(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:
(1) the commission;
(2) the executive director;
(3) the applicant; and
(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on an issue that was raised solely in a public comment withdrawn by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;
Cont'd... |