Texas Laws - Water Code
WATER CODE
TITLE 2. WATER ADMINISTRATION

TITLE 2. WATER ADMINISTRATION (46)(1-click HTML)

SUBTITLE A. EXECUTIVE AGENCIES (47)(1-click HTML)

CHAPTER 5. TEXAS COMMISSION ON ENVIRONMENTAL QUALITY (48)(1-click HTML)
SUBCHAPTER A. GENERAL PROVISIONS (49)(1-click HTML)
Sec. 5.001. DEFINITIONS. (50)(1-click HTML)

In this chapter: (51)

(1) "Board" means the Texas Water Development Board. (52)

(2) "Commission" means the Texas Commission on Environmental Quality. (53)

(3) "Executive director" means the executive director of the Texas Commission on Environmental Quality. (54)

(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. (55)

(5) "Coal" has the meaning assigned by Section 134.004, Natural Resources Code. (56)

(6) "Component of the FutureGen project" means a process, technology, or piece of equipment that: (57)

(A) is designed to employ coal gasification technology to generate electricity, hydrogen, or steam in a manner that meets the FutureGen project profile; (58)

(B) is designed to employ fuel cells to generate electricity in a manner that meets the FutureGen project profile; (59)

(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; (60)

(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; (61)

(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; (62)

(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; (63)

(G) qualifies for federal funds designated for the FutureGen project; (64)

(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 (65)

(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. (66)

(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. (67)

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. (68)

Amended by: (69)

Acts 2005, 79th Leg., Ch. 1097 (H.B. 2201), Sec. 6, eff. June 18, 2005. (70)

Sec. 5.002. SCOPE OF CHAPTER. (71)(1-click HTML)

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. (72)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (73)

SUBCHAPTER B. ORGANIZATION OF THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION (74)(1-click HTML)
Sec. 5.011. PURPOSE OF CHAPTER. (75)(1-click HTML)

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. (76)

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. (77)

Sec. 5.012. DECLARATION OF POLICY. (78)(1-click HTML)

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. (79)

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. (80)

Sec. 5.013. GENERAL JURISDICTION OF COMMISSION. (81)(1-click HTML)

(82)

(a) The commission has general jurisdiction over: (83)

(1) water and water rights including the issuance of water rights permits, water rights adjudication, cancellation of water rights, and enforcement of water rights; (84)

(2) continuing supervision over districts created under Article III, Sections 52(b)(1) and (2), and Article XVI, Section 59, of the Texas Constitution; (85)

(3) the state's water quality program including issuance of permits, enforcement of water quality rules, standards, orders, and permits, and water quality planning; (86)

(4) the determination of the feasibility of certain federal projects; (87)

(5) the adoption and enforcement of rules and performance of other acts relating to the safe construction, maintenance, and removal of dams; (88)

(6) conduct of the state's hazardous spill prevention and control program; (89)

(7) the administration of the state's program relating to inactive hazardous substance, pollutant, and contaminant disposal facilities; (90)

(8) the administration of a portion of the state's injection well program; (91)

(9) the administration of the state's programs involving underground water and water wells and drilled and mined shafts; (92)

(10) the state's responsibilities relating to regional waste disposal; (93)

(11) the responsibilities assigned to the commission by Chapters 361, 363, 382, 401, 505, 506, and 507, Health and Safety Code; and (94)

(12) any other areas assigned to the commission by this code and other laws of this state. (95)

(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. (96)

(c) This section allocates among various state agencies statutory authority delegated by other laws. This section does not delegate legislative authority. (97)

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. (98)

Amended by: (99)

Acts 2007, 80th Leg., R.S., Ch. 1323 (S.B. 1436), Sec. 2, eff. September 1, 2007. (100)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 2.01, eff. September 1, 2013. (101)

Acts 2013, 83rd Leg., R.S., Ch. 171 (S.B. 567), Sec. 1, eff. September 1, 2013. (102)

Acts 2015, 84th Leg., R.S., Ch. 515 (H.B. 942), Sec. 32, eff. September 1, 2015. (103)

Sec. 5.014. SUNSET PROVISION. (104)(1-click HTML)

The Texas Commission on Environmental Quality 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, 2023. (105)

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. (106)

Amended by: (107)

Acts 2009, 81st Leg., 1st C.S., Ch. 2 (S.B. 2), Sec. 1.12, eff. July 10, 2009. (108)

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 1.02, eff. September 1, 2011. (109)

Sec. 5.015. CONSTRUCTION OF TITLE. (110)(1-click HTML)

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. (111)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (112)

SUBCHAPTER C. TEXAS NATURAL RESOURCE CONSERVATION COMMISSION (113)(1-click HTML)
Sec. 5.051. COMMISSION. (114)(1-click HTML)

The Texas Natural Resource Conservation Commission is created as an agency of the state. (115)

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. (116)

Sec. 5.052. MEMBERS OF THE COMMISSION; APPOINTMENT. (117)(1-click HTML)

(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. (118)

(b) The governor shall make the appointments in such a manner that each member is from a different section of the state. (119)

(c) Appointments to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees. (120)

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. (121)

Sec. 5.053. ELIGIBILITY FOR MEMBERSHIP. (122)(1-click HTML)

(a) A person may not be a member of the commission if the person or the person's spouse: (123)

(1) is registered, certified, licensed, permitted, or otherwise authorized by the commission; (124)

(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; (125)

(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 (126)

(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. (127)

(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. (128)

(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. (129)

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. (130)

Amended by: (131)

Acts 2007, 80th Leg., R.S., Ch. 1278 (H.B. 3769), Sec. 1, eff. June 15, 2007. (132)

Sec. 5.0535. REQUIRED TRAINING PROGRAM FOR COMMISSION MEMBERS. (133)(1-click HTML)

(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. (134)

(b) The training program must provide the person with information regarding: (135)

(1) the legislation that created the commission; (136)

(2) the programs operated by the commission; (137)

(3) the role and functions of the commission; (138)

(4) the rules of the commission, with an emphasis on the rules that relate to disciplinary and investigatory authority; (139)

(5) the current budget for the commission; (140)

(6) the results of recent significant internal and external audits of the commission; (141)

(7) the requirements of: (142)

(A) the open meetings law, Chapter 551, Government Code; (143)

(B) the public information law, Chapter 552, Government Code; (144)

(C) the administrative procedure law, Chapter 2001, Government Code; and (145)

(D) other laws relating to public officials, including conflict-of-interest laws; and (146)

(8) any applicable ethics policies adopted by the commission or the Texas Ethics Commission. (147)

(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. (148)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.05, eff. Sept. 1, 2001. (149)

Sec. 5.054. REMOVAL OF COMMISSION MEMBERS. (150)(1-click HTML)

(a) It is a ground for removal from the commission that a member: (151)

(1) does not have at the time of taking office the qualifications required by Section 5.053(b); (152)

(2) does not maintain during the service on the commission the qualifications required by Section 5.053(b); (153)

(3) is ineligible for membership under Section 5.053(a), 5.059, or 5.060; (154)

(4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or (155)

(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. (156)

(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. (157)

(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. (158)

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. (159)

Sec. 5.055. OFFICERS OF STATE; OATH. (160)(1-click HTML)

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. (161)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (162)

Sec. 5.056. TERMS OF OFFICE. (163)(1-click HTML)

(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. (164)

(b) A person appointed to the commission may not serve for more than two six-year terms. (165)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (166)

Sec. 5.057. FULL-TIME SERVICE. (167)(1-click HTML)

Each member of the commission shall serve on a full-time basis. (168)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (169)

Sec. 5.058. OFFICERS; MEETINGS. (170)(1-click HTML)

(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. (171)

(b) The presiding officer may designate another commissioner to act for the presiding officer in the presiding officer's absence. (172)

(c) The presiding officer shall preside at the meetings and hearings of the commission. (173)

(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. (174)

(e) A majority of the commission is a quorum. (175)

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. (176)

Sec. 5.059. CONFLICT OF INTEREST. (177)(1-click HTML)

(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. (178)

(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: (179)

(1) the person is an officer, employee, or paid consultant of a Texas trade association in an industry regulated by the commission; or (180)

(2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in an industry regulated by the commission. (181)

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. (182)

Sec. 5.060. LOBBYIST PROHIBITION. (183)(1-click HTML)

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. (184)

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. (185)

Sec. 5.061. PROHIBITION ON ACCEPTING CAMPAIGN CONTRIBUTIONS. (186)(1-click HTML)

A member of the commission may not accept a contribution to a campaign for election to an elected office. If a member of the commission accepts a campaign contribution, the person is considered to have resigned from the office and the office immediately becomes vacant. The vacancy shall be filled in the manner provided by law. (187)

Added by Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 1.03, eff. September 1, 2011. (188)

SUBCHAPTER D. GENERAL POWERS AND DUTIES OF THE COMMISSION (189)(1-click HTML)
Sec. 5.101. SCOPE OF SUBCHAPTER. (190)(1-click HTML)

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. (191)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (192)

Sec. 5.102. GENERAL POWERS. (193)(1-click HTML)

(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. (194)

(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. (195)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (196)

Sec. 5.103. RULES. (197)(1-click HTML)

(a) The commission shall adopt any rules necessary to carry out its powers and duties under this code and other laws of this state. (198)

(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. (199)

(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. (200)

(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. (201)

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. (202)

Sec. 5.1031. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION. (203)(1-click HTML)

(a) The commission shall develop and implement a policy to encourage the use of: (204)

(1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of commission rules; and (205)

(2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the commission's jurisdiction. (206)

(b) The commission's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. (207)

(c) The commission shall: (208)

(1) coordinate the implementation of the policy adopted under Subsection (a); (209)

(2) provide training as needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and (210)

(3) collect data concerning the effectiveness of those procedures. (211)

Added by Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 1.04, eff. September 1, 2011. (212)

Sec. 5.1035. RULES REGARDING DRINKING-WATER STANDARDS. (213)(1-click HTML)

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. (214)

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.41, eff. Sept. 1, 1997. (215)

Sec. 5.104. MEMORANDA OF UNDERSTANDING. (216)(1-click HTML)

(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. (217)

(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. (218)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (219)

Sec. 5.105. GENERAL POLICY. (220)(1-click HTML)

Except as otherwise specifically provided by this code, the commission, by rule, shall establish and approve all general policy of the commission. (221)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (222)

Sec. 5.106. BUDGET APPROVAL. (223)(1-click HTML)

The commission shall examine and approve all budget recommendations for the commission that are to be transmitted to the legislature. (224)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (225)

Sec. 5.107. ADVISORY COMMITTEES, WORK GROUPS, AND TASK FORCES. (226)(1-click HTML)

(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. (227)

(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. (228)

(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. (229)

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. (230)

Sec. 5.108. EXECUTIVE DIRECTOR. (231)(1-click HTML)

(a) The commission shall appoint an executive director to serve at the will of the commission. (232)

(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. (233)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (234)

Sec. 5.109. CHIEF CLERK. (235)(1-click HTML)

(a) The commission shall appoint a chief clerk who shall serve at the will of the commission. (236)

(b) The chief clerk shall assist the commission in carrying out its duties under this code and other law. (237)

(c) The chief clerk shall issue notice of public hearings held under the authority of the commission. (238)

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. (239)

Sec. 5.110. GENERAL COUNSEL. (240)(1-click HTML)

(a) The commission shall appoint a general counsel who shall serve at the will of the commission. (241)

(b) The general counsel is the chief legal officer for the commission. (242)

(c) The general counsel must be an attorney licensed to practice law in this state. (243)

(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. (244)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (245)

Sec. 5.111. STANDARDS OF CONDUCT. (246)(1-click HTML)

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. (247)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (248)

Sec. 5.112. PUBLIC TESTIMONY POLICY. (249)(1-click HTML)

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. (250)

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. (251)

Sec. 5.113. COMMISSION AND STAFF RESPONSIBILITY POLICY. (252)(1-click HTML)

The commission shall develop and implement policies that clearly separate the respective responsibilities of the commission and the staff. (253)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (254)

Sec. 5.114. APPLICATIONS AND OTHER DOCUMENTS. (255)(1-click HTML)

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. (256)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (257)

Sec. 5.115. PERSONS AFFECTED IN COMMISSION HEARINGS; NOTICE OF APPLICATION. (258)(1-click HTML)

(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. (259)

(a-1) 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. For a matter referred under Section 5.556, the commission: (260)

(1) may consider: (261)

(A) the merits of the underlying application, including whether the application meets the requirements for permit issuance; (262)

(B) the likely impact of regulated activity on the health, safety, and use of the property of the hearing requestor; (263)

(C) the administrative record, including the permit application and any supporting documentation; (264)

(D) the analysis and opinions of the executive director; and (265)

(E) any other expert reports, affidavits, opinions, or data submitted on or before any applicable deadline to the commission by the executive director, the applicant, or a hearing requestor; and (266)

(2) may not find that: (267)

(A) a group or association is an affected person unless the group or association identifies, by name and physical address in a timely request for a contested case hearing, a member of the group or association who would be an affected person in the person's own right; or (268)

(B) a hearing requestor is an affected person unless the hearing requestor timely submitted comments on the permit application. (269)

(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. A state agency that receives notice under this subsection may submit comments to the commission in response to the notice but may not contest the issuance of a permit or license by the commission. For the purposes of this subsection, "state agency" does not include a river authority. (270)

(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. (271)

(d) The commission shall adopt rules for the notice required by this section. The rules must provide for the notice required by this section to be posted on the Internet by the commission. (272)

(e) The notice must state: (273)

(1) the identifying number given the application by the commission; (274)

(2) the type of permit or license sought under the application; (275)

(3) the name and address of the applicant; (276)

(4) the date on which the application was submitted; and (277)

(5) a brief summary of the information included in the permit application. (278)

(f) The notice to the School Land Board under this section shall additionally: (279)

(1) state the location of the permanent school fund land to be affected; and (280)

(2) describe any foreseeable impact or effect of the commission's action on permanent school fund land. (281)

(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. (282)

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. (283)

Amended by: (284)

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 10.01, eff. September 1, 2011. (285)

Acts 2015, 84th Leg., R.S., Ch. 116 (S.B. 709), Sec. 2, eff. September 1, 2015. (286)

Sec. 5.116. HEARINGS; RECESS. (287)(1-click HTML)

The commission may recess any hearing or examination from time to time and from place to place. (288)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (289)

Sec. 5.117. MANDATORY ENFORCEMENT HEARING. (290)(1-click HTML)

(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. (291)

(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. (292)

(c) At the conclusion of the hearing, the commission shall issue one of the following orders stating that: (293)

(1) no violation of the permit or license has occurred; (294)

(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; (295)

(3) the executive director is authorized to enter into a compliance agreement with the permittee or licensee; (296)

(4) a violation of the permit or license has occurred and an administrative penalty is assessed as provided by this code; or (297)

(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. (298)

(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. (299)

(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. (300)

(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. (301)

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. (302)

Sec. 5.1175. PAYMENT OF PENALTY BY INSTALLMENT. (303)(1-click HTML)

(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. (304)

(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. (305)

Added by Acts 1995, 74th Leg., ch. 112, Sec. 1, eff. May 17, 1995. (306)

Amended by: (307)

Acts 2009, 81st Leg., R.S., Ch. 1386 (S.B. 1693), Sec. 4, eff. September 1, 2009. (308)

Sec. 5.118. POWER TO ADMINISTER OATHS. (309)(1-click HTML)

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. (310)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (311)

Sec. 5.119. COMMISSION TO BE KNOWLEDGEABLE. (312)(1-click HTML)

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. (313)

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. (314)

Sec. 5.1191. RESEARCH MODEL. (315)(1-click HTML)

(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. (316)

(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. (317)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.11, eff. Sept. 1, 2001. (318)

Sec. 5.1192. COORDINATION OF RESEARCH. (319)(1-click HTML)

(a) The commission shall facilitate and coordinate environmental research in the state according to the research model developed under Section 5.1191. (320)

(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. (321)

(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. (322)

(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. (323)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.11, eff. Sept. 1, 2001. (324)

Sec. 5.1193. REPORT. (325)(1-click HTML)

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. (326)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.11, eff. Sept. 1, 2001. (327)

Sec. 5.120. CONSERVATION AND QUALITY OF ENVIRONMENT. (328)(1-click HTML)

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. (329)

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. (330)

Sec. 5.121. PUBLIC INFORMATION. (331)(1-click HTML)

(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. (332)

(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. (333)

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. (334)

Sec. 5.122. DELEGATION OF UNCONTESTED MATTERS TO EXECUTIVE DIRECTOR. (335)(1-click HTML)

(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: (336)

(1) required notice of the application or request for the authorization or approval has been given; (337)

(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 (338)

(3) the application or request: (339)

(A) is uncontested and does not require an evidentiary hearing; (340)

(B) has become uncontested before parties are named because each person who requested a contested case hearing within the time allowed by law has: (341)

(i) withdrawn the request for a contested case hearing without condition; (342)

(ii) withdrawn the request for a contested case hearing conditioned only on the withdrawal of all other hearing requests; or (343)

(iii) agreed in writing to allow the executive director to make a final decision on the matter; or (344)

(C) has become uncontested because all parties have agreed in writing to the action to be taken by the executive director. (345)

(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: (346)

(1) regarding a federal operating permit under Subchapter C, Chapter 382, Health and Safety Code; or (347)

(2) specified as final and appealable by the commission rule that delegates the decision to the executive director. (348)

(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: (349)

(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 (350)

(2) file a petition for judicial review under Section 382.032, Health and Safety Code. (351)

(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. (352)

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. (353)

Amended by: (354)

Acts 2017, 85th Leg., R.S., Ch. 1065 (H.B. 3177), Sec. 1, eff. September 1, 2017. (355)

Sec. 5.124. AUTHORITY TO AWARD GRANTS. (356)(1-click HTML)

(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. (357)

(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. (358)

(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: (359)

(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; (360)

(2) a demonstration project that involves new techniques for pollution prevention, energy or resource conservation, or waste management; (361)

(3) an environmental purpose identified in a federal grant that is intended as a pass-through grant; (362)

(4) development or improvement of monitoring or modeling techniques for water or air quality; (363)

(5) support of a local air pollution program; or (364)

(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. (365)

(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. (366)

(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: (367)

(1) evaluation and scoring of: (368)

(A) fiscal controls; (369)

(B) project effectiveness; (370)

(C) project cost; and (371)

(D) previous experience with grants and contracts; and (372)

(2) the possibility and method of making multiple awards. (373)

(f) A grant may be made by direct award only if: (374)

(1) the executive director determines that: (375)

(A) selection of recipients by the solicitation of proposals or applications is not feasible; and (376)

(B) awarding the grant directly is in the best interest of the state; (377)

(2) eligibility for the grant is limited to: (378)

(A) an agency or political subdivision of this state or of another state; (379)

(B) a state institution of higher learning of this state or of another state, including any part or service of the institution; or (380)

(C) an agency of the United States; or (381)

(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. (382)

(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. (383)

(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. (384)

(i) For a grant awarded under this section, the commission may use: (385)

(1) money appropriated for grant-making purposes; (386)

(2) federal money granted for making pass-through grants; and (387)

(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. (388)

Added by Acts 1999, 76th Leg., ch. 404, Sec. 28, eff. Sept. 1, 1999. (389)

Sec. 5.125. COST-SHARING FOR ENVIRONMENTAL COMPLIANCE ASSESSMENTS BY CERTAIN BUSINESSES. (390)(1-click HTML)

(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 Chapter 1101, Health and Safety Code. (391)

(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. (392)

Added by Acts 1999, 76th Leg., ch. 104, Sec. 2, eff. May 17, 1999. (393)

Amended by: (394)

Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(d), eff. September 1, 2017. (395)

Sec. 5.126. REPORT ON ENFORCEMENT ACTIONS. (396)(1-click HTML)

(a) Not later than December 1 of each year, the commission shall: (397)

(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 (398)

(2) provide the report to the governor, lieutenant governor, and speaker of the house of representatives. (399)

(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. (400)

(c) The description of enforcement actions for each type of regulatory program shall include: (401)

(1) the number of inspections; (402)

(2) the number of notices of violations; (403)

(3) the number of enforcement actions; (404)

(4) the type of enforcement actions; (405)

(5) the amount of penalties assessed, deferred, or collected; and (406)

(6) any other information the commission determines relevant. (407)

(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. (408)

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. (409)

Sec. 5.127. ENVIRONMENTAL MANAGEMENT SYSTEMS. (410)(1-click HTML)

(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. (411)

(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: (412)

(1) on-site technical assistance; (413)

(2) accelerated access to information about programs; and (414)

(3) to the extent consistent with federal requirements: (415)

(A) inclusion of information regarding an entity's use of an environmental management system in the entity's compliance history and compliance summaries; and (416)

(B) consideration of the entity's implementation of an environmental management system in scheduling and conducting compliance inspections. (417)

(c) The rules must provide that an environmental management system, at a minimum, must require the entity implementing the system to: (418)

(1) adopt a written environmental policy; (419)

(2) identify the environmental aspects and impacts of the entity's activities; (420)

(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; (421)

(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; (422)

(5) document implementation of procedures and results; and (423)

(6) evaluate and refine implementation over time to improve attainment of environmental goals and targets and the system itself. (424)

(d) The commission shall: (425)

(1) integrate the use of environmental management systems into its regulatory programs, including permitting, compliance assistance, and enforcement; (426)

(2) develop model environmental management systems for small businesses and local governments; and (427)

(3) establish environmental performance indicators to measure the program's performance. (428)

Added by Acts 2001, 77th Leg., ch. 1161, Sec. 1, eff. Sept. 1, 2001. (429)

Sec. 5.128. ELECTRONIC REPORTING TO COMMISSION; ELECTRONIC TRANSMISSION OF INFORMATION BY COMMISSION; REDUCTION OF DUPLICATE REPORTING. (430)(1-click HTML)

(431)

(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 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. (432)

(a-1) Notwithstanding any other law, the commission may utilize electronic means of transmission of information, including notices, orders, and decisions issued or sent by the commission. (433)

(a-2) The commission shall utilize electronic means of transmission for any notice issued or sent by the commission to a state senator or representative, unless the senator or representative has requested to receive notice by mail. (434)

(a-3) If the notice issued or sent under Subsection (a-2) concerns a permit for a facility, the notice must include an Internet link to an electronic map indicating the location of the facility. (435)

(b) The commission shall strive to reduce duplication in reporting requirements throughout the agency. (436)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.12, eff. Sept. 1, 2001. (437)

Amended by: (438)

Acts 2007, 80th Leg., R.S., Ch. 664 (H.B. 1254), Sec. 1, eff. September 1, 2007. (439)

Acts 2009, 81st Leg., R.S., Ch. 962 (H.B. 3544), Sec. 1, eff. September 1, 2009. (440)

Acts 2011, 82nd Leg., R.S., Ch. 108 (H.B. 610), Sec. 1, eff. September 1, 2011. (441)

Sec. 5.129. SUMMARY FOR PUBLIC NOTICES. (442)(1-click HTML)

(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. (443)

(b) The summary statement may not be grounds for challenging the validity of the proposed action for which the notice was published. (444)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.12, eff. Sept. 1, 2001. (445)

Sec. 5.130. CONSIDERATION OF CUMULATIVE RISKS. (446)(1-click HTML)

The commission shall: (447)

(1) develop and implement policies, by specific environmental media, to protect the public from cumulative risks in areas of concentrated operations; and (448)

(2) give priority to monitoring and enforcement in areas in which regulated facilities are concentrated. (449)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.12, eff. Sept. 1, 2001. (450)

Sec. 5.132. CREATION OF PERFORMANCE MEASURES FOR INNOVATIVE REGULATORY PROGRAMS. (451)(1-click HTML)

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. (452)

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. (453)

Sec. 5.133. ACTIONS IN MEXICO. (454)(1-click HTML)

The commission may take and finance any action in Mexico, in cooperation with governmental authorities of Mexico, that in the opinion of the commission: (455)

(1) is necessary or convenient to accomplish a duty of the commission imposed by law; and (456)

(2) will yield benefits to the environment in this state. (457)

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. (458)

Sec. 5.134. USE OF ENVIRONMENTAL TESTING LABORATORY DATA AND ANALYSIS. (459)(1-click HTML)

(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). (460)

(b) The commission may accept for use in commission decisions data and analysis prepared by: (461)

(1) an on-site or in-house environmental testing laboratory if the laboratory: (462)

(A) is periodically inspected by the commission; or (463)

(B) is located in another state and is accredited or periodically inspected by that state; (464)

(2) an environmental testing laboratory that is accredited under federal law; or (465)

(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. (466)

(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. (467)

(d) The commission shall periodically inspect on-site or in-house environmental testing laboratories described in Subsection (b). (468)

(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: (469)

(1) for another company with a unit located on the same site; or (470)

(2) without compensation for a governmental agency or a charitable organization if the laboratory is periodically inspected by the commission. (471)

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. (472)

Sec. 5.135. SMALL BUSINESS COMPLIANCE ASSISTANCE PROGRAM. (473)(1-click HTML)

(a) The commission shall establish a small business compliance assistance program. (474)

(b) The program shall include: (475)

(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; (476)

(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; (477)

(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; (478)

(4) a compliance assistance program to help small businesses identify the requirements for and obtain required permits in a timely and efficient manner; (479)

(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; (480)

(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 (481)

(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. (482)

(c) The program shall include a small business compliance assistance advisory panel that consists of the following seven members: (483)

(1) two members who are not owners or representatives of owners of small business stationary sources, selected by the governor to represent the public; (484)

(2) two members who are owners or who represent owners of small business stationary sources, selected by the speaker of the house of representatives; (485)

(3) two members who are owners or who represent owners of small business stationary sources, selected by the lieutenant governor; and (486)

(4) one member selected by the chairman of the commission to represent the commission. (487)

(d) The small business compliance assistance advisory panel shall: (488)

(1) give advisory opinions on the effectiveness of the program, the difficulties of implementing the program, and the incidence and severity of enforcement; (489)

(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; (490)

(3) review information the program provides to small businesses to assure the information is understandable to nonexperts; and (491)

(4) distribute opinions, reports, and information developed by the panel. (492)

(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. (493)

(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. (494)

(g) In this section: (495)

(1) "Program" means the small business compliance assistance program. (496)

(2) "Small business" means: (497)

(A) a small business stationary source; or (498)

(B) a business that employs at least 100 but not more than 250 individuals. (499)

(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. (500)

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. (501)

SUBCHAPTER E. ADMINISTRATIVE PROVISIONS FOR COMMISSION (502)(1-click HTML)
Sec. 5.171. AUDIT. (503)(1-click HTML)

The financial transactions of the commission are subject to audit by the state auditor in accordance with Chapter 321, Government Code. (504)

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. (505)

Sec. 5.172. FUNDS FROM OTHER STATE AGENCIES. (506)(1-click HTML)

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. (507)

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. 1.014, eff. Aug. 12, 1991. (508)

Sec. 5.173. PUBLIC INFORMATION RELATING TO COMMISSION. (509)(1-click HTML)

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. (510)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (511)

Sec. 5.1733. ELECTRONIC POSTING OF INFORMATION. (512)(1-click HTML)

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. (513)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.13, eff. Sept. 1, 2001. (514)

Sec. 5.174. COPIES OF DOCUMENTS, PROCEEDINGS, ETC. (515)(1-click HTML)

(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. (516)

(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. (517)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(13), eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 965, Sec. 16.01, eff. Sept. 1, 2001. (518)

Sec. 5.175. INSPECTION OF WATER POLLUTION RECORDS. (519)(1-click HTML)

(a) All information, documents, and data collected by the commission in the performance of its duties are the property of the state. (520)

(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. (521)

(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. (522)

(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. (523)

(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. (524)

(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. (525)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, 1.168; Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.016, eff. Aug. 12, 1991. (526)

Sec. 5.176. COMPLAINT FILE. (527)(1-click HTML)

(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: (528)

(1) the name of the person who filed the complaint, unless the person has specifically requested anonymity; (529)

(2) the date the complaint is received by the commission; (530)

(3) the subject matter of the complaint; (531)

(4) the name of each person contacted in relation to the complaint; (532)

(5) a summary of the results of the review or investigation of the complaint; and (533)

(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. (534)

(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). (535)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 2001, 77th Leg., ch. 965, Sec. 1.15, eff. Sept. 1, 2001. (536)

Sec. 5.1765. PUBLICATION OF INFORMATION REGARDING COMPLAINT PROCEDURES AND POLICIES. (537)(1-click HTML)

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. (538)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.14, eff. Sept. 1, 2001. (539)

Sec. 5.177. NOTICE OF COMPLAINT PROCEDURES; NOTICE OF INVESTIGATION STATUS. (540)(1-click HTML)

(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. (541)

(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. (542)

(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. (543)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 2001, 77th Leg., ch. 965, Sec. 1.15, eff. Sept. 1, 2001. (544)

Sec. 5.1771. COORDINATION OF COMPLAINT INVESTIGATIONS WITH LOCAL ENFORCEMENT OFFICIALS: TRAINING. (545)(1-click HTML)

(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. (546)

(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: (547)

(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 (548)

(2) an explanation of local government authority to enforce state laws and commission rules relating to the environment. (549)

(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. (550)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.16, eff. Sept. 1, 2001. (551)

Sec. 5.1772. AFTER-HOURS RESPONSE TO COMPLAINTS. (552)(1-click HTML)

(a) The commission shall adopt and implement a policy to provide timely response to complaints during periods outside regular business hours. (553)

(b) This section does not: (554)

(1) require availability of field inspectors for response 24 hours a day, seven days a week, in all parts of the state; or (555)

(2) authorize additional use of overtime. (556)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.16, eff. Sept. 1, 2001. (557)

Sec. 5.1773. COMPLAINT ASSESSMENT. (558)(1-click HTML)

(a) The commission annually shall conduct a comprehensive analysis of the complaints it receives, including analysis by the following categories: (559)

(1) air; (560)

(2) water; (561)

(3) waste; (562)

(4) priority classification; (563)

(5) region; (564)

(6) commission response; (565)

(7) enforcement action taken; and (566)

(8) trends by complaint type. (567)

(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. (568)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.16, eff. Sept. 1, 2001. (569)

Sec. 5.178. BIENNIAL REPORTS. (570)(1-click HTML)

(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. (571)

(b) The report due by December 1 of an even-numbered year shall include, in addition: (572)

(1) the commission's recommendations for necessary and desirable legislation; and (573)

(2) the following reports: (574)

(A) the assessments and reports required by Section 361.0219(c), Health and Safety Code; (575)

(B) the reports required by Section 26.0135(d) and Section 5.02, Chapter 133, Acts of the 69th Legislature, Regular Session, 1985; and (576)

(C) a summary of the analyses and assessments required by Section 5.1773. (577)

(c) Repealed by Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 7.04(b). (578)

(d) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 1083, Sec. 25(164), eff. June 17, 2011. (579)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 1997, 75th Leg., ch. 1082, Sec. 2, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 965, Sec. 1.17, eff. Sept. 1, 2001; Acts 2003, 78th Leg., 3rd C.S., ch. 3, Sec. 7.02, 7.03, 7.04(b), eff. Jan. 11, 2004. (580)

Amended by: (581)

Acts 2011, 82nd Leg., R.S., Ch. 1083 (S.B. 1179), Sec. 25(164), eff. June 17, 2011. (582)

Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 21.001, eff. September 1, 2013. (583)

Sec. 5.1781. REPORT TO SECRETARY OF STATE. (584)(1-click HTML)

(a) In this section, "colonia" means a geographic area that: (585)

(1) is an economically distressed area as defined by Section 17.921; (586)

(2) is located in a county any part of which is within 62 miles of an international border; and (587)

(3) consists of 11 or more dwellings that are located in close proximity to each other in an area that may be described as a community or neighborhood. (588)

(b) To assist the secretary of state in preparing the report required under Section 405.021, Government Code, the commission on a quarterly basis shall provide a report to the secretary of state detailing any projects funded by the commission that provide assistance to colonias. (589)

(c) The report must include: (590)

(1) a description of any relevant projects; (591)

(2) the location of each project; (592)

(3) the number of colonia residents served by each project; (593)

(4) the exact amount spent or the anticipated amount to be spent on each colonia served by each project; (594)

(5) a statement of whether each project is completed and, if not, the expected completion date of the project; and (595)

(6) any other information, as determined appropriate by the secretary of state. (596)

(d) The commission shall require an applicant for funds administered by the commission to submit to the commission a colonia classification number, if one exists, for each colonia that may be served by the project proposed in the application. If a colonia does not have a classification number, the commission may contact the secretary of state or the secretary of state's representative to obtain the classification number. On request of the commission, the secretary of state or the secretary of state's representative shall assign a classification number to the colonia. (597)

Added by Acts 2007, 80th Leg., R.S., Ch. 341 (S.B. 99), Sec. 12, eff. June 15, 2007. (598)

Sec. 5.179. SEAL. (599)(1-click HTML)

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. (600)

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. 1.017, eff. Aug. 12, 1991. (601)

SUBCHAPTER F. EXECUTIVE DIRECTOR (602)(1-click HTML)
Sec. 5.221. GENERAL RESPONSIBILITIES OF THE EXECUTIVE DIRECTOR. (603)(1-click HTML)

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. (604)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (605)

Sec. 5.222. DELEGATION OF EXECUTIVE DIRECTOR'S AUTHORITY OR DUTY. (606)(1-click HTML)

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. (607)

Added by Acts 1997, 75th Leg., ch. 302, Sec. 2, eff. Sept. 1, 1997. Renumbered from Sec. 5.238 by Acts 1999, 76th Leg., ch. 62, Sec. 19.01(109), eff. Sept. 1, 1999. (608)

Sec. 5.223. ADMINISTRATIVE ORGANIZATION OF COMMISSION. (609)(1-click HTML)

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. (610)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (611)

Sec. 5.224. INFORMATION REQUEST TO BOARD. (612)(1-click HTML)

(a) With regard to any matter pending before the commission, the executive director may obtain from the board information relating to that matter. (613)

(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. (614)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (615)

Sec. 5.225. CAREER LADDER PROGRAM. (616)(1-click HTML)

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. (617)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (618)

Sec. 5.226. MERIT PAY. (619)(1-click HTML)

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. (620)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (621)

Sec. 5.227. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (622)(1-click HTML)

(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. (623)

(b) The policy statement must include: (624)

(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 (625)

(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. (626)

(c) The policy statement must: (627)

(1) be updated annually; (628)

(2) be reviewed by the state Commission on Human Rights for compliance with Subsection (b)(1); and (629)

(3) be filed with the governor's office. (630)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 2001, 77th Leg., ch. 965, Sec. 1.18, eff. Sept. 1, 2001. (631)

Sec. 5.228. APPEARANCES AT HEARINGS. (632)(1-click HTML)

(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. (633)

(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. (634)

(c) The executive director shall participate as a party in contested case permit hearings before the commission or the State Office of Administrative Hearings to: (635)

(1) provide information to complete the administrative record; and (636)

(2) support the executive director's position developed in the underlying proceeding, unless the executive director has revised or reversed that position. (637)

(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. (638)

(e) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 1021, Sec. 10.04, eff. September 1, 2011. (639)

(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. (640)

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. 1.018, eff. Aug. 12, 1991; Acts 2001, 77th Leg., ch. 965, Sec. 1.20, eff. Sept. 1, 2001. (641)

Amended by: (642)

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 10.02, eff. September 1, 2011. (643)

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 10.04, eff. September 1, 2011. (644)

Acts 2015, 84th Leg., R.S., Ch. 116 (S.B. 709), Sec. 3, eff. September 1, 2015. (645)

Sec. 5.229. CONTRACTS. (646)(1-click HTML)

(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. (647)

(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. (648)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (649)

Sec. 5.2291. SCIENTIFIC AND TECHNICAL SERVICES. (650)(1-click HTML)

(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. (651)

(b) Except as provided by Section 5.2292, 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. (652)

Added by Acts 2001, 77th Leg., ch. 965, Sec. 1.21, eff. Sept. 1, 2001. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 14A.842, eff. Sept. 1, 2003. (653)

Amended by: (654)

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 1.05, eff. September 1, 2011. (655)

Sec. 5.2292. CONTRACTS FOR SERVICES UNDER PETROLEUM STORAGE TANK STATE-LEAD PROGRAM. (656)(1-click HTML)

(a) The executive director may directly award a contract for scientific and technical environmental services to a person if: (657)

(1) the contract is for the performance of services related to the remediation of a site that has been placed in the state-lead program under Section 26.3573(r-1); (658)

(2) the person has registered to perform corrective action under Section 26.364; (659)

(3) the person is eligible to receive a contract award from the state; (660)

(4) the person was performing related work at the site on or before July 1, 2011; and (661)

(5) the contract includes all contract provisions required for state contracts. (662)

(b) Notwithstanding Section 2254.004, Government Code, the executive director may directly award a contract for engineering services to a person if: (663)

(1) the contract is for the performance of services related to the remediation of a site that has been placed in the state-lead program under Section 26.3573(r-1); (664)

(2) the person is licensed under Chapter 1001, Occupations Code; (665)

(3) the person has registered to perform corrective action under Section 26.364; (666)

(4) the person is eligible to receive a contract award from the state; (667)

(5) the person was performing related work at the site on or before July 1, 2011; and (668)

(6) the contract includes all contract provisions required for state contracts. (669)

(c) Nothing in Subsection (a) or (b) requires the executive director to make an award at a site or prevents the executive director from negotiating additional contract terms, including qualifications. (670)

Added by Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 1.06, eff. September 1, 2011. (671)

Sec. 5.230. ENFORCEMENT. (672)(1-click HTML)

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. (673)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (674)

Sec. 5.231. TRAVEL EXPENSES. (675)(1-click HTML)

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. (676)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (677)

Sec. 5.232. EMPLOYEE MOVING EXPENSES. (678)(1-click HTML)

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. (679)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (680)

Sec. 5.233. GIFTS AND GRANTS. (681)(1-click HTML)

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. (682)

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. 1.019, eff. Aug. 12, 1991. (683)

Sec. 5.234. APPLICATIONS AND OTHER DOCUMENTS. (684)(1-click HTML)

(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. (685)

(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. (686)

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. 1.020, eff. Aug. 12, 1991; Acts 2001, 77th Leg., ch. 965, Sec. 1.22, eff. Sept. 1, 2001. (687)

Sec. 5.236. GROUNDWATER CONTAMINATION REPORTS. (688)(1-click HTML)

(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: (689)

(1) the county judge and the county health officer, if any, in each county in which the contamination has occurred or is occurring; (690)

(2) any person under the commission's jurisdiction who is suspected of contributing to the contamination; (691)

(3) any other state agency with jurisdiction over any person who is suspected of contributing to the contamination; and (692)

(4) a groundwater conservation district, if the contamination has occurred or is occurring in the jurisdiction of the district. (693)

(b) The executive director shall give the notice in the manner and form, and include the information, required by rule of the commission. (694)

Added by Acts 1987, 70th Leg., ch. 393, Sec. 1, eff. Sept. 1, 1987. (695)

Amended by: (696)

Acts 2011, 82nd Leg., R.S., Ch. 607 (S.B. 430), Sec. 1, eff. September 1, 2011. (697)

Sec. 5.237. OPERATING FUND. (698)(1-click HTML)

(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. (699)

(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. (700)

Added by Acts 1993, 73rd Leg., ch. 746, Sec. 2, eff. Aug. 30, 1993. (701)

Sec. 5.238. ADMINISTRATIVE ACCOUNT. (702)(1-click HTML)

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. (703)

Added by Acts 1997, 75th Leg., ch. 333, Sec. 2, eff. Sept. 1, 1997. (704)

Sec. 5.239. PUBLIC EDUCATION AND ASSISTANCE. (705)(1-click HTML)

(a) The executive director shall ensure that the agency is responsive to environmental and citizens' concerns, including environmental quality and consumer protection. (706)

(b) The executive director shall develop and implement a program to: (707)

(1) provide a centralized point for the public to access information about the commission and to learn about matters regulated by the commission; (708)

(2) identify and assess the concerns of the public in regard to matters regulated by the commission; and (709)

(3) respond to the concerns identified by the program. (710)

Added by Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 3.01, eff. September 1, 2011. (711)

SUBCHAPTER G. OFFICE OF PUBLIC INTEREST COUNSEL (712)(1-click HTML)
Sec. 5.271. CREATION AND GENERAL RESPONSIBILITY OF THE OFFICE OF PUBLIC INTEREST COUNSEL. (713)(1-click HTML)

The office of public interest counsel is created to ensure that the commission promotes the public's interest. The primary duty of the office is to represent the public interest as a party to matters before the commission. (714)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28, 1989. (715)

Amended by: (716)

Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 3.02, eff. September 1, 2011. (717)

Sec. 5.272. PUBLIC INTEREST COUNSEL. (718)(1-click HTML)

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. (719)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28, 1989. (720)

Sec. 5.2725. ANNUAL REPORT; PERFORMANCE MEASURES. (721)(1-click HTML)

(a) The office of public interest counsel shall report to the commission each year in a public meeting held on a date determined by the commission to be timely for the commission to include the reported information in the commission's reports under Sections 5.178(a) and (b) and in the commission's biennial legislative appropriations requests as appropriate: (722)

(1) an evaluation of the office's performance in representing the public interest in the preceding year; (723)

(2) an assessment of the budget needs of the office, including the need to contract for outside expertise; and (724)

(3) any legislative or regulatory changes recommended under Section 5.273. (725)

(b) The commission and the office of public interest counsel shall work cooperatively to identify performance measures for the office. (726)

Added by Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 3.03, eff. September 1, 2011. (727)

Sec. 5.273. DUTIES OF THE PUBLIC INTEREST COUNSEL. (728)(1-click HTML)

(a) The counsel shall represent the public interest and be a party to all proceedings before the commission. (729)

(b) The counsel may recommend needed legislative and regulatory changes. (730)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28, 1989; Acts 2001, 77th Leg., ch. 965, Sec. 1.23, eff. Sept. 1, 2001. (731)

Sec. 5.274. STAFF; OUTSIDE TECHNICAL SUPPORT. (732)(1-click HTML)

(a) The office shall be adequately staffed to carry out its functions under this code. (733)

(b) The counsel may obtain and use outside technical support to carry out its functions under this code. (734)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28, 1989; Acts 2001, 77th Leg., ch. 965, Sec. 1.23, eff. Sept. 1, 2001. (735)

Sec. 5.275. APPEAL. (736)(1-click HTML)

A ruling, decision, or other act of the commission may not be appealed by the counsel. (737)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 708, Sec. 1, eff. Aug. 28, 1989. (738)

Sec. 5.276. FACTORS FOR PUBLIC INTEREST REPRESENTATION. (739)(1-click HTML)

(a) The commission by rule, after consideration of recommendations from the office of public interest counsel, shall establish factors the public interest counsel must consider before the public interest counsel decides to represent the public interest as a party to a commission proceeding. (740)

(b) Rules adopted under this section must include: (741)

(1) factors to determine the nature and extent of the public interest; and (742)

(2) factors to consider in prioritizing the workload of the office of public interest counsel. (743)

Added by Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 3.04, eff. September 1, 2011. (744)

SUBCHAPTER H. DELEGATION OF HEARINGS (745)(1-click HTML)
Sec. 5.311. DELEGATION OF RESPONSIBILITY. (746)(1-click HTML)

(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. (747)

(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. (748)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. Renumbered from Water Code Sec. 5.313 and amended by Acts 1995, 74th Leg., ch. 106, Sec. 2, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1010, Sec. 6.01, eff. Sept. 1, 1997. (749)

Amended by: (750)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 2.02, eff. September 1, 2013. (751)

Acts 2013, 83rd Leg., R.S., Ch. 171 (S.B. 567), Sec. 2, eff. September 1, 2013. (752)

Sec. 5.312. TIME LIMIT FOR ISSUANCE OR DENIAL OF PERMITS. (753)(1-click HTML)

(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. (754)

(b) This section does not apply to permits issued under federally delegated or approved programs unless allowed under that program. (755)

Added by Acts 1991, 72nd Leg., 1st C.S., ch. 3, Sec. 1.022, eff. Aug. 12, 1991. Renumbered from Water Code Sec. 5.314 by Acts 1995, 74th Leg., ch. 106, Sec. 2, eff. Sept. 1, 1995. (756)

Sec. 5.313. HEARING EXAMINERS REFERENCED IN LAW. (757)(1-click HTML)

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. (758)

Amended by Acts 1995, 74th Leg., ch. 106, Sec. 2, eff. Sept. 1, 1995. (759)

Sec. 5.315. DISCOVERY IN CASES USING PREFILED WRITTEN TESTIMONY. (760)(1-click HTML)

In a contested case hearing delegated by the commission to the State Office of Administrative Hearings that uses prefiled written testimony, all discovery must be completed before the deadline for the submission of that testimony. (761)

Added by Acts 2011, 82nd Leg., R.S., Ch. 1021 (H.B. 2694), Sec. 10.03, eff. September 1, 2011. (762)

Amended by: (763)

Acts 2015, 84th Leg., R.S., Ch. 853 (S.B. 1148), Sec. 1, eff. September 1, 2015. (764)

SUBCHAPTER I. JUDICIAL REVIEW (765)(1-click HTML)
Sec. 5.351. JUDICIAL REVIEW OF COMMISSION ACTS. (766)(1-click HTML)

(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. (767)

(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. (768)

(c) Notwithstanding Subsection (b), a person affected by a ruling, order, or decision on a matter delegated to the executive director under Section 5.122 or other law may, after exhausting any administrative remedies, file a petition to review, set aside, modify, or suspend the ruling, order, or decision not later than the 30th day after: (769)

(1) the effective date of the ruling, order, or decision; or (770)

(2) if the executive director's ruling, order, or decision is appealed to the commission as authorized by Section 5.122(b) or other law, the earlier of: (771)

(A) the date the commission denies the appeal; or (772)

(B) the date the appeal is overruled by operation of law in accordance with commission rules. (773)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (774)

Amended by: (775)

Acts 2017, 85th Leg., R.S., Ch. 1065 (H.B. 3177), Sec. 2, eff. September 1, 2017. (776)

Sec. 5.352. REMEDY FOR COMMISSION OR EXECUTIVE DIRECTOR INACTION. (777)(1-click HTML)

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. (778)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (779)

Sec. 5.353. DILIGENT PROSECUTION OF SUIT. (780)(1-click HTML)

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. (781)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (782)

Sec. 5.354. VENUE. (783)(1-click HTML)

A suit instituted under Section 5.351 or 5.352 of this code must be brought in a district court in Travis County. (784)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (785)

Sec. 5.355. APPEAL OF DISTRICT COURT JUDGMENT. (786)(1-click HTML)

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. (787)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (788)

Sec. 5.356. APPEAL BY EXECUTIVE DIRECTOR PRECLUDED. (789)(1-click HTML)

A ruling, order, decision, or other act of the commission may not be appealed by the executive director. (790)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (791)

Sec. 5.357. LAW SUITS; CITATION. (792)(1-click HTML)

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. (793)

Amended by Acts 1985, 69th Leg., ch. 795, Sec. 1.001, eff. Sept. 1, 1985. (794)

SUBCHAPTER J. CONSOLIDATED PERMIT PROCESSING (795)(1-click HTML)
Sec. 5.401. CONSOLIDATED PERMIT PROCESSING. (796)(1-click HTML)

(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. (797)

  

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