| (a) Commencement of a contested case.
(1) Enforcement contested cases are commenced when
a division of the Commission refers the matter to the Enforcement
Section of the Office of General Counsel and the Enforcement Section
assigns a docket number to the case. Before filing a complaint, the
Commission may offer to settle the case through an agreed order.
(2) If the Commission does not offer to settle, or
the terms of the offer are not timely met by the respondent, the Commission
will send the original complaint to the respondent by certified and
regular first-class mail. In cases against foreign or non-resident
respondents, the complaint will also be sent to the resident agent
listed on the respondent's most recently filed Organization Report
(Form P-5). The complaint will be accompanied by a letter alleging
that the respondent has violated Commission rules or statutes as set
forth in the original complaint; that the respondent may, within 30
days of the date of service, file an answer or request a hearing to
contest the allegations of the original complaint; and that the respondent
may wish to hire an attorney or other authorized representative or
choose to appear on its own behalf. The letter will notify the respondent
that if, on 31st day after the date of service, it has not entered
into an agreed order, filed an answer to the original complaint, or
requested a hearing, a default final order may thereafter be issued
against respondent without further notice. Concurrent with the complaint,
the Commission may make an offer to settle the case through an agreed
order.
(3) When there is actual pollution or injury to the
public health and safety, or an imminent threat thereof, a hearing
may be set and notice of the hearing sent with the original complaint.
The notice will state that if the respondent fails to appear at the
hearing, a default final order may be issued against respondent without
further notice as specified in subsection (d) of this section.
(b) Filing of answer or request for hearing; setting
of hearing. A request for hearing made by the respondent shall serve
as a general denial of the allegations in the original complaint.
An answer or request for hearing is timely if filed with the Docket
Services Section before the matter is included on an open meeting
agenda of the Commission that has been posted with the Secretary of
State. Except in cases brought under subsection (a)(3) of this section,
the Enforcement Section will coordinate with the Docket Services Section
to set a hearing on a date at least 30 days after receipt of a timely
answer or hearing request, unless the case is disposed of by other
means.
(c) Notice of hearing. Notices of hearing will be sent
along with the original complaint to respondents or their authorized
representatives in all cases brought under subsection (a)(3) of this
section. In all other cases, notices of hearing will be sent, along
with a current Enforcement Section pleading, only after the respondent
or its authorized representative has timely filed a request for hearing
or an answer. The notice will be sent to the address from which the
request or answer was received, and will state that if the respondent
fails to appear at the hearing, a default final order may be issued
against respondent without further notice as specified in subsection
(d) of this section.
(d) Default order upon failure to answer, request hearing,
or appear at hearing.
(1) If the respondent fails to timely answer the original
complaint, request a hearing, or appear at a scheduled hearing, a
default final order may be issued by the Commission without further
notice.
(2) Default final orders will contain findings of
fact and conclusions of law sufficient to support the relief ordered.
(3) No default final order shall be issued until the
Commission has access to the proof of service of the original complaint
or the notice of hearing, or the returned certified mail containing
the complaint or the notice, has been on file with the Commission
for 15 days, exclusive of the day of receipt and day of issuance.
Default final orders need not be individually signed in each case
by the Commissioners if the case is listed by docket number and summarized
on a Master Default Order.
(e) Non-applicability of this section to emergency
situations. The existing power of the Commission to remedy and seek
reimbursement for remediation of any condition which threatens the
public health and safety, or to order an operator to remedy said condition,
shall not be affected by this section.
(f) When the Enforcement Section alleges a violation
of Texas Natural Resources Code, §91.143, relating to false information
filed with the Commission, if the records that are subject of the
proceeding are incorrect, there is a presumption that the respondent
filed the record knowing it to be incorrect. The presumption may be
rebutted by competent evidence.
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