXECUTIVE
DIRECTOR]. A person making application to the railroad commission
for a permit under this chapter shall submit with the application a
letter of determination from the railroad commission [from the
executive director] stating that drilling and using the disposal
well and injecting oil and gas waste into the subsurface stratum
will not endanger the freshwater strata in that area and that the
formation or stratum to be used for the disposal is not freshwater
sand.
SECTION 2.06. Section 27.046, Water Code, is amended to
read as follows:
Sec. 27.046. LETTER OF DETERMINATION [FROM EXECUTIVE
DIRECTOR]. (a) The railroad commission may not issue a permit
under rules adopted under this subchapter until the railroad
commission issues to the applicant for the permit [provides to the
railroad commission] a letter of determination [from the executive
director] stating that drilling and operating the anthropogenic
carbon dioxide injection well for geologic storage or operating the
geologic storage facility will not injure any freshwater strata in
that area and that the formation or stratum to be used for the
geologic storage facility is not freshwater sand.
(b) To make the determination required by Subsection (a),
the railroad commission [executive director] shall review:
(1) the area of review and corrective action plans;
(2) any subsurface monitoring plans required during
injection or post injection;
(3) any postinjection site care plans; and
(4) any other elements of the application reasonably
required in order for the railroad commission [executive director]
to make the determination required by Subsection (a).
(c) The railroad commission shall adopt rules to implement
and administer this section.
SECTION 2.07. Section 5.701(r), Water Code, is repealed.
SECTION 2.08. (a) The Railroad Commission of Texas shall
adopt rules to implement the changes in law made by this article not
later than March 1, 2012.
(b) A rule, form, policy, or procedure of the Texas
Commission on Environmental Quality related to the changes in law
made by this article continues in effect as a rule, form, policy, or
procedure of the Railroad Commission of Texas and remains in effect
until amended or replaced by that agency.
ARTICLE 3. PUBLIC INTEREST
SECTION 3.01. Subchapter F, Chapter 5, Water Code, is
amended by adding Section 5.239 to read as follows:
Sec. 5.239. PUBLIC EDUCATION AND ASSISTANCE. (a) The
executive director shall ensure that the agency is responsive to
environmental and citizens' concerns, including environmental
quality and consumer protection.
(b) The executive director shall develop and implement a
program to:
(1) provide a centralized point for the public to
access information about the commission and to learn about matters
regulated by the commission;
(2) identify and assess the concerns of the public in
regard to matters regulated by the commission; and
(3) respond to the concerns identified by the program.
SECTION 3.02. Section 5.271, Water Code, is amended to read
as follows:
Sec. 5.271. CREATION AND GENERAL RESPONSIBILITY OF THE
OFFICE OF PUBLIC INTEREST COUNSEL. The office of public interest
counsel is created to ensure that the commission promotes the
public's interest [and is responsive to environmental and citizens'
concerns including environmental quality and consumer protection].
The primary duty of the office is to represent the public interest
as a party to matters before the commission.
SECTION 3.03. Subchapter G, Chapter 5, Water Code, is
amended by adding Section 5.2725 to read as follows:
Sec. 5.2725. ANNUAL REPORT; PERFORMANCE MEASURES. (a) The
office of public interest counsel shall report to the commission
each year in a public meeting held on a date determined by the
commission to be timely for the commission to include the reported
information in the commission's reports under Sections 5.178(a) and
(b) and in the commission's biennial legislative appropriations
requests as appropriate:
(1) an evaluation of the office's performance in
representing the public interest in the preceding year;
(2) an assessment of the budget needs of the office,
including the need to contract for outside expertise; and
(3) any legislative or regulatory changes recommended
under Section 5.273.
(b) The commission and the office of public interest counsel
shall work cooperatively to identify performance measures for the
office.
SECTION 3.04. Subchapter G, Chapter 5, Water Code, is
amended by adding Section 5.276 to read as follows:
Sec. 5.276. FACTORS FOR PUBLIC INTEREST REPRESENTATION.
(a) The commission by rule, after consideration of recommendations
from the office of public interest counsel, shall establish factors
the public interest counsel must consider before the public
interest counsel decides to represent the public interest as a
party to a commission proceeding.
(b) Rules adopted under this section must include:
(1) factors to determine the nature and extent of the
public interest; and
(2) factors to consider in prioritizing the workload
of the office of public interest counsel.
ARTICLE 4. COMPLIANCE AND ENFORCEMENT
SECTION 4.01. Section 5.751, Water Code, is amended to read
as follows:
Sec. 5.751. APPLICABILITY. This subchapter applies to
programs under the jurisdiction of the commission under Chapters
26, [and] 27, and 32 of this code and Chapters 361, 375, 382, and
401, Health and Safety Code. It does not apply to occupational
licensing programs under the jurisdiction of the commission.
SECTION 4.02. Section 5.752(1), Water Code, is amended to
read as follows:
(1) "Applicable legal requirement" means an
environmental law, regulation, permit, order, consent[,] decree,
or other requirement.
SECTION 4.03. The heading to Section 5.753, Water Code, is
amended to read as follows:
Sec. 5.753. STANDARDS [STANDARD] FOR EVALUATING AND USING
COMPLIANCE HISTORY.
SECTION 4.04. Section 5.753, Water Code, is amended by
amending Subsections (a), (b), and (d) and adding Subsection (d-1)
to read as follows:
(a) Consistent with other law and the requirements
necessary to maintain federal program authorization, the
commission by rule shall develop standards [a uniform standard] for
evaluating and using compliance history that ensure consistency.
In developing the standards, the commission may account for
differences among regulated entities.
(b) The components of compliance history must include:
(1) enforcement orders, court judgments, [consent
decrees,] and criminal convictions of this state [and the federal
government] relating to compliance with applicable legal
requirements under the jurisdiction of the commission [or the
United States Environmental Protection Agency];
(2) notwithstanding any other provision of this code,
orders issued under Section 7.070;
(3) to the extent readily available to the commission,
enforcement orders, court judgments, consent decrees, and criminal
convictions relating to violations of environmental rules [laws] of
the United States Environmental Protection Agency [other states];
and
(4) changes in ownership.
(d) Except as provided by this subsection, notices of
violation must be included as a component of compliance history for
a period not to exceed one year from the date of issuance of each
notice of violation. The listing of a notice of violation must be
preceded by the following statement prominently displayed: "A
notice of violation represents a written allegation of a violation
of a specific regulatory requirement from the commission to a
regulated entity. A notice of violation is not a final enforcement
action nor proof that a violation has actually occurred." [The set
of components shall include notices of violations.] A notice of
violation administratively determined to be without merit may
[shall] not be included in a compliance history. A notice of
violation that is included in a compliance history shall be removed
from the compliance history if the commission subsequently
determines the notice of violation to be without merit.
(d-1) For purposes of listing compliance history, the
commission may not include as a notice of violation information
received by the commission as required by Title V of the federal
Clean Air Act (42 U.S.C. Section 7661 et seq.) unless the commission
issues a written notice of violation. Final enforcement orders or
judgments resulting from self-reported Title V deviations or
violations may be considered as compliance history components for
purposes of determining compliance history.
SECTION 4.05. Section 5.754, Water Code, is amended by
amending Subsections (a), (b), (c), (d), (e), (g), and (h) and
adding Subsection (e-1) to read as follows:
(a) The commission by rule shall establish a set of
standards for the classification of a person's compliance history
as a means of evaluating compliance history. The commission may
consider the person's classification when using compliance history
under Subsection (e).
(b) Rules adopted under Subsection (a):
(1) [this section] must, at a minimum, provide for
three classifications of compliance history in a manner adequate to
distinguish among:
(A) unsatisfactory [(1) poor] performers, or
regulated entities that in the commission's judgment perform below
minimal acceptable performance standards established by the
commission [average];
(B) satisfactory [(2) average] performers, or
regulated entities that generally comply with environmental
regulations; and
(C) [(3)] high performers, or regulated entities
that have an above-satisfactory [above-average] compliance record;
(2) may establish a category of unclassified
performers, or regulated entities for which the commission does not
have adequate compliance information about the site; and
(3) must take into account both positive and negative
factors related to the operation, 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.).
(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, giving consideration to the size [number] 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
[facilities owned or operated by the person]; 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.
(d) The commission by rule may require [shall establish
methods of assessing the compliance history of regulated entities
for which it does not have adequate compliance information. The
methods may include requiring] a compliance inspection to determine
an entity's eligibility for participation in a program that
requires a high level of compliance.
(e) The commission by rule shall provide for the use of
compliance history [classifications] in commission decisions
regarding:
(1) the issuance, renewal, amendment, modification,
denial, suspension, or revocation of a permit;
(2) enforcement;
(3) the use of announced inspections; and
(4) participation in innovative programs.
(e-1) The amount of the penalty enhancement or escalation
attributed to compliance history may not exceed 100 percent of the
base penalty for an individual violation as determined by the
commission's penalty policy.
(g) Rules adopted under Subsection (e) for the use of
compliance history shall provide for additional oversight of, and
review of applications regarding, facilities owned or operated by a
person whose compliance performance is classified as
unsatisfactory according to commission standards [in the lowest
classification developed under this section].
(h) The commission by rule shall, at a minimum, prohibit a
person whose compliance history is classified as unsatisfactory
according to commission standards [in the lowest classification
developed under this section] from[:
[(1) receiving an announced inspection; and
[(2)] obtaining or renewing a flexible permit under
the program administered by the commission under Chapter 382,
Health and Safety Code, or participating in the regulatory
flexibility program administered by the commission under Section
5.758.
SECTION 4.06. Section 5.755(b), Water Code, is amended to
read as follows:
(b) The strategically directed regulatory structure shall
offer incentives based on:
(1) a person's compliance history [classification];
and
(2) any voluntary measures undertaken by the person to
improve environmental quality.
SECTION 4.07. Section 5.756, Water Code, is amended by
adding Subsection (e) to read as follows:
(e) Before compliance performance information about a site
may be placed on the Internet under this subchapter, the
information must be evaluated through a quality assurance and
control procedure, including a 30-day period for the owner or
operator of the site to review and comment on the information.
SECTION 4.08. Sections 5.758(a), (b), (d), and (h), Water
Code, are amended to read as follows:
(a) The commission by order may exempt an applicant from a
requirement of a statute or commission rule regarding the control
or abatement of pollution if the applicant proposes to control or
abate pollution by an alternative method or by applying an
alternative standard that is:
(1) as [more] protective of the environment and the
public health as [than] the method or standard prescribed by the
statute or commission rule that would otherwise apply; and
(2) not inconsistent with federal law.
(b) The commission may not exempt an applicant under this
section unless the applicant can present to the commission
[documented] evidence that the alternative the applicant proposes
is as protective of the environment and the public health as the
method or standard prescribed by the statute or commission rule
that would otherwise apply [of benefits to environmental quality
that will result from the project the applicant proposes].
(d) The commission's order must provide a [specific]
description of the alternative method or standard and condition the
exemption on compliance with the method or standard as the order
prescribes.
(h) In implementing the program of regulatory flexibility
authorized by this section, the commission shall:
(1) promote [market] the program to businesses in the
state through all available appropriate media;
(2) endorse alternative methods that will clearly
benefit the environment and impose the least onerous restrictions
on business;
(3) fix and enforce environmental standards, allowing
businesses flexibility in meeting the standards in a manner that
clearly enhances environmental outcomes; and
(4) work to achieve consistent and predictable results
for the regulated community and shorter waits for permit issuance.
SECTION 4.09. Subchapter A, Chapter 7, Water Code, is
amended by adding Section 7.006 to read as follows:
Sec. 7.006. ENFORCEMENT POLICIES. (a) The commission by
rule shall adopt a general enforcement policy that describes the
commission's approach to enforcement.
(b) The commission shall assess, update, and publicly adopt
specific enforcement policies regularly, including policies
regarding the calculation of penalties and deterrence to prevent
the economic benefit of noncompliance.
(c) The commission shall make the policies available to the
public, including by posting the policies on the commission's
Internet website.
SECTION 4.10. Sections 7.052(a) and (c), Water Code, are
amended to read as follows:
(a) The amount of the penalty for a violation of Chapter 37
of this code, Chapter 366, 371, or 372, Health and Safety Code, or
Chapter 1903, Occupations Code, may not exceed $5,000 [$2,500] a
day for each violation.
(c) The amount of the penalty for all other violations
within the jurisdiction of the commission to enforce may not exceed
$25,000 [$10,000] a day for each violation.
SECTION 4.11. Section 7.067, Water Code, is amended to read
as follows:
Sec. 7.067. SUPPLEMENTAL ENVIRONMENTAL PROJECTS. (a) The
commission may compromise, modify, or remit, with or without
conditions, an administrative penalty imposed under this
subchapter. In determining the appropriate amount of a penalty for
settlement of an administrative enforcement matter, the commission
may consider a respondent's willingness to contribute to
supplemental environmental projects that are approved by the
commission, giving preference to projects that benefit the
community in which the alleged violation occurred. The commission
may encourage the cleanup of contaminated property through the use
of supplemental environmental projects. The commission may approve
a supplemental environmental project with activities in territory
of the United Mexican States if the project substantially benefits
territory in this state in a manner described by Subsection (b).
Except as provided by Subsection (a-1), the [The] commission may
not approve a project that is necessary to bring a respondent into
compliance with environmental laws, that is necessary to remediate
environmental harm caused by the respondent's alleged violation, or
that the respondent has already agreed to perform under a
preexisting agreement with a governmental agency.
(a-1) The commission may approve a supplemental
environmental project that is necessary to bring a respondent into
compliance with environmental laws or that is necessary to
remediate environmental harm caused by the respondent's alleged
violation if the respondent is a local government.
(a-2) The commission shall develop a policy to prevent
regulated entities from systematically avoiding compliance through
the use of supplemental environmental projects under Subsection
(a-1), including a requirement for an assessment of:
(1) the respondent's financial ability to pay
administrative penalties;
(2) the ability of the respondent to remediate the
harm or come into compliance; and
(3) the need for corrective action.
(b) In this section:
(1) "Local government" means a school district,
county, municipality, junior college district, river authority,
water district or other special district, or other political
subdivision created under the constitution or a statute of this
state.
(2) "Supplemental [, "supplemental] environmental
project" means a project that prevents pollution, reduces the
amount of pollutants reaching the environment, enhances the quality
of the environment, or contributes to public awareness of
environmental matters.
SECTION 4.12. Section 13.4151(a), Water Code, is amended to
read as follows:
(a) If a person, affiliated interest, or entity subject to
the jurisdiction of the commission violates this chapter or a rule
or order adopted under this chapter, the commission may assess a
penalty against that person, affiliated interest, or entity as
provided by this section. The penalty may be in an amount not to
exceed $5,000 [$500] a day. Each day a violation continues may be
considered a separate violation.
SECTION 4.13. Section 26.028(d), Water Code, is amended to
read as follows:
(d) Notwithstanding any other provision of this chapter,
the commission, at a regular meeting without the necessity of
holding a public hearing, may approve an application to renew or
amend a permit if:
(1) the applicant is not applying to:
(A) increase significantly the quantity of waste
authorized to be discharged; or
(B) change materially the pattern or place of
discharge;
(2) the activities to be authorized by the renewed or
amended permit will maintain or improve the quality of waste
authorized to be discharged;
(3) for NPDES permits, notice and the opportunity to
request a public meeting shall be given in compliance with NPDES
program requirements, and the commission shall consider and respond
to all timely received and significant public comment; and
(4) the commission determines that an applicant's
compliance history under the method for using [evaluating]
compliance history developed by the commission under Section 5.754
raises no issues regarding the applicant's ability to comply with a
material term of its permit.
SECTION 4.14. Section 26.0281, Water Code, is amended to
read as follows:
Sec. 26.0281. CONSIDERATION OF COMPLIANCE HISTORY. In
considering the issuance, amendment, or renewal of a permit to
discharge effluent comprised primarily of sewage or municipal
waste, the commission shall consider the compliance history of the
applicant and its operator under the method for using [evaluating]
compliance history developed by the commission under Section 5.754.
In considering an applicant's compliance history under this
subsection, the commission shall consider as evidence of compliance
information regarding the applicant's implementation of an
environmental management system at the facility for which the
permit, permit amendment, or permit renewal is sought. In this
section, "environmental management system" has the meaning
assigned by Section 5.127.
SECTION 4.15. Section 26.040(h), Water Code, is amended to
read as follows:
(h) Notwithstanding other provisions of this chapter, the
commission, after hearing, shall deny or suspend a discharger's
authority to discharge under a general permit if the commission
determines that the discharger's compliance history is classified
as unsatisfactory according to commission standards [in the lowest
classification] under Sections 5.753 and 5.754 and rules adopted
and procedures developed under those sections. A hearing under this
subsection is not subject to Chapter 2001, Government Code.
SECTION 4.16. Section 26.3467, Water Code, is amended by
adding Subsections (d) and (e) to read as follows:
(d) A person may not deliver any regulated substance into an
underground storage tank regulated under this chapter unless the
underground storage tank has been issued a valid, current
underground storage tank registration and certificate of
compliance under Section 26.346. The commission may impose an
administrative penalty against a person who violates this
subsection. The commission shall adopt rules as necessary to
enforce this subsection.
(e) It is an affirmative defense to the imposition of an
administrative penalty for a violation of Subsection (d) that the
person delivering a regulated substance into an underground storage
tank relied on:
(1) a valid paper delivery certificate presented by
the owner or operator of the underground storage tank or displayed
at the facility associated with the underground storage tank;
(2) a temporary delivery authorization presented by
the owner or operator of the underground storage tank or displayed
at the facility associated with the underground storage tank; or
(3) registration and self-certification information
for the underground storage tank obtained from the commission's
Internet website not more than 30 days before the date of delivery.
SECTION 4.17. Section 26.351, Water Code, is amended by
adding Subsections (c-1) and (c-2) to read as follows:
(c-1) The commission may undertake corrective action to
remove an underground or aboveground storage tank that:
(1) is not in compliance with the requirements of this
chapter;
(2) is out of service;
(3) presents a contamination risk; and
(4) is owned or operated by a person who is financially
unable to remove the tank.
(c-2) The commission shall adopt rules to implement
Subsection (c-1), including rules regarding:
(1) the determination of the financial ability of the
tank owner or operator to remove the tank; and
(2) the assessment of the potential risk of
contamination from the site.
SECTION 4.18. Section 26.3573(d), Water Code, is amended to
read as follows:
(d) The commission may use the money in the petroleum
storage tank remediation account to pay:
(1) necessary expenses associated with the
administration of the petroleum storage tank remediation account
and the groundwater protection cleanup program;
(2) expenses associated with investigation, cleanup,
or corrective action measures performed in response to a release or
threatened release from a petroleum storage tank, whether those
expenses are incurred by the commission or pursuant to a contract
between a contractor and an eligible owner or operator as
authorized by this subchapter;
(3) subject to the conditions of Subsection (f),
expenses associated with investigation, cleanup, or corrective
action measures performed in response to a release or threatened
release of hydraulic fluid or spent oil from hydraulic lift systems
or tanks located at a vehicle service and fueling facility and used
as part of the operations of that facility; [and]
(4) expenses associated with assuring compliance with
the commission's applicable underground or aboveground storage
tank administrative and technical requirements, including
technical assistance and support, inspections, enforcement, and
the provision of matching funds for grants; and
(5) expenses associated with investigation, cleanup,
or corrective action measures performed under Section 26.351(c-1).
SECTION 4.19. Section 26.3574, Water Code, is amended by
amending Subsection (b) and adding Subsection (b-1) to read as
follows:
(b) A fee is imposed on the delivery of a petroleum product
on withdrawal from bulk of that product as provided by this
subsection. Each operator of a bulk facility on withdrawal from
bulk of a petroleum product shall collect from the person who orders
the withdrawal a fee in an amount determined as follows:
(1) not more than $3.75 for each delivery into a cargo
tank having a capacity of less than 2,500 gallons [for the state
fiscal year beginning September 1, 2007, through the state fiscal
year ending August 31, 2011];
(2) not more than $7.50 for each delivery into a cargo
tank having a capacity of 2,500 gallons or more but less than 5,000
gallons [for the state fiscal year beginning September 1, 2007,
through the state fiscal year ending August 31, 2011];
(3) not more than $11.75 for each delivery into a cargo
tank having a capacity of 5,000 gallons or more but less than 8,000
gallons [for the state fiscal year beginning September 1, 2007,
through the state fiscal year ending August 31, 2011];
(4) not more than $15.00 for each delivery into a cargo
tank having a capacity of 8,000 gallons or more but less than 10,000
gallons [for the state fiscal year beginning September 1, 2007,
through the state fiscal year ending August 31, 2011]; and
(5) not more than $7.50 for each increment of 5,000
gallons or any part thereof delivered into a cargo tank having a
capacity of 10,000 gallons or more [for the state fiscal year
beginning September 1, 2007, through the state fiscal year ending
August 31, 2011].
(b-1) The commission by rule shall set the amount of the fee
in Subsection (b) in an amount not to exceed the amount necessary to
cover the agency's costs of administering this subchapter, as
indicated by the amount appropriated by the legislature from the
petroleum storage tank remediation account for that purpose.
SECTION 4.20. Section 27.025(g), Water Code, is amended to
read as follows:
(g) Notwithstanding the other provisions of this chapter,
the commission, after hearing, shall deny or suspend authorization
for the use of an injection well under a general permit if the
commission determines that the owner's compliance history is
classified as unsatisfactory according to commission standards [in
the lowest classification] under Sections 5.753 and 5.754 and rules
adopted and procedures developed under those sections. A hearing
under this subsection is not subject to the requirements relating
to a contested case hearing under Chapter 2001, Government Code.
SECTION 4.21. Section 27.051(d), Water Code, is amended to
read as follows:
(d) The commission, in determining if the use or
installation of an injection well is in the public interest under
Subsection (a)(1), shall consider, but shall not be limited to the
consideration of:
(1) compliance history of the applicant and related
entities under the method for using [evaluating] compliance history
developed by the commission under Section 5.754 and in accordance
with the provisions of Subsection (e);
(2) whether there is a practical, economic, and
feasible alternative to an injection well reasonably available; and
(3) if the injection well will be used for the disposal
of hazardous waste, whether the applicant will maintain sufficient
public liability insurance for bodily injury and property damage to
third parties that is caused by sudden and non-sudden accidents or
will otherwise demonstrate financial responsibility in a manner
adopted by the commission in lieu of public liability insurance. A
liability insurance policy which satisfies the policy limits
required by the hazardous waste management regulations of the
commission for the applicant's proposed pre-injection facilities
shall be deemed "sufficient" under this subdivision if the policy:
(A) covers the injection well; and
(B) is issued by a company that is authorized to
do business and to write that kind of insurance in this state and is
solvent and not currently under supervision or in conservatorship
or receivership in this state or any other state.
SECTION 4.22. Section 32.101(c), Water Code, is amended to
read as follows:
(c) The commission, in determining if the use or
installation of a subsurface area drip dispersal system is in the
public interest under Subsection (a)(1), shall consider:
(1) compliance history of the applicant and related
entities under the method for using [evaluating] compliance history
developed by the commission under Section 5.754 and in accordance
with the provisions of Subsection (d) of this section;
(2) whether there is a practical, economic, and
feasible alternative to a subsurface area drip dispersal system
reasonably available; and
(3) any other factor the commission considers
relevant.
SECTION 4.23. Section 49.198(a), Water Code, is amended to
read as follows:
(a) A district may elect to file annual financial reports
with the executive director in lieu of the district's compliance
with Section 49.191 provided:
(1) the district had no bonds or other long-term (more
than one year) liabilities outstanding during the fiscal period;
(2) the district did not have gross receipts from
operations, loans, taxes, or contributions in excess of $250,000
[$100,000] during the fiscal period; and
(3) the district's cash and temporary investments were
not in excess of $100,000 at any time during the fiscal period.
SECTION 4.24. Sections 361.089(a), (e), and (f), Health and
Safety Code, are amended to read as follows:
(a) The commission may, for good cause, deny or amend a
permit it issues or has authority to issue for reasons pertaining to
public health, air or water pollution, or land use, or for having a
compliance history that is classified as unsatisfactory according
to commission standards [in the lowest classification] under
Sections 5.753 and 5.754, Water Code, and rules adopted and
procedures developed under those sections.
(e) The commission may deny an original or renewal permit if
it is found, after notice and hearing, that:
(1) the applicant or permit holder has a compliance
history that is classified as unsatisfactory according to
commission standards [in the lowest classification] under Sections
5.753 and 5.754, Water Code, and rules adopted and procedures
developed under those sections;
(2) the permit holder or applicant made a false or
misleading statement in connection with an original or renewal
application, either in the formal application or in any other
written instrument relating to the application submitted to the
commission, its officers, or its employees;
(3) the permit holder or applicant is indebted to the
state for fees, payment of penalties, or taxes imposed by this title
or by a rule of the commission; or
(4) the permit holder or applicant is unable to ensure
that the management of the hazardous waste management facility
conforms or will conform to this title and the rules of the
commission.
(f) Before denying a permit under this section, the
commission must find:
(1) that the applicant or permit holder has a
compliance history that is classified as unsatisfactory according
to commission standards [in the lowest classification] under
Sections 5.753 and 5.754, Water Code, and rules adopted and
procedures developed under those sections; or
(2) that the permit holder or applicant is indebted to
the state for fees, payment of penalties, or taxes imposed by this
title or by a rule of the commission.
SECTION 4.25. Section 382.0518(c), Health and Safety Code,
is amended to read as follows:
(c) In considering the issuance, amendment, or renewal of a
permit, the commission may consider the applicant's compliance
history in accordance with the method for using [evaluating]
compliance history developed by the commission under Section 5.754,
Water Code. In considering an applicant's compliance history under
this subsection, the commission shall consider as evidence of
compliance information regarding the applicant's implementation of
an environmental management system at the facility for which the
permit, permit amendment, or permit renewal is sought. In this
subsection, "environmental management system" has the meaning
assigned by Section 5.127, Water Code.
SECTION 4.26. Section 382.056(o), Health and Safety Code,
is amended to read as follows:
(o) Notwithstanding other provisions of this chapter, the
commission may hold a hearing on a permit amendment, modification,
or renewal if the commission determines that the application
involves a facility for which the applicant's compliance history is
classified as unsatisfactory according to commission standards [in
the lowest classification] under Sections 5.753 and 5.754, Water
Code, and rules adopted and procedures developed under those
sections.
SECTION 4.27. Subchapter C, Chapter 382, Health and Safety
Code, is amended by adding Section 382.059 to read as follows:
Sec. 382.059. HEARING AND DECISION ON PERMIT AMENDMENT
APPLICATION OF CERTAIN ELECTRIC GENERATING FACILITIES. (a) This
section applies to a permit amendment application submitted solely
to allow an electric generating facility to reduce emissions and
comply with a requirement imposed by Section 112 of the federal
Clean Air Act (42 U.S.C. Section 7412) to use applicable maximum
achievable control technology. A permit amendment application
shall include a condition that the applicant is required to
complete the actions needed for compliance by the time allowed
under Section 112 of the federal Clean Air Act (42 U.S.C. Section
7412).
(b) The commission shall provide an opportunity for a public
hearing and the submission of public comment on the application in
the manner provided by Section 382.0561.
(c) Not later than the 45th day after the date the
application is received, the executive director shall issue a draft
permit.
(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
contested case hearing before the commission. If a party requests a
contested case hearing under this subsection, the commission shall
conduct a 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).
(e) The commission shall send notice of a decision on an
application for a permit amendment under this section in the manner
provided by Section 382.0562.
(f) A person affected by a decision of the commission to
issue or deny a permit amendment may move for rehearing and is
entitled to judicial review under Section 382.032.
(g) This section expires on the sixth anniversary of the
date the administrator adopts standards for existing electric
generating facilities under Section 112 of the federal Clean Air
Act (42 U.S.C. Section 7412), unless a stay of the rules is granted.
(h) The commission shall adopt rules to implement this
section.
SECTION 4.28. Section 401.110(a), Health and Safety Code,
is amended to read as follows:
(a) In making a determination whether to grant, deny, amend,
renew, revoke, suspend, or restrict a license or registration, the
commission may consider an applicant's or license holder's
technical competence, financial qualifications, and compliance
history under the method for using [evaluation of] compliance
history developed by the commission under Section 5.754, Water
Code.
SECTION 4.29. Section 401.112(a), Health and Safety Code,
is amended to read as follows:
(a) The commission, in making a licensing decision on a
specific license application to process or dispose of low-level
radioactive waste from other persons, shall consider:
(1) site suitability, geological, hydrological, and
meteorological factors, and natural hazards;
(2) compatibility with present uses of land near the
site;
(3) socioeconomic effects on surrounding communities
of operation of the licensed activity and of associated
transportation of low-level radioactive waste;
(4) the need for and alternatives to the proposed
activity, including an alternative siting analysis prepared by the
applicant;
(5) the applicant's qualifications, including:
(A) financial and technical qualifications and
compliance history under the method for using [evaluation of]
compliance history developed by the commission under Section 5.754,
Water Code, for an application to the commission; and
(B) the demonstration of financial
qualifications under Section 401.108;
(6) background monitoring plans for the proposed site;
(7) suitability of facilities associated with the
proposed activities;
(8) chemical, radiological, and biological
characteristics of the low-level radioactive waste and waste
classification under Section 401.053;
(9) adequate insurance of the applicant to cover
potential injury to any property or person, including potential
injury from risks relating to transportation;
(10) training programs for the applicant's employees;
(11) a monitoring, record-keeping, and reporting
program;
(12) spill detection and cleanup plans for the
licensed site and related to associated transportation of low-level
radioactive waste;
(13) decommissioning and postclosure care plans;
(14) security plans;
(15) worker monitoring and protection plans;
(16) emergency plans; and
(17) a monitoring program for applicants that includes
prelicense and postlicense monitoring of background radioactive
and chemical characteristics of the soils, groundwater, and
vegetation.
SECTION 4.30. Not later than the 180th day after the
effective date of this Act, the Texas Commission on Environmental
Quality shall adopt rules to implement Section 382.059, Health and
Safety Code, as added by this article.
SECTION 4.31. (a) Not later than September 1, 2012, the
Texas Commission on Environmental Quality by rule shall establish
the method for evaluating compliance history as required by Section
5.753(a), Water Code, as amended by this article. Until the
commission adopts that method, the commission shall continue in
effect its current standard for evaluating compliance history.
(b) The changes in law made by Sections 7.052 and 13.4151,
Water Code, as amended by this article, apply only to a violation
that occurs on or after the effective date of this Act. For
purposes of this section, a violation occurs before the effective
date of this Act if any element of the violation occurs before that
date. A violation that occurs before the effective date of this Act
is covered by the law in effect on the date the violation occurred,
and the former law is continued in effect for that purpose.
(c) The change in law made by Section 26.3467(d), Water
Code, as added by this article, applies only to a delivery of a
regulated substance to an underground storage tank made on or after
the effective date of this Act.
(d) The fee applicable to a delivery in Section 26.3574(b),
Water Code, as that subsection existed immediately before the
effective date of this Act, remains in effect until the Texas
Commission on Environmental Quality adopts and implements a fee
applicable to that delivery under Section 26.3574(b-1), Water Code,
as added by this article.
SECTION 4.32. Section 49.198(a), Water Code, as amended by
this article, applies to a district that files its annual financial
report on or after the effective date of this Act. A district that
files its annual financial report before the effective date of this
Act is governed by the law in effect on the date the report is filed,
and that law is continued in effect for that purpose.
ARTICLE 5. WATER RIGHTS
SECTION 5.01. Section 11.002(12), Water Code, is amended to
read as follows:
(12) "Agriculture" means any of the following
activities:
(A) cultivating the soil to produce crops for
human food, animal feed, or planting seed or for the production of
fibers;
(B) the practice of floriculture, viticulture,
silviculture, and horticulture, including the cultivation of
plants in containers or nonsoil media, by a nursery grower;
(C) raising, feeding, or keeping animals for
breeding purposes or for the production of food or fiber, leather,
pelts, or other tangible products having a commercial value;
(D) raising or keeping equine animals;
(E) wildlife management; [and]
(F) planting cover crops, including cover crops
cultivated for transplantation, or leaving land idle for the
purpose of participating in any governmental program or normal crop
or livestock rotation procedure; and
(G) aquaculture, as defined by Section 134.001,
Agriculture Code.
SECTION 5.02. Section 11.031, Water Code, is amended by
adding Subsections (d), (e), and (f) to read as follows:
(d) Each person who has a water right issued by the
commission or who impounds, diverts, or otherwise uses state water
shall maintain water use information required under Subsection (a)
on a monthly basis during the months a water rights holder uses
permitted water. The person shall make the information available
to the commission on the commission's request.
(e) Except as provided by Subsection (a), the commission may
request information maintained under Subsection (d) only during a
drought or other emergency shortage of water or in response to a
complaint.
(f) Subsection (e) does not affect the authority of a
watermaster to obtain water use information under other law.
SECTION 5.03. Subchapter B, Chapter 11, Water Code, is
amended by adding Section 11.053 to read as follows:
Sec. 11.053. EMERGENCY ORDER CONCERNING WATER RIGHTS. (a)
During a period of drought or other emergency shortage of water, as
defined by commission rule, the executive director by order may, in
accordance with the priority of water rights established by Section
11.027:
(1) temporarily suspend the right of any person who
holds a water right to use the water; and
(2) temporarily adjust the diversions of water by
water rights holders.
(b) The executive director in ordering a suspension or
adjustment under this section shall ensure that an action taken:
(1) maximizes the beneficial use of water;
(2) minimizes the impact on water rights holders;
(3) prevents the waste of water;
(4) takes into consideration the efforts of the
affected water rights holders to develop and implement the water
conservation plans and drought contingency plans required by this
chapter;
(5) to the greatest extent practicable, conforms to
the order of preferences established by Section 11.024; and
(6) does not require the release of water that, at the
time the order is issued, is lawfully stored in a reservoir under
water rights associated with that reservoir.
(c) The commission shall adopt rules to implement this
section, including rules:
(1) defining a drought or other emergency shortage of
water for purposes of this section; and
(2) specifying the:
(A) conditions under which the executive
director may issue an order under this section;
(B) terms of an order issued under this section,
including the maximum duration of a temporary suspension or
adjustment under this section; and
(C) procedures for notice of, an opportunity for
a hearing on, and the appeal to the commission of an order issued
under this section.
SECTION 5.04. Subchapter D, Chapter 11, Water Code, is
amended by adding Section 11.1273 to read as follows:
Sec. 11.1273. ADDITIONAL REQUIREMENT: REVIEW OF AMENDMENTS
TO CERTAIN WATER MANAGEMENT PLANS. (a) This section applies only
to a water management plan consisting of a reservoir operation plan
for the operation of two water supply reservoirs that was
originally required by a court order adjudicating the water rights
for those reservoirs.
(b) Not later than the first anniversary of the date the
executive director determines that an application to amend a water
management plan is administratively complete, the executive
director shall complete a technical review of the plan.
(c) If the executive director submits a written request for
additional information to the applicant, the applicant shall submit
the requested information to the executive director not later than
the 30th day after the date the applicant receives the request or
not later than the deadline agreed to by the executive director and
the applicant, if applicable. The review period required by
Subsection (b) for completing the technical review is tolled until
the date the executive director receives the requested information
from the applicant.
(d) The commission shall provide an opportunity for public
comment and a public hearing on the application, consistent with
the process for other water rights applications.
(e) If the commission receives a request for a hearing
before the period for submitting public comments and requesting a
hearing expires, the commission shall act on the request for a
hearing and, if the request is denied, act on the application not
later than the 60th day after the date the period expires. If a
request for a hearing is not submitted before the period expires,
the executive director may act on the application.
SECTION 5.05. Section 11.326, Water Code, is amended by
adding Subsections (g) and (h) to read as follows:
(g) For a water basin in which a watermaster is not
appointed, the executive director shall:
(1) evaluate the water basin at least once every five
years to determine whether a watermaster should be appointed; and
(2) report the findings and make recommendations to
the commission.
(h) The commission shall:
(1) determine the criteria or risk factors to be
considered in an evaluation under Subsection (g); and
(2) include the findings and recommendations under
Subsection (g) in the commission's biennial report to the
legislature.
ARTICLE 6. FUNDING
SECTION 6.01. Section 401.246(a), Health and Safety Code,
is amended to read as follows:
(a) Compact waste disposal fees adopted by the commission
must be sufficient to:
(1) allow the compact waste facility license holder to
recover costs of operating and maintaining the compact waste
disposal facility and a reasonable profit on the operation of that
facility;
(2) provide an amount necessary to meet future costs
of decommissioning, closing, and postclosure maintenance and
surveillance of the compact waste disposal facility and the compact
waste disposal facility portion of the disposal facility site;
(3) provide an amount to fund local public projects
under Section 401.244;
(4) provide a reasonable rate of return on capital
investment in the facilities used for management or disposal of
compact waste at the compact waste disposal facility; [and]
(5) provide an amount necessary to pay compact waste
disposal facility licensing fees, to pay compact waste disposal
facility fees set by rule or statute, and to provide security for
the compact waste disposal facility as required by the commission
under law and commission rules; and
(6) provide an amount necessary to support the
activities of the Texas Low-Level Radioactive Waste Disposal
Compact Commission.
SECTION 6.02. Subchapter F, Chapter 401, Health and Safety
Code, is amended by adding Section 401.251 to read as follows:
Sec. 401.251. LOW-LEVEL RADIOACTIVE WASTE DISPOSAL COMPACT
COMMISSION ACCOUNT. (a) The low-level radioactive waste disposal
compact commission account is an account in the general revenue
fund.
(b) The commission shall deposit in the account the portion
of the fee collected under Section 401.245 that is calculated to
support the activities of the Texas Low-Level Radioactive Waste
Disposal Compact Commission as required by Section 4.04(4), Texas
Low-Level Radioactive Waste Disposal Compact (Section 403.006 of
this code).
(c) Money in the account may be appropriated only to support
the operations of the Texas Low-Level Radioactive Waste Disposal
Compact Commission.
SECTION 6.03. Sections 5.701(n) and (p), Water Code, are
amended to read as follows:
(n)(1) Each provider of potable water or sewer utility
service shall collect a regulatory assessment from each retail
customer as follows:
(A) A public utility as defined in Section 13.002
[of this code] shall collect from each retail customer a regulatory
assessment equal to one percent of the charge for retail water or
sewer service.
(B) A water supply or sewer service corporation
as defined in Section 13.002 [of this code] shall collect from each
retail customer a regulatory assessment equal to one-half of one
percent of the charge for retail water or sewer service.
(C) A district as defined in Section 49.001 [of
this code] that provides potable water or sewer utility service to
retail customers shall collect from each retail customer a
regulatory assessment equal to one-half of one percent of the
charge for retail water or sewer service.
(2) The regulatory assessment may be listed on the
customer's bill as a separate item and shall be collected in
addition to other charges for utility services.
(3) The [commission shall use the] assessments
collected under this subsection may be appropriated by a rider to
the General Appropriations Act to an agency with duties related to
water and sewer utility regulation or representation of residential
and small commercial consumers of water and sewer utility services
solely to pay costs and expenses incurred by the agency
[commission] in the regulation of districts, water supply or sewer
service corporations, and public utilities under Chapter 13[, Water
Code].
(4) The commission shall annually use a portion of the
assessments to provide on-site technical assistance and training to
public utilities, water supply or sewer service corporations, and
districts. The commission shall contract with others to provide
the services.
(5) The commission by rule may establish due dates,
collection procedures, and penalties for late payment related to
regulatory assessments under this subsection. The executive
director shall collect all assessments from the utility service
providers.
(6) The commission shall assess a penalty against a
municipality with a population of more than 1.5 million that does
not provide municipal water and sewer services in an annexed area in
accordance with Section 43.0565, Local Government Code. A penalty
assessed under this paragraph shall be not more than $1,000 for each
day the services are not provided after March 1, 1998, for areas
annexed before January 1, 1993, or not provided within 4-1/2 years
after the effective date of the annexation for areas annexed on or
after January 1, 1993. A penalty collected under this paragraph
shall be deposited to the credit of the water resource management
account to be used to provide water and sewer service to residents
of the city.
(7) The regulatory assessment does not apply to water
that has not been treated for the purpose of human consumption.
(p) Notwithstanding any other law, fees collected for
deposit to the water resource management account under the
following statutes may be appropriated and used to protect water
resources in this state, including assessment of water quality,
reasonably related to the activities of any of the persons required
to pay a fee under:
(1) Subsection (b), to the extent those fees are paid
by water districts, and Subsections (e), (f), and (n);
(2) [Sections 13.4521 and 13.4522; or
[(3)] Section 54.037(c); or
(3) Section 367.010, Health and Safety Code.
SECTION 6.04. Subchapter L, Chapter 13, Water Code, is
repealed.
SECTION 6.05. The changes in law made by Section 5.701,
Water Code, as amended by this article, apply only to a fee assessed
on or after January 1, 2012. A fee assessed before January 1, 2012,
is governed by the law in effect at the time the fee was assessed,
and the former law is continued in effect for that purpose.
ARTICLE 7. WATER AND SEWER UTILITIES
SECTION 7.01. Subchapter E, Chapter 13, Water Code, is
amended by adding Section 13.1325 to read as follows:
Sec. 13.1325. ELECTRONIC COPIES OF RATE INFORMATION. On
request, the state agency with jurisdiction over rates charged by
water and sewer utilities shall provide, at a reasonable cost,
electronic copies of all information provided to the agency under
Sections 13.016, 13.043, and 13.187 to the extent that the
information is available and is not confidential. Copies of all
information provided to the agency shall be provided to the Office
of Public Utility Counsel, on request, at no cost to the office.
ARTICLE 8. ABOLITION OF THE ON-SITE WASTEWATER TREATMENT RESEARCH
COUNCIL
SECTION 8.01. The heading to Chapter 367, Health and Safety
Code, is amended to read as follows:
CHAPTER 367. ON-SITE WASTEWATER TREATMENT RESEARCH [COUNCIL]
SECTION 8.02. Section 367.001, Health and Safety Code, is
amended to read as follows:
Sec. 367.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Texas Commission on
Environmental Quality [Natural Resource Conservation Commission].
(2) ["Council" means the On-site Wastewater Treatment
Research Council.
[(3)] "On-site wastewater treatment system" means a
system of treatment devices or disposal facilities that:
(A) is used for the disposal of domestic sewage,
excluding liquid waste resulting from the processes used in
industrial and commercial establishments;
(B) is located on the site where the sewage is
produced; and
(C) produces not more than 5,000 gallons of waste
a day.
SECTION 8.03. Section 367.007, Health and Safety Code, is
amended to read as follows:
Sec. 367.007. ADMINISTRATION. (a) [The council is not an
advisory body to the commission. The commission, at the direction
of the council, shall implement council decisions.
[(b) The council may enter into an interagency contract with
the commission to provide staff and other administrative support as
required to improve the quality of wastewater treatment and reduce
the cost of providing wastewater treatment to consumers.
[(c)] The commission [council] may accept grants and
donations from other sources to supplement the fees collected under
Section 367.010. Grants and donations shall be deposited to the
credit of the water resource management [on-site wastewater
treatment research] account and may be disbursed as the commission
[council] directs and in accordance with Section 367.008.
(b) [(d)] Administrative and facilities support costs are
payable from the water resources management [on-site wastewater
treatment research] account.
[(e) The council may award grants and enter into contracts
in its own name and on its own behalf.]
SECTION 8.04. Section 367.008, Health and Safety Code, is
amended to read as follows:
Sec. 367.008. AWARD OF COMPETITIVE GRANTS. (a) The
commission [council] shall establish procedures for awarding
competitive grants and disbursing grant money.
(b) The commission [council] may award competitive grants
to:
(1) support applied research and demonstration
projects by accredited colleges and universities in this state, by
other governmental entities, or by acceptable public or private
research centers regarding on-site wastewater treatment technology
and systems applicable to this state that are directed toward
improving the quality of wastewater treatment and reducing the cost
of providing wastewater treatment to consumers; and
(2) enhance technology transfer regarding on-site
wastewater treatment by using educational courses, seminars,
symposia, publications, and other forms of information
dissemination.
(c) The commission shall seek the advice of relevant experts
when choosing research topics, awarding grants, and holding
educational conferences associated with activities under this
chapter. [The council may award grants or make other expenditures
authorized under this chapter only after the comptroller certifies
that the on-site wastewater treatment research account contains
enough money to pay for those expenditures.]
SECTION 8.05. Section 367.009, Health and Safety Code, is
amended to read as follows:
Sec. 367.009. APPROPRIATIONS. Money collected and
appropriated for the purposes of this chapter shall be disbursed as
the commission [council] directs and in accordance with Section
367.008.
SECTION 8.06. Section 367.010(d), Health and Safety Code,
is amended to read as follows:
(d) The fee proceeds shall be deposited to the credit of the
water resources management [on-site wastewater treatment research]
account.
SECTION 8.07. Sections 367.002, 367.003, 367.004, 367.005,
367.006, and 367.011, Health and Safety Code, are repealed.
SECTION 8.08. (a) On the effective date of this Act, the
Texas Commission on Environmental Quality shall assume the
administration of all grants of the On-site Wastewater Treatment
Research Council in existence on that date.
(b) The Texas Commission on Environmental Quality shall
assume all contracts held by the On-site Wastewater Treatment
Research Council on the effective date of this Act, including all
rights and obligations associated with the contracts.
ARTICLE 9. RATE NOTIFICATION
SECTION 9.01. Section 13.043(i), Water Code, is amended to
read as follows:
(i) The governing body of a municipally owned utility or a
political subdivision, within 60 [30] days after the date of a final
decision on a rate change, shall provide individual written notice
to each ratepayer eligible to appeal who resides outside the
boundaries of the municipality or the political subdivision. The
notice must include, at a minimum, the effective date of the new
rates, the new rates, and the location where additional information
on rates can be obtained. The governing body of a municipally owned
utility or a political subdivision may provide the notice
electronically if the utility or political subdivision has access
to a ratepayer's e-mail address.
SECTION 9.02. Section 13.187(b), Water Code, is amended to
read as follows:
(b) A copy of the statement of intent shall be mailed, sent
by e-mail, or delivered to the appropriate offices of each affected
municipality, and to any other affected persons as required by the
regulatory authority's rules.
ARTICLE 10. CONTESTED CASE HEARINGS
SECTION 10.01. Section 5.115(b), Water Code, is amended to
read as follows:
(b) At the time an application for a permit or license under
this code is filed with the executive director and is
administratively complete, the commission shall give notice of the
application to any person who may be affected by the granting of the
permit or license. A state agency that receives notice under this
subsection may submit comments to the commission in response to the
notice but may not contest the issuance of a permit or license by
the commission. For the purposes of this subsection, "state
agency" does not include a river authority.
SECTION 10.02. Sections 5.228(c) and (d), Water Code, are
amended to read as follows:
(c) The executive director shall [may] participate as a
party in contested case permit hearings before the commission or
the State Office of Administrative Hearings to:
(1) provide information [for the sole purpose of
providing information] to complete the administrative record; and
(2) support the executive director's position
developed in the underlying proceeding. [The commission by rule
shall specify the factors the executive director must consider in
determining, case by case, whether to participate as a party in a
contested case permit hearing. In developing the rules under this
subsection the commission shall consider, among other factors:
[(1) the technical, legal, and financial capacity of
the parties to the proceeding;
[(2) whether the parties to the proceeding have
participated in a previous contested case hearing;
[(3) the complexity of the issues presented; and
[(4) the available resources of commission staff.]
(d) In a contested case hearing relating to a permit
application, the executive director or the executive director's
designated representative may not rehabilitate the testimony of a
witness unless the witness is a commission employee [testifying for
the sole purpose of providing information to complete the
administrative record].
SECTION 10.03. Subchapter H, Chapter 5, Water Code, is
amended by adding Section 5.315 to read as follows:
Sec. 5.315. DISCOVERY IN CASES USING PREFILED WRITTEN
TESTIMONY. In a contested case hearing delegated by the commission
to the State Office of Administrative Hearings that uses prefiled
written testimony, all discovery must be completed before the
deadline for the submission of that testimony, except for water and
sewer ratemaking proceedings.
SECTION 10.04. Section 5.228(e), Water Code, is repealed.
SECTION 10.05. (a) Section 5.115(b), Water Code, as
amended by this article, applies only to an application for the
issuance, amendment, extension, or renewal of a permit or license
that is received by the Texas Commission on Environmental Quality
on or after the effective date of this Act. An application that is
received before that date is governed by the law in effect at the
time the application is received, and the former law is continued in
effect for that purpose.
(b) The changes in law made by this article apply to a
proceeding before the State Office of Administrative Hearings that
is pending or filed on or after September 1, 2011.
ARTICLE 11. EFFECTIVE DATE
SECTION 11.01. This Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2694 was passed by the House on April
20, 2011, by the following vote: Yeas 109, Nays 40, 1 present, not
voting; that the House refused to concur in Senate amendments to
H.B. No. 2694 on May 17, 2011, and requested the appointment of a
conference committee to consider the differences between the two
houses; and that the House adopted the conference committee report
on H.B. No. 2694 on May 28, 2011, by the following vote: Yeas 147,
Nays 0, 1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2694 was passed by the Senate, with
amendments, on May 12, 2011, by the following vote: Yeas 31, Nays
0; at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
2694 on May 28, 2011, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor