CHAPTER 5. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
WATER CODE
TITLE 2. WATER ADMINISTRATION
SUBTITLE A. EXECUTIVE AGENCIES
CHAPTER 5. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 5.001. DEFINITIONS. In this chapter:
(1) "Board" means the Texas Water Development Board.
(2) "Commission" means the Texas Commission on Environmental
Quality.
(3) "Executive director" means the executive director of the
Texas Commission on Environmental Quality.
(4) "Clean coal project" means the installation of one or more
components of the coal-based integrated sequestration and
hydrogen research project to be built in partnership with the
United States Department of Energy, commonly referred to as the
FutureGen project. The term includes the construction or
modification of a facility for electric generation, industrial
production, or the production of steam as a byproduct of coal
gasification to the extent that the facility installs one or more
components of the FutureGen project.
(5) "Coal" has the meaning assigned by Section 134.004, Natural
Resources Code.
(6) "Component of the FutureGen project" means a process,
technology, or piece of equipment that:
(A) is designed to employ coal gasification technology to
generate electricity, hydrogen, or steam in a manner that meets
the FutureGen project profile;
(B) is designed to employ fuel cells to generate electricity in
a manner that meets the FutureGen project profile;
(C) is designed to employ a hydrogen-fueled turbine to generate
electricity where the hydrogen is derived from coal in a manner
that meets the FutureGen project profile;
(D) is designed to demonstrate the efficacy at an electric
generation or industrial production facility of a carbon dioxide
capture technology in a manner that meets the FutureGen project
profile;
(E) is designed to sequester a portion of the carbon dioxide
captured from an electric generation or industrial production
facility in a manner that meets the FutureGen project profile in
conjunction with appropriate remediation plans and appropriate
techniques for reservoir characterization, injection control, and
monitoring;
(F) is designed to sequester carbon dioxide as part of enhanced
oil recovery in a manner that meets the FutureGen project profile
in conjunction with appropriate techniques for reservoir
characterization, injection control, and monitoring;
(G) qualifies for federal funds designated for the FutureGen
project;
(H) is required to perform the sampling, analysis, or research
necessary to submit a proposal to the United States Department of
Energy for the FutureGen project; or
(I) is required in a final United States Department of Energy
request for proposals for the FutureGen project or is described
in a final United States Department of Energy request for
proposals as a desirable element to be considered in the awarding
of the project.
(7) "FutureGen project profile" means a standard or standards
relevant to a component of the FutureGen project, as provided in
a final or amended United States Department of Energy request for
proposals or contract.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.001, eff.
Aug. 12, 1991.
Amended by:
Acts 2005, 79th Leg., Ch.
1097, Sec. 6, eff. June 18, 2005.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
SUBCHAPTER B. ORGANIZATION OF THE TEXAS NATURAL RESOURCE
CONSERVATION COMMISSION
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.003, eff.
Aug. 12, 1991.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.004, eff.
Aug. 12, 1991.
Sec. 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) administration of the state's water rate program under
Chapter 13 of this code; and
(13) 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., ch. 14, Sec. 284(75), eff. Sept.
1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.005, eff.
Aug. 12, 1991; Acts 2001, 77th Leg., ch. 376, Sec. 3.01, eff.
Sept. 1, 2001; Acts 2001, 77th Leg., ch. 965, Sec. 1.01, eff.
Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1067, Sec. 22, eff.
Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1323, Sec. 2, eff. September 1, 2007.
Sec. 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, 2011.
Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept.
1, 1985; Acts 1987, 70th Leg., ch. 167, Sec. 2.20(46), eff. Sept.
1, 1987; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.006, eff.
Aug. 12, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 17, Sec.
5.19(a), eff. Nov. 12, 1991; Acts 2001, 77th Leg., ch. 965, Sec.
1.02, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., 1st C.S., Ch.
2, Sec. 1.12, eff. July 10, 2009.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
SUBCHAPTER C. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.008, eff.
Aug. 12, 1991.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1993, 73rd Leg., ch. 485, Sec. 1, eff. June 9,
1993; Acts 2001, 77th Leg., ch. 965, Sec. 1.03, eff. Sept. 1,
2001.
Sec. 5.053. ELIGIBILITY FOR MEMBERSHIP. (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.
(c) Subsection (a)(2) does not apply to an employee of a
political subdivision of this state. If the United States
Environmental Protection Agency determines that there will be a
negative impact on the State of Texas' National Pollution
Discharge Elimination Systems delegation, this subsection does
not apply.
Added by Acts 1995, 74th Leg., ch. 310, Sec. 1, eff. Aug. 28,
1995. Amended by Acts 2001, 77th Leg., ch. 965, Sec. 1.04, eff.
Sept. 1, 2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
1278, Sec. 1, eff. June 15, 2007.
Sec. 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, Sec. 1.05, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 2001, 77th Leg., ch. 965, Sec. 1.06, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 2001, 77th Leg., ch. 965, Sec. 1.07, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 2001, 77th Leg., ch. 965, Sec. 1.08, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1987, 70th Leg., ch. 167, Sec. 2.19(24), eff. Sept.
1, 1987; Acts 2001, 77th Leg., ch. 965, Sec. 1.08, eff. Sept. 1,
2001.
SUBCHAPTER D. GENERAL POWERS AND DUTIES OF THE COMMISSION
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1993, 73rd Leg., ch. 802, Sec. 1, eff. June 18,
1993; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), eff. Sept. 1,
1995; Acts 2001, 77th Leg., ch. 965, Sec. 1.09, eff. Sept. 1,
2001.
Sec. 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, Sec. 4.41, eff. Sept. 1,
1997.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 2001, 77th Leg., ch. 965, Sec. 1.10, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.009, eff.
Aug. 12, 1991.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1987, 70th Leg., ch. 977, Sec. 1, eff. June 19,
1987.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.010, eff.
Aug. 12, 1991; Acts 1993, 73rd Leg., ch. 991, Sec. 6, eff. Sept.
1, 1993; Acts 1995, 74th Leg., ch. 882, Sec. 1, eff. Sept. 1,
1995; Acts 1999, 76th Leg., ch. 1350, Sec. 1, eff. Sept. 1, 1999.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.011, eff.
Aug. 12, 1991.
Sec. 5.1175. PAYMENT OF PENALTY BY INSTALLMENT. (a) The
commission by rule may allow a person who 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 person to apply for permission to pay the penalty
over time.
(b) 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 36 months.
Added by Acts 1995, 74th Leg., ch. 112, Sec. 1, eff. May 17,
1995.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1386, Sec. 4, eff. September 1, 2009.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.012, eff.
Aug. 12, 1991.
Sec. 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, Sec. 1.11, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.11, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.11, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.013, eff.
Aug. 12, 1991.
Sec. 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, Sec. 1, eff. Sept. 1,
1987. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(71),
(72), eff. Sept. 1, 1995.
Sec. 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, Sec. 1, eff. Aug. 28,
1995. Amended by Acts 1997, 75th Leg., ch. 302, Sec. 1, eff.
Sept. 1, 1997.
Sec. 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, Sec. 28, eff. Sept. 1,
1999.
Sec. 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, Sec. 2, eff. May 17,
1999.
Sec. 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, Sec. 1, eff. May 26,
1997; Acts 1997, 75th Leg., ch. 1082, Sec. 1, eff. Sept. 1, 1997.
Renumbered from Sec. 5.123 by Acts 2001, 77th Leg., ch. 1420,
Sec. 21.001(112), eff. Sept. 1, 2001.
Sec. 5.127. 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 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.
Added by Acts 2001, 77th Leg., ch. 1161, Sec. 1, eff. Sept. 1,
2001.
Sec. 5.128. ELECTRONIC REPORTING TO COMMISSION; ELECTRONIC
TRANSMISSION OF INFORMATION BY 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.
Notwithstanding any other law, the commission may:
(1) adjust fees as necessary to encourage electronic reporting
and the use of the commission's electronic document receiving
system. 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; and
(2) utilize electronic means of transmission of information,
including notices, orders, and decisions issued or sent by the
commission.
(b) The commission shall strive to reduce duplication in
reporting requirements throughout the agency.
Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.12, eff. Sept. 1,
2001.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
664, Sec. 1, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch.
962, Sec. 1, eff. September 1, 2009.
Sec. 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, Sec. 1.12, eff. Sept. 1,
2001.
Sec. 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, Sec. 1.12, eff. Sept. 1,
2001.
Sec. 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, Sec. 1, eff. Sept. 1,
2001. Renumbered from Water Code Sec. 5.127 by Acts 2003, 78th
Leg., ch. 1275, Sec. 2(138), eff. Sept. 1, 2003.
Sec. 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, Sec. 1, eff. Sept. 1,
2001. Renumbered from Water Code Sec. 5.127 by Acts 2003, 78th
Leg., ch. 1275, Sec. 2(139), eff. Sept. 1, 2003.
Sec. 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) 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 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).
(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. 965, Sec. 1.12, eff. Sept. 1,
2001. Renumbered from Water Code Sec. 5.127 by Acts 2003, 78th
Leg., ch. 1275, Sec. 2(140), eff. Sept. 1, 2003. Amended by Acts
2003, 78th Leg., ch. 912, Sec. 1, eff. Sept. 1, 2005.
Sec. 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, Sec. 2.05, eff.
Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec.
11.156, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 104, Sec.
3, eff. May 17, 1999. Renumbered from Health & Safety Code,
Sec. 382.0365 and amended by Acts 2003, 78th Leg., ch. 81, Sec.
1, eff. Sept. 1, 2003.
SUBCHAPTER E. ADMINISTRATIVE PROVISIONS FOR COMMISSION
Sec. 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, Sec. 1.001, eff. Sept.
1, 1985; Acts 1989, 71st Leg., ch. 584, Sec. 73, eff. Sept. 1,
1989.
Sec. 5.172.