The Texas Natural Resource Conservation Commission (commission) adopts amendments to §50.19, concerning Notice of Commission Action, Motion for Rehearing; §50.39, concerning Motion for Reconsideration; §50.119, concerning Notice of Commission Action, Motion for Rehearing; and §50.139, concerning Motion to Overturn Executive Director's Decision. Section 50.39 is adopted with changes. Sections 50.19, 50.119 and 50.139 are adopted without changes to the proposed text as published in the October 15, 1999 issue of the Texas Register (24 TexReg 8909) and will not be republished.

BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE ADOPTED RULES

The commission adopts these amendments to Chapter 50, concerning Action on Applications and Other Authorizations, in order to conform to the provisions of Senate Bill (SB) 211, which adds three days to the period in which a party is presumed to have been notified of a decision that may become final in a contested case hearing when notice is sent by first class mail.

Texas Government Code, §2001.142, requires notification by first class mail to parties in a contested case hearing of a decision or order that may become final. The deadline for a number of subsequent actions is based on the date that a party is notified of the decision. For example, a motion for rehearing must be filed within 20 days after notification, a reply to a motion for rehearing must be filed within 30 days after the date of notification, agency action on the motion for rehearing must occur no later than 45 days after the date of notification, etc.

Section 2001.142(c) previously provided that the date of notification was presumed to be the date on which the notice was mailed.

The 76th Legislature (1999) amended §2001.142, effective September 1, 1999, to provide that a party is presumed to have been notified on the third day after notice is mailed by first class mail.

The legislation is self-implementing. However, several of the commission's rules are inconsistent with the new statute. These rule amendments are needed to conform to the new statute and make the commission's rules consistent with it.

Upon additional review by staff, changes to §50.39(e)(1) and (e)(2) have been made to add further consistency with SB 211.

Other corresponding changes to 30 TAC Chapters 50, 55, and 80 have already been addressed in Rule Log No. 99030-039-AD, the rulemaking to implement House Bill 801, 76th Legislature (1999).

SECTION BY SECTION DESCRIPTION

Section 50.19, concerning Notice of Commission Action, Motion for Rehearing, is amended to reword subsection (b) to specify that notice of a final decision or order shall be in writing and that the motion for rehearing procedures apply to the applicant, the executive director, the public interest counsel, and other persons who timely filed public comment or hearing requests.

Section 50.39, relating to Motion for Reconsideration, is amended to specify that the deadline for filing a motion for reconsideration and extending the time limit runs from the date the party is notified of the executive director's action.

Section 50.119, relating to Notice of Commission Action, Motion for Rehearing, is amended to specify that the notice of a final decision or order shall be in writing. In addition, §50.119 is also amended to substitute §80.272 references for references to §80.271, concerning Motion for Rehearing.

Section 50.139, relating to Motion to Overturn Executive Director's Decision, is amended to specify that the deadline for a motion to overturn the executive director's decision on an application runs from the date the applicant is notified in writing of the executive director's action. In addition, §50.139 is also amended to substitute §80.272 references for §80.271, concerning Motion for Rehearing.

FINAL REGULATORY IMPACT ANALYSIS

These adopted rules are not subject to the requirements of Texas Government Code, §2001.0225 because they do not meet the definition of a "major environmental rule" as defined in that section. "Major environmental rule" means a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure. The specific intent of these rules is to implement a state statute on timelines in contested and uncontested proceedings. They do not have the specific intent to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

The commission has prepared a takings impact assessment for these rules under Texas Government Code, §2007.043. The specific purpose of the rulemaking is to conform the commission rules to the provisions of SB 211, which adds three days to the notification period when notice is sent by first class mail. They are procedural rules which apply equally to parties in contested and uncontested proceedings. They do not specifically affect private real property. Therefore, these rules will not constitute a takings under Texas Government Code, Chapter 2007.

COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW

The adopted rules are not subject to the Texas Coastal Management Program (CMP). The adopted actions concern only procedural rules of the commission and general agency operations, are not substantive in nature, do not govern or authorize any actions subject to the CMP, and are not themselves capable of adversely affecting a coastal natural resource area (Title 31 Natural Resources and Conservation Code, Chapter 505; and 30 TAC §§281.40, et seq.).

HEARING AND COMMENTERS

A public hearing on this proposal was held in Austin on November 8, 1999. No one testified at the hearing. The comment period on these rules ended on November 15, 1999. No comments were received.

Subchapter B. ACTION BY THE COMMISSION

Subchapter F. POST HEARING PROCEDURES