Current through Reg. 50, No. 13; March 28, 2025
(a) A request for reconsideration or
contested case hearing must be filed no later than 30 days after the chief
clerk mails (or otherwise transmits) the executive director's decision and
response to comments and provides instructions for requesting that the
commission reconsider the executive director's decision or hold a contested
case hearing.
(b) The following may
request a contested case hearing under this chapter:
(2) the executive director;
(4) affected persons, when authorized by
law.
(c) A request for a
contested case hearing by an affected person must be in writing, must be filed
with the chief clerk within the time provided by subsection (a) of this
section, may not be based on an issue that was raised solely in a public
comment withdrawn by the commenter in writing by filing a withdrawal letter
with the chief clerk prior to the filing of the Executive Director's Response
to Comment, and, for applications filed on or after September 1, 2015, must be
based only on the requestor's timely comments.
(d) A hearing request must substantially
comply with the following:
(1) give the name,
address, daytime telephone number, and, where possible, fax number of the
person who files the request. If the request is made by a group or association,
the request must identify one person by name, address, daytime telephone
number, and, where possible, fax number, who shall be responsible for receiving
all official communications and documents for the group;
(2) identify the person's personal
justiciable interest affected by the application, including a brief, but
specific, written statement explaining in plain language the requestor's
location and distance relative to the proposed facility or activity that is the
subject of the application and how and why the requestor believes he or she
will be adversely affected by the proposed facility or activity in a manner not
common to members of the general public;
(3) request a contested case
hearing;
(4) for applications
filed:
(A) before September 1, 2015, list all
relevant and material disputed issues of fact that were raised during the
public comment period and that are the basis of the hearing request. To
facilitate the commission's determination of the number and scope of issues to
be referred to hearing, the requestor should, to the extent possible, specify
any of the executive director's responses to comments that the requestor
disputes and the factual basis of the dispute and list any disputed issues of
law or policy; or
(B) on or after
September 1, 2015, list all relevant and material disputed issues of fact that
were raised by the requestor during the public comment period and that are the
basis of the hearing request. To facilitate the commission's determination of
the number and scope of issues to be referred to hearing, the requestor should,
to the extent possible, specify any of the executive director's responses to
the requestor's comments that the requestor disputes, the factual basis of the
dispute, and list any disputed issues of law; and
(5) provide any other information specified
in the public notice of application.
(e) Any person, other than a state agency
that is prohibited by law from contesting the issuance of a permit or license
as set forth in §
55.103 of this title (relating to
Definitions), may file a request for reconsideration of the executive
director's decision. The request must be in writing and be filed by United
States mail, facsimile, or hand delivery with the chief clerk within the time
provided by subsection (a) of this section. The request should also contain the
name, address, daytime telephone number, and, where possible, fax number of the
person who files the request. The request for reconsideration must expressly
state that the person is requesting reconsideration of the executive director's
decision, and give reasons why the decision should be reconsidered.
(f) Documents that are filed with the chief
clerk before the public comment deadline that comment on an application but do
not request reconsideration or a contested case hearing shall be treated as
public comment.
(g) Procedures for
late filed public comments, requests for reconsideration, or contested case
hearing are as follows.
(1) A request for
reconsideration or contested case hearing, or public comment shall be processed
under §
55.209 of this title (relating to
Processing Requests for Reconsideration and Contested Case Hearing) or under
§
55.156 of this title (relating to
Public Comment Processing), respectively, if it is filed by the deadline. The
chief clerk shall accept a request for reconsideration or contested case
hearing, or public comment that is filed after the deadline but the chief clerk
shall not process it. The chief clerk shall place the late documents in the
application file.
(2) The
commission may extend the time allowed to file a request for reconsideration,
or a request for a contested case hearing.
(h) Any person, except the applicant, the
executive director, the public interest counsel, and a state agency that is
prohibited by law from contesting the issuance of a permit or license as set
forth in §
55.103 of this title, who was
provided notice as required under Chapter 39 of this title (relating to Public
Notice) but who failed to file timely public comment, failed to file a timely
hearing request, failed to participate in the public meeting held under §
55.154 of this title (relating to
Public Meetings), and failed to participate in the contested case hearing under
Chapter 80 of this title (relating to Contested Case Hearings) may file a
motion for rehearing under §
50.119 of this title (relating to
Notice of Commission Action, Motion for Rehearing), or §
80.272 of this title (relating to
Motion for Rehearing) or may file a motion to overturn the executive director's
decision under §
50.139 of this title (relating to
Motion to Overturn Executive Director's Decision) only to the extent of the
changes from the draft permit to the final permit decision.
(i) Applications for which there is no right
to a contested case hearing include:
(1) a
minor amendment or minor modification of a permit under Chapter 305, Subchapter
D of this title (relating to Amendments, Renewals, Transfers, Corrections,
Revocation, and Suspension of Permits);
(2) a Class 1 or Class 2 modification of a
permit under Chapter 305, Subchapter D of this title;
(3) any air permit application for the
following:
(A) initial issuance of an electric
generating facility permit;
(B)
permits issued under Chapter 122 of this title (relating to Federal Operating
Permits Program);
(C) a permit
issued under Chapter 116, Subchapter B, Division 6 of this title (relating to
Prevention of Significant Deterioration Review) that would authorize only
emissions of greenhouse gases as defined in §
101.1 of this title (relating to
Definitions); or
(D) amendment,
modification, or renewal of an air application that would not result in an
increase in allowable emissions and would not result in the emission of an air
contaminant not previously emitted. The commission may hold a contested case
hearing if the application involves a facility for which the applicant's
compliance history contains violations that are unresolved and that constitute
a recurring pattern of egregious conduct that demonstrates a consistent
disregard for the regulatory process, including the failure to make a timely
and substantial attempt to correct the violations;
(4) hazardous waste permit renewals under
§
305.65(8) of
this title (relating to Renewal);
(5) an application, under Texas Water Code,
Chapter 26, to renew or amend a permit if:
(A) the applicant is not applying to:
(i) increase significantly the quantity of
waste authorized to be discharged; or
(ii) change materially the pattern or place
of discharge;
(B) the
activity to be authorized by the renewal or amended permit will maintain or
improve the quality of waste authorized to be discharged;
(C) any required opportunity for public
meeting has been given;
(D)
consultation and response to all timely received and significant public comment
has been given; and
(E) the
applicant's compliance history for the previous five years raises no issues
regarding the applicant's ability to comply with a material term of the
permit;
(6) an
application for a Class I injection well permit used only for the disposal of
nonhazardous brine produced by a desalination operation or nonhazardous
drinking water treatment residuals under Texas Water Code, §
27.021, concerning Permit
for Disposal of Brine from Desalination Operations or of Drinking Water
Treatment Residuals in Class I Injection Wells;
(7) the issuance, amendment, renewal,
suspension, revocation, or cancellation of a general permit, or the
authorization for the use of an injection well under a general permit under
Texas Water Code, §
27.025, concerning General
Permit Authorizing Use of Class I Injection Well to Inject Nonhazardous Brine
from Desalination Operations or Nonhazardous Drinking Water Treatment
Residuals;
(8) an application for a
permit, registration, license, or other type of authorization required to
construct, operate, or authorize a component of the FutureGen project as
defined in §
91.30 of this title (relating to
Definitions), if the application was submitted on or before January 1,
2018;
(9) other types of
applications where a contested case hearing request has been filed, but no
opportunity for hearing is provided by law; and
(10) an application for a production area
authorization, except as provided in accordance with §
331.108 of this title (relating to
Opportunity for a Contested Case Hearing on a Production Area Authorization
Application).
