Current through Reg. 50, No. 13; March 28, 2025
(a) Commission
consideration of the following items is not itself a contested case subject to
the Texas Administrative Procedure Act (APA):
(2) executive director's response to
comment;
(3) request for
reconsideration; or
(4) request for
contested case hearing.
(b) The commission will evaluate public
comment, executive director's response to comment, requests for
reconsideration, and requests for contested case hearing and may:
(1) grant or deny the request for
reconsideration;
(2) determine that
a hearing request does not meet the requirements of this subchapter, and act on
the application; or
(3) determine
that a hearing request meets the requirements of this subchapter and:
(A) if the request raises disputed issues of
fact that were raised during the comment period, that were not withdrawn by the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 that are
relevant and material to the commission's decision on the application:
(i) specify the number and scope of the
specific factual issues to be referred to the State Office of Administrative
Hearings (SOAH);
(ii) specify the
maximum expected duration of the hearing; and
(iii) direct the chief clerk to refer the
issues to SOAH for a hearing; or
(B) if the request raises only disputed
issues of law or policy, make a decision on the issues and act on the
application; or
(4)
direct the chief clerk to refer the hearing request to SOAH. The referral may
specify that SOAH should prepare a recommendation on the sole question of
whether the requestor is an affected person. If the commission refers the
hearing request to SOAH it shall be processed as a contested case under the
APA. If the commission determines that a requestor is an affected person, SOAH
may proceed with a contested case hearing on the application if either the
commission has specified, or the parties have agreed to, the number and scope
of the issues and maximum expected duration of the hearing.
(c) A request for a contested case
hearing shall be granted if the request is:
(1) made by the applicant or the executive
director;
(2) made by an affected
person if the request:
(A) is on an
application filed:
(i) before September 1,
2015, and raises disputed issues of fact that:
(I) were raised during the comment
period;
(II) were not withdrawn by
the commenter by filing a withdrawal letter with the chief clerk prior to the
filing of the executive director's response to comment; and
(III) are relevant and material to the
commission's decision on the application; or
(ii) on or after September 1, 2015, and
raises disputed issues of fact or mixed questions of fact or law that:
(I) were raised during the comment period by
the affected person whose request is granted;
(II) were not withdrawn by filing a
withdrawal letter with the chief clerk prior to the filing of the executive
director's response to comment;, and
(III) are relevant and material to the
commission's decision on the application;
(B) is timely filed with the chief
clerk;
(C) is pursuant to a right
to hearing authorized by law; and
(D) complies with the requirements of §
55.201 of this title (relating to
Requests for Reconsideration or Contested Case Hearing).
(d) Notwithstanding any other
commission rules, the commission may refer an application to SOAH if the
commission determines that:
(1) a hearing
would be in the public interest; or
(2) the application is for an amendment,
modification, or renewal of an air permit under Texas Health and Safety Code,
§
382.0518 or
§
382.055 that
involves a facility for which the applicant's compliance history contains
violations which are unresolved and which constitute a recurring pattern of
egregious conduct which demonstrates a consistent disregard for the regulatory
process, including the failure to make a timely and substantial attempt to
correct the violations.
(3) the
application is for renewal of a hazardous waste permit, subject to §
305.65(8) of
this title (relating to Renewal) and the applicant's compliance history as
determined under Chapter 60 of this title (relating to Compliance History)
raises an issue regarding the applicant's ability to comply with a material
term of its permit.
(4) the
application is for renewal or amendment of a wastewater discharge permit and
the applicant's compliance history as determined under Chapter 60 of this title
raises an issue regarding the applicant's ability to comply with a material
term of its permit.
(e)
If a request for a contested case hearing is granted, a decision on a request
for reconsideration or contested case hearing is an interlocutory decision on
the validity of the request or issue and is not binding on the issue of
designation of parties under §
80.109 of this title (relating to
Designation of Parties) or the issues referred to SOAH under this section. A
judge may consider additional issues beyond the list referred by the commission
as provided by §
80.4(c)(16) of
this title (relating to Judges). A person whose request for reconsideration or
contested case hearing is denied may still seek to be admitted as a party under
§
80.109 of this title if any
hearing request is granted on an application. Failure to seek party status
shall be deemed a withdrawal of a person's request for reconsideration or
hearing request.
(f) If all
requests for reconsideration or contested case hearing are denied, §
80.272 of this title (relating to
Motion for Rehearing) applies. A motion for rehearing in such a case must be
filed not later than 25 days after the date that the commission's final
decision or order is signed, unless the time for filing the motion for
rehearing has been extended under Texas Government Code, §
2001.142 and §
80.276 of this title (relating to
Request for Extension to File Motion for Rehearing), by agreement under Texas
Government Code, §
2001.147, or by the
commission's written order issued pursuant to Texas Government Code, §
2001.146(e).
If the motion is denied under §
80.272 and §
80.273 of this title (relating to
Motion for Rehearing and Decision Final and Appealable) the commission's
decision is final and appealable under Texas Water Code, §
5.351 or Texas Health and
Safety Code, §
361.321 or
§
382.032, or
under the APA.
(g) If all hearing
requestors whose requests for a contested case hearing were granted with regard
to an issue, withdraw in writing their hearing requests with regard to the
issue before issuance of the notice of the contested case hearing, the scope of
the hearing no longer includes that issue except as authorized under §
80.4(c)(16) of
this title.
