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No significant fiscal implication to the State is anticipated.
The bill would shift the burden of producing evidence from the applicant to protesting parties in contested case hearings (CCH) on applications with the Texas Commission on Environmental Quality (TCEQ) for air quality; water quality; municipal, industrial and hazardous waste; and underground injection control permits. The bill would limit the issues that could be referred to the State Office of Administrative Hearings (SOAH) to the factual disputes actually raised by the "affected person." Finally, it would limit the time for a CCH to no longer than 180 days from the date of the preliminary hearing.
The SOAH reports that the bill would not have a significant impact on the agency. The TCEQ reports that passage of the bill could result in some costs to the agency, such as those associated with updating an agency database. However, these costs are not expected to be significant.
SB 709, if passed, would affect the permitting procedures for applications files with the Texas Commission on Environmental Quality by making two sets of changes. The first set would add new subsections to part of the Government Code (Section 2003.047). The second set would add new subsections to part of the Water Code (Section 5.556).
New subsections added to the Government Code would state that the filing of a draft permit with the administrative judge would serve as a prima facie demonstration that said permit meets all relevant federal and state requirements (statutory, regulatory, and technical), and, is evidence that any permit issued in the same form as the draft permit would be protective of the public health, environment, and physical property.
The subsections would also allow each protesting party to be given the opportunity to present evidence if they believe that the draft permit does not meet the above expectations. There are a new other small changes listed after this point, mostly marginal. The final change of note which would be made to the Government Code states that decisions on the outcome of preliminary hearings must be made within 180 days after the hearing ends.
New subsections added to the Water Code would clarify how the commission would determine whether a person seeking a contested case hearing is an affected person. The commission would be able to “weigh and resolve matters relating to the merits of the underlying application” and may “evaluate the administrative record, including the permit application and any supporting documentation”. More details are provided but are mostly clerical in nature and expand upon these two steps.
The new subsection would also state that the commission may not find a group to be an affected person unless the name and physical address of the alleged affected party is identified and unless the information regarding the affected person is submitted in a timely manner.
Most of the changes which would be introduced by SB 709, to both the Government Code, and the Water Code, would make the TCEQ permitting procedure more efficient. Some of the changes are mere clarifications of code. Others are more substantive. Of particular note is the requirement that the TCEQ must make a decision within 180 days of the end of a hearing. This bill would also appropriately shift the burden of evidence in a CCH to the contesting party. These provisions would prevent the permitting process from being delayed.
Also of note is the explicit
inclusion of the ability to protest a case if one suspects that a permit has
not been submitted properly. The changes which would be brought about by SB 709
are significant enough to be regarded as a substantive improvement in
government efficiency and the expansion of the code is justified. This would also support the property rights of permit applicants to use their property as they see fit without further unnecessary delay in permitting. For these reasons, we support SB 709.