1-1 AN ACT
1-2 relating to the continuation and functions of the Texas Natural
1-3 Resource Conservation Commission; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. ADMINISTRATION AND POLICY
1-6 SECTION 1.01. Section 5.013, Water Code, is amended by adding
1-7 Subsection (c) to read as follows:
1-8 (c) This section allocates among various state agencies
1-9 statutory authority delegated by other laws. This section does not
1-10 delegate legislative authority.
1-11 SECTION 1.02. Section 5.014, Water Code, is amended to read
1-12 as follows:
1-13 Sec. 5.014. SUNSET PROVISION. The Texas Natural Resource
1-14 Conservation Commission is subject to Chapter 325, Government Code
1-15 (Texas Sunset Act). Unless continued in existence as provided by
1-16 that chapter, the commission is abolished and this chapter expires
1-17 September 1, 2013 [2001].
1-18 SECTION 1.03. Section 5.052(c), Water Code, is amended to
1-19 read as follows:
1-20 (c) Appointments to the commission shall be made without
1-21 regard to the race, color, disability [handicap], sex, religion,
1-22 age, or national origin of the appointees.
1-23 SECTION 1.04. Section 5.053(a), Water Code, is amended to
1-24 read as follows:
2-1 (a) A person may not be a member of [is not eligible to
2-2 serve on] the commission if the person or the person's spouse:
2-3 (1) is registered, certified, licensed, permitted, or
2-4 otherwise authorized by the commission;
2-5 (2) is employed by or participates in the management
2-6 of a business entity or other organization regulated by the
2-7 commission or receiving money [funds] from the commission;
2-8 (3) [(2)] owns or[,] controls, [or has,] directly or
2-9 indirectly, more than a 10 percent interest in a business entity or
2-10 other organization regulated by [the commission] or receiving funds
2-11 from the commission; or
2-12 (4) [(3)] uses or receives a substantial amount of
2-13 tangible goods, services, or money [funds] from the commission
2-14 other than compensation or reimbursement authorized by law for
2-15 commission membership, attendance, or expenses.
2-16 SECTION 1.05. Subchapter C, Chapter 5, Water Code, is amended
2-17 by adding Section 5.0535 to read as follows:
2-18 Sec. 5.0535. REQUIRED TRAINING PROGRAM FOR COMMISSION
2-19 MEMBERS. (a) A person who is appointed to and qualifies for office
2-20 as a member of the commission may not vote, deliberate, or be
2-21 counted as a member in attendance at a meeting of the commission
2-22 until the person completes a training program that complies with
2-23 this section.
2-24 (b) The training program must provide the person with
2-25 information regarding:
2-26 (1) the legislation that created the commission;
2-27 (2) the programs operated by the commission;
3-1 (3) the role and functions of the commission;
3-2 (4) the rules of the commission, with an emphasis on
3-3 the rules that relate to disciplinary and investigatory authority;
3-4 (5) the current budget for the commission;
3-5 (6) the results of recent significant internal and
3-6 external audits of the commission;
3-7 (7) the requirements of:
3-8 (A) the open meetings law, Chapter 551,
3-9 Government Code;
3-10 (B) the public information law, Chapter 552,
3-11 Government Code;
3-12 (C) the administrative procedure law, Chapter
3-13 2001, Government Code; and
3-14 (D) other laws relating to public officials,
3-15 including conflict-of-interest laws; and
3-16 (8) any applicable ethics policies adopted by the
3-17 commission or the Texas Ethics Commission.
3-18 (c) A person appointed to the commission is entitled to
3-19 reimbursement, as provided by the General Appropriations Act, for
3-20 the travel expenses incurred in attending the training program
3-21 regardless of whether the attendance at the program occurs before
3-22 or after the person qualifies for office.
3-23 SECTION 1.06. Section 5.054, Water Code, is amended to read
3-24 as follows:
3-25 Sec. 5.054. REMOVAL OF COMMISSION MEMBERS. (a) It is a
3-26 ground for removal from the commission that [if] a member:
3-27 (1) does not have at the time of taking office the
4-1 qualifications required by Section 5.053(b);
4-2 (2) does not maintain during the service on the
4-3 commission the qualifications required by Section 5.053(b) [for
4-4 appointment to the commission];
4-5 (3) is ineligible for membership under Section
4-6 5.053(a), 5.059, or 5.060 [(2) violates a prohibition established
4-7 by Sections 5.059 and 5.060 of this code];
4-8 (4) cannot, because of illness or disability, [(3) is
4-9 unable to] discharge the member's [his] duties for a substantial
4-10 part of the member's term [portion of the term for which he was
4-11 appointed because of illness or disability]; or
4-12 (5) [(4)] is absent from more than one-half of the
4-13 regularly scheduled commission meetings that the member is eligible
4-14 to attend during each calendar year without an excuse approved [,
4-15 except when the absence is excused] by a majority vote of the
4-16 commission.
4-17 (b) The validity of an action of the commission is not
4-18 affected by the fact that it is [was] taken when a ground for
4-19 removal of a member of the commission exists [existed].
4-20 (c) If the executive director or a member [of the
4-21 commission] has knowledge that a potential ground for removal
4-22 exists, the executive director or member [he] shall notify the
4-23 presiding officer [chairman] of the commission of the potential
4-24 [that] ground. The presiding officer [chairman of the commission]
4-25 shall then notify the governor and the attorney general that a
4-26 potential ground for removal exists. If the potential ground for
4-27 removal involves the presiding officer, the executive director or
5-1 another member of the commission shall notify the member of the
5-2 commission with the most seniority, who shall then notify the
5-3 governor and the attorney general that a potential ground for
5-4 removal exists.
5-5 SECTION 1.07. Sections 5.058(a)-(d), Water Code, are amended
5-6 to read as follows:
5-7 (a) The governor shall designate a member of the commission
5-8 as the presiding officer [the chairman] of the commission to serve
5-9 in that capacity at the pleasure of[. He shall serve as chairman
5-10 until] the governor [designates a different chairman].
5-11 (b) The presiding officer [chairman] may designate another
5-12 commissioner to act for the presiding officer [him] in the
5-13 presiding officer's [his] absence.
5-14 (c) The presiding officer [chairman] shall preside at the
5-15 meetings and hearings of the commission.
5-16 (d) The commission shall hold regular meetings and all
5-17 hearings at times specified by a commission order and entered in
5-18 its minutes. The commission may hold special meetings at the times
5-19 and places in the state that the commission decides are appropriate
5-20 for the performance of its duties. The presiding officer
5-21 [chairman] or acting presiding officer [chairman] shall give the
5-22 other members reasonable notice before holding a special meeting.
5-23 SECTION 1.08. Sections 5.059 and 5.060, Water Code, are
5-24 amended to read as follows:
5-25 Sec. 5.059. CONFLICT OF INTEREST. (a) In this section,
5-26 "Texas trade association" means a cooperative and voluntarily
5-27 joined association of business or professional competitors in this
6-1 state designed to assist its members and its industry or profession
6-2 in dealing with mutual business or professional problems and in
6-3 promoting their common interest.
6-4 (b) A person may not be a member of the commission and may
6-5 not be a commission employee employed in a "bona fide executive,
6-6 administrative, or professional capacity," as that phrase is used
6-7 for purposes of establishing an exemption to the overtime
6-8 provisions of the federal Fair Labor Standards Act of 1938 (29
6-9 U.S.C. Section 201 et seq.) and its subsequent amendments, if:
6-10 (1) the person is an officer, employee, or paid
6-11 consultant of a Texas trade association in an industry regulated by
6-12 the commission; or
6-13 (2) the person's spouse is an officer, manager, or
6-14 paid consultant of a Texas trade association in an industry
6-15 regulated by the commission [An officer, employee, or paid
6-16 consultant of a trade association in an industry regulated by the
6-17 commission may not be a member of the commission or employee of the
6-18 commission, nor may a person who cohabits with or is the spouse of
6-19 an officer, managerial employee, or paid consultant of a trade
6-20 association in an industry regulated by the commission be a member
6-21 of the commission or an employee of the commission grade 17 or
6-22 over, including exempt employees, according to the position
6-23 classification schedule under the General Appropriations Act].
6-24 Sec. 5.060. LOBBYIST PROHIBITION. A person may not be a
6-25 member of the commission or act as general counsel to the
6-26 commission if the person [who] is required to register as a
6-27 lobbyist under Chapter 305, Government Code, because [by virtue]
7-1 of the person's [his] activities for compensation [in or] on behalf
7-2 of a profession related to the operation of the commission [may not
7-3 serve as a member of the commission or act as the general counsel
7-4 to the commission].
7-5 SECTION 1.09. Section 5.103, Water Code, is amended by adding
7-6 Subsection (d) to read as follows:
7-7 (d) The commission shall include as a part of each rule the
7-8 commission adopts, and each proposed rule for adoption after the
7-9 effective date of this subsection, a citation to the statute that
7-10 grants the specific regulatory authority under which the rule is
7-11 justified and a citation of the specific regulatory authority that
7-12 will be exercised. If no specific statutory authority exists and
7-13 the agency is depending on this section, citation of this section,
7-14 or Section 5.102 or 5.013, is sufficient. A rule adopted in
7-15 violation of this subsection is void.
7-16 SECTION 1.10. Section 5.107, Water Code, is amended to read
7-17 as follows:
7-18 Sec. 5.107. ADVISORY COMMITTEES, WORK GROUPS, AND TASK
7-19 FORCES [COUNCILS]. (a) The commission or the executive director
7-20 may create and consult with advisory committees, work groups, or
7-21 task forces [councils], including committees, work groups, or task
7-22 forces [councils] for the environment, [councils] for public
7-23 information, or for any other matter [councils] that the commission
7-24 or the executive director may consider appropriate.
7-25 (b) The commission shall identify affected groups of
7-26 interested persons for advisory committees, work groups, and task
7-27 forces and shall make reasonable attempts to have balanced
8-1 representation on all advisory committees, work groups, and task
8-2 forces. This subsection does not require the commission to ensure
8-3 that all representatives attend a scheduled meeting. A rule or
8-4 other action may not be challenged because of the composition of an
8-5 advisory committee, work group, or task force.
8-6 (c) The commission shall monitor the composition and
8-7 activities of advisory committees, work groups, and task forces
8-8 appointed by the commission or formed at the staff level and shall
8-9 maintain that information in a form and location that is easily
8-10 accessible to the public, including making the information
8-11 available on the Internet.
8-12 SECTION 1.11. Subchapter D, Chapter 5, Water Code, is amended
8-13 by adding Sections 5.1191-5.1193 to read as follows:
8-14 Sec. 5.1191. RESEARCH MODEL. (a) In this section, "research
8-15 model" means a mechanism for developing a plan to address the
8-16 commission's practical regulatory needs. The commission's plan
8-17 shall be prioritized by need and shall identify short-term,
8-18 medium-term, and long-term research goals. The plan may address
8-19 preferred methods of conducting the identified research.
8-20 (b) The commission shall develop a research model. The
8-21 commission may appoint a research advisory board to assist the
8-22 commission in providing appropriate incentives to encourage various
8-23 interest groups to participate in developing the research model and
8-24 to make recommendations regarding research topics specific to this
8-25 state. The research advisory board must include representatives of
8-26 the academic community, representatives of the regulated community,
8-27 and public representatives of the state at large.
9-1 Sec. 5.1192. COORDINATION OF RESEARCH. (a) The commission
9-2 shall facilitate and coordinate environmental research in the state
9-3 according to the research model developed under Section 5.1191.
9-4 (b) The commission shall explore private and federal funding
9-5 opportunities for research needs identified in the research model.
9-6 The commission may conduct, direct, and facilitate research to
9-7 implement the commission's research model by administering grants
9-8 or by contracting for research if money is appropriated to the
9-9 commission for those purposes.
9-10 (c) To the degree practicable, the commission, through the
9-11 research model, shall coordinate with or make use of any research
9-12 activities conducted under existing state initiatives, including
9-13 research by state universities, the Texas Higher Education
9-14 Coordinating Board, the United States Department of Agriculture,
9-15 the Texas Department of Agriculture, and other state and federal
9-16 agencies as appropriate.
9-17 (d) This section does not authorize the commission to
9-18 initiate or direct the research efforts of another entity except
9-19 under the terms of a grant or contract.
9-20 Sec. 5.1193. REPORT. The commission shall include in the
9-21 reports required by Section 5.178 a description of cooperative
9-22 research efforts, an accounting of money spent on research, and a
9-23 review of the purpose, implementation, and results of particular
9-24 research projects conducted.
9-25 SECTION 1.12. Subchapter D, Chapter 5, Water Code, is amended
9-26 by adding Sections 5.127-5.131 to read as follows:
9-27 Sec. 5.127. USE OF ENVIRONMENTAL TESTING LABORATORY DATA AND
10-1 ANALYSIS. (a) The commission may accept environmental testing
10-2 laboratory data and analysis for use in commission decisions
10-3 regarding any matter under the commission's jurisdiction relating
10-4 to permits or other authorizations, compliance matters, enforcement
10-5 actions, or corrective actions only if the data and analysis is
10-6 prepared by an environmental testing laboratory accredited by the
10-7 commission under Subchapter R or an environmental testing
10-8 laboratory described in Subsection (b).
10-9 (b) The commission may accept for use in commission
10-10 decisions data and analysis prepared by:
10-11 (1) an on-site or in-house environmental testing
10-12 laboratory if the laboratory is periodically inspected by the
10-13 commission;
10-14 (2) an environmental testing laboratory that is
10-15 accredited under federal law; or
10-16 (3) if the data and analysis are necessary for
10-17 emergency response activities and the required data and analysis
10-18 are not otherwise available, an environmental testing laboratory
10-19 that is not accredited by the commission under Subchapter R or
10-20 under federal law.
10-21 (c) The commission by rule may require that data and
10-22 analysis used in other commission decisions be obtained from an
10-23 environmental testing laboratory accredited by the commission under
10-24 Subchapter R.
10-25 (d) The commission shall periodically inspect on-site or
10-26 in-house environmental testing laboratories described in Subsection
10-27 (b).
11-1 Sec. 5.128. ELECTRONIC REPORTING TO COMMISSION; REDUCTION OF
11-2 DUPLICATE REPORTING. (a) The commission shall encourage the use of
11-3 electronic reporting through the Internet, to the extent
11-4 practicable, for reports required by the commission. An electronic
11-5 report must be submitted in a format prescribed by the commission.
11-6 The commission may consult with the Department of Information
11-7 Resources on developing a simple format for use in implementing
11-8 this subsection.
11-9 (b) The commission shall strive to reduce duplication in
11-10 reporting requirements throughout the agency.
11-11 Sec. 5.129. SUMMARY FOR PUBLIC NOTICES. (a) The commission
11-12 by rule shall provide for each public notice issued or published by
11-13 the commission or by a person under the jurisdiction of the
11-14 commission as required by law or by commission rule to include at
11-15 the beginning of the notice a succinct statement of the subject of
11-16 the notice. The rules must provide that a summary statement must
11-17 be designed to inform the reader of the subject matter of the
11-18 notice without having to read the entire text of the notice.
11-19 (b) The summary statement may not be grounds for challenging
11-20 the validity of the proposed action for which the notice was
11-21 published.
11-22 Sec. 5.130. CONSIDERATION OF CUMULATIVE RISKS. The
11-23 commission shall:
11-24 (1) develop and implement policies, by specific
11-25 environmental media, to protect the public from cumulative risks in
11-26 areas of concentrated operations; and
11-27 (2) give priority to monitoring and enforcement in
12-1 areas in which regulated facilities are concentrated.
12-2 Sec. 5.131. ENVIRONMENTAL MANAGEMENT SYSTEMS. (a) In this
12-3 section, "environmental management system" means a documented
12-4 management system to address applicable environmental regulatory
12-5 requirements that includes organizational structure, planning
12-6 activities, responsibilities, practices, procedures, processes, and
12-7 resources for developing, implementing, achieving, reviewing, and
12-8 maintaining an environmental policy directed toward continuous
12-9 improvement.
12-10 (b) The commission by rule shall adopt a comprehensive
12-11 program that provides regulatory incentives to encourage the use of
12-12 environmental management systems by regulated entities, state
12-13 agencies, local governments, and other entities as determined by
12-14 the commission. The incentives may include:
12-15 (1) on-site technical assistance;
12-16 (2) accelerated access to information about programs;
12-17 and
12-18 (3) to the extent consistent with federal
12-19 requirements:
12-20 (A) inclusion of information regarding an
12-21 entity's use of an environmental management system in the entity's
12-22 compliance history and compliance summaries; and
12-23 (B) consideration of the entity's implementation
12-24 of an environmental management system in scheduling and conducting
12-25 compliance inspections.
12-26 (c) The commission shall:
12-27 (1) integrate the use of environmental management
13-1 systems into its regulatory programs, including permitting,
13-2 compliance assistance, and enforcement;
13-3 (2) develop model environmental management systems for
13-4 small businesses and local governments; and
13-5 (3) establish environmental performance indicators to
13-6 measure the program's performance.
13-7 SECTION 1.13. Subchapter E, Chapter 5, Water Code, is amended
13-8 by adding Section 5.1733 to read as follows:
13-9 Sec. 5.1733. ELECTRONIC POSTING OF INFORMATION. The
13-10 commission shall post public information on its website. Such
13-11 information shall include but not be limited to the minutes of
13-12 advisory committee meetings, pending permit and enforcement
13-13 actions, compliance histories, and emissions inventories by county
13-14 and facility name.
13-15 SECTION 1.14. Subchapter E, Chapter 5, Water Code, is amended
13-16 by adding Section 5.1765 to read as follows:
13-17 Sec. 5.1765. PUBLICATION OF INFORMATION REGARDING COMPLAINT
13-18 PROCEDURES AND POLICIES. The commission shall establish a process
13-19 for educating the public regarding the commission's complaint
13-20 policies and procedures. As part of the public education process,
13-21 the commission shall make available to the public in pamphlet form
13-22 an explanation of the complaint policies and procedures, including
13-23 information regarding and standards applicable to the collection
13-24 and preservation of credible evidence of environmental problems by
13-25 members of the public.
13-26 SECTION 1.15. Sections 5.176 and 5.177, Water Code, are
13-27 amended to read as follows:
14-1 Sec. 5.176. COMPLAINT FILE. (a) The commission shall
14-2 maintain a [keep an information] file on [about] each written
14-3 complaint filed with the commission about a matter within the
14-4 commission's regulatory jurisdiction [relating to an entity
14-5 regulated by the commission]. The file must include:
14-6 (1) the name of the person who filed the complaint,
14-7 unless the person has specifically requested anonymity;
14-8 (2) the date the complaint is received by the
14-9 commission;
14-10 (3) the subject matter of the complaint;
14-11 (4) the name of each person contacted in relation to
14-12 the complaint;
14-13 (5) a summary of the results of the review or
14-14 investigation of the complaint; and
14-15 (6) an explanation of the reason the file was closed,
14-16 if the agency closed the file without taking action other than to
14-17 investigate the complaint.
14-18 (b) The commission shall establish and implement procedures
14-19 for receiving complaints submitted by means of the Internet and
14-20 orally and shall maintain files on those complaints as provided by
14-21 Subsection (a).
14-22 Sec. 5.177. NOTICE OF COMPLAINT PROCEDURES; NOTICE OF
14-23 INVESTIGATION STATUS. (a) The agency shall provide to the person
14-24 filing the complaint about a matter within the commission's
14-25 regulatory jurisdiction and to each person who is the subject of
14-26 the complaint a copy of the commission's policies and procedures
14-27 relating to complaint investigation and resolution.
15-1 (b) The [If a written complaint is filed with the commission
15-2 relating to an entity regulated by the commission, the] commission,
15-3 at least [as frequently as] quarterly [and] until final disposition
15-4 of the complaint, shall notify the person filing the complaint and
15-5 each person who is a subject of [parties to] the complaint of the
15-6 status of the investigation [complaint] unless the notice would
15-7 jeopardize an undercover investigation.
15-8 (c) The commission is not required to provide the
15-9 information described in Subsection (a) or (b) to a complainant who
15-10 files an anonymous complaint or provides inaccurate contact
15-11 information.
15-12 SECTION 1.16. Subchapter E, Chapter 5, Water Code, is amended
15-13 by adding Sections 5.1771, 5.1772, and 5.1773 to read as follows:
15-14 Sec. 5.1771. COORDINATION OF COMPLAINT INVESTIGATIONS WITH
15-15 LOCAL ENFORCEMENT OFFICIALS: TRAINING. (a) The commission shall
15-16 share information regarding a complaint about a matter within the
15-17 commission's regulatory jurisdiction made to the commission with
15-18 local officials with authority to act on the complaint in the
15-19 county or municipality in which the alleged action or omission that
15-20 is the subject of the complaint occurred or is threatening to
15-21 occur.
15-22 (b) On request, the commission shall provide training for
15-23 local enforcement officials in investigating complaints and
15-24 enforcing environmental laws relating to matters under the
15-25 commission's jurisdiction under this code or the Health and Safety
15-26 Code. The training must include, at a minimum:
15-27 (1) procedures for local enforcement officials to use
16-1 in addressing citizen complaints if the commission is unavailable
16-2 or unable to respond to the complaint; and
16-3 (2) an explanation of local government authority to
16-4 enforce state laws and commission rules relating to the
16-5 environment.
16-6 (c) The commission may charge a reasonable fee for providing
16-7 training to local enforcement officials as required by Subsection
16-8 (b) in an amount sufficient to recover the costs of the training.
16-9 Sec. 5.1772. AFTER-HOURS RESPONSE TO COMPLAINTS. (a) The
16-10 commission shall adopt and implement a policy to provide timely
16-11 response to complaints during periods outside regular business
16-12 hours.
16-13 (b) This section does not:
16-14 (1) require availability of field inspectors for
16-15 response 24 hours a day, seven days a week, in all parts of the
16-16 state; or
16-17 (2) authorize additional use of overtime.
16-18 Sec. 5.1773. COMPLAINT ASSESSMENT. (a) The commission
16-19 annually shall conduct a comprehensive analysis of the complaints
16-20 it receives, including analysis by the following categories:
16-21 (1) air;
16-22 (2) water;
16-23 (3) waste;
16-24 (4) priority classification;
16-25 (5) region;
16-26 (6) commission response;
16-27 (7) enforcement action taken; and
17-1 (8) trends by complaint type.
17-2 (b) In addition to the analysis required by Subsection (a),
17-3 the commission shall assess the impact of changes made in the
17-4 commission's complaint policy.
17-5 SECTION 1.17. Section 5.178(b), Water Code, is amended to
17-6 read as follows:
17-7 (b) The report due by December 1 of an even-numbered year
17-8 shall include, in addition:
17-9 (1) the commission's recommendations for necessary and
17-10 desirable legislation; and
17-11 (2) the following reports:
17-12 (A) the assessments and reports required by
17-13 Sections 361.0219(c), 361.0232, [361.485,] 361.510, 371.063, and
17-14 382.141, Health and Safety Code; [and]
17-15 (B) the reports required by Section 26.0135(d)
17-16 of this code and Section 5.02, Chapter 133, Acts of the 69th
17-17 Legislature, Regular Session, 1985; and
17-18 (C) a summary of the analyses and assessments
17-19 required by Section 5.1773 of this code.
17-20 SECTION 1.18. Section 5.227, Water Code, is amended to read
17-21 as follows:
17-22 Sec. 5.227. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The
17-23 executive director or his designee shall prepare and maintain a
17-24 written policy statement that implements [to assure implementation
17-25 of] a program of equal employment opportunity to ensure that
17-26 [whereby] all personnel decisions [transactions] are made without
17-27 regard to race, color, disability [handicap], sex, religion, age,
18-1 or national origin.
18-2 (b) The policy statement must include:
18-3 (1) personnel policies, including policies relating to
18-4 recruitment, evaluation, selection, [appointment,] training, and
18-5 promotion of personnel, that show the intent of the commission to
18-6 avoid the unlawful employment practices described by Chapter 21,
18-7 Labor Code; and
18-8 (2) a comprehensive analysis of the extent to which
18-9 the composition of the commission's personnel is in accordance with
18-10 state and federal law and a description of reasonable methods to
18-11 achieve compliance with state and federal law [work force that
18-12 meets federal and state guidelines;]
18-13 [(3) procedures by which a determination can be made
18-14 of significant underutilization in the commission's work force of
18-15 all persons for whom federal or state guidelines encourage a more
18-16 equitable balance; and]
18-17 [(4) reasonable methods to address appropriately areas
18-18 of significant underutilization in the commission's work force of
18-19 all persons for whom federal or state guidelines encourage a more
18-20 equitable balance].
18-21 (c) [(b)] The policy statement must:
18-22 (1) [shall be filed with the governor's office before
18-23 November 1, 1985, cover an annual period, and] be updated [at
18-24 least] annually;
18-25 (2) be reviewed by the state Commission on Human
18-26 Rights for compliance with Subsection (b)(1); and
18-27 (3) be filed with the governor's office. [The
19-1 governor's office shall develop a biennial report to the
19-2 legislature based on the information submitted. This report may be
19-3 made individually or as a part of other biennial reports made to
19-4 the legislature.]
19-5 SECTION 1.19. Subchapter F, Chapter 5, Water Code, is amended
19-6 by adding Section 5.2275 to read as follows:
19-7 Sec. 5.2275. STATE EMPLOYEE INCENTIVE PROGRAM. The executive
19-8 director or the executive director's designee shall provide to
19-9 commission employees information and training on the benefits and
19-10 methods of participation in the state employee incentive program
19-11 under Subchapter B, Chapter 2108, Government Code.
19-12 SECTION 1.20. Section 5.228, Water Code, is amended to read
19-13 as follows:
19-14 Sec. 5.228. APPEARANCES AT HEARINGS. (a) The position of
19-15 and information developed by the commission shall be presented by
19-16 the executive director or his designated representative at hearings
19-17 of the commission and the hearings held by federal, state, and
19-18 local agencies on matters affecting the public's interest in the
19-19 state's environment and natural resources, including matters that
19-20 have been determined to be policies of the state.
19-21 (b) The executive director shall be named a party in
19-22 hearings before the commission in a matter in which the executive
19-23 director bears the burden of proof.
19-24 (c) The executive director may participate as a party in
19-25 contested case permit hearings before the commission or the State
19-26 Office of Administrative Hearings for the sole purpose of providing
19-27 information to complete the administrative record. The commission
20-1 by rule shall specify the factors the executive director must
20-2 consider in determining, case by case, whether to participate as a
20-3 party in a contested case permit hearing. In developing the rules
20-4 under this subsection the commission shall consider, among other
20-5 factors:
20-6 (1) the technical, legal, and financial capacity of
20-7 the parties to the proceeding;
20-8 (2) whether the parties to the proceeding have
20-9 participated in a previous contested case hearing;
20-10 (3) the complexity of the issues presented; and
20-11 (4) the available resources of commission staff.
20-12 (d) In a contested case hearing relating to a permit
20-13 application, the executive director or the executive director's
20-14 designated representative may not rehabilitate the testimony of a
20-15 witness unless the witness is a commission employee testifying for
20-16 the sole purpose of providing information to complete the
20-17 administrative record.
20-18 (e) The executive director or the executive director's
20-19 designated representative may not assist a permit applicant in
20-20 meeting its burden of proof in a hearing before the commission or
20-21 the State Office of Administrative Hearings unless the permit
20-22 applicant fits a category of permit applicant that the commission
20-23 by rule has designated as eligible to receive assistance. The
20-24 commission shall adopt rules establishing categories of permit
20-25 applicants eligible to receive assistance.
20-26 (f) The fact that the executive director is not named as a
20-27 party in a hearing before the commission is not grounds for
21-1 appealing a commission decision.
21-2 SECTION 1.21. Subchapter F, Chapter 5, Water Code, is amended
21-3 by adding Section 5.2291 to read as follows:
21-4 Sec. 5.2291. SCIENTIFIC AND TECHNICAL SERVICES. (a) In this
21-5 section, "scientific and technical environmental services" means
21-6 services, other than engineering services, of a scientific or
21-7 technical nature the conduct of which requires technical training
21-8 and professional judgment. The term includes modeling, risk
21-9 assessment, site characterization and assessment, studies of the
21-10 magnitude, source, and extent of contamination, contaminant fate
21-11 and transport analysis, watershed assessment and analysis, total
21-12 maximum daily load studies, scientific data analysis, and similar
21-13 tasks, to the extent those tasks are not defined as the "practice
21-14 of engineering" under The Texas Engineering Practice Act (Article
21-15 3271a, Vernon's Texas Civil Statutes).
21-16 (b) The procurement of a contract for scientific and
21-17 technical environmental services shall be conducted under the
21-18 procedures for professional services selection provided in
21-19 Subchapter A, Chapter 2254, Government Code.
21-20 SECTION 1.22. Section 5.234(b), Water Code, is amended to
21-21 read as follows:
21-22 (b) After an application, petition, or other document is
21-23 processed, it shall be presented to the commission for action as
21-24 required by law and rules of the commission. If, in the course of
21-25 reviewing an application and preparing a draft permit, the
21-26 executive director has required changes to be made to the
21-27 applicant's proposal, the executive director shall prepare a
22-1 summary of the changes that were made to increase protection of
22-2 public health and the environment.
22-3 SECTION 1.23. Sections 5.273 and 5.274, Water Code, are
22-4 amended to read as follows:
22-5 Sec. 5.273. DUTIES OF THE PUBLIC INTEREST COUNSEL. (a) The
22-6 counsel shall represent the public interest and be a party to all
22-7 proceedings before the commission.
22-8 (b) The counsel may recommend needed legislative and
22-9 regulatory changes.
22-10 Sec. 5.274. STAFF; OUTSIDE TECHNICAL SUPPORT. (a) The
22-11 office shall be adequately staffed to carry out its functions under
22-12 this code.
22-13 (b) The counsel may obtain and use outside technical support
22-14 to carry out its functions under this code.
22-15 SECTION 1.24. Subchapter A, Chapter 7, Water Code, is amended
22-16 by adding Section 7.0025 to read as follows:
22-17 Sec. 7.0025. INITIATION OF ENFORCEMENT ACTION USING
22-18 INFORMATION PROVIDED BY PRIVATE INDIVIDUAL. (a) The commission may
22-19 initiate an enforcement action on a matter under its jurisdiction
22-20 under this code or the Health and Safety Code based on information
22-21 it receives from a private individual if that information, in the
22-22 commission's judgment, is of sufficient value and credibility to
22-23 warrant the initiation of an enforcement action.
22-24 (b) The executive director or the executive director's
22-25 designated representative may evaluate the value and credibility of
22-26 information received from a private individual and the merits of
22-27 any proposed enforcement action based on that information.
23-1 (c) The commission by rule may adopt criteria for the
23-2 executive director to use in evaluating the value and credibility
23-3 of information received from a private individual and for use of
23-4 that information in an enforcement action.
23-5 (d) A private individual who submits information on which
23-6 the commission relies for all or part of an enforcement case may be
23-7 called to testify in the enforcement proceedings and is subject to
23-8 all sanctions under law for knowingly falsifying evidence. If the
23-9 commission relies on the information submitted by a private
23-10 individual to prove an enforcement case, any physical or sampling
23-11 data must have been collected or gathered in accordance with
23-12 commission protocols.
23-13 SECTION 1.25. Section 361.0231(a), Health and Safety Code,
23-14 is amended to read as follows:
23-15 (a) To protect the public health and environment taking into
23-16 consideration the economic development of the state, [encourage
23-17 economic development,] and assure the continuation of the federal
23-18 funding for abandoned facility response actions, it is the state
23-19 public policy that adequate capacity should exist for the proper
23-20 management of industrial and hazardous waste generated in this
23-21 state.
23-22 SECTION 1.26. Section 26.003, Water Code, is amended to read
23-23 as follows:
23-24 Sec. 26.003. POLICY OF THIS SUBCHAPTER. It is the policy of
23-25 this state and the purpose of this subchapter to maintain the
23-26 quality of water in the state consistent with the public health and
23-27 enjoyment, the propagation and protection of terrestrial and
24-1 aquatic life, and the operation of existing industries, taking into
24-2 consideration [and] the economic development of the state; to
24-3 encourage and promote the development and use of regional and
24-4 areawide waste collection, treatment, and disposal systems to serve
24-5 the waste disposal needs of the citizens of the state; and to
24-6 require the use of all reasonable methods to implement this policy.
24-7 SECTION 1.27. Section 27.003, Water Code, is amended to read
24-8 as follows:
24-9 Sec. 27.003. POLICY AND PURPOSE. It is the policy of this
24-10 state and the purpose of this chapter to maintain the quality of
24-11 fresh water in the state to the extent consistent with the public
24-12 health and welfare and[,] the operation of existing industries,
24-13 taking into consideration [and] the economic development of the
24-14 state, to prevent underground injection that may pollute fresh
24-15 water, and to require the use of all reasonable methods to
24-16 implement this policy.
24-17 ARTICLE 2. NOTICE REQUIREMENTS
24-18 SECTION 2.01. Subchapter C, Chapter 361, Health and Safety
24-19 Code, is amended by adding Section 361.0666 to read as follows:
24-20 Sec. 361.0666. PUBLIC MEETING AND NOTICE FOR SOLID WASTE
24-21 FACILITIES. (a) An applicant for a permit under this chapter for
24-22 a new facility that accepts municipal solid wastes shall hold a
24-23 public meeting in the county in which the proposed facility is to
24-24 be located. The meeting must be held before the 45th day after the
24-25 date the application is filed.
24-26 (b) The applicant shall publish notice of the public meeting
24-27 at least once each week during the three weeks preceding the
25-1 meeting. The notice must be published in the newspaper of the
25-2 largest general circulation that is published in the county in
25-3 which the proposed facility is to be located. If a newspaper is
25-4 not published in the county, the notice must be published in a
25-5 newspaper of general circulation in the county.
25-6 (c) The applicant shall present to the commission an
25-7 affidavit certifying that the notice was published as required by
25-8 Subsection (b). The commission's acceptance of the affidavit
25-9 raises a presumption that the applicant has complied with
25-10 Subsection (b).
25-11 (d) The published notice may not be smaller than 96.8 square
25-12 centimeters or 15 square inches, with the shortest dimension not
25-13 less than 7.5 centimeters or 3 inches. The notice must contain at
25-14 least the following information:
25-15 (1) the permit application number;
25-16 (2) the applicant's name;
25-17 (3) the proposed location of the facility; and
25-18 (4) the location and availability of copies of the
25-19 application.
25-20 (e) The applicant shall pay the cost of the notice required
25-21 under this section. The commission by rule may establish a
25-22 procedure for payment of those costs.
25-23 SECTION 2.02. Section 382.056, Health and Safety Code, is
25-24 amended by adding Subsections (q) and (r) to read as follows:
25-25 (q) The department shall establish rules to ensure that a
25-26 permit applicant complies with the notice requirement under
25-27 Subsection (a).
26-1 (r) This section does not apply to:
26-2 (1) the relocation or change of location of a portable
26-3 facility to a site where a facility permitted by the commission is
26-4 located if no portable facility has been located at the proposed
26-5 site at any time during the previous two years; or
26-6 (2) a facility located temporarily in the
26-7 right-of-way, or contiguous to the right-of-way, of a public works
26-8 project.
26-9 ARTICLE 3. FEES AND RATES
26-10 SECTION 3.01. Chapter 5, Water Code, is amended by adding a
26-11 heading for Subchapter P to read as follows:
26-12 SUBCHAPTER P. FEES
26-13 SECTION 3.02. Section 5.235, Water Code, is transferred to
26-14 new Subchapter P, Chapter 5, Water Code, redesignated as Section
26-15 5.701, and amended to read as follows:
26-16 Sec. 5.701 [5.235]. FEES. (a) The executive director shall
26-17 charge and collect the fees prescribed by law. The executive
26-18 director shall make a record of fees prescribed when due and shall
26-19 render an account to the person charged with the fees. Each fee is
26-20 a separate charge and is in addition to other fees unless provided
26-21 otherwise. Except as otherwise provided, a fee assessed and
26-22 collected under this section shall be deposited to the credit of
26-23 the water resource management account.
26-24 (1) Notwithstanding other provisions, the commission
26-25 by rule may establish due dates, schedules, and procedures for
26-26 assessment, collection, and remittance of fees due the commission
26-27 to ensure the cost-effective administration of revenue collection
27-1 and cash management programs.
27-2 (2) Notwithstanding other provisions, the commission
27-3 by rule shall establish uniform and consistent requirements for the
27-4 assessment of penalties and interest for late payment of fees owed
27-5 the state under the commission's jurisdiction. Penalties and
27-6 interest established under this section shall not exceed rates
27-7 established for delinquent taxes under Sections 111.060 and
27-8 111.061, Tax Code.
27-9 (b) Except as otherwise provided by law, the fee for filing
27-10 an application or petition is $100 plus the cost of any required
27-11 notice. The fee for a by-pass permit shall be set by the
27-12 commission at a reasonable amount to recover costs, but not less
27-13 than $100.
27-14 (c) The fee for filing a water permit application is $100
27-15 plus the cost of required notice.
27-16 (d) The fee for filing an application for fixing or
27-17 adjusting rates is $100 plus the cost of required notice.
27-18 (e) A person who files with the commission a petition for
27-19 the creation of a water district or addition of sewage and drainage
27-20 powers or a resolution for a water district conversion must pay a
27-21 one-time nonrefundable application fee. The commission by rule may
27-22 establish [set] the application fee in an amount sufficient to
27-23 cover [not to exceed] the costs of reviewing and processing the
27-24 application, plus the cost of required notice. The commission may
27-25 also use the application fee to cover other costs incurred to
27-26 protect water resources in this state, including assessment of
27-27 water quality, reasonably related to the activities of any of the
28-1 persons required to pay a fee under the statutes listed in
28-2 Subsection (p). This fee is the only fee that the commission may
28-3 charge with regard to the processing of an application for creation
28-4 of a water district, addition of sewage or drainage powers, or
28-5 conversion under this code.
28-6 (f) A person who files a bond issue application with the
28-7 commission must pay an application fee set by the commission. The
28-8 commission by rule may set the application fee in an amount not to
28-9 exceed the costs of reviewing and processing the application, plus
28-10 the cost of required notice. If the bonds are approved by the
28-11 commission, the seller shall pay to the commission a percentage of
28-12 the bond proceeds not later than the seventh business day after
28-13 receipt of the bond proceeds. The commission by rule may set the
28-14 percentage of the proceeds in an amount not to exceed 0.25 percent
28-15 of the principal amount of the bonds actually issued. Proceeds of
28-16 the fees shall be used to supplement any other funds available for
28-17 paying expenses of the commission in supervising the various bond
28-18 and construction activities of the districts filing the
28-19 applications.
28-20 (g) The fee for recording an instrument in the office of the
28-21 commission is $1.25 per page.
28-22 (h) The fee for the use of water for irrigation is 50 cents
28-23 per acre to be irrigated.
28-24 (i) The fee for impounding water, except under Section
28-25 11.142 of this code, is 50 cents per acre-foot of storage, based on
28-26 the total holding capacity of the reservoir at normal operating
28-27 level.
29-1 (j) The fee for other uses of water not specifically named
29-2 in this section is $1 per acre-foot, except that no political
29-3 subdivision may be required to pay fees to use water for recharge
29-4 of underground freshwater-bearing sands and aquifers or for
29-5 abatement of natural pollution.
29-6 (k) A fee charged under Subsections (h) through (j) of this
29-7 section for one use of water under a permit from the commission may
29-8 not exceed $50,000. The fee for each additional use of water under
29-9 a permit for which the maximum fee is paid may not exceed $10,000.
29-10 (l) The fees prescribed by Subsections (h) through (j) of
29-11 this section are one-time fees, payable when the application for an
29-12 appropriation is made. However, if the total fee for a permit
29-13 exceeds $1,000, the applicant shall pay one-half of the fee when
29-14 the application is filed and one-half within 180 days after notice
29-15 is mailed to him that the permit is granted. If the applicant does
29-16 not pay all of the amount owed before beginning to use water under
29-17 the permit, the permit is annulled.
29-18 (m) If a permit is annulled, the matter reverts to the
29-19 status of a pending, filed application and, on the payment of use
29-20 fees as provided by Subsections (h) through (l) of this section
29-21 together with sufficient postage fees for mailing notice of
29-22 hearing, the commission shall set the application for hearing and
29-23 proceed as provided by this code.
29-24 (n)(1) Each provider of potable water or sewer utility
29-25 service shall collect a regulatory assessment from each retail
29-26 customer as follows:
29-27 (A) A public utility as defined in Section
30-1 13.002 of this code shall collect from each retail customer a
30-2 regulatory assessment equal to one percent of the charge for retail
30-3 water or sewer service.
30-4 (B) A water supply or sewer service corporation
30-5 as defined in Section 13.002 of this code shall collect from each
30-6 retail customer a regulatory assessment equal to one-half of one
30-7 percent of the charge for retail water or sewer service.
30-8 (C) A district as defined in Section 49.001 of
30-9 this code that provides potable water or sewer utility service to
30-10 retail customers shall collect from each retail customer a
30-11 regulatory assessment equal to one-half of one percent of the
30-12 charge for retail water or sewer service.
30-13 (2) The regulatory assessment may be listed on the
30-14 customer's bill as a separate item and shall be collected in
30-15 addition to other charges for utility services.
30-16 (3) The commission shall use the assessments collected
30-17 under this subsection solely to pay costs and expenses incurred by
30-18 the commission in the regulation of districts, water supply or
30-19 sewer service corporations, and public utilities under Chapter 13,
30-20 Water Code.
30-21 (4) The commission shall annually use a portion of the
30-22 assessments to provide on-site technical assistance and training to
30-23 public utilities, water supply or sewer service corporations, and
30-24 districts. The commission shall contract with others to provide
30-25 the services.
30-26 (5) The commission by rule may establish due dates,
30-27 collection procedures, and penalties for late payment related to
31-1 regulatory assessments under this subsection. The executive
31-2 director shall collect all assessments from the utility service
31-3 providers.
31-4 (6) The commission shall assess a penalty against a
31-5 municipality with a population of more than 1.5 million that does
31-6 not provide municipal water and sewer services in an annexed area
31-7 in accordance with Section 43.0565, Local Government Code. A
31-8 penalty assessed under this paragraph shall be not more than $1,000
31-9 for each day the services are not provided after March 1, 1998, for
31-10 areas annexed before January 1, 1993, or not provided within 4 1/2
31-11 years after the effective date of the annexation for areas annexed
31-12 on or after January 1, 1993. A penalty collected under this
31-13 paragraph shall be deposited to the credit of the water resource
31-14 management account to be used to provide water and sewer service to
31-15 residents of the city.
31-16 (7) The regulatory assessment does not apply to water
31-17 that has not been treated for the purpose of human consumption.
31-18 (o) A fee imposed under Subsection (j) of this section for
31-19 the use of saline tidal water for industrial processes shall be $1
31-20 per acre-foot of water diverted for the industrial process, not to
31-21 exceed a total fee of $5,000.
31-22 (p) Notwithstanding any other law, fees collected for
31-23 deposit to the water resource management account under the
31-24 following statutes may be appropriated and used to protect water
31-25 resources in this state, including assessment of water quality,
31-26 reasonably related to the activities of any of the persons required
31-27 to pay a fee under:
32-1 (1) Subsection (b), to the extent those fees are paid
32-2 by water districts, and Subsections (e), (f), and (n);
32-3 (2) Sections 13.4521 and 13.4522; or
32-4 (3) Section 54.037(c).
32-5 (q) Notwithstanding any other law, fees collected for
32-6 deposit to the water resource management account under the
32-7 following statutes may be appropriated and used to protect water
32-8 resources in this state, including assessment of water quality,
32-9 reasonably related to the activities of any of the persons required
32-10 to pay a fee under:
32-11 (1) Subsections (b) and (c), to the extent those fees
32-12 are collected in connection with water use or water quality
32-13 permits;
32-14 (2) Subsections (h)-(l);
32-15 (3) Section 11.138(g);
32-16 (4) Section 11.145;
32-17 (5) Section 26.0135(h);
32-18 (6) Sections 26.0291, 26.044, and 26.0461;
32-19 (7) Sections 341.041, 366.058, and 366.059, Health and
32-20 Safety Code; or
32-21 (8) Section 372.002(d), Health and Safety Code.
32-22 SECTION 3.03. New Subchapter P, Chapter 5, Water Code, is
32-23 amended by adding Sections 5.702-5.708 to read as follows:
32-24 Sec. 5.702. PAYMENT OF FEES REQUIRED WHEN DUE. (a) A fee
32-25 due the commission under this code or the Health and Safety Code
32-26 shall be paid on the date the fee is due, regardless of whether the
32-27 fee is billed by the commission to the person required to pay the
33-1 fee or is calculated and paid to the commission by the person
33-2 required to pay the fee.
33-3 (b) A person required to pay a fee to the commission may not
33-4 dispute the assessment of or amount of a fee before the fee has
33-5 been paid in full.
33-6 Sec. 5.703. FEE ADJUSTMENTS. (a) The commission may not
33-7 consider adjusting the amount of a fee due the commission under
33-8 this code or the Health and Safety Code:
33-9 (1) before the fee has been paid in full; or
33-10 (2) if the request for adjustment is received after
33-11 the first anniversary of the date on which the fee was paid in
33-12 full.
33-13 (b) A person who pays an amount that exceeds the amount of
33-14 the fee due because the commission incorrectly calculated the fee
33-15 or the person made a duplicate payment may request a refund of the
33-16 excess amount paid before the fourth anniversary of the date on
33-17 which the excess amount was paid.
33-18 (c) A request for a refund or credit in an amount that
33-19 exceeds $5,000 shall be forwarded for approval to the commission
33-20 fee audit staff, together with an explanation of the grounds for
33-21 the requested refund or credit. Approval of a refund or credit
33-22 does not prevent the fee audit staff from conducting a subsequent
33-23 audit of the person for whom the refund or credit was approved.
33-24 Sec. 5.704. NOTICE OF CHANGE IN PAYMENT PROCEDURE. The
33-25 commission shall promptly notify each person required to pay a
33-26 commission fee under this code or the Health and Safety Code of any
33-27 change in fee payment procedures.
34-1 Sec. 5.705. NOTICE OF VIOLATION. (a) The commission may
34-2 issue a notice of violation to a person required to pay a
34-3 commission fee under this code or the Health and Safety Code for
34-4 knowingly violating reporting requirements or knowingly calculating
34-5 the fee in an amount less than the amount actually due.
34-6 (b) The executive director may modify audit findings
34-7 reported by a commission fee auditor only if the executive director
34-8 provides a written explanation showing good cause for the
34-9 modification.
34-10 Sec. 5.706. PENALTIES AND INTEREST ON DELINQUENT FEES. (a)
34-11 Except as otherwise provided by law, the commission may collect,
34-12 for a delinquent fee due the commission under this code or the
34-13 Health and Safety Code:
34-14 (1) a penalty in an amount equal to five percent of
34-15 the amount of the fee due, if the fee is not paid on or before the
34-16 day on which the fee is due; and
34-17 (2) an additional penalty in an amount equal to five
34-18 percent of the amount due, if the fee is not paid on or before the
34-19 30th day after the date on which the fee was due.
34-20 (b) Unless otherwise required by law interest accrues,
34-21 beginning on the 61st day after the date on which the fee was due,
34-22 on the total amount of fee and penalties that have not been paid on
34-23 or before the 61st day after the date on which the fee was due.
34-24 The yearly interest rate is the rate of interest established for
34-25 delinquent taxes under Section 111.060, Tax Code.
34-26 (c) The executive director may modify a penalty or interest
34-27 on a fee and penalties authorized by this section if the executive
35-1 director provides a written explanation showing good cause for the
35-2 modification.
35-3 (d) Penalties and interest collected by the commission under
35-4 this section or under other law, unless that law otherwise
35-5 provides, shall be deposited to the credit of the fund or account
35-6 to which the fee is required to be deposited.
35-7 Sec. 5.707. TRANSFERABILITY OF APPROPRIATIONS AND FUNDS
35-8 DERIVED FROM FEES. Notwithstanding any law that provides specific
35-9 purposes for which a fund, account, or revenue source may be used
35-10 and expended by the commission and that restricts the use of
35-11 revenues and balances by the commission, the commission may
35-12 transfer a percentage of appropriations from one appropriation item
35-13 to another appropriation item consistent with the General
35-14 Appropriations Act for any biennium authorizing the commission to
35-15 transfer a percentage of appropriations from one appropriation item
35-16 to another appropriation item. The use of funds in dedicated
35-17 accounts under this section for purposes in addition to those
35-18 provided by statutes restricting their use may not exceed seven
35-19 percent or $20 million, whichever is less, of appropriations to the
35-20 commission in the General Appropriations Act for any biennium. A
35-21 transfer of $500,000 or more from one appropriation item to another
35-22 appropriation item under this section must be approved by the
35-23 commission at an open meeting subject to Chapter 551, Government
35-24 Code.
35-25 Sec. 5.708. PERMIT FEE EXEMPTION FOR CERTAIN RESEARCH
35-26 PROJECTS. (a) In this section:
35-27 (1) "Institution of higher education" has the meaning
36-1 assigned by Section 61.003, Education Code.
36-2 (2) "State agency" has the meaning assigned by Section
36-3 572.002, Government Code.
36-4 (b) If a permit issued by the commission is required for a
36-5 research project by an institution of higher education or a state
36-6 agency, payment of a fee is not required for the permit.
36-7 SECTION 3.04. Section 26.0291, Water Code, is amended to read
36-8 as follows:
36-9 Sec. 26.0291. WATER QUALITY [WASTE TREATMENT INSPECTION]
36-10 FEE. (a) An annual water quality [waste treatment inspection] fee
36-11 is imposed on:
36-12 (1) each wastewater [permittee for each waste]
36-13 discharge permit holder for each wastewater discharge permit held;
36-14 and
36-15 (2) each user of water in proportion to the user's
36-16 water right, through permit or contract, as reflected in the
36-17 commission's records, provided that the commission by rule shall
36-18 ensure that no fee shall be assessed for the portion of a municipal
36-19 or industrial water right directly associated with a facility or
36-20 operation for which a fee is assessed under Subdivision (1) of this
36-21 subsection [by the permittee].
36-22 (b) The fee is to supplement any other funds available to
36-23 pay expenses of the commission related to:
36-24 (1) [in] inspecting waste treatment facilities; and
36-25 (2) enforcing the laws of the state and the rules of
36-26 the commission governing:
36-27 (A) waste discharge and waste treatment
37-1 facilities, including any expenses [of the commission] necessary
37-2 [to obtain from the federal government delegation of and] to
37-3 administer the national pollutant discharge elimination system
37-4 (NPDES) program;
37-5 (B) the water resources of this state, including
37-6 the water quality management programs under Section 26.0135; and
37-7 (C) any other water resource management programs
37-8 reasonably related to the activities of the persons required to pay
37-9 a fee under this section.
37-10 (c) The fee for each year is imposed on each permit or water
37-11 right in effect during any part of the year. The commission may
37-12 establish reduced fees for inactive permits.
37-13 (d) Irrigation water rights are not subject to a fee under
37-14 this section.
37-15 (e) [(b)] The commission by rule shall adopt a fee schedule
37-16 for determining the amount of the fee to be charged. The amount of
37-17 the fee may not exceed $75,000 [$25,000] for each [waste discharge]
37-18 permit or contract [held by a permittee]. The maximum annual fee
37-19 under this section for a wastewater discharge or waste treatment
37-20 facility that holds a water right for the use of water by the
37-21 facility may not exceed $75,000. In determining the amount of a
37-22 fee under this section, the commission may consider:
37-23 (1) waste discharge permitting factors such as flow
37-24 volume, toxic pollutant potential, level of traditional pollutant,
37-25 and heat load;
37-26 (2) [. The commission may consider] the designated
37-27 uses and segment ranking classification of the water affected by
38-1 discharges from the permitted facility;
38-2 (3) [. Finally, the commission also may consider] the
38-3 expenses necessary to obtain and administer the NPDES program;
38-4 (4) the reasonable costs of administering the water
38-5 quality management programs under Section 26.0135; and
38-6 (5) any other reasonable costs necessary to administer
38-7 and enforce a water resource management program reasonably related
38-8 to the activities of the persons required to pay a fee under this
38-9 section. [The commission shall not adopt any rule designed to
38-10 increase the fee imposed under this section on a treatment works
38-11 owned by a local government, as those terms are defined in Section
38-12 26.001 of this code, before August 31, 1999.]
38-13 (f) [(c)] The fees collected under this section shall be
38-14 deposited to the credit of the water resource management account,
38-15 an account in the general revenue fund.
38-16 (g) [(d)] The commission may adopt rules necessary to
38-17 administer this section.
38-18 (h) [(e)] A fee collected under this section is in addition
38-19 to any other fee that may be charged under this chapter.
38-20 SECTION 3.05. Section 26.0135(h), Water Code, is amended to
38-21 read as follows:
38-22 (h) The commission shall apportion, assess, and recover the
38-23 reasonable costs of administering the water quality management
38-24 programs under this section [from users of water and wastewater
38-25 permit holders in the watershed according to the records of the
38-26 commission generally in proportion to their right, through permit
38-27 or contract, to use water from and discharge wastewater in the
39-1 watershed. Irrigation water rights will not be subject to this
39-2 assessment]. The cost to river authorities and others to conduct
39-3 water quality monitoring and assessment shall be subject to prior
39-4 review and approval by the commission as to methods of allocation
39-5 and total amount to be recovered. The commission shall adopt rules
39-6 to supervise and implement the water quality monitoring,
39-7 assessment, and associated costs. The rules shall ensure that
39-8 water users and wastewater dischargers do not pay excessive
39-9 amounts, [that program funds are equitably apportioned among
39-10 basins,] that a river authority may recover no more than the actual
39-11 costs of administering the water quality management programs called
39-12 for in this section, and that no municipality shall be assessed the
39-13 cost for any efforts under this section that duplicate water
39-14 quality management activities described in Section 26.177 of this
39-15 chapter. [The rules concerning the apportionment and assessment of
39-16 reasonable costs shall provide for a recovery of not more than
39-17 $5,000,000 annually. Costs recovered by the commission are to be
39-18 deposited to the credit of the water resource management account
39-19 and may be used only to accomplish the purposes of this section.
39-20 The commission may apply not more than 10 percent of the costs
39-21 recovered annually toward the commission's overhead costs for the
39-22 administration of this section and the implementation of regional
39-23 water quality assessments. The commission, with the assistance and
39-24 input of each river authority, shall file a written report
39-25 accounting for the costs recovered under this section with the
39-26 governor, the lieutenant governor, and the speaker of the house of
39-27 representatives on or before December 1 of each even-numbered
40-1 year.]
40-2 SECTION 3.06. Section 26.0135(j), Water Code, is repealed.
40-3 SECTION 3.07. Section 341.041(a), Health and Safety Code, is
40-4 amended to read as follows:
40-5 (a) The commission by rule may charge fees to a person who
40-6 owns, operates, or maintains a public drinking water supply system
40-7 [to recover the costs of public drinking water supply system
40-8 programs or services authorized by this subchapter or performed
40-9 pursuant to the requirements of the federal Safe Drinking Water Act
40-10 (42 U.S.C. Section 300f et seq.)]. The commission may establish a
40-11 schedule of fees. The amount of the fees must be sufficient to
40-12 cover [may not exceed] the reasonable costs of administering the
40-13 programs and services in this subchapter or the federal Safe
40-14 Drinking Water Act (42 U.S.C. Section 300f et seq.). Among other
40-15 factors, the commission shall consider equity among persons
40-16 required to pay the fees as a factor in determining the amount of
40-17 the fees. The commission may also use the fees to cover any other
40-18 costs incurred to protect water resources in this state, including
40-19 assessment of water quality, reasonably related to the activities
40-20 of any of the persons required to pay a fee under the statutes
40-21 listed in Section 5.701(q), Water Code.
40-22 SECTION 3.08. Section 366.058(a), Health and Safety Code, is
40-23 amended to read as follows:
40-24 (a) The commission by rule shall establish and collect a
40-25 reasonable permit fee to cover the cost of issuing permits under
40-26 this chapter and administering the permitting system. The
40-27 commission may also use the fee to cover any other costs incurred
41-1 to protect water resources in this state, including assessment of
41-2 water quality, reasonably related to the activities of any of the
41-3 persons required to pay a fee under the statutes listed in Section
41-4 5.701(q), Water Code.
41-5 SECTION 3.09. Section 366.059, Health and Safety Code, is
41-6 amended by amending Subsection (b) and adding Subsection (d) to
41-7 read as follows:
41-8 (b) The commission may assess a reasonable and appropriate
41-9 charge-back fee, not to exceed $500, to a local governmental entity
41-10 for which the commission issues permits for administrative costs
41-11 relating to the permitting function that are not covered by the
41-12 permit fees collected. The commission shall base the amount of a
41-13 charge-back fee under this subsection on the actual cost of issuing
41-14 a permit under this section. The commission may assess a
41-15 charge-back fee to a local governmental entity under this
41-16 subsection if the local governmental entity is an authorized agent
41-17 that:
41-18 (1) has repealed the order, ordinance, or resolution
41-19 that established the entity as an authorized agent; or
41-20 (2) has had its authorization as an authorized agent
41-21 revoked by the commission.
41-22 (d) The commission may not assess a charge-back fee to a
41-23 local governmental entity if the local governmental entity has
41-24 repealed the order, ordinance, or resolution that established the
41-25 entity as an authorized agent or has lost its designation as an
41-26 authorized agent due to material change in the commission's rules
41-27 under this chapter.
42-1 SECTION 3.10. Section 13.187(a), Water Code, is amended to
42-2 read as follows:
42-3 (a) A utility may not make changes in its rates except by
42-4 delivering a statement of intent to each ratepayer and with the
42-5 regulatory authority having original jurisdiction at least 60 [30]
42-6 days before the effective date of the proposed change. The
42-7 effective date of the new rates must be the first day of a billing
42-8 period, and the new rates may not apply to service received before
42-9 the effective date of the new rates. The statement of intent must
42-10 include the information required by the regulatory authority's
42-11 rules. A copy of the statement of intent shall be mailed or
42-12 delivered to the appropriate offices of each affected municipality,
42-13 and to any other affected persons as required by the regulatory
42-14 authority's rules. When the statement of intent is delivered, the
42-15 utility shall file with the regulatory authority an application to
42-16 change rates. The application must include information the
42-17 regulatory authority requires by rule. If the utility fails to
42-18 provide within a reasonable time after the application is filed the
42-19 necessary documentation or other evidence that supports the costs
42-20 and expenses that are shown in the application, the regulatory
42-21 authority may disallow the nonsupported expenses. If the
42-22 application or the statement of intent is not substantially
42-23 complete or does not comply with the regulatory authority's rules,
42-24 it may be rejected and the effective date of the rate change may be
42-25 suspended until a properly completed application is accepted by the
42-26 regulatory authority and a proper statement of intent is provided.
42-27 The commission may also suspend the effective date of any rate
43-1 change if the utility does not have a certificate of public
43-2 convenience and necessity or a completed application for a
43-3 certificate or to transfer a certificate pending before the
43-4 commission or if the utility is delinquent in paying the assessment
43-5 and any applicable penalties or interest required by Section
43-6 5.701(n) [5.235(n)] of this code.
43-7 ARTICLE 4. PERFORMANCE-BASED REGULATION
43-8 SECTION 4.01. Chapter 5, Water Code, is amended by adding
43-9 Subchapter Q to read as follows:
43-10 SUBCHAPTER Q. PERFORMANCE-BASED REGULATION
43-11 Sec. 5.751. APPLICABILITY. This subchapter applies to
43-12 programs under the jurisdiction of the commission under Chapters 26
43-13 and 27 of this code and Chapters 361, 382, and 401, Health and
43-14 Safety Code. It does not apply to occupational licensing programs
43-15 under the jurisdiction of the commission.
43-16 Sec. 5.752. DEFINITIONS. In this subchapter:
43-17 (1) "Applicable legal requirement" means an
43-18 environmental law, regulation, permit, order, consent, decree, or
43-19 other requirement.
43-20 (2) "Innovative program" means:
43-21 (A) a program developed by the commission under
43-22 this subchapter, Chapter 26 or 27 of this code, or Chapter 361,
43-23 382, or 401, Health and Safety Code, that provides incentives to a
43-24 person in return for benefits to the environment that exceed
43-25 benefits that would result from compliance with applicable legal
43-26 requirements under the commission's jurisdiction;
43-27 (B) the flexible permit program administered by
44-1 the commission under Chapter 382, Health and Safety Code; or
44-2 (C) the regulatory flexibility program
44-3 administered by the commission under Section 5.758.
44-4 (3) "Permit" includes a license, certificate,
44-5 registration, approval, permit by rule, standard permit, or other
44-6 form of authorization issued by the commission under this code or
44-7 the Health and Safety Code.
44-8 (4) "Region" means a region of the commission's field
44-9 operations division or that division's successor.
44-10 (5) "Strategically directed regulatory structure"
44-11 means a program that is designed to use innovative programs to
44-12 provide maximum environmental benefit and to reward compliance
44-13 performance.
44-14 Sec. 5.753. STANDARD FOR EVALUATING COMPLIANCE HISTORY. (a)
44-15 Consistent with other law and the requirements necessary to
44-16 maintain federal program authorization, the commission by rule
44-17 shall develop a uniform standard for evaluating compliance history.
44-18 (b) The components of compliance history must include:
44-19 (1) enforcement orders, court judgments, consent
44-20 decrees, and criminal convictions of this state and the federal
44-21 government relating to compliance with applicable legal
44-22 requirements under the jurisdiction of the commission or the United
44-23 States Environmental Protection Agency;
44-24 (2) notwithstanding any other provision of this code,
44-25 orders issued under Section 7.070;
44-26 (3) to the extent readily available to the commission,
44-27 enforcement orders, court judgments, and criminal convictions
45-1 relating to violations of environmental laws of other states; and
45-2 (4) changes in ownership.
45-3 (c) The set of components must also include any information
45-4 required by other law or any requirement necessary to maintain
45-5 federal program authorization.
45-6 (d) The set of components shall include notices of
45-7 violations. A notice of violation administratively determined to
45-8 be without merit shall not be included in a compliance history. A
45-9 notice of violation that is included in a compliance history shall
45-10 be removed from the compliance history if the commission
45-11 subsequently determines the notice of violation to be without
45-12 merit.
45-13 (e) Except as required by other law or any requirement
45-14 necessary to maintain federal program authorization, the commission
45-15 by rule shall establish a period for compliance history.
45-16 Sec. 5.754. CLASSIFICATION AND USE OF COMPLIANCE HISTORY.
45-17 (a) The commission by rule shall establish a set of standards for
45-18 the classification of a person's compliance history.
45-19 (b) Rules adopted under this section must, at a minimum,
45-20 provide for three classifications of compliance history in a manner
45-21 adequate to distinguish among:
45-22 (1) poor performers, or regulated entities that in the
45-23 commission's judgment perform below average;
45-24 (2) average performers, or regulated entities that
45-25 generally comply with environmental regulations; and
45-26 (3) high performers, or regulated entities that have
45-27 an above-average compliance record.
46-1 (c) In classifying a person's compliance history, the
46-2 commission shall:
46-3 (1) determine whether a violation of an applicable
46-4 legal requirement is of major, moderate, or minor significance;
46-5 (2) establish criteria for classifying a repeat
46-6 violator, giving consideration to the number and complexity of
46-7 facilities owned or operated by the person; and
46-8 (3) consider the significance of the violation and
46-9 whether the person is a repeat violator.
46-10 (d) The commission by rule shall establish methods of
46-11 assessing the compliance history of regulated entities for which it
46-12 does not have adequate compliance information. The methods may
46-13 include requiring a compliance inspection to determine an entity's
46-14 eligibility for participation in a program that requires a high
46-15 level of compliance.
46-16 (e) The commission by rule shall provide for the use of
46-17 compliance history classifications in commission decisions
46-18 regarding:
46-19 (1) the issuance, renewal, amendment, modification,
46-20 denial, suspension, or revocation of a permit;
46-21 (2) enforcement;
46-22 (3) the use of announced inspections; and
46-23 (4) participation in innovative programs.
46-24 (f) The assessment methods shall specify the circumstances
46-25 in which the commission may revoke the permit of a repeat violator
46-26 and shall establish enhanced administrative penalties for repeat
46-27 violators.
47-1 (g) Rules adopted under Subsection (e) for the use of
47-2 compliance history shall provide for additional oversight of, and
47-3 review of applications regarding, facilities owned or operated by a
47-4 person whose compliance performance is in the lowest classification
47-5 developed under this section.
47-6 (h) The commission by rule shall, at a minimum, prohibit a
47-7 person whose compliance history is classified in the lowest
47-8 classification developed under this section from:
47-9 (1) receiving an announced inspection; and
47-10 (2) obtaining or renewing a flexible permit under the
47-11 program administered by the commission under Chapter 382, Health
47-12 and Safety Code, or participating in the regulatory flexibility
47-13 program administered by the commission under Section 5.758.
47-14 (i) The commission shall consider the compliance history of
47-15 a regulated entity when determining whether to grant the regulated
47-16 entity's application for a permit or permit amendment for any
47-17 activity under the commission's jurisdiction to which this
47-18 subchapter applies. Notwithstanding any provision of this code or
47-19 the Health and Safety Code relating to the granting of permits or
47-20 permit amendments by the commission, the commission, after an
47-21 opportunity for a hearing, shall deny a regulated entity's
47-22 application for a permit or permit amendment if the regulated
47-23 entity's compliance history is unacceptable based on violations
47-24 constituting a recurring pattern of conduct that demonstrates a
47-25 consistent disregard for the regulatory process, including a
47-26 failure to make a timely and substantial attempt to correct the
47-27 violations.
48-1 Sec. 5.755. STRATEGICALLY DIRECTED REGULATORY STRUCTURE.
48-2 (a) The commission by rule shall develop a strategically directed
48-3 regulatory structure to provide incentives for enhanced
48-4 environmental performance.
48-5 (b) The strategically directed regulatory structure shall
48-6 offer incentives based on:
48-7 (1) a person's compliance history classification;
48-8 and
48-9 (2) any voluntary measures undertaken by the person to
48-10 improve environmental quality.
48-11 (c) An innovative program offered as part of the
48-12 strategically directed regulatory structure must be consistent with
48-13 other law and any requirement necessary to maintain federal program
48-14 authorization.
48-15 Sec. 5.756. COLLECTION AND ANALYSIS OF COMPLIANCE
48-16 PERFORMANCE INFORMATION. (a) The commission shall collect data
48-17 on:
48-18 (1) the results of inspections conducted by the
48-19 commission; and
48-20 (2) whether inspections are announced or unannounced.
48-21 (b) The commission shall collect data on and make available
48-22 to the public on the Internet:
48-23 (1) the number and percentage of all violations
48-24 committed by persons who previously have committed the same or
48-25 similar violations;
48-26 (2) the number and percentage of enforcement orders
48-27 issued by the commission that are issued to entities that have been
49-1 the subject of a previous enforcement order;
49-2 (3) whether a violation is of major, moderate, or
49-3 minor significance, as defined by commission rule;
49-4 (4) whether a violation relates to an applicable legal
49-5 requirement pertaining to air, water, or waste; and
49-6 (5) the region in which the facility is located.
49-7 (c) The commission annually shall prepare a comparative
49-8 analysis of data evaluating the performance, over time, of the
49-9 commission and of entities regulated by the commission.
49-10 (d) The commission shall include in the annual enforcement
49-11 report required by Section 5.123, as added by Chapters 304 and
49-12 1082, Acts of the 75th Legislature, Regular Session, 1997, the
49-13 comparative performance analysis required by Subsection (c),
49-14 organized by region and regulated medium.
49-15 Sec. 5.757. COORDINATION OF INNOVATIVE PROGRAMS. (a) The
49-16 commission shall designate a single point of contact within the
49-17 agency to coordinate all innovative programs.
49-18 (b) The coordinator shall:
49-19 (1) inventory, coordinate, and market and evaluate all
49-20 innovative programs;
49-21 (2) provide information and technical assistance to
49-22 persons participating in or interested in participating in those
49-23 programs; and
49-24 (3) work with the pollution prevention advisory
49-25 committee to assist the commission in integrating the innovative
49-26 programs into the commission's operations, including:
49-27 (A) program administration;
50-1 (B) strategic planning; and
50-2 (C) staff training.
50-3 SECTION 4.02. Section 5.123, Water Code, as added by Chapter
50-4 1203, Acts of the 75th Legislature, Regular Session, 1997, is
50-5 transferred to new Subchapter Q, Chapter 5, Water Code,
50-6 redesignated as Section 5.758, and amended to read as follows:
50-7 Sec. 5.758 [5.123]. REGULATORY FLEXIBILITY. (a) The
50-8 commission by order may exempt an applicant from a requirement of a
50-9 statute or commission rule regarding the control or abatement of
50-10 pollution if the applicant proposes to control or abate pollution
50-11 by an alternative method or by applying an alternative standard
50-12 that is:
50-13 (1) more [at least as] protective of the environment
50-14 and the public health than [as] the method or standard prescribed
50-15 by the statute or commission rule that would otherwise apply; and
50-16 (2) not inconsistent with federal law.
50-17 (b) The commission may not exempt an applicant under this
50-18 section unless the applicant can present to the commission
50-19 documented evidence of benefits to environmental quality that will
50-20 result from the project the applicant proposes.
50-21 (c) The commission by rule shall specify the procedure for
50-22 obtaining an exemption under this section. The rules must provide
50-23 for public notice and for public participation in a proceeding
50-24 involving an application for an exemption under this section.
50-25 (d) [(c)] The commission's order must provide a specific
50-26 description of the alternative method or standard and condition the
50-27 exemption on compliance with the method or standard as the order
51-1 prescribes.
51-2 (e) [(d)] The commission by rule may establish a reasonable
51-3 fee for applying for an exemption under this section.
51-4 (f) [(e)] A violation of an order issued under this section
51-5 is punishable as if it were a violation of the statute or rule from
51-6 which the order grants an exemption.
51-7 [(f) A permit may satisfy a requirement to demonstrate need
51-8 by showing need on a regional basis considering economic impacts.]
51-9 (g) This section does not authorize exemptions to statutes
51-10 or regulations for storing, handling, processing, or disposing of
51-11 low-level radioactive materials.
51-12 (h) In implementing the program of regulatory flexibility
51-13 authorized by this section, the commission shall:
51-14 (1) market the program to businesses in the state
51-15 through all available appropriate media;
51-16 (2) endorse alternative methods that will clearly
51-17 benefit the environment and impose the least onerous restrictions
51-18 on business;
51-19 (3) fix and enforce environmental standards, allowing
51-20 businesses flexibility in meeting the standards in a manner that
51-21 clearly enhances environmental outcomes; and
51-22 (4) work to achieve consistent and predictable results
51-23 for the regulated community and shorter waits for permit issuance.
51-24 SECTION 4.03. Section 7.067(a), Water Code, is amended to
51-25 read as follows:
51-26 (a) The commission may compromise, modify, or remit, with or
51-27 without conditions, an administrative penalty imposed under this
52-1 subchapter. In determining the appropriate amount of a penalty for
52-2 settlement of an administrative enforcement matter, the commission
52-3 may consider a respondent's willingness to contribute to
52-4 supplemental environmental projects that are approved by the
52-5 commission, giving preference to projects that benefit the
52-6 community in which the alleged violation occurred. The commission
52-7 may approve a supplemental environmental project with activities in
52-8 territory of the United Mexican States if the project substantially
52-9 benefits territory in this state in a manner described by
52-10 Subsection (b). The commission may not approve a project that is
52-11 necessary to bring a respondent into compliance with environmental
52-12 laws, [or] that is necessary to remediate environmental harm caused
52-13 by the respondent's alleged violation, or that the respondent has
52-14 already agreed to perform under a preexisting agreement with a
52-15 governmental agency.
52-16 SECTION 4.04. Section 361.0215, Health and Safety Code, is
52-17 amended to read as follows:
52-18 Sec. 361.0215. POLLUTION PREVENTION [WASTE REDUCTION]
52-19 ADVISORY COMMITTEE. (a) The pollution prevention [waste reduction]
52-20 advisory committee is composed of nine members with a balanced
52-21 representation of environmental and public interest groups and the
52-22 regulated community.
52-23 (b) The committee shall advise the commission and
52-24 interagency coordination council on:
52-25 (1) the appropriate organization of state agencies and
52-26 the financial and technical resources required to aid the state in
52-27 its efforts to promote waste reduction and minimization;
53-1 (2) the development of public awareness programs to
53-2 educate citizens about hazardous waste and the appropriate disposal
53-3 of hazardous waste and hazardous materials that are used and
53-4 collected by households;
53-5 (3) the provision of technical assistance to local
53-6 governments for the development of waste management strategies
53-7 designed to assist small quantity generators of hazardous waste;
53-8 and
53-9 (4) other possible programs to more effectively
53-10 implement the state's hierarchy of preferred waste management
53-11 technologies as set forth in Section 361.023(a).
53-12 (c) The committee shall advise the commission on the
53-13 creation and implementation of the strategically directed
53-14 regulatory structure developed under Section 5.755, Water Code.
53-15 (d) The committee shall report quarterly to the commission
53-16 on its activities, including suggestions or proposals for future
53-17 activities and other matters the committee considers important.
53-18 SECTION 4.05. Section 361.088, Health and Safety Code, is
53-19 amended by adding Subsection (g) to read as follows:
53-20 (g) The commission shall review a permit issued under this
53-21 chapter every five years to assess the permit holder's compliance
53-22 history.
53-23 ARTICLE 5. REGULATION OF AIR POLLUTION
53-24 SECTION 5.01. (a) Subchapter B, Chapter 382, Health and
53-25 Safety Code, is amended by adding Sections 382.0215 and 382.0216 to
53-26 read as follows:
53-27 Sec. 382.0215. ASSESSMENT OF EMISSIONS DUE TO EMISSIONS
54-1 EVENTS. (a) In this section, "emissions event" means an upset, or
54-2 unscheduled maintenance, startup, or shutdown activity, that
54-3 results in the unauthorized emissions of air contaminants from an
54-4 emissions point. Maintenance, startup, and shutdown activities
54-5 shall not be considered unscheduled only if the activity will not
54-6 and does not result in the emission of at least a reportable
54-7 quantity of unauthorized emissions of air contaminants and the
54-8 activity is recorded as may be required by commission rule, or if
54-9 the activity will result in the emission of at least a reportable
54-10 quantity of unauthorized emissions and:
54-11 (1) the owner or operator of the facility provides any
54-12 prior notice or final report that the commission, by rule, may
54-13 establish;
54-14 (2) the notice or final report includes the
54-15 information required in Subsection (b)(3); and
54-16 (3) the actual emissions do not exceed the estimates
54-17 submitted in the notice.
54-18 (b) The commission shall require the owner or operator of a
54-19 facility that experiences emissions events:
54-20 (1) to maintain a record of all emissions events at
54-21 the facility in the manner and for the periods prescribed by
54-22 commission rule;
54-23 (2) to notify the commission, as soon as practicable
54-24 but not later than 24 hours after discovery of the emissions event,
54-25 of an emissions event resulting in the emission of a reportable
54-26 quantity of air contaminants as determined by commission rule; and
54-27 (3) to report to the commission, not later than two
55-1 weeks after the occurrence of an emissions event that results in
55-2 the emission of a reportable quantity of air contaminants as
55-3 determined by commission rule, all information necessary to
55-4 evaluate the emissions event, including:
55-5 (A) the name of the owner or operator of the
55-6 reporting facility;
55-7 (B) the location of the reporting facility;
55-8 (C) the date and time the emissions began;
55-9 (D) the duration of the emissions;
55-10 (E) the nature and measured or estimated
55-11 quantity of air contaminants emitted, including the method of
55-12 calculation of, or other basis for determining, the quantity of air
55-13 contaminants emitted;
55-14 (F) the processes and equipment involved in the
55-15 emissions event;
55-16 (G) the cause of the emissions; and
55-17 (H) any additional information necessary to
55-18 evaluate the emissions event.
55-19 (c) The owner or operator of a boiler or combustion turbine
55-20 fueled by natural gas, coal, lignite, wood, or fuel oil containing
55-21 hazardous air pollutants at concentrations of less than 0.02
55-22 percent by weight that is equipped with a continuous emission
55-23 monitoring system that completes a minimum of one cycle per
55-24 operation (sampling, analyzing, and data recording) for each
55-25 successive 15-minute interval who is required to submit excess
55-26 emission reports by other state or federal regulations, shall, by
55-27 commission rule, be allowed to submit information from that
56-1 monitoring system to meet the requirements under Subsection (b)(3)
56-2 so long as the notice submitted under Subsection (b)(2) contains
56-3 the information required under Subsection (b)(3). Such excess
56-4 emission reports shall satisfy the recordkeeping requirements of
56-5 Subsection (b)(1) so long as the information in such reports meets
56-6 commission requirements. This subsection does not require the
56-7 commission to revise the reportable quantity for boilers and
56-8 combustion turbines.
56-9 (d) The commission shall centrally track emissions events
56-10 and collect information relating to:
56-11 (1) inspections or enforcement actions taken by the
56-12 commission in response to emissions events; and
56-13 (2) the number of emissions events occurring in each
56-14 commission region and the quantity of emissions from each emissions
56-15 event.
56-16 (e) The commission shall develop the capacity for electronic
56-17 reporting and shall incorporate reported emissions events into a
56-18 permanent centralized database for emissions events. The commission
56-19 shall develop a mechanism whereby the reporting entity shall be
56-20 allowed to review the information relative to its reported
56-21 emissions events prior to such information being included in the
56-22 database. The database shall be accessible to the public. The
56-23 commission shall evaluate information in the database to identify
56-24 persons who repeatedly fail to report reportable emissions events.
56-25 The commission shall enforce against such persons pursuant to
56-26 Section 382.0216(i). The commission shall describe such
56-27 enforcement actions in the report required in Subsection (g).
57-1 (f) An owner or operator of a facility required by Section
57-2 382.014 to submit an annual emissions inventory report and which
57-3 has experienced no emissions events during the relevant year must
57-4 include as part of the inventory a statement that the facility
57-5 experienced no emissions events during the prior year. An owner or
57-6 operator of a facility required by Section 382.014 to submit an
57-7 annual emissions inventory report must include the total annual
57-8 emissions from all emissions events in categories as established by
57-9 commission rule.
57-10 (g) The commission annually shall assess the information
57-11 received under this section, including actions taken by the
57-12 commission in response to the emissions events, and shall include
57-13 the assessment in the report required by Section 5.123, Water Code,
57-14 as added by Chapters 304 and 1082, Acts of the 75th Legislature,
57-15 Regular Session, 1997.
57-16 Sec. 382.0216. REGULATION OF EMISSIONS EVENTS. (a) In this
57-17 section, "emissions event" has the meaning assigned by Section
57-18 382.0215.
57-19 (b) The commission shall establish criteria for determining
57-20 when emissions events are excessive. The criteria must include
57-21 consideration of:
57-22 (1) the frequency of the facility's emissions events;
57-23 (2) the cause of the emissions event;
57-24 (3) the quantity and impact on human health or the
57-25 environment of the emissions event;
57-26 (4) the duration of the emissions event;
57-27 (5) the percentage of a facility's total annual
58-1 operating hours during which emissions events occur; and
58-2 (6) the need for startup, shutdown, and maintenance
58-3 activities.
58-4 (c) The commission shall require a facility to take action
58-5 to reduce emissions from excessive emissions events. Consistent
58-6 with commission rules, a facility required to take action under
58-7 this subsection must either file a corrective action plan or file a
58-8 letter of intent to obtain authorization for emissions from the
58-9 excessive emissions events, provided that the emissions are
58-10 sufficiently frequent, quantifiable, and predictable. If the
58-11 intended authorization is a permit, a permit application shall be
58-12 filed within 120 days of the filing of the letter of intent. If
58-13 the intended authorization is a permit by rule or standard
58-14 exemption, the authorization must be obtained within 120 days of
58-15 the filing of the letter of intent. If the commission denies the
58-16 requested authorization, within 45 days of receiving notice of the
58-17 commission's denial, the facility shall file a corrective action
58-18 plan to reduce emissions from the excessive emissions events.
58-19 (d) A corrective action plan filed under Subsection (c) must
58-20 identify the cause or causes of each emissions event, specify the
58-21 control devices or other measures that are reasonably designed to
58-22 prevent or minimize similar emissions events in the future, and
58-23 specify a time within which the corrective action plan will be
58-24 implemented. A corrective action plan must be approved by the
58-25 commission. A corrective action plan shall be deemed approved 45
58-26 days after filing, if the commission has not disapproved the plan;
58-27 however, an owner or operator may request affirmative commission
59-1 approval, in which case the commission must take final written
59-2 action to approve or disapprove the plan within 120 days. An
59-3 approved corrective action plan shall be made available to the
59-4 public by the commission, except to the extent information in the
59-5 plan is confidential information protected under Chapter 552,
59-6 Government Code. The commission shall establish reasonable
59-7 schedules for the implementation of corrective action plans and
59-8 procedures for revision of a corrective action plan if the
59-9 commission finds the plan, after implementation begins, to be
59-10 inadequate to meet the goal of preventing or minimizing emissions
59-11 and emissions events. The implementation schedule shall be
59-12 enforceable by the commission.
59-13 (e) The rules may not exclude from the requirement to submit
59-14 a corrective action plan emissions events resulting from the lack
59-15 of preventive maintenance or from operator error, or emissions that
59-16 are a part of a recurring pattern of emissions events indicative of
59-17 inadequate design or operation.
59-18 (f) The commission by rule may establish an affirmative
59-19 defense to a commission enforcement action if the emissions event
59-20 meets criteria defined by commission rule. In establishing rules
59-21 under this subsection, the commission at a minimum must require
59-22 consideration of the factors listed in Subsections (b)(1)-(6).
59-23 (g) The burden of proof in any claim of a defense to
59-24 commission enforcement action for an emissions event is on the
59-25 person claiming the defense.
59-26 (h) A person may not claim an affirmative defense to a
59-27 commission enforcement action if the person failed to take
60-1 corrective action under a corrective action plan approved by the
60-2 commission within the time prescribed by the commission and an
60-3 emissions event recurs because of that failure.
60-4 (i) In the event the owner or operator of a facility fails
60-5 to report an emissions event, the commission shall initiate
60-6 enforcement for such failure to report and for the underlying
60-7 emissions event itself. This subsection does not apply where an
60-8 owner or operator reports an emissions event and the report was
60-9 incomplete, inaccurate, or untimely unless the owner or operator
60-10 knowingly or intentionally falsified the information in the report.
60-11 (j) The commission shall account for and consider chronic
60-12 excessive emissions events and emissions events for which the
60-13 commission has initiated enforcement in the manner set forth by the
60-14 commission in its review of an entity's compliance history.
60-15 (b) The Texas Natural Resource Conservation Commission shall
60-16 implement all technical and equipment changes necessary for
60-17 compliance with Sections 382.0215(d) and (e), Health and Safety
60-18 Code, as added by this Act, not later than January 1, 2003. After
60-19 implementation of the necessary technical and equipment changes,
60-20 the Texas Natural Resource Conservation Commission by rule shall
60-21 require reporting of reportable emissions events to the centralized
60-22 database, and may exempt businesses considered so small that
60-23 electronic reporting is impracticable.
60-24 SECTION 5.02. Sections 382.051(a) and (b), Health and Safety
60-25 Code, are amended to read as follows:
60-26 (a) The commission may issue a permit:
60-27 (1) to construct a new facility or modify an existing
61-1 facility that may emit air contaminants;
61-2 (2) to operate an existing facility affected by
61-3 Section 382.0518(g) [under a voluntary emissions reduction permit];
61-4 or
61-5 (3) to operate a federal source.
61-6 (b) To assist in fulfilling its authorization provided by
61-7 Subsection (a), the commission may issue:
61-8 (1) special permits for certain facilities;
61-9 (2) a general permit for numerous similar sources
61-10 subject to Section 382.054;
61-11 (3) a standard permit for similar facilities;
61-12 (4) a permit by rule for types of facilities that will
61-13 not significantly contribute air contaminants to the atmosphere;
61-14 (5) a single federal operating permit or
61-15 preconstruction permit for multiple federal sources or facilities
61-16 located at the same site;
61-17 (6) a multiple plant permit for existing facilities at
61-18 multiple locations subject to Section 382.0518 or 382.0519; [or]
61-19 (7) an existing facility permit or existing facility
61-20 flexible permit under Section 382.05183;
61-21 (8) a small business stationary source permit under
61-22 Section 382.05184;
61-23 (9) an electric generating facility permit under
61-24 Section 382.05185 of this code and Section 39.264, Utilities Code;
61-25 (10) a pipeline facilities permit under Section
61-26 382.05186; or
61-27 (11) other permits as necessary.
62-1 SECTION 5.03. Subchapter C, Chapter 382, Health and Safety
62-2 Code, is amended by adding Sections 382.05181-382.05186 to read as
62-3 follows:
62-4 Sec. 382.05181. PERMIT REQUIRED. (a) Any facility affected
62-5 by Section 382.0518(g) that does not have an application pending
62-6 for a permit under this chapter, other than a permit required under
62-7 Section 382.054, and that has not submitted a notice of shutdown
62-8 under Section 382.05182, may not emit air contaminants on or after:
62-9 (1) September 1, 2003, if the facility is located in
62-10 the East Texas region; or
62-11 (2) September 1, 2004, if the facility is located in
62-12 the West Texas region.
62-13 (b) Any facility affected by Section 382.0518(g) that has
62-14 obtained a permit under this chapter, other than a permit under
62-15 Section 382.054, and has not fully complied with the conditions of
62-16 the permit pertaining to the installation of emissions controls or
62-17 reductions in emissions of air contaminants, may not emit air
62-18 contaminants on or after:
62-19 (1) March 1, 2007, if the facility is located in the
62-20 East Texas region; or
62-21 (2) March 1, 2008, if the facility is located in the
62-22 West Texas region.
62-23 (c) The East Texas region:
62-24 (1) contains all counties traversed by or east of
62-25 Interstate Highway 35 north of San Antonio or traversed by or east
62-26 of Interstate Highway 37 south of San Antonio; and
62-27 (2) includes Bexar, Bosque, Coryell, Hood, Parker,
63-1 Somervell, and Wise counties.
63-2 (d) The West Texas region includes all counties not
63-3 contained in the East Texas region.
63-4 (e) The commission promptly shall review each application
63-5 for a permit under this chapter for a facility affected by Section
63-6 382.0518(g). If the commission finds that necessary information is
63-7 omitted from the application, that the application contains
63-8 incorrect information, or that more information is necessary to
63-9 complete the processing of the application, the commission shall
63-10 issue a notice of deficiency and order the information to be
63-11 provided not later than the 60th day after the date the notice is
63-12 issued. If the information is not provided to the commission on or
63-13 before that date, the commission shall dismiss the application.
63-14 (f) The commission shall take final action on an application
63-15 for a permit under this chapter for a facility affected by Section
63-16 382.0518(g) before the first anniversary of the date on which the
63-17 commission receives an administratively complete application.
63-18 (g) An owner or operator of a facility affected by Section
63-19 382.0518(g) that does not obtain a permit within the 12-month
63-20 period may petition the commission for an extension of the time
63-21 period for compliance specified by Subsection (b). The commission
63-22 may grant not more than one extension for a facility, for an
63-23 additional period not to exceed 12 months, if the commission finds
63-24 good cause for the extension.
63-25 (h) A permit application under this chapter for a facility
63-26 affected by Section 382.0518(g) is subject to the notice and
63-27 hearing requirements as provided by Section 382.05191.
64-1 (i) This section does not apply to a facility eligible for a
64-2 permit under Section 382.05184.
64-3 Sec. 382.05182. NOTICE OF SHUTDOWN. (a) Any notice
64-4 submitted in compliance with this section must be filed with the
64-5 commission by the dates in Section 382.05181(a).
64-6 (b) A notice under this section shall include:
64-7 (1) the date the facility intends to cease operating;
64-8 (2) an inventory of the type and amount of emissions
64-9 that will be eliminated when the facility ceases to operate; and
64-10 (3) any other necessary and relevant information the
64-11 commission by rule deems appropriate.
64-12 Sec. 382.05183. EXISTING FACILITY PERMIT. (a) The owner or
64-13 operator of a facility affected by Section 382.0518(g) may apply
64-14 for a permit to operate the facility under this section.
64-15 (b) The commission shall grant a permit under this section
64-16 if, from the information available to the commission, the
64-17 commission finds that the facility will use a control method at
64-18 least as beneficial as that described by Section 382.003(9)(E)(ii),
64-19 considering the age and the remaining useful life of the facility.
64-20 (c) The commission may issue an existing facility flexible
64-21 permit for some or all of the facilities at a site affected by
64-22 Section 382.0518(g) and facilities permitted under Section 382.0519
64-23 in order to implement the requirements of this section. Permits
64-24 issued under this subsection shall follow the same permit issuance,
64-25 modification, and renewal procedures as existing facility permits.
64-26 (d) If the commission finds that the emissions from the
64-27 facility will contravene the standards under Subsection (b) or the
65-1 intent of this chapter, including protection of the public's health
65-2 and physical property, the commission may not grant the permit
65-3 under this section.
65-4 (e) A person planning the modification of a facility
65-5 previously permitted under this section must comply with Section
65-6 382.0518 before modifying.
65-7 (f) The commission may adopt rules as necessary to implement
65-8 and administer this section.
65-9 Sec. 382.05184. SMALL BUSINESS STATIONARY SOURCE PERMIT. (a)
65-10 Facilities affected by Section 382.0518(g) that are located at a
65-11 small business stationary source, as defined by Section
65-12 382.0365(h), and are not required by commission rule to report to
65-13 the commission under Section 382.014 may apply for a permit under
65-14 this section before September 1, 2004.
65-15 (b) Facilities affected by Section 382.0518(g) that are
65-16 located at a small business stationary source that does not have an
65-17 application pending for a permit under this chapter, other than a
65-18 permit required under Section 382.054, and that has not submitted a
65-19 notice of shutdown under Section 382.05182, may not emit air
65-20 contaminants on or after March 1, 2008.
65-21 (c) The commission shall grant a permit under this section
65-22 if, from the information available to the commission, the
65-23 commission finds that there is no indication that the emissions
65-24 from the facility will contravene the intent of this chapter,
65-25 including protection of the public's health and physical property.
65-26 (d) If the commission finds that the emissions from the
65-27 facility will not comply with Subsection (c), the commission may
66-1 not grant the permit under this section.
66-2 (e) A person planning the modification of a facility
66-3 previously permitted under this section must comply with Section
66-4 382.0518 before modifying.
66-5 (f) A permit application under this section is not subject
66-6 to notice and hearing requirements and is not subject to Chapter
66-7 2001, Government Code.
66-8 (g) The commission may adopt rules as necessary to implement
66-9 and administer this section.
66-10 Sec. 382.05185. ELECTRIC GENERATING FACILITY PERMIT. (a)
66-11 An electric generating facility is considered permitted under this
66-12 section with respect to all air contaminants if the facility is:
66-13 (1) a natural-gas-fired electric generating facility
66-14 that has applied for or obtained a permit under Section 39.264,
66-15 Utilities Code; or
66-16 (2) an electric generating facility exempted from
66-17 permitting under Section 39.264(d), Utilities Code.
66-18 (b) A coal-fired electric generating facility that is
66-19 required to obtain a permit under Section 39.264, Utilities Code:
66-20 (1) shall be considered permitted under this section
66-21 with respect to nitrogen oxides, sulphur dioxide, and, as provided
66-22 by commission rules, for opacity if the facility has applied for or
66-23 obtained a permit under Section 39.264, Utilities Code; and
66-24 (2) is not considered permitted for criteria
66-25 pollutants not described by Subsection (b)(1).
66-26 (c) The commission shall issue a permit for a facility
66-27 subject to Subsection (b) for criteria pollutants not covered by
67-1 Subsection (b)(1) if the commission finds that the emissions from
67-2 the facility will not contravene the intent of this chapter,
67-3 including protection of the public's health and physical property.
67-4 Upon request by the applicant, the commission shall include a
67-5 permit application under this subsection with the applicant's
67-6 pending permit application under Section 39.264, Utilities Code.
67-7 (d) The owner or operator of an electric generating facility
67-8 with a permit or an application pending under Section 39.264,
67-9 Utilities Code, may apply for a permit under this section before
67-10 September 1, 2002, for a facility located at the same site if the
67-11 facility not permitted or without a pending application under
67-12 Section 39.264, Utilities Code, is:
67-13 (1) a generator that does not generate electric energy
67-14 for compensation and is used not more than 10 percent of the normal
67-15 annual operating schedule; or
67-16 (2) an auxiliary fossil-fuel-fired combustion facility
67-17 that does not generate electric energy and does not emit more than
67-18 100 tons of any air contaminant annually.
67-19 (e) Emissions from facilities permitted under Subsection (d)
67-20 shall be included in the emission allowance trading program
67-21 established under Section 39.264, Utilities Code. The commission
67-22 may not issue new allowances based on a permit issued under this
67-23 section.
67-24 (f) A person planning the modification of a facility
67-25 previously permitted under this section must comply with Section
67-26 382.0518 before modifying.
67-27 (g) The commission may adopt rules as necessary to implement
68-1 and administer this section.
68-2 (h) A permit application under this section is subject to
68-3 notice and hearing requirements as provided by Section 382.05191.
68-4 (i) For the purposes of this section, a natural-gas-fired
68-5 electric generating facility includes a facility that was designed
68-6 to burn either natural gas or fuel oil of a grade approved by
68-7 commission rule. The commission shall adopt rules regarding
68-8 acceptable fuel oil grades.
68-9 Sec. 382.05186. PIPELINE FACILITIES PERMITS. (a) This
68-10 section applies only to reciprocating internal combustion engines
68-11 that are part of processing, treating, compression, or pumping
68-12 facilities affected by Section 382.0518(g) connected to or part of
68-13 a gathering or transmission pipeline. Pipeline facilities affected
68-14 by Section 382.0518(g) other than reciprocating internal combustion
68-15 engines may apply for an existing facility permit or other
68-16 applicable permit under this chapter other than a pipeline
68-17 facilities permit.
68-18 (b) The commission by rule shall:
68-19 (1) provide for the issuance of a single permit for
68-20 all reciprocating internal combustion facilities connected to or
68-21 part of a gathering or transmission pipeline;
68-22 (2) provide for a means for mandatory emissions
68-23 reductions for facilities permitted under this section to be
68-24 achieved:
68-25 (A) at one source; or
68-26 (B) by averaging reductions among more than one
68-27 reciprocating internal combustion facility connected to or part of
69-1 a gathering or transmission pipeline; and
69-2 (3) allow an owner or operator to apply for separate
69-3 permits under this section for discrete and separate reciprocating
69-4 internal combustion facilities connected to or part of a gathering
69-5 or transmission pipeline.
69-6 (c) If the mandatory emissions reductions under this section
69-7 are to be achieved by averaging reductions among more than one
69-8 source connected to or part of a gathering or transmission
69-9 pipeline, the average may not include emissions reductions achieved
69-10 in order to comply with other state or federal law.
69-11 (d) If the mandatory emissions reductions under this section
69-12 are to be achieved at one source, the reduction may include
69-13 emissions reductions achieved since January 1, 2001, in order to
69-14 comply with other state or federal law.
69-15 (e) The commission shall grant a permit under this section
69-16 for a facility or facilities located in the East Texas region if,
69-17 from information available to the commission, the commission finds
69-18 that the conditions of the permit will require a 50 percent
69-19 reduction of the hourly emissions rate of nitrogen oxides,
69-20 expressed in terms of grams per brake horsepower-hour. The
69-21 commission may also require a 50 percent reduction of the hourly
69-22 emissions rate of volatile organic compounds, expressed in terms of
69-23 grams per brake horsepower-hour.
69-24 (f) The commission shall grant a permit under this section
69-25 for facilities located in the West Texas region if, from
69-26 information available to the commission, the commission finds that
69-27 the conditions of the permit will require up to a 20 percent
70-1 reduction of the hourly emissions rate of nitrogen oxides,
70-2 expressed in terms of grams per brake horsepower-hour. The
70-3 commission may also require up to a 20 percent reduction of the
70-4 hourly emissions rate of volatile organic compounds, expressed in
70-5 terms of grams per brake horsepower-hour.
70-6 (g) A permit application under this section is subject to
70-7 notice and hearing requirements as provided by Section 382.05191.
70-8 (h) A person planning the modification of a facility
70-9 previously permitted under this section must comply with Section
70-10 382.0518 before modifying.
70-11 (i) The commission may adopt rules as necessary to implement
70-12 and administer this section.
70-13 SECTION 5.04. Section 382.05191, Health and Safety Code, is
70-14 amended to read as follows:
70-15 Sec. 382.05191. [VOLUNTARY] EMISSIONS REDUCTION PERMITS
70-16 [PERMIT]: NOTICE AND HEARING. (a) An applicant for a permit under
70-17 Section 382.05183, 382.05185(c) or (d), 382.05186, or 382.0519
70-18 shall publish notice of intent to obtain the permit in accordance
70-19 with Section 382.056.
70-20 (b) The commission may authorize an applicant for a permit
70-21 for a facility that constitutes or is part of a small business
70-22 stationary source as defined in Section 382.0365(h)
70-23 [382.0365(g)(2)] to provide notice using an alternative means if
70-24 the commission finds that the proposed method will result in equal
70-25 or better communication with the public, considering the
70-26 effectiveness of the notice in reaching potentially affected
70-27 persons, cost, and consistency with federal requirements.
71-1 (c) The commission shall provide an opportunity for a public
71-2 hearing and the submission of public comment and send notice of a
71-3 decision on an application for a permit under Section 382.05183,
71-4 382.05185(c) or (d), 382.05186, or 382.0519 in the same manner as
71-5 provided by Sections 382.0561 and 382.0562.
71-6 (d) A person affected by a decision of the commission to
71-7 issue or deny a [voluntary emissions reduction] permit under
71-8 Section 382.05183, 382.05185(c) or (d), or 382.05186 may move for
71-9 rehearing and is entitled to judicial review under Section 382.032.
71-10 SECTION 5.05. Section 382.05192, Health and Safety Code, is
71-11 amended to read as follows:
71-12 Sec. 382.05192. REVIEW AND RENEWAL OF [VOLUNTARY] EMISSIONS
71-13 REDUCTION AND MULTIPLE PLANT PERMITS. Review and renewal of a
71-14 permit issued under Section 382.05183, 382.05185(c) or (d),
71-15 382.05186, 382.0519, or 382.05194 shall be conducted in accordance
71-16 with Section 382.055.
71-17 SECTION 5.06. Section 361.082, Health and Safety Code, is
71-18 amended by adding Subsection (h) to read as follows:
71-19 (h) Nothing in this section limits the authority of the
71-20 commission, consistent with federal law, to issue an order for the
71-21 closure, post-closure care, or other remediation of hazardous waste
71-22 or hazardous waste constituents from a solid waste management unit
71-23 at a solid waste processing, storage, or disposal facility.
71-24 SECTION 5.07. Subchapter C, Chapter 382, Health and Safety
71-25 Code, is amended by adding Section 382.065 to read as follows:
71-26 Sec. 382.065. CERTAIN LOCATIONS FOR CONCRETE CRUSHING
71-27 FACILITY PROHIBITED. (a) The commission by rule shall prohibit the
72-1 location of or operation of a concrete crushing facility within 440
72-2 yards of a building used as a single or multifamily residence,
72-3 school, or place of worship.
72-4 (b) This section does not apply to an existing concrete
72-5 crushing facility.
72-6 SECTION 5.08. (a) Subchapter L, Chapter 5, Water Code, is
72-7 amended by adding Section 5.5145 to read as follows:
72-8 Sec. 5.5145. EMERGENCY ORDER CONCERNING OPERATION OF ROCK
72-9 CRUSHER OR CONCRETE PLANT WITHOUT PERMIT. The commission shall
72-10 issue an emergency order under this subchapter suspending
72-11 operations of a rock crusher or a concrete plant that performs wet
72-12 batching, dry batching, or central mixing and is required to obtain
72-13 a permit under Section 382.0518, Health and Safety Code, and is
72-14 operating without the necessary permit.
72-15 (b) Section 7.052, Water Code, is amended by adding a new
72-16 Subsection (b), relettering existing Subsection (b) as Subsection
72-17 (c), and amending and relettering existing Subsection (c) as
72-18 Subsection (d) to read as follows:
72-19 (b) The amount of the penalty for operating a rock crusher
72-20 or a concrete plant that performs wet batching, dry batching, or
72-21 central mixing, that is required to obtain a permit under Section
72-22 382.0518, Health and Safety Code, and that is operating without the
72-23 required permit is $10,000. Each day that a continuing violation
72-24 occurs is a separate violation.
72-25 (c) The amount of the penalty for all other violations
72-26 within the jurisdiction of the commission to enforce may not exceed
72-27 $10,000 a day for each violation.
73-1 (d) Except as provided by Subsection (b), each [(c) Each]
73-2 day that a continuing violation occurs may be considered a separate
73-3 violation. The commission may authorize an installment payment
73-4 schedule for an administrative penalty assessed under this
73-5 subchapter, except for an administrative penalty assessed under
73-6 Section 7.057 or assessed after a hearing under Section 7.058.
73-7 (c) The changes in law made by Section 5.5145, Water Code,
73-8 as added by this Act, and Section 7.052, Water Code, as amended by
73-9 this Act, apply only to a violation that occurs on or after the
73-10 effective date of this Act. A violation that occurs before that
73-11 date is governed by the law in effect at the time the violation
73-12 occurred, and the former law is continued in effect for that
73-13 purpose.
73-14 ARTICLE 6. ACCREDITATION OF ENVIRONMENTAL TESTING LABORATORIES
73-15 SECTION 6.01. Chapter 421, Health and Safety Code, as added
73-16 by Chapter 447, Acts of the 76th Legislature, Regular Session,
73-17 1999, is transferred to Chapter 5, Water Code, redesignated as
73-18 Subchapter R, and amended to read as follows:
73-19 SUBCHAPTER R [CHAPTER 421]. ACCREDITATION OF
73-20 ENVIRONMENTAL TESTING LABORATORIES
73-21 Sec. 5.801 [421.001]. DEFINITION [DEFINITIONS]. In this
73-22 subchapter, "environmental [chapter:]
73-23 [(1) "Board" means the Texas Board of Health.]
73-24 [(2) "Department" means the Texas Department of
73-25 Health.]
73-26 [(3) "Environmental] testing laboratory" means a
73-27 scientific laboratory that[:]
74-1 [(A)] performs analyses to determine the
74-2 chemical, molecular, or pathogenic components of environmental
74-3 media [drinking water, wastewater, hazardous wastes, soil, or air]
74-4 for regulatory compliance purposes[; and]
74-5 [(B) is either a commercial laboratory or an
74-6 environmental laboratory that is required to be accredited under
74-7 federal law].
74-8 Sec. 5.802 [421.002]. ADMINISTRATION BY COMMISSION
74-9 [DEPARTMENT]. The commission [department] shall adopt rules for the
74-10 administration of [administer] the voluntary environmental testing
74-11 laboratory accreditation program established by this chapter. The
74-12 program must be consistent with national accreditation standards
74-13 approved by the National Environmental Laboratory Accreditation
74-14 Program.
74-15 Sec. 5.803 [421.003]. APPLICATION; FEE. (a) To be
74-16 accredited under the accreditation program adopted under this
74-17 subchapter [chapter], an environmental testing laboratory must
74-18 submit an application to the commission [department] on a form
74-19 prescribed by the commission [department], accompanied by the
74-20 accreditation fee. The application must contain the information
74-21 that the commission [department] requires.
74-22 (b) The commission by rule [board] shall establish a
74-23 schedule of reasonable [an] accreditation fees designed to recover
74-24 the costs of the accreditation program, including the costs
74-25 associated with:
74-26 (1) application review;
74-27 (2) initial, routine, and follow-up inspections by the
75-1 commission; and
75-2 (3) preparation of reports [fee in an amount
75-3 sufficient to defray the cost of administering this chapter].
75-4 Sec. 5.804 [421.004]. ISSUANCE OF ACCREDITATION;
75-5 RECIPROCITY. (a) The commission [department] may accredit an
75-6 environmental testing laboratory that complies with the commission
75-7 requirements established under this subchapter [chapter].
75-8 (b) The commission [board] by rule may provide for the
75-9 accreditation of an environmental testing laboratory that is
75-10 accredited or licensed in [by] another state by an authority that
75-11 is approved by the National Environmental Laboratory Accreditation
75-12 Program.
75-13 Sec. 5.805 [421.005]. RULES; MINIMUM STANDARDS. The
75-14 commission [board] shall adopt rules to implement this subchapter
75-15 [chapter] and minimum performance and quality assurance standards
75-16 for accreditation of an environmental testing laboratory.
75-17 Sec. 5.806 [421.006]. DISCIPLINE. After notice and an
75-18 opportunity for hearing, the commission [department] may suspend or
75-19 revoke the accreditation of an environmental testing laboratory
75-20 that does not comply with the minimum performance and quality
75-21 assurance standards established under this subchapter [chapter].
75-22 Sec. 5.807. ENVIRONMENTAL TESTING LABORATORY ACCREDITATION
75-23 ACCOUNT. All fees collected under this subchapter shall be
75-24 deposited to the credit of the environmental testing laboratory
75-25 accreditation account and may be appropriated to the commission
75-26 only for paying the costs of the accreditation program.
75-27 ARTICLE 7. CERTIFICATION OF WATER TREATMENT SPECIALISTS
76-1 SECTION 7.01. Section 3A, The Plumbing License Law (Article
76-2 6243-101, Vernon's Texas Civil Statutes), is transferred to Chapter
76-3 341, Health and Safety Code, redesignated as Subchapter G, Chapter
76-4 341, and amended to read as follows:
76-5 SUBCHAPTER G. CERTIFICATION OF WATER TREATMENT SPECIALISTS
76-6 Sec. 341.101 [Sec. 3A. CERTIFICATION RELATING TO RESIDENTIAL
76-7 WATER TREATMENT FACILITIES]. DEFINITIONS. In this subchapter:
76-8 (1) "Commission" means the Texas Natural Resource
76-9 Conservation Commission.
76-10 (2) "Installation of water treatment appliances"
76-11 includes connecting the appliances to all necessary utility
76-12 connections in residential, commercial, or industrial facilities.
76-13 (3) "Water treatment" means a business conducted under
76-14 contract that requires experience in the analysis of water,
76-15 including the ability to determine how to treat influent and
76-16 effluent water, to alter or purify water, and to add or remove a
76-17 mineral, chemical, or bacterial content or substance. The term
76-18 also includes the installation and service of potable water
76-19 treatment equipment in public or private water systems and making
76-20 connections necessary to complete installation of a water treatment
76-21 system.
76-22 (4) "Water treatment equipment" includes appliances
76-23 used to alter or purify water or to alter a mineral, chemical, or
76-24 bacterial content or substance.
76-25 Sec. 341.102. WATER TREATMENT SPECIALIST CERTIFICATION
76-26 PROGRAM. (a) The commission by rule [Commissioner of Health or his
76-27 designee] shall establish a program to certify persons [as being]
77-1 qualified to install, exchange, service [for the installation,
77-2 exchange, servicing], and repair [of] residential, commercial, or
77-3 industrial water treatment equipment and appliances [facilities as
77-4 defined by Subsection (g) of Section 2 of this Act].
77-5 (b) The rules must establish:
77-6 (1) [Texas Board of Health shall set] standards for
77-7 certification to ensure the public health and to protect the public
77-8 from unqualified persons engaging in activities relating to water
77-9 treatment;
77-10 (2) classes of certification;
77-11 (3) duration of certification; and
77-12 (4) reasonable annual certification fees in an amount
77-13 sufficient to pay the administrative costs of the certification
77-14 program, but not to exceed $150 a year for any class of
77-15 certification.
77-16 Sec. 341.103. CERTIFICATION REQUIRED. A person may not
77-17 engage in water treatment unless the person first obtains a
77-18 certificate from the commission under the program established under
77-19 this subchapter.
77-20 Sec. 341.104. APPLICATION FOR CERTIFICATION. A person
77-21 desiring to obtain certification under the program established
77-22 under this subchapter shall file with the commission:
77-23 (1) an application in the form prescribed by the
77-24 commission and containing the information required by the
77-25 commission; and
77-26 (2) the appropriate certification fee.
77-27 Sec. 341.105. ISSUANCE OF CERTIFICATE. (a) [Nothing in this
78-1 section shall be construed to require that persons licensed
78-2 pursuant to this Act are subject to certification under this
78-3 section.]
78-4 [(b) Before a certificate is issued or renewed under this
78-5 section, an applicant or holder of a certificate shall be required
78-6 to pay a fee of $10 a year.] On receipt of an application that
78-7 meets commission requirements and the required fee, the commission
78-8 [Texas Department of Health] shall issue to a [qualified] person
78-9 who meets commission standards for certification a certificate
78-10 stating that the person is qualified to install, exchange, service
78-11 [for the installation, exchange, servicing], and repair [of]
78-12 residential, commercial, or industrial water treatment facilities.
78-13 (b) [The Texas Board of Health shall adopt rules
78-14 establishing classes of certificates, duration of certificates, and
78-15 fees.]
78-16 [(c)] All fees received by the commission [Texas Department
78-17 of Health] under this section shall be deposited in the State
78-18 Treasury to the credit of the General Revenue Fund.
78-19 (c) A person who holds a license under The Plumbing License
78-20 Law (Article 6243-101, Vernon's Texas Civil Statutes) is exempt
78-21 from the requirements of this subchapter.
78-22 (d) This subchapter does not apply to an employee of an
78-23 industrial facility installing or servicing water treatment
78-24 equipment.
78-25 ARTICLE 8. REGISTRATION OF IRRIGATORS AND ON-SITE
78-26 SEWAGE DISPOSAL SYSTEM INSTALLERS
78-27 SECTION 8.01. Section 34.008(a), Water Code, is amended to
79-1 read as follows:
79-2 (a) The commission may waive any prerequisite [certify] for
79-3 obtaining registration for [without examination] an applicant who
79-4 is registered as a licensed irrigator or licensed installer by [in]
79-5 another jurisdiction with which this state has a reciprocity
79-6 agreement. The commission may make an agreement, subject to the
79-7 approval of the governor, with another state to allow for
79-8 registration by reciprocity [state or country that has requirements
79-9 for registration that are at least substantially equivalent to the
79-10 requirements of this state and that extends the same privilege of
79-11 reciprocity to licensed irrigators or licensed installers
79-12 registered in this state].
79-13 SECTION 8.02. Section 34.009(f), Water Code, is amended to
79-14 read as follows:
79-15 (f) The commission by rule may adopt a system under which
79-16 certificates of registration expire on various dates during the
79-17 year. For the year in which the expiration date is changed, the
79-18 commission shall prorate registration [renewal] fees [payable on
79-19 August 31 shall be prorated] on a monthly basis so that each
79-20 registrant pays [will pay] only that portion of the registration
79-21 fee that is allocable to the number of months during which the
79-22 registration is valid. On renewal of the registration on the new
79-23 expiration date, the total registration renewal fee is due.
79-24 SECTION 8.03. Section 366.076, Health and Safety Code, is
79-25 amended to read as follows:
79-26 Sec. 366.076. REGISTRATION RENEWAL. The commission by rule
79-27 may adopt a system under which registrations expire on various
80-1 dates during the year. For each year in which the registration
80-2 expiration date is changed, the commission shall prorate
80-3 registration fees on a monthly basis so that each registrant pays
80-4 only that portion of the registration fee that is allocable to the
80-5 number of months during which the registration is valid. On
80-6 renewal of the registration on the new expiration date, the total
80-7 registration renewal fee is payable [provide for periodic renewal
80-8 of registrations].
80-9 ARTICLE 9. REGULATION OF SOLID WASTE
80-10 SECTION 9.01. Subchapter C, Chapter 361, Health and Safety
80-11 Code, is amended by adding Section 361.1125 to read as follows:
80-12 Sec. 361.1125. IMMEDIATE REMEDIATION OR REMOVAL OF HAZARDOUS
80-13 SUBSTANCE AT SCRAP TIRE SITE. (a) In this section:
80-14 (1) "Scrap tire" has the meaning assigned by Section
80-15 361.112.
80-16 (2) "Scrap tire site" includes any site at which more
80-17 than 500 scrap tires are located.
80-18 (b) If the executive director after investigation finds that
80-19 there exists a release or threat of release of a hazardous
80-20 substance at a scrap tire site and immediate action is appropriate
80-21 to protect human health and the environment, the commission may,
80-22 with money available from money appropriated to the commission,
80-23 undertake immediate remedial or removal action at the scrap tire
80-24 site to achieve the necessary protection.
80-25 (c) The reasonable expenses of immediate remedial or removal
80-26 action by the commission under this section are recoverable from
80-27 the persons described in Section 361.271, and the state may bring
81-1 an action to recover the commission's reasonable expenses.
81-2 SECTION 9.02. Section 361.114, Health and Safety Code, is
81-3 amended to read as follows:
81-4 Sec. 361.114. PROHIBITION OF [GRANT OF PERMIT FOR] DISPOSAL
81-5 OF HAZARDOUS WASTE INTO CERTAIN GEOLOGICAL FORMATIONS [SALT DOMES].
81-6 [(a)] The commission by rule shall prohibit the storage,
81-7 processing, or disposal of [may not issue a permit for a] hazardous
81-8 waste [injection well] in a solution-mined salt dome cavern or a
81-9 sulphur mine [unless the United States Environmental Protection
81-10 Agency and the commission determine that sufficient rules are in
81-11 place to regulate that activity].
81-12 [(b) Before issuing a permit for a hazardous waste injection
81-13 well in a solution-mined salt dome cavern, the commission by order
81-14 must find that there is an urgent public necessity for the
81-15 hazardous waste injection well. The commission, in determining
81-16 whether an urgent public necessity exists for the permitting of the
81-17 hazardous waste injection well in a solution-mined salt dome
81-18 cavern, must find that:]
81-19 [(1) the injection well will be designed, constructed,
81-20 and operated in a manner that provides at least the same degree of
81-21 safety as required of other currently operating hazardous waste
81-22 disposal technologies;]
81-23 [(2) consistent with the need and desire to manage
81-24 within the state hazardous wastes generated in the state, there is
81-25 a substantial or obvious public need for additional hazardous waste
81-26 disposal capacity and the hazardous waste injection well will
81-27 contribute additional capacity toward servicing that need;]
82-1 [(3) the injection well will be constructed and
82-2 operated in a manner so as to safeguard public health and welfare
82-3 and protect physical property and the environment;]
82-4 [(4) the applicant has demonstrated that groundwater
82-5 and surface waters, including public water supplies, will be
82-6 protected from the release of hazardous waste from the salt-dome
82-7 waste containment cavern; and]
82-8 [(5) any other criteria required by the commission to
82-9 satisfy that the test of urgency has been met.]
82-10 SECTION 9.03. Subchapter C, Chapter 361, Health and Safety
82-11 Code, is amended by adding Section 361.119 to read as follows:
82-12 Sec. 361.119. REGULATION OF CERTAIN FACILITIES AS SOLID
82-13 WASTE FACILITIES. (a) The commission by rule shall ensure that a
82-14 solid waste processing facility is regulated as a solid waste
82-15 facility under this chapter and is not allowed to operate
82-16 unregulated as a recycling facility.
82-17 (b) The commission shall adopt rules, including
82-18 recordkeeping and reporting requirements and limitations on the
82-19 storage of recyclable material, to ensure that:
82-20 (1) recyclable material is reused and not abandoned or
82-21 disposed of; and
82-22 (2) recyclable material does not create a nuisance or
82-23 threaten or impair the environment or public health and safety.
82-24 (c) A facility that reuses or smelts recyclable materials or
82-25 metals and the operations conducted and materials handled at the
82-26 facility are not subject to regulation under rules adopted under
82-27 this section if the owner or operator of the facility demonstrates
83-1 that:
83-2 (1) the primary function of the facility is to process
83-3 materials that have a resale value greater than the cost of
83-4 processing the materials for subsequent beneficial use; and
83-5 (2) all the solid waste generated from processing the
83-6 materials is disposed of in a solid waste facility authorized under
83-7 this chapter, with the exception of small amounts of solid waste
83-8 that may be inadvertently and unintentionally disposed of in
83-9 another manner.
83-10 (d) A facility that is owned, operated, or affiliated with a
83-11 person that has a permit to dispose of municipal solid waste is not
83-12 subject to the requirements of recordkeeping and reporting adopted
83-13 under Subsection (b).
83-14 (e) A solid waste processing facility that is owned or
83-15 operated by a local government is not subject to rules adopted
83-16 under this section.
83-17 SECTION 9.04. Subchapter C, Chapter 361, Health and Safety
83-18 Code, is amended by adding Section 361.120 to read as follows:
83-19 Sec. 361.120. NOTICE OF HEARING AND REQUIREMENTS FOR
83-20 REOPENING OF CLOSED OR INACTIVE LANDFILLS. (a) This section
83-21 applies to any municipal solid waste landfill facility permitted by
83-22 the commission or any of its predecessor or successor agencies that
83-23 have either stopped accepting waste, or only accepted waste
83-24 pursuant to an emergency authorization, for a period of five years
83-25 or longer. This section shall not apply to any solid waste
83-26 landfill facility that has received a permit but never received
83-27 waste.
84-1 (b) The commission or its successor agencies shall allow any
84-2 municipal solid waste landfill facility covered by this section to
84-3 be reopened and to accept waste again only if the permittee
84-4 demonstrates compliance with all current state, federal, and local
84-5 requirements, including but not limited to the requirements of
84-6 Subtitle D of the federal Resource Conservation and Recovery Act of
84-7 1976 (42 U.S.C. Section 6901 et seq.) and the implementing Texas
84-8 State regulations.
84-9 (c) Except as provided in Subsections (d) and (e), the
84-10 reopening of any such facility shall be considered a major
84-11 amendment as such is defined by commission rules and shall subject
84-12 the permittee to all of the procedural and substantive obligations
84-13 imposed by the rules applicable to major amendments.
84-14 (d) This section shall not apply to any municipal solid
84-15 waste landfill facility that has received an approved modification
84-16 to its permit as of the effective date of this section.
84-17 (e) For any facility which is subject to a contract of sale
84-18 as of January 1, 2001, the scope of the public hearing is to be
84-19 limited to land use, as provided by Section 361.069.
84-20 SECTION 9.05. (a) Subchapter C, Chapter 361, Health and
84-21 Safety Code, is amended by adding Section 361.121 to read as
84-22 follows:
84-23 Sec. 361.121. LAND APPLICATION OF CERTAIN SLUDGE; PERMIT
84-24 REQUIRED. (a) In this section:
84-25 (1) "Class B sludge" is sewage sludge that meets one
84-26 of the pathogen reduction requirements of 30 T.A.C. 312.82(b).
84-27 (2) "Land application unit" means an area where wastes
85-1 are applied onto or incorporated into the soil surface for
85-2 agricultural purposes or for treatment and disposal. The term does
85-3 not include manure spreading operations.
85-4 (3) "Responsible person" means the person with
85-5 ultimate responsibility for the land application of the Class B
85-6 sludge at a land application unit. The responsible person is:
85-7 (A) the owner of the land application unit if
85-8 the sludge being land applied was generated outside this state; or
85-9 (B) the person who is land applying the sludge
85-10 if the sludge being land applied was generated in this state.
85-11 (b) A responsible person may not apply Class B sludge on a
85-12 land application unit unless the responsible person has obtained a
85-13 permit for that land application unit issued by the commission
85-14 under this section on or after September 1, 2003.
85-15 (c) The notice and hearing provisions of Subchapter M,
85-16 Chapter 5, Water Code, as added by Chapter 1350, Acts of the 76th
85-17 Legislature, Regular Session, 1999, apply to an application under
85-18 this section for a permit, a permit amendment, or a permit renewal.
85-19 (d) In each permit, the commission shall prescribe the
85-20 conditions under which it is issued, including:
85-21 (1) the duration of the permit;
85-22 (2) the location of the land application unit;
85-23 (3) the maximum quantity of Class B sludge that may be
85-24 applied or disposed of under the permit;
85-25 (4) any monitoring and reporting requirements
85-26 prescribed by the commission for the permit holder; and
85-27 (5) a requirement that the permit holder must report
86-1 to the commission any noncompliance by the permit holder with the
86-2 permit conditions or applicable commission rules.
86-3 (e) A permit does not become a vested right in the permit
86-4 holder.
86-5 (f) A permit may be issued under this section for a term set
86-6 by the board not to exceed six years from the date of issuance.
86-7 (g) The commission shall charge a fee for the issuance of a
86-8 permit under this section in an amount not less than $1,000 and not
86-9 more than $5,000. In determining the fee under this subsection,
86-10 the commission shall consider the amount of sludge to be applied
86-11 under the permit.
86-12 (h) The commission by rule shall require an applicant for a
86-13 permit under this section to submit with the application, at a
86-14 minimum, information regarding:
86-15 (1) the applicant;
86-16 (2) the source, quality, and quantity of sludge to be
86-17 applied; and
86-18 (3) the hydrologic characteristics of the surface
86-19 water and groundwater at and within one-quarter of a mile of the
86-20 land application unit.
86-21 (i) The commission may expand the definition of Class B
86-22 sludge only by expanding the definition to include sludge that
86-23 meets more stringent pathogen reduction requirements.
86-24 (b) For the purposes of administrative efficiency, the Texas
86-25 Natural Resource Conservation Commission by rule may develop
86-26 categories of persons required to obtain a permit under Section
86-27 361.121(b), Health and Safety Code, as added by this Act, and may
87-1 require certain categories of persons to obtain a permit earlier
87-2 than the date prescribed by that section.
87-3 SECTION 9.06. Subchapter N, Chapter 361, Health and Safety
87-4 Code, is amended by adding Section 361.431 to read as follows:
87-5 Sec. 361.431. PRIORITIZATION OF NEW TECHNOLOGY. (a) A
87-6 political subdivision or solid waste producer shall give preference
87-7 in contracting for the disposal of solid waste to license or permit
87-8 holders who use processes and technologies that reduce the volume
87-9 of sludge and hazardous waste that is being disposed of through
87-10 beneficial use land application, landfill disposal, and other
87-11 methods.
87-12 (b) Technology that reduces the volume of solid waste,
87-13 destroys the solid waste, or renders the solid waste inert is
87-14 preferred to methods referred to under Subsection (a), to minimize
87-15 the possibility of hazardous materials entering the state's air,
87-16 waterways, and water sources.
87-17 SECTION 9.07. Section 7.031, Water Code, is amended by
87-18 amending Subsection (c) and adding Subsection (f) to read as
87-19 follows:
87-20 (c) If[, before the issuance of a permit,] the commission
87-21 determines that there is or has been a release of hazardous waste
87-22 into the environment from a facility required to obtain a permit in
87-23 accordance with an approved state program under Section 3006 of the
87-24 federal Solid Waste Disposal Act, as amended by the Resource
87-25 Conservation and Recovery Act of 1976, as amended (42 U.S.C.
87-26 Section 6901 et seq.), the commission may:
87-27 (1) issue an order requiring corrective action or
88-1 other response measures considered necessary to protect human
88-2 health or the environment; or
88-3 (2) institute a civil action under Subchapter D.
88-4 (f) Nothing in this section limits the authority of the
88-5 commission, consistent with federal law, to issue an order for the
88-6 closure, post-closure care, or other remediation of hazardous waste
88-7 or hazardous waste constituents from a solid waste management unit
88-8 at a solid waste processing, storage, or disposal facility.
88-9 SECTION 9.08. Subchapter C, Chapter 361, Health and Safety
88-10 Code, is amended by adding Section 361.122 to read as follows:
88-11 Sec. 361.122. DENIAL OF CERTAIN LANDFILL PERMITS. The
88-12 commission may not issue a permit for a Type IV landfill if:
88-13 (1) the proposed site is located within 100 feet of a
88-14 canal that is used as a public drinking water source or for
88-15 irrigation of crops used for human or animal consumption;
88-16 (2) the proposed site is located in a county with a
88-17 population of more than 225,000 that is located adjacent to the
88-18 Gulf of Mexico; and
88-19 (3) prior to final consideration of the application by
88-20 the commission, the commissioners of the county in which the
88-21 facility is located have adopted a resolution recommending denial
88-22 of the application.
88-23 ARTICLE 10. EDWARDS AQUIFER
88-24 SECTION 10.01. As used in this article, "Edwards Aquifer" has
88-25 the meaning defined in Section 26.046, Water Code.
88-26 SECTION 10.02. Subchapter B, Chapter 26, Water Code, is
88-27 amended by adding Section 26.050 to read as follows:
89-1 Sec. 26.050. DIGITAL COPIES OF BOUNDARY LINES. The
89-2 commission shall make available to the public digital copies of the
89-3 Recharge, Transition, and Contributing Zone boundary lines, when
89-4 they become available.
89-5 SECTION 10.03. Subchapter B, Chapter 26, Water Code, is
89-6 amended by adding Section 26.051 to read as follows:
89-7 Sec. 26.051. ANNUAL REPORT ON EDWARDS AQUIFER PROGRAM. The
89-8 commission shall report annually on the Edwards Aquifer Program
89-9 expenses and allocation of fees.
89-10 SECTION 10.04. Subchapter D, Chapter 26, Water Code, is
89-11 amended by adding Section 26.137 to read as follows:
89-12 Sec. 26.137. COMMENT PERIOD FOR EDWARDS AQUIFER PROTECTION
89-13 PLANS. The commission shall provide for a 30-day comment period in
89-14 the review process for Edwards Aquifer Protection Plans in the
89-15 Contributing Zone of the Edwards Aquifer as provided in 30 T.A.C.
89-16 Section 213.4(a)(2).
89-17 ARTICLE 11. MATTERS RELATED TO REMEDIATION
89-18 SECTION 11.01. Subchapter F, Chapter 361, Health and Safety
89-19 Code, is amended by adding Section 361.1875 to read as follows:
89-20 Sec. 361.1875. EXCLUSION OF CERTAIN POTENTIALLY RESPONSIBLE
89-21 PARTIES. The commission may not name a person as a responsible
89-22 party for an enforcement action or require a person to reimburse
89-23 remediation costs for a site if the commission has conducted an
89-24 investigation of a site owned or operated by the person and as a
89-25 result of the investigation has determined that:
89-26 (1) the contaminants that are the subject of
89-27 investigation under this subchapter appear to originate from an
90-1 up-gradient, off-site source that is not owned or operated by the
90-2 person;
90-3 (2) additional corrective action is not required at
90-4 the site owned or operated by the person; and
90-5 (3) the commission will not undertake a formal
90-6 enforcement action in the matter.
90-7 ARTICLE 12. REGULATION OF CERTAIN
90-8 ANIMAL FEEDING OPERATIONS
90-9 SECTION 12.01. Sections 26.001(10) and (13), Water Code, are
90-10 amended to read as follows:
90-11 (10) "Agricultural waste" means waterborne liquid,
90-12 gaseous, or solid substances that arise from the agricultural
90-13 industry and agricultural activities, including without limitation
90-14 agricultural animal feeding pens and lots, structures for housing
90-15 and feeding agricultural animals, and processing facilities for
90-16 agricultural products. The term:
90-17 (A) includes:
90-18 (i) tail water or runoff water from
90-19 irrigation associated with an animal feeding operation or
90-20 concentrated animal feeding operation that is located in a major
90-21 sole source impairment zone, as defined by Section 26.502; or
90-22 (ii) rainwater runoff from the confinement
90-23 area of an animal feeding operation or concentrated animal feeding
90-24 operation that is located in a major sole source impairment zone,
90-25 as defined by Section 26.502; and
90-26 (B) ["agricultural waste"] does not include tail
90-27 water or runoff water from irrigation or rainwater runoff from
91-1 other cultivated or uncultivated range land, pasture land, and
91-2 farmland or rainwater runoff from an area of land located in a
91-3 major sole source impairment zone, as defined by Section 26.502,
91-4 that is not owned or controlled by an operator of an animal feeding
91-5 operation or concentrated animal feeding operation on which
91-6 agricultural waste is applied.
91-7 (13) "Pollutant" means dredged spoil, solid waste,
91-8 incinerator residue, sewage, garbage, sewage sludge, filter
91-9 backwash, munitions, chemical wastes, biological materials,
91-10 radioactive materials, heat, wrecked or discarded equipment, rock,
91-11 sand, cellar dirt, and industrial, municipal, and agricultural
91-12 waste discharged into any water in the state. The term:
91-13 (A) includes:
91-14 (i) tail water or runoff water from
91-15 irrigation associated with an animal feeding operation or
91-16 concentrated animal feeding operation that is located in a major
91-17 sole source impairment zone as defined by Section 26.502; or
91-18 (ii) rainwater runoff from the confinement
91-19 area of an animal feeding operation or concentrated animal feeding
91-20 operation that is located in a major sole source impairment zone,
91-21 as defined by Section 26.502; and
91-22 (B) ["pollutant"] does not include tail water or
91-23 runoff water from irrigation or rainwater runoff from other
91-24 cultivated or uncultivated rangeland, pastureland, and farmland or
91-25 rainwater runoff from an area of land located in a major sole
91-26 source impairment zone, as defined by Section 26.502, that is not
91-27 owned or controlled by an operator of an animal feeding operation
92-1 or concentrated animal feeding operation on which agricultural
92-2 waste is applied.
92-3 SECTION 12.02. Chapter 26, Water Code, is amended by adding
92-4 Subchapter L to read as follows:
92-5 SUBCHAPTER L. PROTECTION OF CERTAIN WATERSHEDS
92-6 Sec. 26.501. DEFINITIONS. In this subchapter:
92-7 (1) "Concentrated animal feeding operation" has the
92-8 meaning assigned by 30 T.A.C. Section 321.32 on the effective date
92-9 of this subchapter.
92-10 (2) "New concentrated animal feeding operation" means
92-11 a proposed concentrated animal feeding operation, any part of which
92-12 is located on property not previously authorized by the state to be
92-13 operated as a concentrated animal feeding operation.
92-14 (3) "Historical waste application field" means an area
92-15 of land that at any time since January 1, 1995, has been owned or
92-16 controlled by an operator of a concentrated animal feeding
92-17 operation on which agricultural waste from a concentrated animal
92-18 feeding operation has been applied.
92-19 Sec. 26.502. APPLICABILITY. This subchapter applies only to
92-20 a feeding operation confining cattle that have been or may be used
92-21 for dairy purposes, or otherwise associated with a dairy, including
92-22 cows, calves, and bulls, in a major sole source impairment zone.
92-23 In this subchapter, "major sole source impairment zone" means a
92-24 watershed that contains a reservoir:
92-25 (1) that is used by a municipality as a sole source of
92-26 drinking water supply for a population, inside and outside of its
92-27 municipal boundaries, of more than 140,000; and
93-1 (2) at least half of the water flowing into which is
93-2 from a source that, on the effective date of this subchapter, is on
93-3 the list of impaired state waters adopted by the commission as
93-4 required by 33 U.S.C. Section 1313(d), as amended:
93-5 (A) at least in part because of concerns
93-6 regarding pathogens and phosphorus; and
93-7 (B) for which the commission, at some time, has
93-8 prepared and submitted a total maximum daily load standard.
93-9 Sec. 26.503. REGULATION OF CERTAIN CONCENTRATED ANIMAL
93-10 FEEDING OPERATION WASTES. (a) The commission may authorize the
93-11 construction or operation of a new concentrated animal feeding
93-12 operation, or an increase in the animals confined under an existing
93-13 operation, only by a new or amended individual permit.
93-14 (b) The individual permit issued or amended under Subsection
93-15 (a) must:
93-16 (1) provide for management and disposal of waste in
93-17 accordance with Subchapter B, Chapter 321, Title 30, Texas
93-18 Administrative Code;
93-19 (2) require that 100 percent of the collectible manure
93-20 produced by the additional animals in confinement at an expanded
93-21 operation or all of the animals in confinement at a new operation
93-22 must be:
93-23 (A) disposed of or used outside of the
93-24 watershed;
93-25 (B) delivered to a composting facility approved
93-26 by the executive director;
93-27 (C) applied as directed by the commission to a
94-1 waste application field owned or controlled by the owner of the
94-2 concentrated animal feeding operation, if the field is not a
94-3 historical waste application field;
94-4 (D) put to another beneficial use approved by
94-5 the executive director; or
94-6 (E) applied to a historical waste application
94-7 field that is owned or operated by the owner or operator of the
94-8 concentrated animal feeding operation only if:
94-9 (i) results of representative composite
94-10 soil sampling conducted at the waste application field and filed
94-11 with the commission show that the waste application field contains
94-12 200 or fewer parts per million of extractable phosphorus (reported
94-13 as P); or
94-14 (ii) the manure is applied, with
94-15 commission approval, in accordance with a detailed nutrient
94-16 utilization plan approved by the commission that is developed by:
94-17 (a) an employee of the United States
94-18 Department of Agriculture's Natural Resources Conservation Service;
94-19 (b) a nutrient management specialist
94-20 certified by the United States Department of Agriculture's Natural
94-21 Resources Conservation Service;
94-22 (c) the State Soil and Water
94-23 Conservation Board;
94-24 (d) the Texas Agricultural Extension
94-25 Service;
94-26 (e) an agronomist or soil scientist
94-27 on the full-time staff of an accredited university located in this
95-1 state; or
95-2 (f) a professional agronomist or
95-3 soil scientist certified by the American Society of Agronomy.
95-4 (c) The commission may approve a detailed nutrient
95-5 utilization plan approved by the commission that is developed by a
95-6 professional agronomist or soil scientist certified by the American
95-7 Society of Agronomy only if the commission finds that another
95-8 person listed by Subsection (b)(2)(E)(ii) cannot develop a plan in
95-9 a timely manner.
95-10 (d) The commission may not issue a general permit to
95-11 authorize the discharge of agricultural waste into or adjacent to
95-12 waters in this state from an animal feeding operation if such
95-13 waters are within a major sole source impairment zone.
95-14 (e) The commission and employees or agents of the commission
95-15 may enter public or private property at any reasonable time for
95-16 activities related to the purposes of this subchapter. The
95-17 commission may enforce this authority as provided by Section 7.032,
95-18 7.051, 7.052, or 7.105.
95-19 (f) This section does not limit the commission's authority
95-20 to include in an individual or general permit under this chapter
95-21 provisions necessary to protect a water resource in this state.
95-22 Sec. 26.504. WASTE APPLICATION FIELD SOIL SAMPLING AND
95-23 TESTING. (a) The operator of a concentrated animal feeding
95-24 operation shall contract with a person described by Section
95-25 26.503(b)(2)(E)(ii) selected by the executive director to collect
95-26 one or more representative composite soil samples from each waste
95-27 application field. The operator shall have sampling performed
96-1 under this subsection not less often than once every 12 months.
96-2 (b) Each sample collected under this section must be tested
96-3 for phosphorus and any other nutrient designated by the executive
96-4 director. The test results must be made available to the executive
96-5 director and the operator of the concentrated animal feeding
96-6 operation. The test results are public records of the commission.
96-7 (c) If the samples tested under Subsection (b) show a
96-8 phosphorus level in the soil of more than 500 parts per million,
96-9 the operator shall file with the commission a new or amended
96-10 nutrient utilization plan with a phosphorus reduction component
96-11 that is certified as acceptable by a person listed by Section
96-12 26.503(b)(2)(E)(ii).
96-13 (d) If the samples tested under Subsection (b) show a
96-14 phosphorus level in the soil of more than 200 parts per million but
96-15 not more than 500 parts per million, the operator shall:
96-16 (1) file with the commission a new or amended nutrient
96-17 utilization plan with a phosphorus reduction component that is
96-18 certified as acceptable by a person listed by Section
96-19 26.503(b)(2)(E)(ii); or
96-20 (2) show that the level is supported by a nutrient
96-21 utilization plan certified as acceptable by a person listed by
96-22 Section 26.503(b)(2)(E)(ii).
96-23 (e) The owner or operator of a waste application field
96-24 required by this section to have a nutrient utilization plan with a
96-25 phosphorus reduction component for which the results of tests
96-26 performed on composite soil samples collected 12 months or more
96-27 after the plan is filed do not show a reduction in phosphorus is
97-1 subject to enforcement for a violation of this subchapter at the
97-2 discretion of the executive director. The executive director, in
97-3 determining whether to take an enforcement action under this
97-4 subsection, shall consider any explanation presented by the owner
97-5 or operator regarding the reasons for the lack of phosphorus
97-6 reduction, including an act of God, meteorologic conditions,
97-7 diseases, vermin, crop conditions, or variability of soil testing
97-8 results.
97-9 (f) The commission shall adopt rules to implement this
97-10 section. The rules must provide for the scheduling and manner of
97-11 the required soil testing and the form, content, and deadlines for
97-12 plans required under this section.
97-13 ARTICLE 13. CONTAINMENT SYSTEMS REQUIRED FOR CERTAIN
97-14 UNDERGROUND STORAGE TANKS
97-15 SECTION 13.01. Subchapter I, Chapter 26, Water Code, is
97-16 amended by adding Section 26.3476 to read as follows:
97-17 Sec. 26.3476. SECONDARY CONTAINMENT REQUIRED FOR TANKS
97-18 LOCATED OVER CERTAIN AQUIFERS. (a) In this section, "secondary
97-19 containment" means a method by which a secondary wall or barrier is
97-20 installed around an underground storage tank system in a manner
97-21 designed to prevent a release of a regulated substance from
97-22 migrating beyond the secondary wall or barrier before the release
97-23 can be detected. A secondary containment system may include an
97-24 impervious liner or vault surrounding a primary tank or piping
97-25 system or a double-wall tank or piping system.
97-26 (b) An underground storage tank system, at a minimum, shall
97-27 incorporate a method for secondary containment if the system is
98-1 located in:
98-2 (1) the outcrop of a major aquifer composed of
98-3 limestone and associated carbonate rocks of Cretaceous age or
98-4 older; and
98-5 (2) a county that:
98-6 (A) has a population of at least one million and
98-7 relies on groundwater for at least 75 percent of the county's water
98-8 supply; or
98-9 (B) has a population of at least 75,000 and is
98-10 adjacent to a county described by Paragraph (A).
98-11 (c) Section 26.3475(e) applies to an underground storage
98-12 tank system that is subject to this section as if a violation of
98-13 this section were a violation of Section 26.3475.
98-14 (d) Notwithstanding Section 26.359(b), a political
98-15 subdivision under this section may adopt standards for the
98-16 containment of underground storage tank systems.
98-17 ARTICLE 14. REGULATION AND REMEDIATION OF UNDERGROUND AND
98-18 ABOVEGROUND STORAGE TANKS
98-19 SECTION 14.01. Section 26.342, Water Code, is amended by
98-20 amending Subdivisions (9)-(17) and adding Subdivision (18) to read
98-21 as follows:
98-22 (9) "Owner" means a person who holds legal possession
98-23 or ownership of an interest in an underground storage tank system
98-24 or an aboveground storage tank. If the actual ownership of an
98-25 underground storage tank system or an aboveground storage tank is
98-26 uncertain, unknown, or in dispute, the fee simple owner of the
98-27 surface estate of the tract on which the tank system is located is
99-1 considered the owner of the system unless that person can
99-2 demonstrate by appropriate documentation, including a deed
99-3 reservation, invoice, or bill of sale, or by other legally
99-4 acceptable means that the underground storage tank system or
99-5 aboveground storage tank is owned by another person. A person that
99-6 has registered as an owner of an underground storage tank system or
99-7 aboveground storage tank with the commission under Section 26.346
99-8 after September 1, 1987, shall be considered the tank system owner
99-9 until such time as documentation demonstrates to the executive
99-10 director's satisfaction that the legal interest in the tank system
99-11 was transferred to a different person subsequent to the date of the
99-12 tank registration. This definition is subject to the limitations
99-13 found in Section 26.3514 (Limits on Liability of Lender), Section
99-14 26.3515 (Limits on Liability of Corporate Fiduciary), and Section
99-15 26.3516 (Limits on Liability of Taxing Unit).
99-16 (10) "Person" means an individual, trust, firm,
99-17 joint-stock company, corporation, government corporation,
99-18 partnership, association, state, municipality, commission,
99-19 political subdivision of a state, an interstate body, a consortium,
99-20 joint venture, commercial entity, or the United States government.
99-21 (11) [(10)] "Petroleum product" means a petroleum
99-22 product that is obtained from distilling and processing crude oil
99-23 and that is capable of being used as a fuel for the propulsion of a
99-24 motor vehicle or aircraft, including motor gasoline, gasohol, other
99-25 alcohol blended fuels, aviation gasoline, kerosene, distillate fuel
99-26 oil, and #1 and #2 diesel. The term does not include naphtha-type
99-27 jet fuel, kerosene-type jet fuel, or a petroleum product destined
100-1 for use in chemical manufacturing or feedstock of that
100-2 manufacturing.
100-3 (12) [(11)] "Petroleum storage tank" means:
100-4 (A) any one or combination of aboveground
100-5 storage tanks that contain petroleum products and that are
100-6 regulated by the commission; or
100-7 (B) any one or combination of underground
100-8 storage tanks and any connecting underground pipes that contain
100-9 petroleum products and that are regulated by the commission.
100-10 (13) [(12)] "Regulated substance" means an element,
100-11 compound, mixture, solution, or substance that, when released into
100-12 the environment, may present substantial danger to the public
100-13 health, welfare, or the environment.
100-14 (14) [(13)] "Release" means any spilling including
100-15 overfills, leaking, emitting, discharging, escaping, leaching, or
100-16 disposing from an underground or aboveground storage tank into
100-17 groundwater, surface water, or subsurface soils.
100-18 (15) [(14)] "Risk-based corrective action" means site
100-19 assessment or site remediation, the timing, type, and degree of
100-20 which is determined according to case-by-case consideration of
100-21 actual or potential risk to public health from environmental
100-22 exposure to a regulated substance released from a leaking
100-23 underground or aboveground storage tank.
100-24 (16) [(15)] "Spent oil" means a regulated substance
100-25 that is a lubricating oil or similar petroleum substance which has
100-26 been refined from crude oil, used for its designed or intended
100-27 purposes, and contaminated as a result of that use by physical or
101-1 chemical impurities, including spent motor vehicle lubricating
101-2 oils, transmission fluid, or brake fluid.
101-3 (17) [(16)] "Underground storage tank" means any one
101-4 or combination of underground tanks and any connecting underground
101-5 pipes used to contain an accumulation of regulated substances, the
101-6 volume of which, including the volume of the connecting underground
101-7 pipes, is 10 percent or more beneath the surface of the ground.
101-8 (18) [(17)] "Vehicle service and fueling facility"
101-9 means a facility where motor vehicles are serviced or repaired and
101-10 where petroleum products are stored and dispensed from fixed
101-11 equipment into the fuel tanks of motor vehicles.
101-12 SECTION 14.02. Sections 26.346(a) and (c), Water Code, are
101-13 amended to read as follows:
101-14 (a) An underground or aboveground storage tank must be
101-15 registered with the commission unless the tank is exempt from
101-16 regulation under Section 26.344 of this code or the tank is covered
101-17 under Subsection (b) of this section. The commission by rule shall
101-18 establish the procedures and requirements for establishing and
101-19 maintaining current registration information concerning underground
101-20 and aboveground storage tanks. The commission shall also require
101-21 that an owner or operator of an underground storage tank used for
101-22 storing motor fuels (as defined in commission rule) complete an
101-23 annual underground storage tank compliance certification form.
101-24 (c) The commission shall issue to each person who owns or
101-25 operates a petroleum storage tank that is registered under this
101-26 section a registration and compliance confirmation certificate that
101-27 includes a brief description of:
102-1 (1) the responsibility of the owner or operator under
102-2 Section 26.3512 of this code;
102-3 (2) the rights of the owner or operator to participate
102-4 in the petroleum storage tank remediation account and the
102-5 groundwater protection cleanup program established under this
102-6 subchapter; and
102-7 (3) the responsibility of the owner or operator of an
102-8 underground storage tank to accurately complete the part of the
102-9 registration form pertaining to the certification of compliance
102-10 with underground storage tank administrative requirements and
102-11 technical standards if the tank is used for storing motor fuels (as
102-12 defined in commission rule).
102-13 SECTION 14.03. Section 26.351, Water Code, is amended by
102-14 adding Subsections (f), (g), and (h) to read as follows:
102-15 (f) The person performing corrective action under this
102-16 section, if the release was reported to the commission on or before
102-17 December 22, 1998, shall meet the following deadlines:
102-18 (1) a complete site assessment and risk assessment
102-19 (including, but not limited to, risk-based criteria for
102-20 establishing target concentrations), as determined by the executive
102-21 director, must be received by the agency no later than September 1,
102-22 2002;
102-23 (2) a complete Corrective Action Plan, as determined
102-24 by the executive director and including, but not limited to,
102-25 completion of pilot studies and recommendation of a cost-effective
102-26 and technically appropriate remediation methodology, must be
102-27 received by the agency no later than September 1, 2003. The person
103-1 may, in lieu of this requirement, submit by this same deadline a
103-2 demonstration that a Corrective Action Plan is not required for the
103-3 site in question under commission rules. Such demonstration must
103-4 be to the executive director's satisfaction;
103-5 (3) for those sites found under Subdivision (2) to
103-6 require a Corrective Action Plan, that plan must be initiated and
103-7 proceeding according to the requirements and deadlines in the
103-8 approved plan no later than March 1, 2004;
103-9 (4) for sites which require either a Corrective Action
103-10 Plan or groundwater monitoring, a comprehensive and accurate annual
103-11 status report concerning those activities must be submitted to the
103-12 agency;
103-13 (5) for sites which require either a Corrective Action
103-14 Plan or groundwater monitoring, all deadlines set by the executive
103-15 director concerning the Corrective Action Plan or approved
103-16 groundwater monitoring plan shall be met; and
103-17 (6) site closure requests for all sites where the
103-18 executive director agreed in writing that no Corrective Action Plan
103-19 was required must be received by the agency no later than September
103-20 1, 2005. The request must be complete, as judged by the executive
103-21 director.
103-22 (g) For persons regulated under Subsection (f), their
103-23 failure to comply with any deadline listed in Subsection (f) is a
103-24 violation of this section, and the executive director may enforce
103-25 such a violation under Chapter 7 of this code. A missed deadline
103-26 that is the fault of the person, his agent, or contractor shall
103-27 also eliminate reimbursement eligibility as described by Section
104-1 26.3571(b). If it can be established to the executive director's
104-2 satisfaction that the deadline was not missed at the fault of the
104-3 person, his agent, or contractor, then reimbursement eligibility is
104-4 not affected under this subsection.
104-5 (h) A person's liability to perform corrective action under
104-6 this chapter is unrelated to any possible reimbursements the person
104-7 may be eligible for under Section 26.3571.
104-8 SECTION 14.04. Section 26.3512(b), Water Code, is amended to
104-9 read as follows:
104-10 (b) Funds from the petroleum storage tank remediation
104-11 account may not be used to pay, and the owner or operator of a
104-12 petroleum storage tank ordered by the commission to take corrective
104-13 action is responsible for payment of, the following:
104-14 (1) the owner or operator contribution described by
104-15 Subsections (e)-(k);
104-16 (2) any expenses for corrective action that exceed the
104-17 applicable amount specified by Section 26.3573(m);
104-18 (3) any expenses for corrective action that are not
104-19 covered by payment from the petroleum storage tank remediation
104-20 account under the rules or decisions of the commission under this
104-21 subchapter;
104-22 (4) any expenses for corrective action not ordered or
104-23 agreed to by the commission; [or]
104-24 (5) any expenses for corrective action incurred for
104-25 confirmed releases initially discovered and reported to the
104-26 commission after December 22, 1998; and
104-27 (6) any corrective action expenses for which
105-1 reimbursement is prohibited under Section 26.3571, 26.3573, or
105-2 26.361.
105-3 SECTION 14.05. Section 26.355(d), Water Code, is amended to
105-4 read as follows:
105-5 (d) If the commission uses money from the petroleum storage
105-6 tank remediation account for corrective action or enforcement and
105-7 if the costs are recovered under this section, the commission may
105-8 not recover more than the amount of the applicable owner or
105-9 operator contribution described by Section 26.3512[(e)] of this
105-10 code from an eligible owner or operator for corrective action for
105-11 each occurrence. However, this limitation is not applicable to
105-12 cost recovery actions initiated by the executive director at sites
105-13 where the executive director has determined that the owner or
105-14 operator is in violation of Section 26.351(f).
105-15 SECTION 14.06. Section 26.3571, Water Code, is amended by
105-16 amending Subsection (b) and adding Subsections (g) and (h) to read
105-17 as follows:
105-18 (b) To be an eligible owner or operator for purposes of this
105-19 subchapter, a person must not have missed any of the deadlines
105-20 described in Section 26.351(f) and must:
105-21 (1) be one of the following:
105-22 (A) an owner or operator of a petroleum storage
105-23 tank that is subject to regulation under this subchapter;
105-24 (B) an owner of land that can clearly prove that
105-25 the land has been contaminated by a release of petroleum products
105-26 from a petroleum storage tank that is subject to regulation under
105-27 this subchapter, whether or not the tank is still attached to that
106-1 land; or
106-2 (C) a lender that has a bona fide security or
106-3 lienhold interest in or mortgage lien on any property contaminated
106-4 by the release of petroleum products from a petroleum storage tank
106-5 subject to regulation under this subchapter, or that forecloses on
106-6 or receives an assignment or deed in lieu of foreclosure and
106-7 becomes the owner of such property;
106-8 (2) be in compliance with this subchapter as
106-9 determined by the commission; and
106-10 (3) meet qualifying criteria established by the
106-11 commission under Subsection (a) of this section.
106-12 (g) An otherwise eligible owner or operator who misses a
106-13 deadline referenced in Subsection (b) shall be considered
106-14 ineligible for reimbursement under this subchapter.
106-15 (h) Nothing in this section reduces the liability to perform
106-16 corrective action created under Section 26.351 and other parts of
106-17 this subchapter.
106-18 SECTION 14.07. Section 26.3572(b), Water Code, is amended to
106-19 read as follows:
106-20 (b) In administering the program, the commission shall:
106-21 (1) negotiate with or direct responsible parties in
106-22 site assessment and remediation matters using risk-based corrective
106-23 action;
106-24 (2) approve site-specific corrective action plans for
106-25 each site as necessary, using risk-based corrective action;
106-26 (3) review and inspect site assessment and remedial
106-27 activities and reports;
107-1 (4) use risk-based corrective action procedures as
107-2 determined by commission rule to establish cleanup levels;
107-3 (5) adopt by rule criteria for assigning a priority to
107-4 each site using risk-based corrective action and assign a priority
107-5 to each site according to those criteria;
107-6 (6) adopt by rule criteria for:
107-7 (A) risk-based corrective action site closures;
107-8 and
107-9 (B) the issuance of a closure letter to the
107-10 owner or operator of a tank site on completion of the commission's
107-11 corrective action requirements; and
107-12 (7) process claims for petroleum storage tank
107-13 remediation account disbursement in accordance with this
107-14 subchapter.
107-15 SECTION 14.08. Section 26.3573, Water Code, is amended by
107-16 amending Subsection (d) and by adding Subsections (r) and (s) to
107-17 read as follows:
107-18 (d) The commission may use the money in the petroleum
107-19 storage tank remediation account to pay:
107-20 (1) necessary expenses associated with the
107-21 administration of the petroleum storage tank remediation account
107-22 and the groundwater protection cleanup program, not to exceed an
107-23 amount equal to: 11.8 [6.7] percent of the gross receipts of that
107-24 account for FY 02/03; 16.40 percent of the gross receipts of that
107-25 account for FY 04/05; and 21.1 percent of the gross receipts of
107-26 that account for FY 06/07;
107-27 (2) expenses associated with investigation, cleanup,
108-1 or corrective action measures performed in response to a release or
108-2 threatened release from a petroleum storage tank, whether those
108-3 expenses are incurred by the commission or pursuant to a contract
108-4 between a contractor and an eligible owner or operator as
108-5 authorized by this subchapter; and
108-6 (3) subject to the conditions of Subsection (e) of
108-7 this section, expenses associated with investigation, cleanup, or
108-8 corrective action measures performed in response to a release or
108-9 threatened release of hydraulic fluid or spent oil from hydraulic
108-10 lift systems or tanks located at a vehicle service and fueling
108-11 facility and used as part of the operations of that facility.
108-12 (r) The petroleum storage tank remediation account may not
108-13 be used to reimburse any person for corrective action performed
108-14 after September 1, 2005.
108-15 (s) The petroleum storage tank remediation account may not
108-16 be used to reimburse any person for corrective action contained in
108-17 a reimbursement claim filed with the commission after March 1,
108-18 2006.
108-19 SECTION 14.09. Sections 26.3574(b), (x), (y), (z), and (aa),
108-20 Water Code, are amended to read as follows:
108-21 (b) A fee is imposed on the delivery of a petroleum product
108-22 on withdrawal from bulk of that product as provided by this
108-23 subsection. Each operator of a bulk facility on withdrawal from
108-24 bulk of a petroleum product shall collect from the person who
108-25 orders the withdrawal a fee in an amount determined as follows:
108-26 (1) $12.50 [$18.75] for each delivery into a cargo
108-27 tank having a capacity of less than 2,500 gallons for Fiscal Year
109-1 2002 and Fiscal Year 2003; $10 for each delivery into a cargo tank
109-2 having a capacity of less than 2,500 gallons for Fiscal Year 2004
109-3 and Fiscal Year 2005; $5 for each delivery into a cargo tank having
109-4 a capacity of less than 2,500 gallons for Fiscal Year 2006; and $2
109-5 for each delivery into a cargo tank having a capacity of less than
109-6 2,500 gallons for Fiscal Year 2007;
109-7 (2) $25 [$37.50] for each delivery into a cargo tank
109-8 having a capacity of 2,500 gallons or more but less than 5,000
109-9 gallons for Fiscal Year 2002 and Fiscal Year 2003; $20 for each
109-10 delivery into a cargo tank having a capacity of 2,500 gallons or
109-11 more but less than 5,000 gallons for Fiscal Year 2004 and Fiscal
109-12 Year 2005; $10 for each delivery into a cargo tank having a
109-13 capacity of 2,500 gallons or more but less than 5,000 gallons for
109-14 Fiscal Year 2006; and $4 for each delivery into a cargo tank having
109-15 a capacity of 2,500 gallons or more but less than 5,000 gallons for
109-16 Fiscal Year 2007;
109-17 (3) $37.50 [$56.25] for each delivery into a cargo
109-18 tank having a capacity of 5,000 gallons or more but less than 8,000
109-19 gallons for Fiscal Year 2002 and Fiscal Year 2003; $30 for each
109-20 delivery into a cargo tank having a capacity of 5,000 gallons or
109-21 more but less than 8,000 gallons for Fiscal Year 2004 and Fiscal
109-22 Year 2005; $15 for each delivery into a cargo tank having a
109-23 capacity of 5,000 gallons or more but less than 8,000 gallons for
109-24 Fiscal Year 2006; and $6 for each delivery into a cargo tank having
109-25 a capacity of 5,000 gallons or more but less than 8,000 gallons for
109-26 Fiscal Year 2007;
109-27 (4) $50 [$75] for each delivery into a cargo tank
110-1 having a capacity of 8,000 gallons or more but less than 10,000
110-2 gallons for Fiscal Year 2002 and Fiscal Year 2003; $40 for each
110-3 delivery into a cargo tank having a capacity of 8,000 gallons or
110-4 more but less than 10,000 gallons for Fiscal Year 2004 and Fiscal
110-5 Year 2005; $20 for each delivery into a cargo tank having a
110-6 capacity of 8,000 gallons or more but less than 10,000 gallons for
110-7 Fiscal Year 2006; and $8 for each delivery into a cargo tank having
110-8 a capacity of 8,000 gallons or more but less than 10,000 gallons
110-9 for Fiscal Year 2007; and
110-10 (5) a $25 [$37.50] fee for each increment of 5,000
110-11 gallons or any part thereof delivered into a cargo tank having a
110-12 capacity of 10,000 gallons or more for Fiscal Year 2002 and Fiscal
110-13 Year 2003; $20 for each increment of 5,000 gallons or any part
110-14 thereof delivered into a cargo tank having a capacity of 10,000
110-15 gallons or more for Fiscal Year 2004 and Fiscal Year 2005; $10 for
110-16 each increment of 5,000 gallons or any part thereof delivered into
110-17 a cargo tank having a capacity of 10,000 gallons or more for Fiscal
110-18 Year 2006; and $4 for each increment of 5,000 gallons or any part
110-19 thereof delivered into a cargo tank having a capacity of 10,000
110-20 gallons or more for Fiscal Year 2007.
110-21 (x) [After the deposits have been made to the credit of the
110-22 general revenue fund under Section 403.092(c)(1), Government Code,
110-23 as added by Chapter 533, Acts of the 73rd Legislature, 1993, the
110-24 fee imposed under this section may not be collected or required to
110-25 be paid on or after the first day of the second month following
110-26 notification by the commission of the date on which the unobligated
110-27 balance in the petroleum storage tank remediation account equals or
111-1 exceeds $100 million. The commission shall notify the comptroller
111-2 in writing of the date on which the unobligated balance equals or
111-3 exceeds $100 million.]
111-4 [(y) If the unobligated balance in the petroleum storage
111-5 tank remediation account falls below $25 million, the fee shall be
111-6 reinstated, effective on the first day of the second month
111-7 following notification by the commission, in amounts determined as
111-8 follows:]
111-9 [(1) $9.38 for each delivery into a cargo tank having
111-10 a capacity of less than 2,500 gallons;]
111-11 [(2) $18.75 for each delivery into a cargo tank having
111-12 a capacity of 2,500 gallons or more but less than 5,000 gallons;]
111-13 [(3) $28.13 for each delivery into a cargo tank having
111-14 a capacity of 5,000 gallons or more but less than 8,000 gallons;]
111-15 [(4) $37.50 for each delivery into a cargo tank having
111-16 a capacity of 8,000 gallons or more but less than 10,000 gallons;
111-17 and]
111-18 [(5) an $18.75 fee for each increment of 5,000 gallons
111-19 or any part thereof delivered into a cargo tank having a capacity
111-20 of 10,000 gallons or more.]
111-21 [(z) For purposes of Subsections (x) and (y) of this
111-22 section, the unobligated balance in the petroleum storage tank
111-23 remediation account shall be determined by subtracting from the
111-24 cash balance of the account at the end of each month the sum of the
111-25 total balances remaining on all contracts entered by the commission
111-26 or an eligible owner for corrective action plus the total estimates
111-27 made by the commission of allowable costs for corrective action
112-1 that are unpaid relating to all commission orders issued before
112-2 that date to enforce this subchapter.]
112-3 [(aa)] The commission shall report to the Legislative Budget
112-4 Board at the end of each fiscal quarter on the financial status of
112-5 the petroleum storage tank remediation account.
112-6 SECTION 14.10. Sections 26.359 and 26.361, Water Code, are
112-7 amended to read as follows:
112-8 Sec. 26.359. LOCAL REGULATION OR ORDINANCE. (a) In this
112-9 section, "local government" means a school district, county,
112-10 municipality, junior college district, river authority, water
112-11 district or other special district, or other political subdivision
112-12 created under the constitution or a statute of this state.
112-13 (b) A [This subchapter establishes a unified statewide
112-14 program for underground and surface water protection, and any
112-15 local] regulation or ordinance adopted by a local government that
112-16 imposes standards [is effective only to the extent the regulation
112-17 or ordinance does not conflict with the standards adopted] for the
112-18 design, construction, installation, or operation of underground
112-19 storage tanks is not valid [under this subchapter].
112-20 (c) This section does not apply to a regulation or ordinance
112-21 in effect as of January 1, 2001.
112-22 Sec. 26.361. EXPIRATION OF REIMBURSEMENT PROGRAM. [(a)]
112-23 Notwithstanding any other provision of this subchapter, the
112-24 reimbursement program established under this subchapter expires
112-25 September 1, 2006 [2003]. On or after September 1, 2006 [2003], the
112-26 commission may not use money from the petroleum storage tank
112-27 remediation account to reimburse an eligible owner or operator for
113-1 any expenses of corrective action or to pay the claim of a person
113-2 who has contracted with an eligible owner or operator to perform
113-3 corrective action.
113-4 [(b) On or after March 1, 2002, the commission may not
113-5 collect a fee under Section 26.3574 of this code.]
113-6 ARTICLE 15. REGULATION OF AIR POLLUTION
113-7 SECTION 15.01. Section 382.019(a), Health and Safety Code,
113-8 is amended to read as follows:
113-9 (a) Except as provided by Section 382.037(g), or another
113-10 provision of this chapter, the [The] commission by rule may provide
113-11 requirements concerning the particular method to be used to control
113-12 and reduce emissions from engines used to propel land vehicles.
113-13 SECTION 15.02. Section 382.037, Health and Safety Code, is
113-14 amended by amending Subsection (g) and adding Subsections (h) and
113-15 (i) to read as follows:
113-16 (g) The commission may not establish, before January 1,
113-17 2004, vehicle fuel content standards to provide for vehicle fuel
113-18 content for clean motor vehicle fuels for any area of the state
113-19 that are more stringent or restrictive [other] than those standards
113-20 promulgated by the United States Environmental Protection Agency
113-21 applicable to that area except as provided in Subsection (h) unless
113-22 the fuel is specifically authorized by the legislature [or unless
113-23 it is demonstrated to be necessary for the attainment of federal
113-24 ozone ambient air quality standards or, following appropriate
113-25 health studies and in consultation with the Texas Department of
113-26 Health, it is determined to be necessary for the protection of
113-27 public health].
114-1 (h) The commission may not require the distribution of Texas
114-2 low-emission diesel as described in revisions to the State
114-3 Implementation Plan for the control of ozone air pollution prior to
114-4 February 1, 2005.
114-5 (i) The commission may consider, as an alternative method of
114-6 compliance with Subsection (h), fuels to achieve equivalent
114-7 emissions reductions.
114-8 SECTION 15.03. Section 382.039(a), Health and Safety Code,
114-9 is amended to read as follows:
114-10 (a) Except as provided by Section 382.037(g) or another
114-11 provision of this chapter, the [The] commission shall coordinate
114-12 with federal, state, and local transportation planning agencies to
114-13 develop and implement transportation programs and other measures
114-14 necessary to demonstrate and maintain attainment of national
114-15 ambient air quality standards and to protect the public from
114-16 exposure to hazardous air contaminants from motor vehicles.
114-17 SECTION 15.04. The changes in law made by this Act do not
114-18 apply to fuel standards adopted by the Texas Natural Resource
114-19 Conservation Commission before September 1, 2000.
114-20 ARTICLE 16. CONFORMING AMENDMENTS
114-21 SECTION 16.01. Section 5.174(a), Water Code, is amended to
114-22 read as follows:
114-23 (a) Except as otherwise specifically provided by this code
114-24 and subject to the specific limitations provided by this code, on
114-25 application of any person the commission shall furnish certified or
114-26 other copies of any proceeding or other official record or of any
114-27 map, paper, or document filed with the commission. A certified
115-1 copy with the seal of the commission and the signature of the
115-2 presiding officer [chairman] of the commission or the executive
115-3 director or chief clerk is admissible as evidence in any court or
115-4 administrative proceeding.
115-5 SECTION 16.02. Section 11.323(a), Water Code, is amended to
115-6 read as follows:
115-7 (a) When a final determination of the rights to the waters
115-8 of a stream has been made in accordance with the procedure provided
115-9 in this subchapter and the time for a rehearing has expired, the
115-10 commission shall issue to each person adjudicated a water right a
115-11 certificate of adjudication, signed by the presiding officer of the
115-12 commission [chairman] and bearing the seal of the commission.
115-13 SECTION 16.03. Sections 26.0135(a) and (b), Water Code, are
115-14 amended to read as follows:
115-15 (a) To ensure clean water, the commission shall establish
115-16 the strategic and comprehensive monitoring of water quality and the
115-17 periodic assessment of water quality in each watershed and river
115-18 basin of the state. In order to conserve public funds and avoid
115-19 duplication of effort, subject to adequate funding under Section
115-20 26.0291 [Subsection (h)], river authorities shall, to the greatest
115-21 extent possible and under the supervision of the commission,
115-22 conduct water quality monitoring and assessments in their own
115-23 watersheds. Watershed monitoring and assessments involving
115-24 agricultural or silvicultural nonpoint source pollution shall be
115-25 coordinated through the State Soil and Water Conservation Board
115-26 with local soil and water conservation districts. The water
115-27 quality monitoring and reporting duties under this section apply
116-1 only to a river authority that has entered into an agreement with
116-2 the commission to perform those duties. The commission, either
116-3 directly or through cooperative agreements and contracts with local
116-4 governments, shall conduct monitoring and assessments of watersheds
116-5 where a river authority is unable to perform an adequate assessment
116-6 of its own watershed. The monitoring program shall provide data to
116-7 identify significant long-term water quality trends, characterize
116-8 water quality conditions, support the permitting process, and
116-9 classify unclassified waters. The commission shall consider
116-10 available monitoring data and assessment results in developing or
116-11 reviewing wastewater permits and stream standards and in conducting
116-12 other water quality management activities. The assessment must
116-13 include a review of wastewater discharges, nonpoint source
116-14 pollution, nutrient loading, toxic materials, biological health of
116-15 aquatic life, public education and involvement in water quality
116-16 issues, local and regional pollution prevention efforts, and other
116-17 factors that affect water quality within the watershed. The
116-18 monitoring and assessment required by this section is a continuing
116-19 duty, and the monitoring and assessment shall be periodically
116-20 revised to show changes in the factors subject to assessment.
116-21 (b) In order to assist in the coordination and development
116-22 of assessments and reports required by this section, a river
116-23 authority shall organize and lead a basin-wide steering committee
116-24 that includes persons paying fees under Section 26.0291 [Subsection
116-25 (h)], private citizens, the State Soil and Water Conservation
116-26 Board, representatives from other appropriate state agencies,
116-27 political subdivisions, and other persons with an interest in water
117-1 quality matters of the watershed or river basin. Based on
117-2 committee and public input, each steering committee shall develop
117-3 water quality objectives and priorities that are achievable
117-4 considering the available technology and economic impact. The
117-5 objectives and priorities shall be used to develop work plans and
117-6 allocate available resources under Section 26.0291 [Subsection
117-7 (h)]. Each committee member shall help identify significant water
117-8 quality issues within the basin and shall make available to the
117-9 river authority all relevant water quality data held by the
117-10 represented entities. A river authority shall also develop a
117-11 public input process that provides for meaningful comments and
117-12 review by private citizens and organizations on each basin summary
117-13 report. A steering committee established by the commission to
117-14 comply with this subsection in the absence of a river authority or
117-15 other qualified local government is not subject to Chapter 2110,
117-16 Government Code [Article 6252-33, Revised Statutes].
117-17 SECTION 16.04. Section 26.0135(d), Water Code, as amended by
117-18 Chapters 101 and 1082, Acts of the 75th Legislature, Regular
117-19 Session, 1997, is reenacted and amended to read as follows:
117-20 (d) In the appropriate year of the cycle provided by
117-21 commission rules adopted to implement Section 26.0285, each river
117-22 authority shall submit a written summary report to the commission,
117-23 State Soil and Water Conservation Board, and Parks and Wildlife
117-24 Department on the water quality assessment of the authority's
117-25 watershed. The summary report must identify concerns relating to
117-26 the watershed or bodies of water, including an identification of
117-27 bodies of water with impaired or potentially impaired uses, the
118-1 cause and possible source of use impairment, and recommended
118-2 actions the commission may take to address those concerns. The
118-3 summary report must discuss the public benefits from the water
118-4 quality monitoring and assessment program, including efforts to
118-5 increase public input in activities related to water quality and
118-6 the effectiveness of targeted monitoring in assisting the
118-7 permitting process. A river authority shall submit a summary
118-8 report after the report has been approved by the basin steering
118-9 committee and coordinated with the public and the commission. A
118-10 river authority shall hold basin steering committee meetings and
118-11 shall invite users of water and wastewater permit holders in the
118-12 watershed who pay fees under Section 26.0291 [Subsection (h)] to
118-13 review the draft of the work plans and summary report. A river
118-14 authority shall inform those parties of the availability and
118-15 location of the summary report for inspection and shall solicit
118-16 input from those parties concerning their satisfaction with or
118-17 suggestions for modification of the summary report for the
118-18 watershed, the operation or effectiveness of the watershed
118-19 monitoring and assessment program authorized by this section, and
118-20 the adequacy, use, or equitable apportionment of the program's
118-21 costs and funds. A river authority shall summarize all comments
118-22 received from persons who pay fees under Section 26.0291
118-23 [Subsection (h)] and from steering committee members and shall
118-24 submit the report and the summaries to the governor, the lieutenant
118-25 governor, and the speaker of the house of representatives not later
118-26 than the 90th day after the date the river authority submits the
118-27 summary report to the commission and other agencies.
119-1 SECTION 16.05. Section 26.028(d), Water Code, is amended to
119-2 read as follows:
119-3 (d) Notwithstanding any other provision of this chapter, the
119-4 commission, at a regular meeting without the necessity of holding a
119-5 public hearing, may approve an application to renew or amend a
119-6 permit if:
119-7 (1) the applicant is not applying to:
119-8 (A) increase significantly the quantity of waste
119-9 authorized to be discharged; or
119-10 (B) change materially the pattern or place of
119-11 discharge;
119-12 (2) the activities to be authorized by the renewed or
119-13 amended permit will maintain or improve the quality of waste
119-14 authorized to be discharged;
119-15 (3) for NPDES permits, notice and the opportunity to
119-16 request a public meeting shall be given in compliance with NPDES
119-17 program requirements, and the commission shall consider and respond
119-18 to all timely received and significant public comment; and
119-19 (4) the commission determines that an applicant's
119-20 compliance history under the method for evaluating compliance
119-21 history developed by the commission under Section 5.754 [for the
119-22 preceding five years] raises no issues regarding the applicant's
119-23 ability to comply with a material term of its permit.
119-24 SECTION 16.06. Section 26.0281, Water Code, is amended to
119-25 read as follows:
119-26 Sec. 26.0281. CONSIDERATION OF [PAST PERFORMANCE AND]
119-27 COMPLIANCE HISTORY. In considering the issuance, amendment, or
120-1 renewal of a permit to discharge effluent comprised primarily of
120-2 sewage or municipal waste, the commission shall consider the [any
120-3 adjudicated decision on or] compliance history [proceeding
120-4 addressing past performance and compliance] of the applicant and
120-5 its operator under the method for evaluating compliance history
120-6 developed by the commission under Section 5.754 [with the laws of
120-7 this state governing waste discharge, waste treatment, or waste
120-8 disposal facilities and with the terms of any permit or order
120-9 issued by the commission].
120-10 SECTION 16.07. Section 26.040(h), Water Code, is amended to
120-11 read as follows:
120-12 (h) Notwithstanding other provisions of this chapter, the
120-13 commission, after hearing, shall deny or suspend a discharger's
120-14 authority to discharge under a general permit if the commission
120-15 determines that the [discharger operates any facility for which
120-16 the] discharger's compliance history is in the lowest
120-17 classification under Sections 5.753 and 5.754 and rules adopted and
120-18 procedures developed under those sections [contains violations
120-19 constituting a recurring pattern of egregious conduct that
120-20 demonstrates a consistent disregard for the regulatory process,
120-21 including a failure to make a timely and substantial attempt to
120-22 correct the violations]. A hearing under this subsection is not
120-23 subject to Chapter 2001, Government Code.
120-24 SECTION 16.08. Section 27.051, Water Code, is amended by
120-25 amending Subsections (d) and (e) and adding Subsection (h) to read
120-26 as follows:
120-27 (d) The commission, in determining if the use or
121-1 installation of an injection well for the disposal of hazardous
121-2 waste is in the public interest under Subsection (a)(1) [of this
121-3 section], shall consider, but shall not be limited to the
121-4 consideration of:
121-5 (1) compliance history of the applicant under the
121-6 method for evaluating compliance history developed by the
121-7 commission under Section 5.754 and in accordance with the
121-8 provisions of Subsection (e) [of this section];
121-9 (2) whether there is a practical, economic, and
121-10 feasible alternative to an injection well reasonably available to
121-11 manage the types and classes of hazardous waste; and
121-12 (3) whether the applicant will maintain sufficient
121-13 public liability insurance for bodily injury and property damage to
121-14 third parties that is caused by sudden and non-sudden accidents or
121-15 will otherwise demonstrate financial responsibility in a manner
121-16 adopted by the commission in lieu of public liability insurance. A
121-17 liability insurance policy which satisfies the policy limits
121-18 required by the hazardous waste management regulations of the
121-19 commission for the applicant's proposed pre-injection facilities
121-20 shall be deemed "sufficient" under this subdivision if the policy:
121-21 (A) covers the injection well; and
121-22 (B) is issued by a company that is authorized to
121-23 do business and to write that kind of insurance in this state and
121-24 is solvent and not currently under supervision or in
121-25 conservatorship or receivership in this state or any other state.
121-26 (e) Consistent with Sections 5.753 and 5.754 and rules
121-27 adopted and procedures developed under those sections, the [The]
122-1 commission shall establish a procedure for preparing summaries of
122-2 the applicant's compliance history [by rule for its preparation of
122-3 compliance summaries relating to the history of compliance and
122-4 noncompliance by the applicant with the rules adopted or orders or
122-5 permits issued by the commission under this chapter for any
122-6 injection well for which a permit has been issued under this
122-7 chapter]. The [compliance] summaries shall be made available to
122-8 the applicant and any interested person after the commission has
122-9 completed its technical review of the permit application and prior
122-10 to the promulgation of the public notice relating to the issuance
122-11 of the permit. Evidence of compliance or noncompliance by an
122-12 applicant for an injection well for the disposal of hazardous waste
122-13 with the rules adopted or orders or permits issued by the
122-14 commission under this chapter may be offered by any party at a
122-15 hearing on the applicant's application and admitted into evidence
122-16 subject to applicable rules of evidence. In accordance with this
122-17 subsection and Sections 5.753 and 5.754 and rules adopted and
122-18 procedures developed under those sections, evidence of the
122-19 compliance history of an applicant for an injection well may be
122-20 offered at a hearing on the application and may be admitted into
122-21 evidence, subject to the rules of evidence. All evidence admitted,
122-22 including compliance history, shall be considered by the commission
122-23 in determining whether to issue, amend, extend or renew a permit.
122-24 (h) In determining whether the use or installation of an
122-25 injection well is in the public interest under Subsection (a)(1),
122-26 the commission shall consider the compliance history of the
122-27 applicant in accordance with Subsection (e) and Sections 5.753 and
123-1 5.754 and rules adopted and procedures developed under those
123-2 sections.
123-3 SECTION 16.09. Section 361.020(d), Health and Safety Code, is
123-4 amended to read as follows:
123-5 (d) The commission in developing a comprehensive statewide
123-6 strategic plan shall:
123-7 (1) consult with:
123-8 (A) the agency's waste minimization, recycling,
123-9 or reduction division;
123-10 (B) the municipal solid waste management and
123-11 resource recovery advisory council;
123-12 (C) the pollution prevention [waste reduction]
123-13 advisory committee;
123-14 (D) the interagency coordinating council; and
123-15 (E) local governments, appropriate regional and
123-16 state agencies, businesses, citizen groups, and private waste
123-17 management firms;
123-18 (2) hold public hearings in different regions of the
123-19 state; and
123-20 (3) publish the proposed plan in the Texas Register.
123-21 SECTION 16.10. Sections 361.084(a) and (c), Health and Safety
123-22 Code, are amended to read as follows:
123-23 (a) The commission by rule shall establish a procedure to
123-24 prepare compliance summaries relating to the applicant's solid
123-25 waste management activities in accordance with the method for
123-26 evaluating compliance history developed by the commission under
123-27 Section 5.754, Water Code.
124-1 (c) Evidence of compliance or noncompliance by an applicant
124-2 for a solid waste management facility permit with agency rules,
124-3 permits, other orders, or evidence of a final determination of
124-4 noncompliance with federal statutes or statutes of any state [in
124-5 the preceding five years] concerning solid waste management may be:
124-6 (1) offered by a party at a hearing concerning the
124-7 application; and
124-8 (2) admitted into evidence subject to applicable rules
124-9 of evidence.
124-10 SECTION 16.11. Section 361.088(f), Health and Safety Code, is
124-11 amended to read as follows:
124-12 (f) Notwithstanding Subsection (e), if the commission
124-13 determines that an applicant's compliance history under the method
124-14 for evaluating compliance history developed by the commission under
124-15 Section 5.754, Water Code, [for the preceding five years] raises an
124-16 issue regarding the applicant's ability to comply with a material
124-17 term of its permit, the commission shall provide an opportunity to
124-18 request a contested case hearing.
124-19 SECTION 16.12. Sections 361.089(a), (e), and (f), Health and
124-20 Safety Code, are amended to read as follows:
124-21 (a) The commission may, for good cause, deny or amend a
124-22 permit it issues or has authority to issue for reasons pertaining
124-23 to public health, air or water pollution, or land use, or for
124-24 having a compliance history that is in the lowest classification
124-25 under Sections 5.753 and 5.754, Water Code, and rules adopted and
124-26 procedures developed under those sections [a violation of this
124-27 chapter or other applicable laws or rules controlling the
125-1 management of solid waste].
125-2 (e) The commission may deny an original or renewal permit if
125-3 it is found, after notice and hearing, that:
125-4 (1) the applicant or permit holder has a compliance
125-5 history that is in the lowest classification under Sections 5.753
125-6 and 5.754, Water Code, and rules adopted and procedures developed
125-7 under those sections [record of environmental violations in the
125-8 preceding five years at the permitted site;]
125-9 [(2) the applicant has a record of environmental
125-10 violations in the preceding five years at any site owned, operated,
125-11 or controlled by the applicant];
125-12 (2) [(3)] the permit holder or applicant made a false
125-13 or misleading statement in connection with an original or renewal
125-14 application, either in the formal application or in any other
125-15 written instrument relating to the application submitted to the
125-16 commission, its officers, or its employees;
125-17 (3) [(4)] the permit holder or applicant is indebted
125-18 to the state for fees, payment of penalties, or taxes imposed by
125-19 this title or by a rule of the commission; or
125-20 (4) [(5)] the permit holder or applicant is unable to
125-21 ensure that the management of the hazardous waste management
125-22 facility conforms or will conform to this title and the rules of
125-23 the commission.
125-24 (f) Before denying a permit under this section, the
125-25 commission must find:
125-26 (1) that the applicant or permit holder has a
125-27 compliance history that is in the lowest classification under
126-1 Sections 5.753 and 5.754, Water Code, and rules adopted and
126-2 procedures developed under those sections [a violation or
126-3 violations are significant and that the permit holder or applicant
126-4 has not made a substantial attempt to correct the violations]; or
126-5 (2) that the permit holder or applicant is indebted to
126-6 the state for fees, payment of penalties, or taxes imposed by this
126-7 title or by a rule of the commission.
126-8 SECTION 16.13. Sections 382.0518(b) and (c), Health and
126-9 Safety Code, are amended to read as follows:
126-10 (b) The commission shall grant within a reasonable time a
126-11 permit to construct or modify a facility if, from the information
126-12 available to the commission, including information presented at any
126-13 hearing held under Section 382.056(k) [382.056(d)], the commission
126-14 finds:
126-15 (1) the proposed facility for which a permit or a
126-16 special permit is sought will use at least the best available
126-17 control technology, considering the technical practicability and
126-18 economic reasonableness of reducing or eliminating the emissions
126-19 resulting from the facility; and
126-20 (2) no indication that the emissions from the facility
126-21 will contravene the intent of this chapter, including protection of
126-22 the public's health and physical property.
126-23 (c) In considering the issuance, amendment, or renewal of a
126-24 permit, the commission may consider the applicant's compliance
126-25 history in accordance with the method for evaluating compliance
126-26 history developed by the commission under Section 5.754, Water Code
126-27 [any adjudicated decision or compliance proceeding within the five
127-1 years before the date on which the application was filed that
127-2 addressed the applicant's past performance and compliance with the
127-3 laws of this state, another state, or the United States governing
127-4 air contaminants or with the terms of any permit or order issued by
127-5 the commission].
127-6 SECTION 16.14. Section 382.055(d), Health and Safety Code, is
127-7 amended to read as follows:
127-8 (d) In determining whether and under which conditions a
127-9 preconstruction permit should be renewed, the commission shall
127-10 consider, at a minimum:
127-11 (1) [whether] the performance of the owner or operator
127-12 of the facility according to the method developed by the commission
127-13 under Section 5.754, Water Code [is or has been in substantial
127-14 compliance with this chapter and the terms of the existing permit];
127-15 and
127-16 (2) the condition and effectiveness of existing
127-17 emission control equipment and practices.
127-18 SECTION 16.15. Section 382.056(o), Health and Safety Code, is
127-19 amended to read as follows:
127-20 (o) Notwithstanding other provisions of this chapter, the
127-21 commission may hold a hearing on a permit amendment, modification,
127-22 or renewal if the commission determines that the application
127-23 involves a facility for which the applicant's compliance history is
127-24 in the lowest classification under Sections 5.753 and 5.754, Water
127-25 Code, and rules adopted and procedures developed under those
127-26 sections [contains violations which are unresolved and which
127-27 constitute a recurring pattern of egregious conduct which
128-1 demonstrates a consistent disregard for the regulatory process,
128-2 including the failure to make a timely and substantial attempt to
128-3 correct the violations].
128-4 SECTION 16.16. Section 401.110, Health and Safety Code, is
128-5 amended to read as follows:
128-6 Sec. 401.110. DETERMINATION ON LICENSE. In making a
128-7 determination whether to grant, deny, amend, revoke, suspend, or
128-8 restrict a license or registration, the [department or] commission
128-9 may consider [those aspects of] an applicant's or license holder's
128-10 [background that bear materially on the ability to fulfill the
128-11 obligations of licensure, including] technical competence and
128-12 compliance history under the method for evaluation of compliance
128-13 history developed by the commission under Section 5.754, Water Code
128-14 [the applicant's or license holder's record in areas involving
128-15 radiation].
128-16 SECTION 16.17. Section 401.112(a), Health and Safety Code, is
128-17 amended to read as follows:
128-18 (a) The department or commission, within its jurisdiction,
128-19 in making a licensing decision on a specific license application to
128-20 process or dispose of low-level radioactive waste from other
128-21 persons, shall consider:
128-22 (1) site suitability, geological, hydrological, and
128-23 meteorological factors, and natural hazards;
128-24 (2) compatibility with present uses of land near the
128-25 site;
128-26 (3) socioeconomic effects on surrounding communities
128-27 of operation of the licensed activity and of associated
129-1 transportation of low-level radioactive waste;
129-2 (4) the need for and alternatives to the proposed
129-3 activity, including an alternative siting analysis prepared by the
129-4 applicant;
129-5 (5) the applicant's qualifications, including
129-6 financial and[,] technical qualifications[,] and compliance history
129-7 under the method for evaluation of compliance history developed by
129-8 the commission under Section 5.754, Water Code [past operating
129-9 practices];
129-10 (6) background monitoring plans for the proposed site;
129-11 (7) suitability of facilities associated with the
129-12 proposed activities;
129-13 (8) chemical, radiological, and biological
129-14 characteristics of the low-level radioactive waste and waste
129-15 classification under Section 401.053;
129-16 (9) adequate insurance of the applicant to cover
129-17 potential injury to any property or person, including potential
129-18 injury from risks relating to transportation;
129-19 (10) training programs for the applicant's employees;
129-20 (11) a monitoring, record-keeping, and reporting
129-21 program;
129-22 (12) spill detection and cleanup plans for the
129-23 licensed site and related to associated transportation of low-level
129-24 radioactive waste;
129-25 (13) decommissioning and postclosure care plans;
129-26 (14) security plans;
129-27 (15) worker monitoring and protection plans;
130-1 (16) emergency plans; and
130-2 (17) a monitoring program for applicants that includes
130-3 prelicense and postlicense monitoring of background radioactive and
130-4 chemical characteristics of the soils, groundwater, and vegetation.
130-5 ARTICLE 17. REGULATION OF DISPOSAL OF ANIMAL REMAINS
130-6 SECTION 17.01. Subchapter H, Chapter 801, Occupations Code,
130-7 is amended by adding Section 801.361 to read as follows:
130-8 Sec. 801.361. DISPOSAL OF ANIMAL REMAINS. (a) A
130-9 veterinarian may dispose of the remains of an animal by burial or
130-10 burning if:
130-11 (1) the burial or burning occurs on property owned by
130-12 the veterinarian; and
130-13 (2) the veterinarian does not charge for the burning
130-14 or burial.
130-15 (b) Notwithstanding any other law, the Texas Natural
130-16 Resource Conservation Commission may not adopt a rule that
130-17 prohibits conduct authorized by this section.
130-18 (c) This section applies only in a county with a population
130-19 of less than 10,000.
130-20 ARTICLE 18. TRANSITIONS; EFFECTIVE DATE
130-21 SECTION 18.01. CHANGE OF AGENCY NAME. (a) Effective January
130-22 1, 2004:
130-23 (1) the name of the Texas Natural Resource
130-24 Conservation Commission is changed to the Texas Commission on
130-25 Environmental Quality, and all powers, duties, rights, and
130-26 obligations of the Texas Natural Resource Conservation Commission
130-27 are the powers, duties, rights, and obligations of the Texas
131-1 Commission on Environmental Quality;
131-2 (2) a member of the Texas Natural Resource
131-3 Conservation Commission is a member of the board of the Texas
131-4 Commission on Environmental Quality;
131-5 (3) all personnel, equipment, data, documents,
131-6 facilities, and other items of the Texas Natural Resource
131-7 Conservation Commission are transferred to the agency under its new
131-8 name; and
131-9 (4) any appropriation to the Texas Natural Resource
131-10 Conservation Commission is automatically an appropriation to the
131-11 Texas Commission on Environmental Quality.
131-12 (b) Effective January 1, 2004, a reference in law to the
131-13 Texas Natural Resource Conservation Commission is a reference to
131-14 the Texas Commission on Environmental Quality.
131-15 (c) The Texas Natural Resource Conservation Commission shall
131-16 adopt a timetable for phasing in the change of the agency's name so
131-17 as to minimize the fiscal impact of the name change. Until January
131-18 1, 2004, to allow for phasing in the change of the agency's name
131-19 and in accordance with the timetable established as required by
131-20 this section, the agency may perform any act authorized by law for
131-21 the Texas Natural Resource Conservation Commission as the Texas
131-22 Natural Resource Conservation Commission or as the Texas Commission
131-23 on Environmental Quality. Any act of the Texas Natural Resource
131-24 Conservation Commission acting as the Texas Commission on
131-25 Environmental Quality after the effective date of this Act and
131-26 before January 1, 2004, is an act of the Texas Natural Resource
131-27 Conservation Commission.
132-1 SECTION 18.02. TRANSFER OF SAFE DRINKING WATER LABORATORY
132-2 CERTIFICATION PROGRAM. (a) On the effective date of this Act, the
132-3 following are transferred to the Texas Natural Resource
132-4 Conservation Commission:
132-5 (1) all powers, duties, rights, and obligations of the
132-6 Texas Department of Health relating to the safe drinking water
132-7 laboratory certification program administered by the Texas
132-8 Department of Health's bureau of laboratories;
132-9 (2) all personnel, equipment, data, documents,
132-10 facilities, and other items of the Texas Department of Health
132-11 relating to the safe drinking water laboratory certification
132-12 program; and
132-13 (3) all appropriations to the Texas Department of
132-14 Health pertaining to the safe drinking water laboratory
132-15 certification program, and all other state or federal money
132-16 available to the Texas Department of Health for that program.
132-17 (b) On the effective date of this Act, Texas Department of
132-18 Health rules relating to the safe drinking water laboratory
132-19 certification program administered by the Texas Department of
132-20 Health's bureau of laboratories are the rules of the Texas Natural
132-21 Resource Conservation Commission until the commission adopts rules
132-22 to govern that program.
132-23 (c) A certification issued by the Texas Department of Health
132-24 for a safe drinking water laboratory before September 1, 2001,
132-25 remains in effect until the date it expires or is revoked,
132-26 notwithstanding the change in law made by this section.
132-27 SECTION 18.03. TRANSFER OF ENVIRONMENTAL TESTING LABORATORY
133-1 CERTIFICATION PROGRAM. (a) On the effective date of this Act, the
133-2 following are transferred to the Texas Natural Resource
133-3 Conservation Commission:
133-4 (1) all powers, duties, rights, and obligations of the
133-5 Texas Department of Health relating to the environmental testing
133-6 laboratory certification program administered by the Texas
133-7 Department of Health under Chapter 421, Health and Safety Code;
133-8 (2) all personnel, equipment, data, documents,
133-9 facilities, and other items of the Texas Department of Health
133-10 relating to the environmental testing laboratory certification
133-11 program; and
133-12 (3) all appropriations to the Texas Department of
133-13 Health pertaining to the environmental laboratory certification
133-14 program, and all other state or federal money available to the
133-15 Texas Department of Health for that program.
133-16 (b) On the effective date of this Act, Texas Department of
133-17 Health rules relating to the environmental testing laboratory
133-18 certification program administered by the Texas Department of
133-19 Health under Chapter 421, Health and Safety Code, are the rules of
133-20 the Texas Natural Resource Conservation Commission until the
133-21 commission adopts rules to govern that program.
133-22 (c) A certification issued by the Texas Department of Health
133-23 before September 1, 2001, remains in effect until the date it
133-24 expires or is revoked, notwithstanding the change in law made by
133-25 this section and by this Act to Chapter 421, Health and Safety
133-26 Code.
133-27 (d) The change in law made by the addition by this Act of
134-1 Section 5.127, Water Code, relating to the acceptance of
134-2 environmental testing laboratory results by the Texas Natural
134-3 Resource Conservation Commission, applies only to environmental
134-4 testing laboratory results submitted to the commission on or after
134-5 the third anniversary of the date on which the commission publishes
134-6 notice in the Texas Register that the commission's environmental
134-7 laboratory testing program established under Subchapter R, Chapter
134-8 5, Water Code, as added by this Act, has met the standards of the
134-9 National Environmental Laboratory Accreditation Conference.
134-10 SECTION 18.04. CERTIFICATION OF WATER TREATMENT SPECIALISTS.
134-11 (a) On the effective date of this Act, the following are
134-12 transferred to the Texas Natural Resource Conservation Commission:
134-13 (1) all powers, duties, rights, and obligations of the
134-14 Texas Department of Health relating to the certification of water
134-15 treatment specialists administered by the Texas Department of
134-16 Health under Section 3A, The Plumbing License Law (Article
134-17 6243-101, Vernon's Texas Civil Statutes);
134-18 (2) all equipment, data, documents, facilities, and
134-19 other items of the Texas Department of Health relating to the
134-20 certification of water treatment specialists; and
134-21 (3) all appropriations to the Texas Department of
134-22 Health pertaining to the certification of water treatment
134-23 specialists, and all other state or federal money available to the
134-24 Texas Department of Health for that program.
134-25 (b) On the effective date of this Act, Texas Department of
134-26 Health rules relating to the certification of water treatment
134-27 specialists are the rules of the Texas Natural Resource
135-1 Conservation Commission until the commission adopts rules to govern
135-2 that program.
135-3 SECTION 18.05. PERFORMANCE-BASED REGULATION. (a) Not later
135-4 than February 1, 2002, the Texas Natural Resource Conservation
135-5 Commission by rule shall establish the components of compliance
135-6 history, as required by Section 5.753, Water Code, as added by this
135-7 Act.
135-8 (b) Not later than September 1, 2002, the Texas Natural
135-9 Resource Conservation Commission by rule shall establish the
135-10 standards for the classification and use of compliance history, as
135-11 required by Section 5.754, Water Code, as added by this Act.
135-12 (c) Not later than September 1, 2003, the Texas Natural
135-13 Resource Conservation Commission by rule shall establish interim
135-14 incentives as part of the strategically directed regulatory
135-15 structure required by Section 5.755, Water Code, as added by this
135-16 Act.
135-17 (d) Not later than September 1, 2005, the Texas Natural
135-18 Resource Conservation Commission by rule shall complete all rules
135-19 necessary for the strategically directed regulatory structure
135-20 required by Section 5.755, Water Code, as added by this Act.
135-21 (e) The Texas Natural Resource Conservation Commission shall
135-22 report to the 78th and 79th legislatures regarding the
135-23 implementation of the strategically directed regulatory structure
135-24 required by Section 5.755, Water Code, as added by this Act. The
135-25 reports must include recommendations regarding statutory
135-26 impediments to program implementation, progress in the development
135-27 of rules and incentives, participation in the program, changes in
136-1 federal statutes and policies affecting implementation of the
136-2 program, and benefits accruing to the environment from the program.
136-3 A report required by this subsection shall be filed not later than
136-4 December 15 of the year preceding the year in which the legislative
136-5 session begins.
136-6 (f) The changes made by this Act in the consideration of
136-7 compliance history in decisions by the Texas Natural Resource
136-8 Conservation Commission relating to the issuance, amendment,
136-9 modification, or renewal of permits under the following sections
136-10 apply only to an application for the issuance, amendment,
136-11 modification, or renewal of a permit submitted to the Texas Natural
136-12 Resource Conservation Commission on or after September 1, 2002:
136-13 (1) Sections 5.754, 26.028, 26.0281, 26.040, and
136-14 27.018, Water Code; and
136-15 (2) Sections 361.084, 361.088, 361.089, 382.0518,
136-16 382.055, 382.056, 401.110, and 401.112, Health and Safety Code.
136-17 (g) For the purposes of consideration of compliance history
136-18 in decisions by the Texas Natural Resource Conservation Commission
136-19 relating to the issuance, amendment, modification, or renewal of a
136-20 permit under the sections listed under Subsection (f) of this
136-21 section, an application submitted before September 1, 2002, is
136-22 governed by the law as it existed immediately before September 1,
136-23 2001, and the former law is continued in effect for that purpose.
136-24 (h) The changes made by this Act in the consideration of
136-25 compliance history in decisions by the Texas Natural Resource
136-26 Conservation Commission relating to inspections and flexible
136-27 permitting under Subchapter Q, Chapter 5, Water Code, as added by
137-1 this Act apply, effective September 1, 2002, to an action taken by
137-2 the Texas Natural Resource Conservation Commission that is subject
137-3 to those sections.
137-4 (i) The changes made by this Act in the definition of
137-5 compliance history apply to an action taken by the Texas Natural
137-6 Resource Conservation Commission on or after February 1, 2002. An
137-7 action taken by the Texas Natural Resource Conservation Commission
137-8 before February 1, 2002, is governed by the law in effect on the
137-9 date the action is taken, and the former law is continued in effect
137-10 for that purpose.
137-11 (j) The changes made by this Act in the consideration of
137-12 compliance history in decisions of the Texas Natural Resource
137-13 Conservation Commission relating to the suspension or revocation of
137-14 a permit or the imposition of a penalty in a matter under the
137-15 jurisdiction of the commission apply only to a proceeding that is
137-16 initiated or an action that is brought on or after September 1,
137-17 2002. A proceeding that is initiated or an action that is brought
137-18 before September 1, 2002, is governed by the law in effect on the
137-19 date the proceeding is initiated or action is brought, and the
137-20 former law is continued in effect for that purpose.
137-21 (k) For the period between September 1, 2002, and September
137-22 1, 2005, the Texas Natural Resource Conservation Commission by rule
137-23 may temporarily modify specific compliance history requirements to
137-24 implement the regulatory structure being developed under Subchapter
137-25 Q, Chapter 5, Water Code, as added by this Act. This section does
137-26 not authorize the commission to modify existing statutory
137-27 requirements relating to the use of compliance history in any
138-1 enforcement proceeding.
138-2 SECTION 18.06. FEES. (a) The changes in law made by
138-3 Sections 5.702 and 5.703, Water Code, as added by this Act,
138-4 relating to the timely payment and adjustment of fees due the Texas
138-5 Natural Resource Conservation Commission, and by Section 5.706,
138-6 Water Code, as added by this Act, relating to penalties and
138-7 interest for delinquent fees, apply only to fees that are due on or
138-8 after September 1, 2001.
138-9 (b) The change in law made by this Act to Sections 26.0135
138-10 and 26.0291, Water Code, relating to the consolidation of certain
138-11 fees relating to water quality, takes effect September 1, 2002, and
138-12 applies only to fees due on or after that date. The assessment and
138-13 collection of fees due before the effective date of this Act are
138-14 governed by the former law, and that law is continued in effect for
138-15 that purpose. Water resource management account balances dedicated
138-16 to a particular purpose under Sections 26.0135 and 26.0291, Water
138-17 Code, as that law exists prior to the changes in law made by this
138-18 Act, that have not been expended before the effective date of this
138-19 Act may be used for the purposes authorized by this Act.
138-20 (c) Water resource management account balances dedicated to
138-21 a particular purpose under the law as it exists prior to the
138-22 changes in law made by this Act to redesignated Sections 5.701(e),
138-23 (p), and (q), Water Code, and Sections 341.041(a), 366.058(a), and
138-24 366.059(b), Health and Safety Code, that have not been expended
138-25 before the effective date of this Act may be used for the purposes
138-26 authorized under this Act.
138-27 SECTION 18.07. REGULATORY FLEXIBILITY. The change in law
139-1 made by Section 5.123, Water Code, as added by Chapter 1203, Acts
139-2 of the 75th Legislature, Regular Session, 1997, relating to
139-3 regulatory flexibility, as transferred, redesignated, and amended
139-4 by this Act, applies only to an application for regulatory
139-5 flexibility that is submitted to the Texas Natural Resource
139-6 Conservation Commission on or after September 1, 2001.
139-7 SECTION 18.08. COMMISSIONER TRAINING. (a) As soon as
139-8 practicable after September 1, 2001, but not later than December 1,
139-9 2001, the Texas Natural Resource Conservation Commission shall
139-10 adopt rules to implement the training program for commission
139-11 members required by Section 5.0535, Water Code, as added by this
139-12 Act.
139-13 (b) The training requirements of Section 5.0535, Water Code,
139-14 as added by this Act, apply only to a member of the commission who
139-15 is appointed on or after January 1, 2002.
139-16 SECTION 18.09. EXECUTIVE DIRECTOR. The change in law made by
139-17 this Act to Section 5.228, Water Code, relating to hearing
139-18 appearances by the executive director of the Texas Natural Resource
139-19 Conservation Commission, applies only to a hearing in which the
139-20 executive director is named a party on or after September 1, 2001.
139-21 SECTION 18.10. INITIATION OF ACTION ON CITIZEN INFORMATION.
139-22 (a) Not later than December 1, 2001, the Texas Natural Resource
139-23 Conservation Commission shall adopt rules to implement the
139-24 requirements of Section 7.0025, Water Code, as added by this Act,
139-25 relating to the initiation of enforcement action by the commission
139-26 based on information regarding an environmental problem submitted
139-27 by a private individual.
140-1 (b) The change in law made by Section 7.0025, Water Code, as
140-2 added by this Act, applies only to information regarding an
140-3 environmental problem submitted to the Texas Natural Resource
140-4 Conservation Commission on or after January 1, 2002.
140-5 SECTION 18.11. ADOPTION OF RULES REGARDING REGULATION OF
140-6 CERTAIN FACILITIES AS SOLID WASTE FACILITIES. As soon as
140-7 practicable after the effective date of this Act, the Texas Natural
140-8 Resource Conservation Commission shall adopt rules as necessary to
140-9 implement Section 361.119, Health and Safety Code, as added by this
140-10 Act.
140-11 SECTION 18.12. JOINT INTERIM STUDY ON OFFICE OF NATURAL
140-12 RESOURCE PUBLIC INTEREST COUNSEL. A joint interim study shall be
140-13 conducted by a joint committee consisting of five members of the
140-14 senate appointed by the lieutenant governor and five members of the
140-15 house of representatives appointed by the speaker of the house.
140-16 The committee shall study and report to the 78th Legislature on the
140-17 issues associated with establishing an Office of Natural Resource
140-18 Public Interest Counsel. The issues addressed shall include:
140-19 (1) the authority of the office of public interest
140-20 counsel, including the authority to appeal decisions of the Texas
140-21 Natural Resource Conservation Commission;
140-22 (2) resources needed to carry out the functions of the
140-23 office; and
140-24 (3) the relationship of the office to other public
140-25 assistance efforts in the agency and the need for an agency
140-26 ombudsman.
140-27 SECTION 18.13. CONTAINMENT SYSTEMS REQUIRED FOR CERTAIN
141-1 UNDERGROUND STORAGE TANKS. The change in law made by Section
141-2 26.3476, Water Code, as added by this Act, applies only to an
141-3 underground storage tank system that is installed, upgraded, or
141-4 replaced on or after the effective date of this Act.
141-5 SECTION 18.14. EMISSIONS EVENTS. The purpose of Sections
141-6 382.0215 and 382.0216, Health and Safety Code, as added by this
141-7 Act, is to add new or more stringent requirements regarding upsets,
141-8 startups, shutdowns, and maintenance. Those sections may not be
141-9 construed as limiting the existing authority of the Texas Natural
141-10 Resource Conservation Commission under Chapter 382, Health and
141-11 Safety Code, to require the reporting or the permitting of the
141-12 emission of air contaminants or to bring enforcement action for a
141-13 violation of Chapter 382. Those sections are not intended to limit
141-14 any right that may exist under federal law for a person to seek
141-15 injunctive relief.
141-16 SECTION 18.15. EFFECTIVE DATE. Except as otherwise provided
141-17 by this Act, this Act takes effect September 1, 2001.
141-18 ARTICLE 19. ENVIRONMENTAL HEALTH
141-19 SECTION 19.01. Title 5, Health and Safety Code, is amended by
141-20 adding Subtitle G to read as follows:
141-21 SUBTITLE G. ENVIRONMENTAL HEALTH
141-22 CHAPTER 427. TEXAS ENVIRONMENTAL HEALTH INSTITUTE
141-23 Sec. 427.001. In this chapter:
141-24 (1) "Board" means the Texas Board of Health.
141-25 (2) "Commission" means the Texas Natural Resource
141-26 Conservation Commission.
141-27 (3) "Department" means the Texas Department of Health.
142-1 (4) "Federal superfund site" means a site defined by
142-2 the federal Comprehensive Environmental Response, Compensation, and
142-3 Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as amended.
142-4 (5) "Immediately surrounding area" means an area
142-5 determined by the commission to have been significantly exposed to
142-6 one or more pollutants from the identified site.
142-7 (6) "Institute" means the Texas Environmental Health
142-8 Institute.
142-9 Sec. 427.002. TEXAS ENVIRONMENTAL HEALTH INSTITUTE. The
142-10 commission shall enter into an agreement with the department to
142-11 jointly establish the Texas Environmental Health Institute in order
142-12 to examine ways to identify, treat, manage, prevent, and reduce
142-13 health problems associated with environmental contamination.
142-14 Sec. 427.003. PURPOSES. The purposes of the institute are
142-15 to:
142-16 (1) develop a statewide plan to identify health
142-17 conditions, related or potentially related to environmental
142-18 contamination, of residents of this state who live or have lived
142-19 within the immediately surrounding area of a federal superfund site
142-20 or a state superfund site;
142-21 (2) develop a plan to promote and protect the health
142-22 and safety of residents in immediately surrounding areas by
142-23 preventing or reducing their health risks from exposure to chemical
142-24 and biological contaminants, radioactive materials, and other
142-25 hazards in the environment and the workplace;
142-26 (3) develop a plan for informing and educating
142-27 citizens in immediately surrounding areas about the identified
143-1 health risks and ways to prevent or reduce exposure;
143-2 (4) identify private and federal funding opportunities
143-3 for institute operations; and
143-4 (5) conduct, coordinate, or pursue funding for
143-5 research concerning short-term and long-term impacts of exposure to
143-6 environmental contamination.
143-7 Sec. 427.004. PROGRAMS. The commission and the department
143-8 may establish at the institute any programs necessary to carry out
143-9 the institute's established purposes under this chapter. The
143-10 commission and the board may contract with public or private
143-11 entities to carry out the institute's purposes.
143-12 Sec. 427.005. GIFTS AND GRANTS. The commission and the
143-13 department may accept and administer gifts and grants to fund the
143-14 institute from any individual, corporation, trust, or foundation or
143-15 the United States, subject to limitations or conditions imposed by
143-16 law.
143-17 Sec. 427.006. PILOT PROJECT. (a) The institute shall
143-18 conduct a pilot project at the RSR West Dallas site and at the
143-19 Cadillac Heights site. The project may include health screenings
143-20 and assessments.
143-21 (b) The institute may enter into a memorandum of
143-22 understanding with the commission and the department for toxic
143-23 screening, pollutant assessment, toxicologist services, or any
143-24 other appropriate service to be provided by the agencies, as
143-25 necessary.
143-26 (c) The institute shall use information gathered through the
143-27 pilot project to assist in developing its plan for implementing the
144-1 institute's purposes under this chapter.
144-2 (d) The pilot project shall be conducted for two years
144-3 beginning on September 1, 2001. The institute shall submit to the
144-4 78th Legislature a report on the results of the pilot project and
144-5 the development and implementation of the statewide plan and the
144-6 further organization of the institute.
144-7 ARTICLE 20. OTHER REGULATORY PROVISIONS
144-8 SECTION 20.01. Subchapter K, Chapter 13, Water Code, is
144-9 amended by adding Section 13.4115 to read as follows:
144-10 Sec. 13.4115. ACTION TO REQUIRE ADJUSTMENT TO CONSUMER
144-11 CHARGE; PENALTY. In regard to a customer complaint arising out of a
144-12 charge made by a public utility, if the executive director finds
144-13 that the utility has failed to make the proper adjustment to the
144-14 customer's bill after the conclusion of the complaint process
144-15 established by the commission, the commission may issue an order
144-16 requiring the utility to make the adjustment. Failure to comply
144-17 with the order within 30 days of receiving the order is a violation
144-18 for which the commission may impose an administrative penalty under
144-19 Section 13.4151.
144-20 SECTION 20.02. Section 51.149, Water Code, is amended to read
144-21 as follows:
144-22 Sec. 51.149. CONTRACTS. (a) Notwithstanding Section
144-23 49.108(e), no approval other than that specified in Subsection (c)
144-24 need be obtained in order for a contract between a district and a
144-25 municipality to be valid, binding, and enforceable against all
144-26 parties to the contract. After approval by a majority of the
144-27 electors voting at an election conducted in the manner of a bond
145-1 election, a district may make payments under a contract from taxes
145-2 for debt that does not exceed 30 years.
145-3 (b) [(d)] A contract may provide that the district will make
145-4 payments under the contract from proceeds from the sale of notes or
145-5 bonds, from taxes, from any other income of the district, or from
145-6 any combination of these.
145-7 (c) [(e)] A district may make payments under a contract from
145-8 taxes, other than maintenance taxes, after the provisions of the
145-9 contract have been approved by a majority of the electors voting at
145-10 an election held for that purpose.
145-11 (d) [(f)] Any contract election may be held at the same time
145-12 as and in conjunction with an election to issue bonds, and the
145-13 procedure for calling the election, giving notice, conducting the
145-14 election, and canvassing the returns shall be the same as the
145-15 procedure for a bond election.
145-16 SECTION 20.03. Subchapter D, Chapter 366, Health and Safety
145-17 Code, is amended by adding Section 366.0512 to read as follows:
145-18 Sec. 366.0512. MULTIPLE TREATMENT SYSTEMS. A multiple system
145-19 of treatment devices and disposal facilities may be permitted as an
145-20 on-site disposal system under this chapter if the system:
145-21 (1) is located on a tract of land of at least 100
145-22 acres in size;
145-23 (2) produces not more than 5,000 gallons a day on an
145-24 annual average basis;
145-25 (3) is used only on a seasonal or intermittent basis;
145-26 and
145-27 (4) is used only for disposal of sewage produced on
146-1 the tract of land on which any part of the system is located.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2912 was passed by the House on
April 20, 2001, by a non-record vote; that the House refused to
concur in Senate amendments to H.B. No. 2912 on May 17, 2001, 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. 2912 on May 27, 2001, by
the following vote: Yeas 100, Nays 42, 2 present, not voting; and
that the House adopted H.C.R. No. 331 authorizing certain
corrections in H.B. No. 2912 on May 28, 2001, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 2912 was passed by the Senate, with
amendments, on May 14, 2001, by a viva-voce vote; 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. 2912 on May 27, 2001,
by a viva-voce vote; and that the Senate adopted H.C.R. No. 331
authorizing certain corrections in H.B. No. 2912 on May 28, 2001,
by a viva-voce vote.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor