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