WATER CODE
TITLE 2. WATER ADMINISTRATION
SUBTITLE A. EXECUTIVE AGENCIES
CHAPTER 5. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
§ 5.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Water Development Board.
(2) "Commission" means the Texas Natural Resource
Conservation Commission.
(3) "Executive director" means the executive director
of the Texas Natural Resource Conservation Commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.001, eff. Aug.
12, 1991.
§ 5.002. SCOPE OF CHAPTER. The powers and duties
enumerated in this chapter are the general powers and duties of the
commission and those incidental to the conduct of its business. The
commission has other specific powers and duties as prescribed in
other sections of this code and other laws of this state.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
SUBCHAPTER B. ORGANIZATION OF THE TEXAS NATURAL RESOURCE
CONSERVATION COMMISSION
§ 5.011. PURPOSE OF CHAPTER. It is the purpose of this
chapter to provide an organizational structure for the commission
that will provide more efficient and effective administration of
the conservation of natural resources and the protection of the
environment in this state and to define the duties,
responsibilities, authority, and functions of the commission and
the executive director.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.003, eff. Aug.
12, 1991.
§ 5.012. DECLARATION OF POLICY. The commission is the
agency of the state given primary responsibility for implementing
the constitution and laws of this state relating to the
conservation of natural resources and the protection of the
environment.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.004, eff. Aug.
12, 1991.
§ 5.013. GENERAL JURISDICTION OF COMMISSION. (a) The
commission has general jurisdiction over:
(1) water and water rights including the issuance of
water rights permits, water rights adjudication, cancellation of
water rights, and enforcement of water rights;
(2) continuing supervision over districts created
under Article III, Sections 52(b)(1) and (2), and Article XVI,
Section 59, of the Texas Constitution;
(3) the state's water quality program including
issuance of permits, enforcement of water quality rules, standards,
orders, and permits, and water quality planning;
(4) the determination of the feasibility of certain
federal projects;
(5) the adoption and enforcement of rules and
performance of other acts relating to the safe construction,
maintenance, and removal of dams;
(6) conduct of the state's hazardous spill prevention
and control program;
(7) the administration of the state's program relating
to inactive hazardous substance, pollutant, and contaminant
disposal facilities;
(8) the administration of a portion of the state's
injection well program;
(9) the administration of the state's programs
involving underground water and water wells and drilled and mined
shafts;
(10) the state's responsibilities relating to regional
waste disposal;
(11) the responsibilities assigned to the commission
by Chapters 361, 363, 382, and 401, Health and Safety Code;
(12) the administration of the national flood
insurance program;
(13) administration of the state's water rate program
under Chapter 13 of this code; and
(14) any other areas assigned to the commission by
this code and other laws of this state.
(b) The rights, powers, duties, and functions delegated to
the Texas Department of Water Resources by this code or by any other
law of this state that are not expressly assigned to the board are
vested in the commission.
(c) This section allocates among various state agencies
statutory authority delegated by other laws. This section does not
delegate legislative authority.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., ch. 14, § 284(75), eff. Sept. 1,
1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.005, eff. Aug.
12, 1991; Acts 2001, 77th Leg., ch. 376, § 3.01, eff. Sept. 1,
2001; Acts 2001, 77th Leg., ch. 965, § 1.01, eff. Sept. 1, 2001;
Acts 2003, 78th Leg., ch. 1067, § 22, eff. Sept. 1, 2003.
§ 5.014. SUNSET PROVISION. The Texas Natural Resource
Conservation Commission is subject to Chapter 325, Government Code
(Texas Sunset Act). Unless continued in existence as provided by
that chapter, the commission is abolished and this chapter expires
September 1, 2013.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1987, 70th Leg., ch. 167, § 2.20(46), eff. Sept. 1,
1987; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.006, eff. Aug.
12, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 17, § 5.19(a),
eff. Nov. 12, 1991; Acts 2001, 77th Leg., ch. 965, § 1.02, eff.
Sept. 1, 2001.
§ 5.015. CONSTRUCTION OF TITLE. This title shall be
liberally construed to allow the commission and the executive
director to carry out their powers and duties in an efficient and
effective manner.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
SUBCHAPTER C. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
§ 5.051. COMMISSION. The Texas Natural Resource
Conservation Commission is created as an agency of the state.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.008, eff. Aug.
12, 1991.
§ 5.052. MEMBERS OF THE COMMISSION;
APPOINTMENT. (a) The commission is composed of three members who
are appointed by the governor with the advice and consent of the
senate to represent the general public.
(b) The governor shall make the appointments in such a
manner that each member is from a different section of the state.
(c) Appointments to the commission shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointees.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1993, 73rd Leg., ch. 485, § 1, eff. June 9, 1993;
Acts 2001, 77th Leg., ch. 965, § 1.03, eff. Sept. 1, 2001.
§ 5.053. ELIGIBILITY FOR MEMBERSHIP.
Text of section effective until delegation of NPDES permit
authority
A person is not eligible to serve on the commission if the
person or the person's spouse:
(1) is employed by or participates in the management
of a business entity or other organization regulated by the
commission or receiving funds from the commission;
(2) owns, controls, or has, directly or indirectly,
more than a 10 percent interest in a business entity or other
organization regulated by the commission or receiving funds from
the commission; or
(3) uses or receives a substantial amount of tangible
goods, services, or funds from the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
For text of section effective upon delegation of NPDES permit
authority, see § 5.053, post
§ 5.053. ELIGIBILITY FOR MEMBERSHIP.
Text of section effective upon delegation of NPDES permit authority
(a) A person may not be a member of the commission if the
person or the person's spouse:
(1) is registered, certified, licensed, permitted, or
otherwise authorized by the commission;
(2) is employed by or participates in the management
of a business entity or other organization regulated by the
commission or receiving money from the commission;
(3) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization regulated by or receiving funds from the commission;
or
(4) uses or receives a substantial amount of tangible
goods, services, or money from the commission other than
compensation or reimbursement authorized by law for commission
membership, attendance, or expenses.
(b) In addition to the eligibility requirements in
Subsection (a) of this section, persons who are appointed to serve
on the commission for terms which expire after August 31, 2001, must
comply at the time of their appointment with the eligibility
requirements established under 33 U.S.C. Sections 1251-1387, as
amended.
Added by Acts 1995, 74th Leg., ch. 310, § 1, eff. Aug. 28, 1995.
Amended by Acts 2001, 77th Leg., ch. 965, § 1.04, eff. Sept. 1,
2001.
For text of section effective until delegation of NPDES permit
authority, see § 5.053, ante
§ 5.0535. REQUIRED TRAINING PROGRAM FOR COMMISSION
MEMBERS. (a) A person who is appointed to and qualifies for
office as a member of the commission may not vote, deliberate, or be
counted as a member in attendance at a meeting of the commission
until the person completes a training program that complies with
this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the commission;
(2) the programs operated by the commission;
(3) the role and functions of the commission;
(4) the rules of the commission, with an emphasis on
the rules that relate to disciplinary and investigatory authority;
(5) the current budget for the commission;
(6) the results of recent significant internal and
external audits of the commission;
(7) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the public information law, Chapter 552,
Government Code;
(C) the administrative procedure law, Chapter
2001, Government Code; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
commission or the Texas Ethics Commission.
(c) A person appointed to the commission is entitled to
reimbursement, as provided by the General Appropriations Act, for
the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
Added by Acts 2001, 77th Leg., ch. 965, § 1.05, eff. Sept. 1,
2001.
§ 5.054. REMOVAL OF COMMISSION MEMBERS. (a) It is a
ground for removal from the commission that a member:
(1) does not have at the time of taking office the
qualifications required by Section 5.053(b);
(2) does not maintain during the service on the
commission the qualifications required by Section 5.053(b);
(3) is ineligible for membership under Section
5.053(a), 5.059, or 5.060;
(4) cannot, because of illness or disability,
discharge the member's duties for a substantial part of the member's
term; or
(5) is absent from more than one-half of the regularly
scheduled commission meetings that the member is eligible to attend
during each calendar year without an excuse approved by a majority
vote of the commission.
(b) The validity of an action of the commission is not
affected by the fact that it is taken when a ground for removal of a
member of the commission exists.
(c) If the executive director or a member has knowledge that
a potential ground for removal exists, the executive director or
member shall notify the presiding officer of the commission of the
potential ground. The presiding officer shall then notify the
governor and the attorney general that a potential ground for
removal exists. If the potential ground for removal involves the
presiding officer, the executive director or another member of the
commission shall notify the member of the commission with the most
seniority, who shall then notify the governor and the attorney
general that a potential ground for removal exists.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 2001, 77th Leg., ch. 965, § 1.06, eff. Sept. 1, 2001.
§ 5.055. OFFICERS OF STATE; OATH. Each member of the
commission is an officer of the state as that term is used in the
constitution, and each member shall qualify by taking the official
oath of office.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.056. TERMS OF OFFICE. (a) The members of the
commission hold office for staggered terms of six years, with the
term of one member expiring every two years. Each member holds
office until his successor is appointed and has qualified.
(b) A person appointed to the commission may not serve for
more than two six-year terms.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.057. FULL-TIME SERVICE. Each member of the
commission shall serve on a full-time basis.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.058. OFFICERS; MEETINGS. (a) The governor shall
designate a member of the commission as the presiding officer of the
commission to serve in that capacity at the pleasure of the
governor.
(b) The presiding officer may designate another
commissioner to act for the presiding officer in the presiding
officer's absence.
(c) The presiding officer shall preside at the meetings and
hearings of the commission.
(d) The commission shall hold regular meetings and all
hearings at times specified by a commission order and entered in its
minutes. The commission may hold special meetings at the times and
places in the state that the commission decides are appropriate for
the performance of its duties. The presiding officer or acting
presiding officer shall give the other members reasonable notice
before holding a special meeting.
(e) A majority of the commission is a quorum.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 2001, 77th Leg., ch. 965, § 1.07, eff. Sept. 1, 2001.
§ 5.059. CONFLICT OF INTEREST. (a) In this section,
"Texas trade association" means a cooperative and voluntarily
joined association of business or professional competitors in this
state designed to assist its members and its industry or profession
in dealing with mutual business or professional problems and in
promoting their common interest.
(b) A person may not be a member of the commission and may
not be a commission employee employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.) and its subsequent amendments, if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in an industry regulated by
the commission; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in an industry regulated by
the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 2001, 77th Leg., ch. 965, § 1.08, eff. Sept. 1, 2001.
§ 5.060. LOBBYIST PROHIBITION. A person may not be a
member of the commission or act as general counsel to the commission
if the person is required to register as a lobbyist under Chapter
305, Government Code, because of the person's activities for
compensation on behalf of a profession related to the operation of
the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1987, 70th Leg., ch. 167, § 2.19(24), eff. Sept. 1,
1987; Acts 2001, 77th Leg., ch. 965, § 1.08, eff. Sept. 1, 2001.
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF THE COMMISSION
§ 5.101. SCOPE OF SUBCHAPTER. The powers and duties
provided by this subchapter are the general powers and duties of the
commission and those incidental to the conduct of its business. The
commission has other specific powers and duties as prescribed in
other sections of the code and other laws of this state.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.102. GENERAL POWERS. (a) The commission has the
powers to perform any acts whether specifically authorized by this
code or other law or implied by this code or other law, necessary
and convenient to the exercise of its jurisdiction and powers as
provided by this code and other laws.
(b) The commission may call and hold hearings, receive
evidence at hearings, administer oaths, issue subpoenas to compel
the attendance of witnesses and the production of papers and
documents, and make findings of fact and decisions with respect to
its jurisdiction under this code and other laws and rules, orders,
permits, licenses, certificates, and other actions adopted,
issued, or taken by the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.103. RULES. (a) The commission shall adopt any
rules necessary to carry out its powers and duties under this code
and other laws of this state.
(b) The commission shall adopt reasonable procedural rules
to be followed in a commission hearing. The executive director may
recommend to the commission for its consideration any rules that he
considers necessary.
(c) Rules shall be adopted in the manner provided by Chapter
2001, Government Code. As provided by that Act, the commission must
adopt rules when adopting, repealing, or amending any agency
statement of general applicability that interprets or prescribes
law or policy or describes the procedure or practice requirements
of an agency. The commission shall follow its own rules as adopted
until it changes them in accordance with that Act.
(d) The commission shall include as a part of each rule the
commission adopts, and each proposed rule for adoption after the
effective date of this subsection, a citation to the statute that
grants the specific regulatory authority under which the rule is
justified and a citation of the specific regulatory authority that
will be exercised. If no specific statutory authority exists and
the agency is depending on this section, citation of this section,
or Section 5.102 or 5.013, is sufficient. A rule adopted in
violation of this subsection is void.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1993, 73rd Leg., ch. 802, § 1, eff. June 18, 1993;
Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 965, § 1.09, eff. Sept. 1, 2001.
§ 5.1035. RULES REGARDING DRINKING-WATER
STANDARDS. Before adopting rules regarding statewide
drinking-water standards, the commission shall hold public
meetings, if requested, at its regional offices to allow
municipalities, water supply corporations, and other interested
persons to submit data or comments concerning the proposed
drinking-water standards.
Added by Acts 1997, 75th Leg., ch. 1010, § 4.41, eff. Sept. 1,
1997.
§ 5.104. MEMORANDA OF UNDERSTANDING. (a) The
commission and board by rule shall develop memoranda of
understanding as necessary to clarify and provide for their
respective duties, responsibilities, or functions on any matter
under the jurisdiction of the commission or board that is not
expressly assigned to either the commission or board.
(b) The commission may enter into a memorandum of
understanding with any other state agency and shall adopt by rule
any memorandum of understanding between the commission and any
other state agency.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.105. GENERAL POLICY. Except as otherwise
specifically provided by this code, the commission, by rule, shall
establish and approve all general policy of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.106. BUDGET APPROVAL. The commission shall examine
and approve all budget recommendations for the commission that are
to be transmitted to the legislature.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.107. ADVISORY COMMITTEES, WORK GROUPS, AND TASK
FORCES. (a) The commission or the executive director may create
and consult with advisory committees, work groups, or task forces,
including committees, work groups, or task forces for the
environment, for public information, or for any other matter that
the commission or the executive director may consider appropriate.
(b) The commission shall identify affected groups of
interested persons for advisory committees, work groups, and task
forces and shall make reasonable attempts to have balanced
representation on all advisory committees, work groups, and task
forces. This subsection does not require the commission to ensure
that all representatives attend a scheduled meeting. A rule or
other action may not be challenged because of the composition of an
advisory committee, work group, or task force.
(c) The commission shall monitor the composition and
activities of advisory committees, work groups, and task forces
appointed by the commission or formed at the staff level and shall
maintain that information in a form and location that is easily
accessible to the public, including making the information
available on the Internet.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 2001, 77th Leg., ch. 965, § 1.10, eff. Sept. 1, 2001.
§ 5.108. EXECUTIVE DIRECTOR. (a) The commission shall
appoint an executive director to serve at the will of the
commission.
(b) The board shall exercise the powers of appointment which
the Texas Water Rights Commission had the authority to exercise on
August 30, 1977, except for those powers of appointment expressly
provided to the Texas Water Rights Commission in Chapters 50
through 63 inclusive, of the Water Code, which are delegated to the
commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.109. CHIEF CLERK. (a) The commission shall
appoint a chief clerk who shall serve at the will of the commission.
(b) The chief clerk shall assist the commission in carrying
out its duties under this code and other law.
(c) The chief clerk shall issue notice of public hearings
held under the authority of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.009, eff. Aug.
12, 1991.
§ 5.110. GENERAL COUNSEL. (a) The commission shall
appoint a general counsel who shall serve at the will of the
commission.
(b) The general counsel is the chief legal officer for the
commission.
(c) The general counsel must be an attorney licensed to
practice law in this state.
(d) The general counsel shall perform the duties and may
exercise the powers specifically authorized by this code or
delegated to the general counsel by the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.111. STANDARDS OF CONDUCT. The commission shall
provide to its members, appointees, and employees as often as is
necessary information regarding their qualifications under this
code and their responsibilities under applicable laws relating to
standards of conduct for state officers or employees.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.112. PUBLIC TESTIMONY POLICY. The commission shall
develop and implement policies that will provide the public with a
reasonable opportunity to appear before the commission and to speak
on any issue under the jurisdiction of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1987, 70th Leg., ch. 977, § 1, eff. June 19, 1987.
§ 5.113. COMMISSION AND STAFF RESPONSIBILITY
POLICY. The commission shall develop and implement policies that
clearly separate the respective responsibilities of the commission
and the staff.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.114. APPLICATIONS AND OTHER
DOCUMENTS. Applications and other documents to be filed with the
commission for final action under this code shall be filed with the
executive director and handled in the manner provided by this code.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.115. PERSONS AFFECTED IN COMMISSION HEARINGS;
NOTICE OF APPLICATION. (a) For the purpose of an administrative
hearing held by or for the commission involving a contested case,
"affected person," or "person affected," or "person who may be
affected" means a person who has a personal justiciable interest
related to a legal right, duty, privilege, power, or economic
interest affected by the administrative hearing. An interest
common to members of the general public does not qualify as a
personal justiciable interest. The commission shall adopt rules
specifying factors which must be considered in determining whether
a person is an affected person in any contested case arising under
the air, waste, or water programs within the commission's
jurisdiction and whether an affected association is entitled to
standing in contested case hearings.
(b) At the time an application for a permit or license under
this code is filed with the executive director and is
administratively complete, the commission shall give notice of the
application to any person who may be affected by the granting of the
permit or license.
(c) At the time an application for any formal action by the
commission that will affect lands dedicated to the permanent school
fund is filed with the executive director or the commission and is
administratively complete, the commission shall give notice of the
application to the School Land Board. Notice shall be delivered by
certified mail, return receipt requested, addressed to the deputy
commissioner of the asset management division of the General Land
Office. Delivery is not complete until the return receipt is signed
by the deputy commissioner of the asset management division of the
General Land Office and returned to the commission.
(d) The commission shall adopt rules for the notice required
by this section.
(e) The notice must state:
(1) the identifying number given the application by
the commission;
(2) the type of permit or license sought under the
application;
(3) the name and address of the applicant;
(4) the date on which the application was submitted;
and
(5) a brief summary of the information included in the
permit application.
(f) The notice to the School Land Board under this section
shall additionally:
(1) state the location of the permanent school fund
land to be affected; and
(2) describe any foreseeable impact or effect of the
commission's action on permanent school fund land.
(g) A formal action or ruling by the commission on an
application affecting permanent school fund land that is made
without the notice required by this section is voidable by the
School Land Board as to any permanent school fund lands affected by
the action or ruling.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.010, eff. Aug.
12, 1991; Acts 1993, 73rd Leg., ch. 991, § 6, eff. Sept. 1, 1993;
Acts 1995, 74th Leg., ch. 882, § 1, eff. Sept. 1, 1995; Acts
1999, 76th Leg., ch. 1350, § 1, eff. Sept. 1, 1999.
§ 5.116. HEARINGS; RECESS. The commission may recess
any hearing or examination from time to time and from place to
place.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.117. MANDATORY ENFORCEMENT HEARING. (a) The
executive director shall monitor compliance with all permits and
licenses issued by the commission under this code, and if the
evidence available to the executive director through this
monitoring process indicates that a permittee or licensee is in
substantial noncompliance with his permit or license for a period
of four months, or for a shorter period of time if the executive
director considers an emergency to exist, the executive director
shall report this fact to the commission together with the
information relating to the noncompliance.
(b) On receiving a report from the executive director under
Subsection (a) of this section, the commission shall call and hold a
hearing to determine whether the permittee or licensee who is the
subject of the executive director's report has been in substantial
noncompliance with his permit or license.
(c) At the conclusion of the hearing, the commission shall
issue one of the following orders stating that:
(1) no violation of the permit or license has
occurred;
(2) a violation of the permit or license has occurred
but has been corrected and no further action is necessary to protect
the public interest;
(3) the executive director is authorized to enter into
a compliance agreement with the permittee or licensee;
(4) a violation of the permit or license has occurred
and an administrative penalty is assessed as provided by this code;
or
(5) a violation of the permit or license has occurred,
and the executive director is directed to have enforcement
proceedings instituted against the permittee or licensee.
(d) A compliance agreement under Subsection (c)(3) of this
section is not effective unless it is approved by the commission.
If the commission determines at a hearing that a permittee or
licensee has not complied with the terms of the compliance
agreement, the commission may direct the executive director to
institute enforcement proceedings.
(e) The executive director, on receiving an order from the
commission directing institution of enforcement proceedings, shall
take all necessary steps to have enforcement proceedings
instituted.
(f) The commission may compel the attendance of the
governing body or any other officer of any permittee or licensee at
any hearing held under this section.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.011, eff. Aug.
12, 1991.
§ 5.1175. PAYMENT OF PENALTY BY INSTALLMENT. (a) The
commission by rule shall allow a small business that owes a monetary
civil or administrative penalty imposed for a violation of law
within the commission's jurisdiction or for a violation of a
license, permit, or order issued or rule adopted by the commission
to pay the penalty in periodic installments. The rule must provide
a procedure for a qualified small business to apply for permission
to pay the penalty over time.
(b) The rule must classify small businesses by their net
annual receipts and number of employees. A business that is a
wholly owned subsidiary of a corporation may not qualify as a small
business under this section.
(c) The rule may vary the period over which the penalty may
be paid or the amount of the periodic installments according to the
amount of the penalty owed and the size of the business that owes
the penalty. The period over which the penalty may be paid may not
exceed 12 months.
Added by Acts 1995, 74th Leg., ch. 112, § 1, eff. May 17, 1995.
§ 5.118. POWER TO ADMINISTER OATHS. Each member of the
commission, the chief clerk, or a hearings examiner may administer
oaths in any hearing or examination on any matter submitted to the
commission for action.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.119. COMMISSION TO BE KNOWLEDGEABLE. The
commission shall be knowledgeable of the watercourses and natural
resources of the state and of the needs of the state concerning the
use, storage and conservation of water and the use and conservation
of other natural resources and of the need to maintain the quality
of the environment in the state.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.012, eff. Aug.
12, 1991.
§ 5.1191. RESEARCH MODEL. (a) In this section,
"research model" means a mechanism for developing a plan to address
the commission's practical regulatory needs. The commission's plan
shall be prioritized by need and shall identify short-term,
medium-term, and long-term research goals. The plan may address
preferred methods of conducting the identified research.
(b) The commission shall develop a research model. The
commission may appoint a research advisory board to assist the
commission in providing appropriate incentives to encourage
various interest groups to participate in developing the research
model and to make recommendations regarding research topics
specific to this state. The research advisory board must include
representatives of the academic community, representatives of the
regulated community, and public representatives of the state at
large.
Added by Acts 2001, 77th Leg., ch. 965, § 1.11, eff. Sept. 1,
2001.
§ 5.1192. COORDINATION OF RESEARCH. (a) The
commission shall facilitate and coordinate environmental research
in the state according to the research model developed under
Section 5.1191.
(b) The commission shall explore private and federal
funding opportunities for research needs identified in the research
model. The commission may conduct, direct, and facilitate research
to implement the commission's research model by administering
grants or by contracting for research if money is appropriated to
the commission for those purposes.
(c) To the degree practicable, the commission, through the
research model, shall coordinate with or make use of any research
activities conducted under existing state initiatives, including
research by state universities, the Texas Higher Education
Coordinating Board, the United States Department of Agriculture,
the Texas Department of Agriculture, and other state and federal
agencies as appropriate.
(d) This section does not authorize the commission to
initiate or direct the research efforts of another entity except
under the terms of a grant or contract.
Added by Acts 2001, 77th Leg., ch. 965, § 1.11, eff. Sept. 1,
2001.
§ 5.1193. REPORT. The commission shall include in the
reports required by Section 5.178 a description of cooperative
research efforts, an accounting of money spent on research, and a
review of the purpose, implementation, and results of particular
research projects conducted.
Added by Acts 2001, 77th Leg., ch. 965, § 1.11, eff. Sept. 1,
2001.
§ 5.120. CONSERVATION AND QUALITY OF ENVIRONMENT. The
commission shall administer the law so as to promote the judicious
use and maximum conservation and protection of the quality of the
environment and the natural resources of the state.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.013, eff. Aug.
12, 1991.
§ 5.121. PUBLIC INFORMATION. (a) The commission shall
comply with Section 2001.004, Government Code, by indexing and
making available for public inspection all rules and all other
written statements of policy or interpretations formulated,
adopted, or used by the commission in the discharge of its
functions.
(b) The commission shall comply with Section 2001.004,
Government Code, by indexing and making available for public
inspection all of the commission's final orders, decisions, and
opinions.
Added by Acts 1987, 70th Leg., ch. 638, § 1, eff. Sept. 1, 1987.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(71), (72), eff.
Sept. 1, 1995.
§ 5.122. DELEGATION OF UNCONTESTED MATTERS TO EXECUTIVE
DIRECTOR. (a) The commission by rule or order may delegate to the
executive director the commission's authority to act on an
application or other request to issue, renew, reopen, transfer,
amend, extend, withdraw, revoke, terminate, or modify a permit,
license, certificate, registration, or other authorization or
approval if:
(1) required notice of the application or request for
the authorization or approval has been given;
(2) the holder of or applicant for the authorization
or approval agrees in writing to the action to be taken by the
executive director; and
(3) the application or request:
(A) is uncontested and does not require an
evidentiary hearing; or
(B) has become uncontested because all parties
have agreed in writing to the action to be taken by the executive
director.
(b) A person affected by an action the executive director
takes on a matter delegated under this section may appeal the
executive director's action to the commission unless the action is
a decision:
(1) regarding a federal operating permit under
Subchapter C, Chapter 382, Health and Safety Code; or
(2) specified as final and appealable by the
commission rule that delegates the decision to the executive
director.
(c) A person affected by a decision of the executive
director on a matter delegated under this section that regards a
federal operating permit under Subchapter C, Chapter 382, Health
and Safety Code, may:
(1) petition the administrator of the United States
Environmental Protection Agency in accordance with rules adopted
under Section 382.0563, Health and Safety Code; or
(2) file a petition for judicial review under Section
382.032, Health and Safety Code.
(d) The commission's authority under this section is
cumulative of the commission's authority to delegate its powers,
duties, or rights under any other law.
Added by Acts 1995, 74th Leg., ch. 860, § 1, eff. Aug. 28, 1995.
Amended by Acts 1997, 75th Leg., ch. 302, § 1, eff. Sept. 1,
1997.
§ 5.124. AUTHORITY TO AWARD GRANTS. (a) With the
consent of the commission, the executive director may award grants
for any purpose regarding resource conservation or environmental
protection in accordance with this section.
(b) The commission by rule shall establish procedures for
awarding a grant, for making any determination related to awarding
a grant, and for making grant payments.
(c) Each activity funded by a grant must directly relate to
a purpose specified in the grant. A grant may be awarded only for a
purpose consistent with the commission's jurisdiction and purposes
under law, including:
(1) the development or implementation of a
comprehensive conservation and management plan under Section 320,
Federal Water Pollution Control Act (33 U.S.C. Section 1330), for a
designated national estuary in this state;
(2) a demonstration project that involves new
techniques for pollution prevention, energy or resource
conservation, or waste management;
(3) an environmental purpose identified in a federal
grant that is intended as a pass-through grant;
(4) development or improvement of monitoring or
modeling techniques for water or air quality;
(5) support of a local air pollution program; or
(6) a study or program related to efforts to prevent an
area that is near nonattainment with federal air quality standards
from reaching nonattainment status.
(d) A grant may be awarded to any person that meets the
eligibility requirements of the grant. The executive director
shall establish eligibility requirements for each grant
appropriate to the purposes of and activities under the grant and
the method of selecting the recipient.
(e) Selection of grant recipients must be by solicitation of
a proposal or application except as provided by Subsections (f) and
(g). The executive director may specify any selection criterion
the executive director considers relevant to the grant. Selection
criteria must address:
(1) evaluation and scoring of:
(A) fiscal controls;
(B) project effectiveness;
(C) project cost; and
(D) previous experience with grants and
contracts; and
(2) the possibility and method of making multiple
awards.
(f) A grant may be made by direct award only if:
(1) the executive director determines that:
(A) selection of recipients by the solicitation
of proposals or applications is not feasible; and
(B) awarding the grant directly is in the best
interest of the state;
(2) eligibility for the grant is limited to:
(A) an agency or political subdivision of this
state or of another state;
(B) a state institution of higher learning of
this state or of another state, including any part or service of the
institution; or
(C) an agency of the United States; or
(3) the grant is awarded to a person established or
authorized to develop or implement a comprehensive conservation and
management plan under Section 320, Federal Water Pollution Control
Act (33 U.S.C. Section 1330), for a national estuary in this state.
(g) If a solicitation of a proposal is made for the purpose
of identifying a partner for a joint application for a federal grant
that is subsequently awarded to the commission, the executive
director is not required to make an additional solicitation for
entering into a pass-through grant with an identified partner.
(h) The executive director shall publish information
regarding a solicitation related to a grant to be awarded under this
section on the commission's electronic business daily in the manner
provided by Section 2155.074, Government Code, as added by Section
1, Chapter 508, Acts of the 75th Legislature, Regular Session,
1997.
(i) For a grant awarded under this section, the commission
may use:
(1) money appropriated for grant-making purposes;
(2) federal money granted for making pass-through
grants; and
(3) state or federal grant money appropriated for a
purpose that the executive director determines is consistent with a
purpose of the grant from the commission.
Added by Acts 1999, 76th Leg., ch. 404, § 28, eff. Sept. 1, 1999.
§ 5.125. COST-SHARING FOR ENVIRONMENTAL COMPLIANCE
ASSESSMENTS BY CERTAIN BUSINESSES. (a) In this section,
"environmental compliance assessment" means an environmental
compliance audit, pollution prevention assessment, or
environmental management system audit performed by a small
business. The term does not include an audit conducted under the
Texas Environmental, Health, and Safety Audit Privilege Act
(Article 4447cc, Vernon's Texas Civil Statutes).
(b) The commission may implement cost-sharing to assist
with payment of costs for an environmental compliance assessment
performed by a business subject to regulation by the commission
that employs at least 100 but not more than 250 individuals.
Added by Acts 1999, 76th Leg., ch. 104, § 2, eff. May 17, 1999.
§ 5.126. REPORT ON ENFORCEMENT ACTIONS. (a) Not later
than December 1 of each year, the commission shall:
(1) prepare an electronic report on its enforcement
actions for the preceding fiscal year, including a comparison with
its enforcement actions for each of the preceding five fiscal
years; and
(2) provide the report to the governor, lieutenant
governor, and speaker of the house of representatives.
(b) The report shall separately describe the enforcement
actions for each type of regulatory program, including programs
under Chapters 26 and 27 of this code and Chapters 361, 382, and
401, Health and Safety Code.
(c) The description of enforcement actions for each type of
regulatory program shall include:
(1) the number of inspections;
(2) the number of notices of violations;
(3) the number of enforcement actions;
(4) the type of enforcement actions;
(5) the amount of penalties assessed, deferred, or
collected; and
(6) any other information the commission determines
relevant.
(d) As soon as possible after the end of each fiscal year,
the attorney general shall provide the commission information on
enforcement actions referred by the commission to the attorney
general that were resolved during the preceding fiscal year or are
pending at the end of that fiscal year.
Added by Acts 1997, 75th Leg., ch. 304, § 1, eff. May 26, 1997;
Acts 1997, 75th Leg., ch. 1082, § 1, eff. Sept. 1, 1997.
Renumbered from § 5.123 by Acts 2001, 77th Leg., ch. 1420, §
21.001(112), eff. Sept. 1, 2001.
§ 5.127. ENVIRONMENTAL MANAGEMENT SYSTEMS. (a) The
commission may accept environmental testing laboratory data and
analysis for use in commission decisions regarding any matter under
the commission's jurisdiction relating to permits or other
authorizations, compliance matters, enforcement actions, or
corrective actions only if the data and analysis is prepared by an
environmental testing laboratory accredited by the commission
under Subchapter R or an environmental testing laboratory described
in Subsection (b) or (e).
(b) The commission may accept for use in commission
decisions data and analysis prepared by:
(1) an on-site or in-house environmental testing
laboratory if the laboratory:
(A) is periodically inspected by the commission;
or
(B) is located in another state and is accredited
or periodically inspected by that state;
(2) an environmental testing laboratory that is
accredited under federal law; or
(3) if the data and analysis are necessary for
emergency response activities and the required data and analysis
are not otherwise available, an environmental testing laboratory
that is not accredited by the commission under Subchapter R or under
federal law.
(c) The rules must provide that an environmental management
system, at a minimum, must require the entity implementing the
system to:
(1) adopt a written environmental policy;
(2) identify the environmental aspects and impacts of
the entity's activities;
(3) set priorities, goals, and targets for continuous
improvement in environmental performance and for ensuring
compliance with environmental laws, regulations, and permit terms
applicable to the facility;
(4) assign clear responsibilities for implementation,
training, monitoring, and corrective action and for ensuring
compliance with environmental laws, regulations, and permit terms
applicable to the facility;
(5) document implementation of procedures and
results; and
(6) evaluate and refine implementation over time to
improve attainment of environmental goals and targets and the
system itself.
(d) The commission shall:
(1) integrate the use of environmental management
systems into its regulatory programs, including permitting,
compliance assistance, and enforcement;
(2) develop model environmental management systems
for small businesses and local governments; and
(3) establish environmental performance indicators to
measure the program's performance.
(e) The commission may accept for use in commission
decisions data from an on-site or in-house laboratory if the
laboratory is performing the work:
(1) for another company with a unit located on the same
site; or
(2) without compensation for a governmental agency or
a charitable organization if the laboratory is periodically
inspected by the commission.
Added by Acts 2001, 77th Leg., ch. 1161, § 1, eff. Sept. 1, 2001.
Amended by Acts 2003, 78th Leg., ch. 912, § 1, eff. Sept. 1,
2003.
§ 5.128. ELECTRONIC REPORTING TO COMMISSION; REDUCTION
OF DUPLICATE REPORTING. (a) The commission shall encourage the
use of electronic reporting through the Internet, to the extent
practicable, for reports required by the commission. An electronic
report must be submitted in a format prescribed by the commission.
The commission may consult with the Department of Information
Resources on developing a simple format for use in implementing
this subsection.
(b) The commission shall strive to reduce duplication in
reporting requirements throughout the agency.
Added by Acts 2001, 77th Leg., ch. 965, § 1.12, eff. Sept. 1,
2001.
§ 5.129. SUMMARY FOR PUBLIC NOTICES. (a) The
commission by rule shall provide for each public notice issued or
published by the commission or by a person under the jurisdiction of
the commission as required by law or by commission rule to include
at the beginning of the notice a succinct statement of the subject
of the notice. The rules must provide that a summary statement must
be designed to inform the reader of the subject matter of the notice
without having to read the entire text of the notice.
(b) The summary statement may not be grounds for challenging
the validity of the proposed action for which the notice was
published.
Added by Acts 2001, 77th Leg., ch. 965, § 1.12, eff. Sept. 1,
2001.
§ 5.130. CONSIDERATION OF CUMULATIVE RISKS. The
commission shall:
(1) develop and implement policies, by specific
environmental media, to protect the public from cumulative risks in
areas of concentrated operations; and
(2) give priority to monitoring and enforcement in
areas in which regulated facilities are concentrated.
Added by Acts 2001, 77th Leg., ch. 965, § 1.12, eff. Sept. 1,
2001.
§ 5.131. ENVIRONMENTAL MANAGEMENT SYSTEMS. (a) In
this section, "environmental management system" means a documented
management system to address applicable environmental regulatory
requirements that includes organizational structure, planning
activities, responsibilities, practices, procedures, processes,
and resources for developing, implementing, achieving, reviewing,
and maintaining an environmental policy directed toward continuous
improvement.
(b) The commission by rule shall adopt a comprehensive
program that provides regulatory incentives to encourage the use of
environmental management systems by regulated entities, state
agencies, local governments, and other entities as determined by
the commission. The incentives may include:
(1) on-site technical assistance;
(2) accelerated access to information about programs;
and
(3) to the extent consistent with federal
requirements:
(A) inclusion of information regarding an
entity's use of an environmental management system in the entity's
compliance history and compliance summaries; and
(B) consideration of the entity's implementation
of an environmental management system in scheduling and conducting
compliance inspections.
(c) The commission shall:
(1) integrate the use of environmental management
systems into its regulatory programs, including permitting,
compliance assistance, and enforcement;
(2) develop model environmental management systems
for small businesses and local governments; and
(3) establish environmental performance indicators to
measure the program's performance.
Added by Acts 2001, 77th Leg., ch. 965, § 1.12, eff. Sept. 1,
2001.
§ 5.132. CREATION OF PERFORMANCE MEASURES FOR INNOVATIVE
REGULATORY PROGRAMS. The commission shall work with the
Legislative Budget Board to create performance measures that assess
the improvements in environmental quality achieved by innovative
regulatory programs implemented by the commission.
Added by Acts 2001, 77th Leg., ch. 1483, § 1, eff. Sept. 1, 2001.
Renumbered from V.T.C.A., Water Code § 5.127 by Acts 2003, 78th
Leg., ch. 1275, § 2(138), eff. Sept. 1, 2003.
§ 5.133. ACTIONS IN MEXICO. The commission may take and
finance any action in Mexico, in cooperation with governmental
authorities of Mexico, that in the opinion of the commission:
(1) is necessary or convenient to accomplish a duty of
the commission imposed by law; and
(2) will yield benefits to the environment in this
state.
Added by Acts 2001, 77th Leg., ch. 728, § 1, eff. Sept. 1, 2001.
Renumbered from V.T.C.A., Water Code § 5.127 by Acts 2003, 78th
Leg., ch. 1275, § 2(139), eff. Sept. 1, 2003.
§ 5.134. USE OF ENVIRONMENTAL TESTING LABORATORY DATA
AND ANALYSIS. (a) The commission may accept environmental
testing laboratory data and analysis for use in commission
decisions regarding any matter under the commission's jurisdiction
relating to permits or other authorizations, compliance matters,
enforcement actions, or corrective actions only if the data and
analysis is prepared by an environmental testing laboratory
accredited by the commission under Subchapter R or an environmental
testing laboratory described in Subsection (b).
(b) The commission may accept for use in commission
decisions data and analysis prepared by:
(1) an on-site or in-house environmental testing
laboratory if the laboratory is periodically inspected by the
commission;
(2) an environmental testing laboratory that is
accredited under federal law; or
(3) if the data and analysis are necessary for
emergency response activities and the required data and analysis
are not otherwise available, an environmental testing laboratory
that is not accredited by the commission under Subchapter R or under
federal law.
(c) The commission by rule may require that data and
analysis used in other commission decisions be obtained from an
environmental testing laboratory accredited by the commission
under Subchapter R.
(d) The commission shall periodically inspect on-site or
in-house environmental testing laboratories described in
Subsection (b).
Added by Acts 2001, 77th Leg., ch. 965, § 1.12, eff. Sept. 1,
2001. Renumbered from V.T.C.A., Water Code § 5.127 by Acts 2003,
78th Leg., ch. 1275, § 2(140), eff. Sept. 1, 2003.
§ 5.135. SMALL BUSINESS COMPLIANCE ASSISTANCE
PROGRAM. (a) The commission shall establish a small business
compliance assistance program.
(b) The program shall include:
(1) mechanisms to develop, collect, and coordinate
information about compliance methods and technologies for small
businesses and to encourage cooperation between those small
businesses and other persons to achieve compliance with applicable
air quality, water quality, and solid waste laws;
(2) mechanisms to assist small businesses with
pollution prevention and the prevention and detection of accidental
releases, including information about alternative technologies,
process changes, products, and methods of operation to reduce air
pollution, water pollution, and improper disposal of solid waste;
(3) an ombudsman to help small businesses meet the
requirements of the federal Clean Air Act Amendments of 1990
(Pub.L. No. 101-549), as amended, the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), as amended, and the
federal Solid Waste Disposal Act (42 U.S.C. Section 6901 et seq.),
as amended;
(4) a compliance assistance program to help small
businesses identify the requirements for and obtain required
permits in a timely and efficient manner;
(5) notification procedures to assure that small
businesses receive notice of their rights and obligations under the
federal Clean Air Act Amendments of 1990 (Pub.L. No. 101-549), as
amended, the Federal Water Pollution Control Act (33 U.S.C. Section
1251 et seq.), as amended, and the federal Solid Waste Disposal Act
(42 U.S.C. Section 6901 et seq.), as amended, in time to identify
applicable requirements and evaluate and implement appropriate
compliance methods;
(6) auditing services or referrals for small business
stationary source operations to determine compliance with the
federal Clean Air Act Amendments of 1990 (Pub.L. No. 101-549), as
amended; and
(7) procedures for considering a request by a small
business to modify work practices, technological compliance
methods, or an implementation schedule requirement that precedes a
compliance date, taking into account the technological and
financial capability of that source.
(c) The program shall include a small business compliance
assistance advisory panel that consists of the following seven
members:
(1) two members who are not owners or representatives
of owners of small business stationary sources, selected by the
governor to represent the public;
(2) two members who are owners or who represent owners
of small business stationary sources, selected by the speaker of
the house of representatives;
(3) two members who are owners or who represent owners
of small business stationary sources, selected by the lieutenant
governor; and
(4) one member selected by the chairman of the
commission to represent the commission.
(d) The small business compliance assistance advisory panel
shall:
(1) give advisory opinions on the effectiveness of the
program, the difficulties of implementing the program, and the
incidence and severity of enforcement;
(2) report periodically to the administrator
regarding the program's compliance with requirements of the
Paperwork Reduction Act of 1980 (Pub.L. No. 96-511), as amended,
the Regulatory Flexibility Act (5 U.S.C. Section 601 et seq.), as
amended, and the Equal Access to Justice Act (Pub.L. No. 96-481), as
amended;
(3) review information the program provides to small
businesses to assure the information is understandable to
nonexperts; and
(4) distribute opinions, reports, and information
developed by the panel.
(e) The commission shall enter into a memorandum of
understanding with the Texas Department of Economic Development to
coordinate assistance to any small business in applying for permits
from the commission.
(f) The commission may adopt rules reasonably necessary to
implement this section. Rules relating to air pollution must
comply with Section 507 of the federal Clean Air Act (42 U.S.C.
Section 7661f), as added by Section 501 of the federal Clean Air Act
Amendments of 1990 (Pub.L. No. 101-549), as amended, and
regulations adopted under that Act.
(g) In this section:
(1) "Program" means the small business compliance
assistance program.
(2) "Small business" means:
(A) a small business stationary source; or
(B) a business that employs at least 100 but not
more than 250 individuals.
(3) "Small business stationary source" has the meaning
assigned by Section 507(c) of the federal Clean Air Act (42 U.S.C.
Section 7661f), as added by Section 501 of the federal Clean Air Act
Amendments of 1990 (Pub.L. No. 101-549), as amended.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 2.05, eff.
Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 76, §
11.156, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 104, § 3,
eff. May 17, 1999. Renumbered from V.T.C.A., Health & Safety Code,
§ 382.0365 and amended by Acts 2003, 78th Leg., ch. 81, § 1,
eff. Sept. 1, 2003.
SUBCHAPTER E. ADMINISTRATIVE PROVISIONS FOR COMMISSION
§ 5.171. AUDIT. The financial transactions of the
commission are subject to audit by the state auditor in accordance
with Chapter 321, Government Code.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1989, 71st Leg., ch. 584, § 73, eff. Sept. 1, 1989.
§ 5.172. FUNDS FROM OTHER STATE AGENCIES. Any state
agency that has statutory responsibilities for environmental
pollution or environmental quality control and that receives a
legislative appropriation for these purposes may transfer to the
commission any amount mutually agreed on by the commission and the
agency, subject to the approval of the governor.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.014, eff. Aug.
12, 1991.
§ 5.173. PUBLIC INFORMATION RELATING TO
COMMISSION. The commission shall prepare information of public
interest describing the functions of the commission and describing
the commission's procedures by which complaints are filed with and
resolved by the commission. The commission shall make the
information available to the general public and the appropriate
state agencies.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.1733. ELECTRONIC POSTING OF INFORMATION. The
commission shall post public information on its website. Such
information shall include but not be limited to the minutes of
advisory committee meetings, pending permit and enforcement
actions, compliance histories, and emissions inventories by county
and facility name.
Added by Acts 2001, 77th Leg., ch. 965, § 1.13, eff. Sept. 1,
2001.
§ 5.174. COPIES OF DOCUMENTS, PROCEEDINGS,
ETC. (a) Except as otherwise specifically provided by this code
and subject to the specific limitations provided by this code, on
application of any person the commission shall furnish certified or
other copies of any proceeding or other official record or of any
map, paper, or document filed with the commission. A certified copy
with the seal of the commission and the signature of the presiding
officer of the commission or the executive director or chief clerk
is admissible as evidence in any court or administrative
proceeding.
(b) The commission shall provide in its rules the fees that
will be charged for copies and is authorized to furnish copies,
certified or otherwise, to a person without charge when the
furnishing of the copies serves a public purpose. Other statutes
concerning fees for copies of records do not apply to the
commission, except that the fees set by the commission for copies
prepared by the commission may not exceed those prescribed in
Chapter 603, Government Code.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1995, 74th Leg., ch. 76, § 5.95(13), eff. Sept. 1,
1995; Acts 2001, 77th Leg., ch. 965, § 16.01, eff. Sept. 1,
2001.
§ 5.175. INSPECTION OF WATER POLLUTION RECORDS.
Text of section effective until delegation of NPDES permit
authority
All information, documents, and data collected by the
commission in the performance of its duties are the property of the
state. Subject to the limitations of this code, all records are
open to inspection by any person during regular office hours.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.015, eff. Aug.
12, 1991.
For text of section effective upon delegation of NPDES permit
authority, see § 5.175, post
§ 5.175. INSPECTION OF WATER POLLUTION RECORDS.
Text of section effective upon delegation of NPDES permit authority
(a) All information, documents, and data collected by the
commission in the performance of its duties are the property of the
state.
(b) Except as provided by Subsection (c) of this section,
records, reports, data, or other information obtained relative to
or from sources or potential sources of discharges of water
pollutants shall be available to the public during regular office
hours.
(c) If a showing satisfactory to the executive director is
made by any person that those records, reports, data, or other
information, other than effluent data, would divulge methods or
processes entitled to protection as trade secrets, the commission
shall consider those records, reports, data, or other information
as confidential.
(d) This chapter may not be construed to make confidential
any effluent data, including effluent data in records, reports, or
other information, and including effluent data in permits, draft
permits, and permit applications.
(e) Records, data, or other information considered
confidential may be disclosed or transmitted to officers,
employees, or authorized representatives of the state or of the
United States with responsibilities in water pollution control.
However, this disclosure or transmittal may be made only after
adequate written assurance is given to the executive director that
the confidentiality of the disclosed or transmitted records, data,
or other information will be afforded all reasonable protection
allowed by law by the receiving officer, employee or authorized
representative on behalf of, and under the authority of, the
receiving agency or political entity.
(f) The executive director may not disclose or transmit
records, data, or other information considered confidential if he
has reason to believe the recipient will not protect their
confidentiality to the most reasonable extent provided by law.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, 1.168; Acts
1991, 72nd Leg., 1st C.S., ch. 3, § 1.016, eff. Aug. 12, 1991.
For text of section effective until delegation of NPDES permit
authority, see § 5.175 ante
§ 5.176. COMPLAINT FILE. (a) The commission shall
maintain a file on each written complaint filed with the commission
about a matter within the commission's regulatory jurisdiction. The
file must include:
(1) the name of the person who filed the complaint,
unless the person has specifically requested anonymity;
(2) the date the complaint is received by the
commission;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the agency closed the file without taking action other than to
investigate the complaint.
(b) The commission shall establish and implement procedures
for receiving complaints submitted by means of the Internet and
orally and shall maintain files on those complaints as provided by
Subsection (a).
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 2001, 77th Leg., ch. 965, § 1.15, eff. Sept. 1, 2001.
§ 5.1765. PUBLICATION OF INFORMATION REGARDING
COMPLAINT PROCEDURES AND POLICIES. The commission shall establish
a process for educating the public regarding the commission's
complaint policies and procedures. As part of the public education
process, the commission shall make available to the public in
pamphlet form an explanation of the complaint policies and
procedures, including information regarding and standards
applicable to the collection and preservation of credible evidence
of environmental problems by members of the public.
Added by Acts 2001, 77th Leg., ch. 965, § 1.14, eff. Sept. 1,
2001.
§ 5.177. NOTICE OF COMPLAINT PROCEDURES; NOTICE OF
INVESTIGATION STATUS. (a) The agency shall provide to the person
filing the complaint about a matter within the commission's
regulatory jurisdiction and to each person who is the subject of the
complaint a copy of the commission's policies and procedures
relating to complaint investigation and resolution.
(b) The commission, at least quarterly until final
disposition of the complaint, shall notify the person filing the
complaint and each person who is a subject of the complaint of the
status of the investigation unless the notice would jeopardize an
undercover investigation.
(c) The commission is not required to provide the
information described in Subsection (a) or (b) to a complainant who
files an anonymous complaint or provides inaccurate contact
information.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 2001, 77th Leg., ch. 965, § 1.15, eff. Sept. 1, 2001.
§ 5.1771. COORDINATION OF COMPLAINT INVESTIGATIONS WITH
LOCAL ENFORCEMENT OFFICIALS: TRAINING. (a) The commission shall
share information regarding a complaint about a matter within the
commission's regulatory jurisdiction made to the commission with
local officials with authority to act on the complaint in the county
or municipality in which the alleged action or omission that is the
subject of the complaint occurred or is threatening to occur.
(b) On request, the commission shall provide training for
local enforcement officials in investigating complaints and
enforcing environmental laws relating to matters under the
commission's jurisdiction under this code or the Health and Safety
Code. The training must include, at a minimum:
(1) procedures for local enforcement officials to use
in addressing citizen complaints if the commission is unavailable
or unable to respond to the complaint; and
(2) an explanation of local government authority to
enforce state laws and commission rules relating to the
environment.
(c) The commission may charge a reasonable fee for providing
training to local enforcement officials as required by Subsection
(b) in an amount sufficient to recover the costs of the training.
Added by Acts 2001, 77th Leg., ch. 965, § 1.16, eff. Sept. 1,
2001.
§ 5.1772. AFTER-HOURS RESPONSE TO COMPLAINTS. (a) The
commission shall adopt and implement a policy to provide timely
response to complaints during periods outside regular business
hours.
(b) This section does not:
(1) require availability of field inspectors for
response 24 hours a day, seven days a week, in all parts of the
state; or
(2) authorize additional use of overtime.
Added by Acts 2001, 77th Leg., ch. 965, § 1.16, eff. Sept. 1,
2001.
§ 5.1773. COMPLAINT ASSESSMENT. (a) The commission
annually shall conduct a comprehensive analysis of the complaints
it receives, including analysis by the following categories:
(1) air;
(2) water;
(3) waste;
(4) priority classification;
(5) region;
(6) commission response;
(7) enforcement action taken; and
(8) trends by complaint type.
(b) In addition to the analysis required by Subsection (a),
the commission shall assess the impact of changes made in the
commission's complaint policy.
Added by Acts 2001, 77th Leg., ch. 965, § 1.16, eff. Sept. 1,
2001.
§ 5.178. ANNUAL REPORTS; BIENNIAL APPENDICES. (a) On
or before December 1 of each even-numbered year, the commission
shall file with the governor and the members of the legislature a
written report that includes a statement of the activities of the
commission during the preceding fiscal biennium.
(b) The report due by December 1 of an even-numbered year
shall include, in addition:
(1) the commission's recommendations for necessary and
desirable legislation; and
(2) the following reports:
(A) the assessments and reports required by
Section 361.0219(c), Health and Safety Code;
(B) the reports required by Section 26.0135(d)
and Section 5.02, Chapter 133, Acts of the 69th Legislature,
Regular Session, 1985; and
(C) a summary of the analyses and assessments
required by Section 5.1773.
(c) Repealed by Acts 2003, 78th Leg., 3rd C.S., ch. 3, §
7.04(b).
(d) The commission shall file annually with the governor and
the presiding officer of each house of the legislature a complete
and detailed written report accounting for all funds received and
disbursed by the commission during the preceding year. The form of
the annual report and the reporting time shall be that provided in
the General Appropriations Act.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1997, 75th Leg., ch. 1082, § 2, eff. Sept. 1, 1997;
Acts 2001, 77th Leg., ch. 965, § 1.17, eff. Sept. 1, 2001; Acts
2003, 78th Leg., 3rd C.S., ch. 3, § 7.02, 7.03, 7.04(b), eff.
Jan. 11, 2004.
§ 5.179. SEAL. The commission shall have a seal bearing
the words Texas Natural Resource Conservation Commission
encircling the oak and olive branches common to other official
seals.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.017, eff. Aug.
12, 1991.
SUBCHAPTER F. EXECUTIVE DIRECTOR
§ 5.221. GENERAL RESPONSIBILITIES OF THE EXECUTIVE
DIRECTOR. The executive director shall manage the administrative
affairs of the commission subject to this code and other laws and
under the general supervision and direction of the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.222. DELEGATION OF EXECUTIVE DIRECTOR'S AUTHORITY OR
DUTY. The executive director may delegate to the executive
director's staff any authority or duty assigned to the executive
director unless the statute, rule, or order assigning or delegating
the authority or duty specifies otherwise.
Added by Acts 1997, 75th Leg., ch. 302, § 2, eff. Sept. 1, 1997.
Renumbered from § 5.238 by Acts 1999, 76th Leg., ch. 62, §
19.01(109), eff. Sept. 1, 1999.
§ 5.223. ADMINISTRATIVE ORGANIZATION OF
COMMISSION. Subject to approval of the commission, the executive
director may organize and reorganize the administrative sections
and divisions of the commission in a manner and in a form that will
achieve the greatest efficiency and effectiveness.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.224. INFORMATION REQUEST TO BOARD. (a) With
regard to any matter pending before the commission, the executive
director may obtain from the board information relating to that
matter.
(b) On receiving a request from the executive director, the
board should make the requested information available within 30
days after the information is requested and shall make the
requested information available not later than 90 days after the
information is requested.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.225. CAREER LADDER PROGRAM. The executive director
or his designee shall develop an intraagency career ladder program,
one part of which shall require the intraagency posting of all
nonentry level positions concurrently with any public posting.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.226. MERIT PAY. The executive director or his
designee shall develop a system of annual performance evaluations
based on measurable job tasks. All merit pay for commission
employees must be based on the system established under this
section.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.227. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The
executive director or his designee shall prepare and maintain a
written policy statement that implements a program of equal
employment opportunity to ensure that all personnel decisions are
made without regard to race, color, disability, sex, religion, age,
or national origin.
(b) The policy statement must include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, training, and promotion of
personnel, that show the intent of the commission to avoid the
unlawful employment practices described by Chapter 21, Labor Code;
and
(2) a comprehensive analysis of the extent to which
the composition of the commission's personnel is in accordance with
state and federal law and a description of reasonable methods to
achieve compliance with state and federal law.
(c) The policy statement must:
(1) be updated annually;
(2) be reviewed by the state Commission on Human
Rights for compliance with Subsection (b)(1); and
(3) be filed with the governor's office.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 2001, 77th Leg., ch. 965, § 1.18, eff. Sept. 1, 2001.
§ 5.2275. STATE EMPLOYEE INCENTIVE PROGRAM. The
executive director or the executive director's designee shall
provide to commission employees information and training on the
benefits and methods of participation in the state employee
incentive program under Subchapter B, Chapter 2108, Government
Code.
Added by Acts 2001, 77th Leg., ch. 965, § 1.19, eff. Sept. 1,
2001.
§ 5.228. APPEARANCES AT HEARINGS. (a) The position of
and information developed by the commission shall be presented by
the executive director or his designated representative at hearings
of the commission and the hearings held by federal, state, and local
agencies on matters affecting the public's interest in the state's
environment and natural resources, including matters that have been
determined to be policies of the state.
(b) The executive director shall be named a party in
hearings before the commission in a matter in which the executive
director bears the burden of proof.
(c) The executive director may participate as a party in
contested case permit hearings before the commission or the State
Office of Administrative Hearings for the sole purpose of providing
information to complete the administrative record. The commission
by rule shall specify the factors the executive director must
consider in determining, case by case, whether to participate as a
party in a contested case permit hearing. In developing the rules
under this subsection the commission shall consider, among other
factors:
(1) the technical, legal, and financial capacity of
the parties to the proceeding;
(2) whether the parties to the proceeding have
participated in a previous contested case hearing;
(3) the complexity of the issues presented; and
(4) the available resources of commission staff.
(d) In a contested case hearing relating to a permit
application, the executive director or the executive director's
designated representative may not rehabilitate the testimony of a
witness unless the witness is a commission employee testifying for
the sole purpose of providing information to complete the
administrative record.
(e) The executive director or the executive director's
designated representative may not assist a permit applicant in
meeting its burden of proof in a hearing before the commission or
the State Office of Administrative Hearings unless the permit
applicant fits a category of permit applicant that the commission
by rule has designated as eligible to receive assistance. The
commission shall adopt rules establishing categories of permit
applicants eligible to receive assistance.
(f) The fact that the executive director is not named as a
party in a hearing before the commission is not grounds for
appealing a commission decision.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.018, eff. Aug.
12, 1991; Acts 2001, 77th Leg., ch. 965, § 1.20, eff. Sept. 1,
2001.
§ 5.229. CONTRACTS. (a) The executive director, on
behalf of the commission, may negotiate with and with the consent of
the commission enter into contracts with the United States or any of
its agencies for the purpose of carrying out the powers, duties, and
responsibilities of the commission.
(b) The executive director, on behalf of the commission, may
negotiate with and with the consent of the commission enter into
contracts or other agreements with states and political
subdivisions of this state or any other entity for the purpose of
carrying out the powers, duties, and responsibilities of the
commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.2291. SCIENTIFIC AND TECHNICAL SERVICES. (a) In
this section, "scientific and technical environmental services"
means services, other than engineering services, of a scientific or
technical nature the conduct of which requires technical training
and professional judgment. The term includes modeling, risk
assessment, site characterization and assessment, studies of the
magnitude, source, and extent of contamination, contaminant fate
and transport analysis, watershed assessment and analysis, total
maximum daily load studies, scientific data analysis, and similar
tasks, to the extent those tasks are not defined as the "practice of
engineering" under Chapter 1001, Occupations Code.
(b) The procurement of a contract for scientific and
technical environmental services shall be conducted under the
procedures for professional services selection provided in
Subchapter A, Chapter 2254, Government Code.
Added by Acts 2001, 77th Leg., ch. 965, § 1.21, eff. Sept. 1,
2001. Amended by Acts 2003, 78th Leg., ch. 1276, § 14A.842, eff.
Sept. 1, 2003.
§ 5.230. ENFORCEMENT. On approval of the commission,
the executive director may enforce the terms and conditions of any
permit, certified filing, certificate of adjudication, order,
standard, or rule by injunction or other appropriate remedy in a
court of competent jurisdiction.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.231. TRAVEL EXPENSES. The executive director is
entitled to receive actual and necessary travel expenses. Other
employees of the commission are entitled to receive travel expenses
as provided in the General Appropriations Act.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.232. EMPLOYEE MOVING EXPENSES. If provided by
legislative appropriation, the commission may pay the costs of
transporting and delivering the household goods and effects of
employees transferred by the executive director from one permanent
station to another when, in the judgment of the executive director,
the transfer will serve the best interest of the state.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.233. GIFTS AND GRANTS. The executive director may
apply for, request, solicit, contract for, receive, and accept
money and other assistance from any source to carry out the powers
and duties under this code and other law.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.019, eff. Aug.
12, 1991.
§ 5.234. APPLICATIONS AND OTHER DOCUMENTS. (a) An
application, petition, or other document requiring action of the
commission shall be presented to the executive director and handled
as provided by this code or other law and in the rules adopted by the
commission.
(b) After an application, petition, or other document is
processed, it shall be presented to the commission for action as
required by law and rules of the commission. If, in the course of
reviewing an application and preparing a draft permit, the
executive director has required changes to be made to the
applicant's proposal, the executive director shall prepare a
summary of the changes that were made to increase protection of
public health and the environment.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.020, eff. Aug.
12, 1991; Acts 2001, 77th Leg., ch. 965, § 1.22, eff. Sept. 1,
2001.
§ 5.236. GROUNDWATER CONTAMINATION REPORTS. (a) If
the executive director acquires information that confirms that a
potential public health hazard exists because usable groundwater
has been or is being contaminated, the executive director, not
later than the 30th day after the date on which the executive
director acquires the information confirming contamination, shall
give written notice of the contamination to the following persons:
(1) the county judge and the county health officer, if
any, in each county in which the contamination has occurred or is
occurring;
(2) any person under the commission's jurisdiction who
is suspected of contributing to the contamination; and
(3) any other state agency with jurisdiction over any
person who is suspected of contributing to the contamination.
(b) The executive director shall give the notice in the
manner and form, and include the information, required by rule of
the commission.
Added by Acts 1987, 70th Leg., ch. 393, § 1, eff. Sept. 1, 1987.
§ 5.237. OPERATING FUND. (a) The Texas Natural
Resource Conservation Commission Operating Fund is established in
the treasury. At the request of the commission, the comptroller is
authorized to transfer to an account in the operating fund any
appropriations made to the commission for the purpose of making
expenditures. After expenditures have been made from the operating
fund and proper line-item appropriations identified, the
commission shall submit periodic adjustments to the comptroller in
summary amounts to record accurate cost allocations to the
appropriate funds and accounts. Periodic adjustments under this
section shall be made at least quarterly.
(b) The commission will establish and maintain accounting
records adequate to support the periodic reconciliation of
operating fund transfers and document expenditures from each fund
or account. All expenditures shall be made consistent with
provisions of law relating to the authorized use of each fund or
account from which appropriations are made to the commission.
Added by Acts 1993, 73rd Leg., ch. 746, § 2, eff. Aug. 30, 1993.
§ 5.238. ADMINISTRATIVE ACCOUNT. The commission
administrative account is an account in the general revenue fund.
The account consists of reimbursements to the commission for
services provided by the commission and other sources specified by
law and authorized by legislative appropriation.
Added by Acts 1997, 75th Leg., ch. 333, § 2, eff. Sept. 1, 1997.
SUBCHAPTER G. OFFICE OF PUBLIC INTEREST COUNSEL
§ 5.271. CREATION AND GENERAL RESPONSIBILITY OF THE
OFFICE OF PUBLIC INTEREST COUNSEL. The office of public interest
counsel is created to ensure that the commission promotes the
public's interest and is responsive to environmental and citizens'
concerns including environmental quality and consumer protection.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1989, 71st Leg., ch. 708, § 1, eff. Aug. 28, 1989.
§ 5.272. PUBLIC INTEREST COUNSEL. The office shall be
headed by a public interest counsel appointed by the commission.
The executive director may submit the names and qualifications of
candidates for public interest counsel to the commission.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1989, 71st Leg., ch. 708, § 1, eff. Aug. 28, 1989.
§ 5.273. DUTIES OF THE PUBLIC INTEREST
COUNSEL. (a) The counsel shall represent the public interest and
be a party to all proceedings before the commission.
(b) The counsel may recommend needed legislative and
regulatory changes.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1989, 71st Leg., ch. 708, § 1, eff. Aug. 28, 1989;
Acts 2001, 77th Leg., ch. 965, § 1.23, eff. Sept. 1, 2001.
§ 5.274. STAFF; OUTSIDE TECHNICAL SUPPORT. (a) The
office shall be adequately staffed to carry out its functions under
this code.
(b) The counsel may obtain and use outside technical support
to carry out its functions under this code.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1989, 71st Leg., ch. 708, § 1, eff. Aug. 28, 1989;
Acts 2001, 77th Leg., ch. 965, § 1.23, eff. Sept. 1, 2001.
§ 5.275. APPEAL. A ruling, decision, or other act of
the commission may not be appealed by the counsel.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985; Acts 1989, 71st Leg., ch. 708, § 1, eff. Aug. 28, 1989.
SUBCHAPTER H. DELEGATION OF HEARINGS
§ 5.311. DELEGATION OF RESPONSIBILITY. (a) The
commission may delegate to an administrative law judge of the State
Office of Administrative Hearings the responsibility to hear any
matter before the commission and to issue interlocutory orders
related to interim rates under Chapter 13.
(b) Except as provided in Subsection (a), the
administrative law judge shall report to the commission on the
hearing in the manner provided by law.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985. Renumbered from V.T.C.A., Water Code § 5.313 and amended
by Acts 1995, 74th Leg., ch. 106, § 2, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1010, § 6.01, eff. Sept. 1,
1997.
§ 5.312. TIME LIMIT FOR ISSUANCE OR DENIAL OF
PERMITS. (a) Except as provided in Subsection (b), all permit
decisions shall be made within 180 days of the receipt of the permit
application or application amendment or the determination of
administrative completeness, whichever is later.
(b) This section does not apply to permits issued under
federally delegated or approved programs unless allowed under that
program.
Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, § 1.022, eff.
Aug. 12, 1991. Renumbered from V.T.C.A., Water Code § 5.314 by
Acts 1995, 74th Leg., ch. 106, § 2, eff. Sept. 1, 1995.
§ 5.313. HEARING EXAMINERS REFERENCED IN LAW. Any
reference in law to a hearing examiner who has a duty related to a
case pending before the commission means an administrative law
judge of the State Office of Administrative Hearings.
Amended by Acts 1995, 74th Leg., ch. 106, § 2, eff. Sept. 1,
1995.
SUBCHAPTER I. JUDICIAL REVIEW
§ 5.351. JUDICIAL REVIEW OF COMMISSION ACTS. (a) A
person affected by a ruling, order, decision, or other act of the
commission may file a petition to review, set aside, modify, or
suspend the act of the commission.
(b) A person affected by a ruling, order, or decision of the
commission must file his petition within 30 days after the
effective date of the ruling, order, or decision. A person affected
by an act other than a ruling, order, or decision must file his
petition within 30 days after the date the commission performed the
act.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.352. REMEDY FOR COMMISSION OR EXECUTIVE DIRECTOR
INACTION. A person affected by the failure of the commission or
the executive director to act in a reasonable time on an application
to appropriate water or to perform any other duty with reasonable
promptness may file a petition to compel the commission or the
executive director to show cause why it should not be directed by
the court to take immediate action.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.353. DILIGENT PROSECUTION OF SUIT. The plaintiff
shall prosecute with reasonable diligence any suit brought under
Section 5.351 or 5.352 of this code. If the plaintiff does not
secure proper service of process or does not prosecute his suit
within one year after it is filed, the court shall presume that the
suit has been abandoned. The court shall dismiss the suit on a
motion for dismissal made by the attorney general unless the
plaintiff after receiving due notice can show good and sufficient
cause for the delay.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.354. VENUE. A suit instituted under Section 5.351
or 5.352 of this code must be brought in a district court in Travis
County.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.355. APPEAL OF DISTRICT COURT JUDGMENT. A judgment
or order of a district court in a suit brought for or against the
commission is appealable as are other civil cases in which the
district court has original jurisdiction.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.356. APPEAL BY EXECUTIVE DIRECTOR PRECLUDED. A
ruling, order, decision, or other act of the commission may not be
appealed by the executive director.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
§ 5.357. LAW SUITS; CITATION. Law suits filed by and
against the commission or executive director shall be in the name of
the commission. In suits against the commission or executive
director, citation may be served on the executive director.
Amended by Acts 1985, 69th Leg., ch. 795, § 1.001, eff. Sept. 1,
1985.
SUBCHAPTER J. CONSOLIDATED PERMIT PROCESSING
§ 5.401. CONSOLIDATED PERMIT PROCESSING. (a) If a
plant, facility, or site is required to have more than one permit
issued by the commission and the applications for all permits
required by the commission are filed within a 30-day period, the
commission, on request of the applicant, shall conduct coordinated
application reviews and one consolidated permit hearing on all
permits requested to be consolidated by the applicant and may issue
one consolidated permit. On request of the applicant, the
commission shall issue one consolidated permit.
(b) The executive director shall designate one permit
program as the lead program for coordination, and that program is
the point of contact regarding the consolidated permit.
(c) The executive director may require separate processing
of consolidated applications or may return to the applicant parts
of an application if the executive director determines that the
applicant has submitted an incomplete application or if the
applicant does not respond as requested to notices of deficiency.
(d) A federal operating permit governed by the requirements
of Sections 382.054-382.0543, Health and Safety Code, may not be
consolidated with other permits under this subchapter.
Added by Acts 1997, 75th Leg., ch. 1373, § 1, eff. Sept. 1, 1997.
§ 5.402. REQUEST FOR SEPARATE PROCESSING. (a) At any
time before the public notice of the opportunity to request a
hearing on a permit application, the applicant may request that
consolidated applications be processed separately as determined by
the executive director. The executive director shall process the
applications separately if the applicant submits a timely request
under this subsection.
(b) At any time after the notice of opportunity to request a
hearing but before referral of the matter to the State Office of
Administrative Hearings, the executive director may separate the
applications for processing on a showing of good cause by the
applicant that the applications should be processed separately.
For purposes of this subsection, "good cause" includes a change in
the statutory or regulatory requirements governing a permit or a
substantial change in the factual circumstances surrounding the
applications for permits.
(c) After an application has been referred to the State
Office of Administrative Hearings, the applicant may have the
applications processed separately only on a showing of compliance
with commission procedural rules regarding the withdrawal of
applications.
Added by Acts 1997, 75th Leg., ch. 1373, § 1, eff. Sept. 1, 1997.
§ 5.403. RENEWAL PERIOD FOR CONSOLIDATED PERMIT. The
renewal period for a consolidated permit issued under this
subchapter is the shortest term set by any state or federal statute
or rule governing one or more of the authorizations sought in the
consolidated permit.
Added by Acts 1997, 75th Leg., ch. 1373, § 1, eff. Sept. 1, 1997.
§ 5.404. RENEWAL OF PERMITS. A permit issued under this
subchapter or a permit issued before and effective on September 1,
1997, that authorizes more than one permit program may be renewed,
amended, or modified as a consolidated permit or may be separated by
program and the permits may be processed separately and subject to
the renewal, amendment, or modification requirements of applicable
law governing operations at the facility, plant, or site.
Added by Acts 1997, 75th Leg., ch. 1373, § 1, eff. Sept. 1, 1997.
§ 5.405. FEES. (a) Except as provided by Subsection
(b), the fee for a consolidated permit shall be computed as if the
permits consolidated had been processed separately.
(b) The commission by rule may reduce the fee for a
consolidated permit below the total amount that the applicant would
have paid for processing the applications separately if the
commission finds that consolidated processing results in savings to
the agency.
Added by Acts 1997, 75th Leg., ch. 1373, § 1, eff. Sept. 1, 1997.
§ 5.406. RULES. The commission may adopt rules to
effectuate the purposes of this subchapter, including rules
providing for:
(1) combined public notices of permits issued under
the authority of this section; or
(2) procedures for the processing and issuing of
consolidated permits.
Added by Acts 1997, 75th Leg., ch. 1373, § 1, eff. Sept. 1, 1997.
SUBCHAPTER L. EMERGENCY AND TEMPORARY ORDERS
§ 5.501. EMERGENCY AND TEMPORARY ORDER OR PERMIT;
TEMPORARY SUSPENSION OR AMENDMENT OF PERMIT CONDITION. (a) For
the purposes and in the manner provided by this subchapter, the
commission:
(1) may issue a temporary or emergency mandatory,
permissive, or prohibitory order; and
(2) by temporary or emergency order may:
(A) issue a temporary permit; or
(B) temporarily suspend or amend a permit
condition.
(b) The commission may issue an emergency order under this
subchapter after providing the notice and opportunity for hearing
that the commission considers practicable under the circumstances
or without notice or hearing. Except as provided by Section 5.506,
notice must be given not later than the 10th day before the date set
for a hearing if the commission requires notice and hearing before
issuing the order. The commission shall give notice not later than
the 20th day before the date set for a hearing on a temporary order.
(c) The commission by order or rule may delegate to the
executive director the authority to:
(1) receive applications and issue emergency orders
under this subchapter; and
(2) authorize, in writing, a representative or
representatives to act on the executive director's behalf under
this subchapter.
(d) Chapter 2001, Government Code, does not apply to the
issuance of an emergency order under this subchapter without a
hearing.
(e) A law under which the commission acts that requires
notice of hearing or that sets procedures for the issuance of
permits does not apply to a hearing on an emergency order issued
under this subchapter unless the law specifically requires notice
for an emergency order. The commission shall give the general
notice of the hearing that the commission considers practicable
under the circumstances.
(f) An emergency or temporary order issued under this
subchapter does not vest in the permit holder or recipient any
rights and expires in accordance with its terms.
(g) The commission may prescribe rules and adopt fees
necessary to carry out and administer this subchapter.
Added by Acts 1997, 75th Leg., ch. 1072, § 1, eff. Sept. 1, 1997.
§ 5.502. APPLICATION FOR EMERGENCY OR TEMPORARY
ORDER. A person other than the executive director or the executive
director's representative who desires an emergency or temporary
order under this subchapter must submit a sworn written application
to the commission. The application must:
(1) describe the condition of emergency or other
condition justifying the issuance of the order;
(2) allege facts to support the findings required
under this subchapter;
(3) estimate the dates on which the proposed order
should begin and end;
(4) describe the action sought and the activity
proposed to be allowed, mandated, or prohibited; and
(5) include any other statement or information
required by this subchapter or by the commission.
Added by Acts 1997, 75th Leg., ch. 1072, § 1, eff. Sept. 1, 1997.
§ 5.503. NOTICE OF ISSUANCE. Notice of the issuance of
an emergency order shall be provided in accordance with commission
rules.
Added by Acts 1997, 75th Leg., ch. 1072, § 1, eff. Sept. 1, 1997.
§ 5.504. HEARING TO AFFIRM, MODIFY, OR SET ASIDE
ORDER. (a) If the commission, the executive director, or the
executive director's representative issues an emergency order
under this subchapter without a hearing, the order shall set a time
and place for a hearing to affirm, modify, or set aside the
emergency order to be held before the commission or its designee as
soon as practicable after the order is issued.
(b) At or following the hearing required under Subsection
(a), the commission shall affirm, modify, or set aside the
emergency order.
(c) A hearing to affirm, modify, or set aside an emergency
order shall be conducted in accordance with Chapter 2001,
Government Code, and commission rules. Commission rules concerning
a hearing to affirm, modify, or set aside an emergency order must
provide for presentation of evidence by the applicant under oath,
presentation of rebuttal evidence, and cross-examination of
witnesses.
Added by Acts 1997, 75th Leg., ch. 1072, § 1, eff. Sept. 1, 1997.
§ 5.505. TERM OF ORDER. An emergency or temporary order
issued under this subchapter must be limited to a reasonable time
specified by the order. Except as otherwise provided by this
subchapter, the term of an emergency order may not exceed 180 days.
An emergency order may be renewed once for a period not to exceed
180 days.
Added by Acts 1997, 75th Leg., ch. 1072, § 1, eff. Sept. 1, 1997.
§ 5.506. EMERGENCY SUSPENSION OF PERMIT CONDITION
RELATING TO BENEFICIAL INFLOWS TO AFFECTED BAYS AND ESTUARIES AND
INSTREAM USES. (a) The commission by emergency or temporary
order may suspend a permit condition relating to beneficial inflows
to affected bays and estuaries and instream uses if the commission
finds that an emergency exists that cannot practicably be resolved
in another way.
(b) The commission must give written notice of the proposed
suspension to the Parks and Wildlife Department before the
commission suspends a permit condition under this section. The
commission shall give the Parks and Wildlife Department an
opportunity to submit comments on the proposed suspension for a
period of 72 hours from receipt of the notice and must consider
those comments before issuing an order imposing the suspension.
(c) The commission may suspend a permit condition under this
section without notice except as required by Subsection (b).
(d) The commission shall notify all affected persons
immediately by publication.
Added by Acts 1997, 75th Leg., ch. 1072, § 1, eff. Sept. 1, 1997.
§ 5.507. EMERGENCY ORDER FOR OPERATION OF UTILITY THAT
DISCONTINUES OPERATION OR IS REFERRED FOR APPOINTMENT OF
