Texas Commission on Environmental Quality
Title 30, Part 1
The Texas Commission on Environmental Quality (commission) adopts the rules
review and readopts Chapter 55, Requests for Reconsideration and Contested
Case Hearings; Public Comment,
without changes
,
in accordance with Texas Government Code, §2001.039, which requires state
agencies to review and consider for readoption each of their rules every four
years. The review must include an assessment of whether the reasons for the
rules continue to exist. Any updates, consistency issues, or other changes,
if needed, will be addressed in a separate rulemaking. The notice of intention
to review was published in the May 16, 2003 issue of the
Texas Register
(28 TexReg 3979).
CHAPTER SUMMARY
Chapter 55 addresses avenues for public participation in the permitting
process for water, waste, and air applications. Specifically, Chapter 55 contains
procedures and processes relating to requests for contested case hearings
and requests for reconsideration. Chapter 55 also addresses procedures and
processes related to public meetings and the submittal of public comments.
ASSESSMENT OF WHETHER THE REASONS FOR THE RULES CONTINUE TO EXIST
The commission conducted a preliminary review and determined that the reasons
for the rules in Chapter 55 continue to exist. The rules are needed to ensure
that members of the public are provided the opportunity to participate in
the permitting process for water, waste, and air applications. The rules implement
Texas Water Code, §5.102, which establishes the commission's general
authority necessary to carry out its jurisdiction; §5.103, which establishes
the commission's general authority to adopt rules necessary to carry out its
powers and duties; §5.105, which establishes the commission's authority
to set policy by rule; §5.115, which establishes the commission's authority
to adopt rules for notices of application; Chapter 5, Subchapter M, which
establishes environmental permitting procedures; §26.011, which establishes
the commission's authority to adopt rules for the control of waste discharges
or impending waste discharges affecting the quality of water in the state;
and §26.028, which requires that notice of applications for water quality
permits, permit amendments, and permit renewals be provided to persons who
in the judgment of the commission may be affected by the applications; Texas
Health and Safety Code, §361.024, which establishes the commission's
authority to adopt rules for the control of solid waste; §361.082, which
establishes the commission's authority to adopt rules for notice and hearing
for hazardous waste permits; §382.017, which establishes the commission's
rulemaking authority under the Texas Clean Air Act; §382.056, which establishes
the commission's authority to adopt rules regarding notice and public comment;
and §401.051, which establishes the commission's authority to adopt the
rules for control of radiation; and Texas Government Code, §2001.004,
which requires state agencies to adopt procedural rules; and §2001.052,
which prescribes the contents of notice for contested case hearings.
PUBLIC COMMENT
The public comment period closed on June 16, 2003. No comments were received.
TRD-200304577
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Filed: July 29, 2003
The Texas Commission on Environmental Quality (commission) adopts the rules
review and readopts Chapter 80, Contested Case Hearings,
without changes
, in accordance with Texas Government Code, §2001.039,
which requires state agencies to review and consider for readoption each of
their rules every four years. The review must include an assessment of whether
the reasons for the rules continue to exist. Any updates, consistency issues,
or other changes, if needed, will be addressed in a separate rulemaking. The
notice of intention to review was published in the May 16, 2003 issue of the Texas Register
(28 TexReg 3979).
CHAPTER SUMMARY
Chapter 80 governs the referral, oversight, and management of contested
case hearings by the State Office of Administrative Hearings (SOAH) subject
to the commission's jurisdiction under the Texas Water Code, the Texas Health
and Safety Code, and the Texas Local Government Code. Subchapter A provides
a general framework for the oversight of judges, referrals to SOAH, representation
at hearings, the conduct and decorum of participants, consolidation and severance
of issues and parties, ex parte communications, the burden of proof, audio
recording of proceedings, witness fees, transcriptions of hearings, withdrawing
of an application, the form of pleadings, amended and supplemental pleadings
in enforcement cases, motions, and lost records and papers. Subchapter C provides
the procedures in contested case hearings, including: remand matters to the
executive director, the procedure before a preliminary hearing, preliminary
hearings, sanctions, executive director party status in permit hearings, designation
of parties, appearances, the rights of parties, the order of presentation,
the administrative record, continuances, agreements, public comment in direct
referral cases, evidence, the specific admissibility of evidence for concrete
batch plants, objections, interlocutory appeals and certified questions, oral
arguments, the submission of findings of fact and conclusions of law, and
summary disposition. Subchapter D deals with the discovery process and the
issuance and use of subpoenas. Subchapter F addresses post hearing procedures,
including: proposals for decision, settlement of enforcement cases, waiver
of rights to review judge's proposal, pleadings following proposals for decision,
amending the proposal for decision, the scheduling of commission meetings,
the oral presentation before the commission, reopening the record, decisions,
the commission's decision after a contested enforcement case hearing, motions
for rehearing, decision final and appealable, motions for rehearing not required
in certain cases, the appeal of final decisions, appeals of enforcement orders,
and the cost of record on appeal.
ASSESSMENT OF WHETHER THE REASONS FOR THE RULES CONTINUE TO EXIST
The commission has conducted a preliminary review of the rules under Chapter
80 and has determined that the reasons for adopting these rules continue to
exist. These rules are needed to implement Texas Water Code, Chapters 5, 7,
11 - 13, 26, 27, 37, 49 - 51, 53, 54, 58, 59, 65, and 66; Texas Health and
Safety Code, Chapters 341, 361, 366, 382, and 401; Texas Local Government
Code, Chapter 375 and §395.080; and Texas Government Code, Chapters 2001
and 2003.
PUBLIC COMMENT
The public comment period closed on June 16, 2003. No comments were received.
TRD-200304578
Stephanie Bergeron
Director, Environmental Law Division
Texas Commission on Environmental Quality
Filed: July 29, 2003