Please note that the following information (otherwise known as
Agency
Publication No. GI-233, a brochure) is available for free
download in Adobe Portable Document Format (PDF).
Introduction
This page describes the processes that are in place for public
participation in applications for water quality, waste, and air
permits, when a contested case hearing is possible under Texas
law.
The Texas Commission on Environmental Quality (TCEQ) is the
leading environmental protection agency of the state of Texas.
Three full-time commissioners, appointed by the governor, establish
overall agency direction and policy, and make final determinations
on contested permitting and enforcement matters. An executive
director, hired by the commissioners, is responsible for managing
the agency's day-to-day operations.
Among its many functions, the TCEQ must review applications for
a wide variety of environmental permits. The procedures outlined
here cover applications for the following types of permits (as well
as certain amendments and renewals of these permits):
- Water quality permits
- Beneficial land use permits
- New source review air permits
- Municipal solid waste permits
- Industrial solid waste permits
- Hazardous waste permits
- Underground injection well permits
Administrative Review of Permit Applications
When a permit application is received by the TCEQ, staff reviews
it to determine whether the applicant has submitted all of the
required parts of the application. This process is called
administrative review. If all parts have been submitted,
the application is determined to be administratively complete and
the agency issues a Notice of Receipt of Application and Intent to
Obtain Permit, or NORI.
The NORI describes the location and nature of the proposed
activity, lists agency and applicant contacts for obtaining
additional information, and gives the location in the county where
a copy of the application can be viewed and copied.
The applicant is required to publish the NORI in a newspaper
within 30 days after the application is declared administratively
complete. (In some cases, the applicant may have to publish the
notice in other languages, too.) Notice must also be mailed to
adjacent landowners—except in the case of air permit
applicants, who must post signs with application and contact
information around the property.
Responding to the Public Notice
All NORIs provide instructions for submitting comments, getting
on the mailing list, requesting a public meeting, and requesting a
contested case hearing. Written public comments—including
concerns and questions regarding the proposed application—and
requests for public meetings and/or contested case hearings should
be submitted to:
Office of the Chief Clerk, MC 105
TCEQ
PO Box 13087
Austin, TX 78711-3087
Comments may be faxed to the Office of the Chief Clerk at
512-239-3311 no later than 5:00 p.m. on the last day of the comment
period. However, the original must also be mailed or hand delivered
to the chief clerk and received within three business days
after faxing. In accordance with current agency
regulations, comments or requests sent by e-mail will not be
accepted.
Submitting Comments
Comments regarding the application may be sent to the agency,
and the agency is required to review and reply to timely filed
comments in a formal Response to Comments (RTC) prior to issuance
of the permit. In order for an issue to be considered at hearing,
it must have been first raised in a comment or in a request for
hearing during the time specified in the published notice.
Getting on a Mailing List
Interested persons can receive future public notices by
requesting to be placed on either of these two kinds of mailing
lists:
- The permanent mailing list for a specific applicant name and
permit number.
- The permanent mailing list for a specific county (which
includes all air, water, and waste notices in that county).
In addition, if you submit a comment, request a public meeting,
or request a contested case hearing regarding a specific
application, you will be automatically added to the mailing list
for that specific permit application.
If you want to be placed on the permanent list for a specific
applicant and/or the permanent list for a specific county, you must
send a written request to the chief clerk. In your request, specify
the mailing list or lists you want to be on, and provide your
complete name and address.
Requesting a Public Meeting
Public meetings provide the public with an opportunity to learn
about the application, ask questions of the applicant and TCEQ, and
offer formal comments. It also allows TCEQ staff to hear firsthand
the concerns and objections of the community and gather input for
use in the agency's consideration of the application. No
decision to approve or deny an application is made at a public
meeting.
The TCEQ will hold a public meeting if there is significant
interest in an application, if requested by a legislator from the
area of the proposed project, or if otherwise required by law.
A request for a public meeting must be submitted in writing to
the chief clerk during the public comment period and must specify
that it is a request for a "public meeting." A request asking for a
"public hearing" will be considered a request for a contested case
hearing.
Requesting a Contested Case Hearing
The commissioners' decision whether to grant a hearing is based
in part on the information provided by the requester. The person
requesting a hearing must demonstrate that they are an "affected
person" in order to be granted party status. This means that the
requester must be personally impacted by the permit decision and
that granting the permit would affect interests specific to the
requester that the public in general would not share, such as
impairing the requester's health or safety or interfering with the
requester's use or enjoyment of their property. Affected parties
may use this process to challenge the executive director's
preliminary decision on an application.
A contested case hearing is a legal proceeding similar to a
civil trial in state district court. Hearings are conducted by the
State Office of Administrative Hearings (SOAH), an independent
agency that conducts hearings for state agencies. When a contested
case is referred to SOAH, an administrative law judge will preside
over the hearing and will consider evidence in the form of sworn
witness testimony and documents presented as exhibits.
Because contested case hearings are legal proceedings, parties
may wish to hire an attorney to ensure that their interests are
fully represented. However, representation by an attorney is not
required.
Requests for contested case hearings must include the
following information:
- The requester's name, address, and daytime telephone
number.
- The permit number and applicant's name.
- A statement clearly requesting a "contested case hearing."
- The location of the requester's home, business, or property
that is affected, and its distance from the proposed facility.
- A detailed explanation of how the requester would be adversely
affected by the proposed facility or activity in a manner not
common to the general public.
If the request is made on behalf of a group or an association,
the request must identify one or more members who have standing to
request a hearing, and state how the interest that the group or
association seeks to protect is relevant to the group's
purpose.
Please Note: To retain the right to a contested case
hearing on an air permit application, there must be at least one
request for hearing submitted within the time frame specified in
the NORI. For more information on this, see "Technical Review of
Permit Applications," below.
Technical Review of Permit Applications
After the application has been determined to be administratively
complete, staff reviews it to determine whether it satisfies state
and federal regulatory requirements. This process is called the
technical review. If the application meets all the
requirements, the agency's executive director (ED) issues his or
her preliminary decision in a second notice, called the Notice of
Application and Preliminary Decision (NAPD), which is mailed to the
mailing list and published in a newspaper. The NAPD contains the
same information as the NORI and provides an additional opportunity
to submit comments, request a public meeting and/or hearing, or
request to be added to the mailing list.
Most permit applications require second notice. However, second
notice is required for an air application (or a registration for a
concrete batch plant standard permit) only when a request
for a contested case hearing was made during the first notice
(NORI) period and was not withdrawn before the preliminary decision
was issued.
The Close of the Public Comment Period
The public comment period typically ends 30 days from the
publication date of the NAPD. In the case of air applications, if
no contested case hearing has been requested, the comment period
ends on the date specified in the NORI.
After the public comment period closes, staff considers all
timely filed comments to determine whether any issues raised
require changes to the preliminary decision and/or proposed permit,
and prepares a written response to all relevant comments. This
response and the executive director's decision is sent to the
mailing list, including all commenters.
If no comments or requests for hearing are received on an
application and it meets all applicable requirements, the ED may
issue the permit.
Protesting the ED's Decision
Once the decision has been released by the ED, in many cases
there are still three possible ways to contest the decision: You
can make a request for a contested case hearing, a request for
reconsideration, and/or a motion to overturn.
Request for Contested Case Hearing
If comments were filed during the comment period, there is an
opportunity to request a contested case hearing. The request must
be based on issues that were raised during the comment period, in
comments that were not withdrawn later. The request for hearing
must be received no later than 30 days after the date of the
decision letter, which is mailed out by the chief clerk.
When filing a request for hearing, requesters should (1) provide
responses to any disputed comments, and (2) specify the factual
basis of the dispute. For more information, see "Requesting a
Contested Case Hearing," above. All requests for contested case
hearings must be received by the chief clerk no later than 30 days
after the date of the decision letter.
Exception: In the case of air applications, if there
are comments but no contested case hearing requests in response to
the first notice, or NORI, staff will respond to comments, but
there is no longer an opportunity to request a hearing. Persons
wishing to protest the granting of the permit must file a motion to
overturn.
Request for Reconsideration
In addition, after the decision letter has been mailed, any
person has the option of filing a request for
reconsideration, which asks the commissioners to reconsider
the ED's decision. The request should include name, address, and
phone number, and why you believe the decision should be
reconsidered. The request for reconsideration must be received no
later than 30 days after the date of the decision letter.
Motion to Overturn
If no request for hearing or reconsideration is received and the
executive director issues the permit, any person may file a
motion to overturn, requesting that the commissioners
overturn the executive director's action. The motion must be filed
no later than 23 days after the date the agency mails notice of the
signed permit, and must explain why the commissioners should review
the ED's action. If a motion to overturn has not been acted on by
the commissioners within 45 days after the date the agency mails
notice of the signed permit, the motion is thereby denied, unless
an extension of time is specifically granted.
Review of Requests for Reconsideration & Contested Case
Hearings
All timely filed requests for reconsideration and contested case
hearings are considered at the commissioners' agenda meetings. At
these meetings, the commissioners consider public comments and
requests, briefs, the ED's response to comments, and applicable
statutes and rules and decide whether they will grant or deny the
requests. Therefore, it is very important that requesters fully
explain—in written comments and responses to
briefs—their reasons why an application should not be
approved. Oral comments are not accepted at agenda meetings unless
specified by the commissioners, and requesters are not required to
attend. However, the commissioners may ask questions of the
requesters (if present), the applicant, or TCEQ staff.
If the commissioners decide to grant a request for a contested
case hearing, the case is referred to SOAH with a list of issues to
be the subject of the hearing and an expected duration for the
hearing. At the conclusion of the SOAH hearing, the judge issues a
proposal for decision, which is submitted to the TCEQ for
formal consideration. The commissioners then approve, deny, or
modify the proposal for decision.
If the parties think they might reach a compromise, the
commissioners may refer the application for alternative dispute
resolution to determine whether a mutually agreeable settlement is
possible. If the dispute can be settled through mediation, there
may be no need to continue with the administrative process. If the
dispute is not resolved, however, the parties can still
proceed.
Protesting an Approved Permit
If the commissioners approve a permit application after it has
gone through the contested case hearing process, protestants may
submit a motion for rehearing, requesting that the
commissioners review their decision. This motion for rehearing is a
prerequisite to appeal and must be submitted within 20 days after
you are notified of the decision. If the commissioners do not act
on the motion within 45 days after you are notified of the
decision, the motion is overruled by operation of law. If the
commissioners do not receive a motion for rehearing, the action of
the commissioners will become final.
For More Information
Office of
Public Assistance
800-687-4040
Provides information on the permitting process, the status of
applications, public meeting procedures, and permitting issues for
low-income and minority communities.
Office of
Public Interest Counsel
512-239-6363
Explains legal procedures for challenging permit applications, such
as hearings.
Alternative
Dispute Resolution
512-239-0687
Assists with the informal resolution of contested matters.
Please Note
This page is intended to provide only an overview of public
participation in the permitting process. Due to the great number of
possible scenarios, we could not cover all the details that could
possibly apply. Please read this page for a basic understanding of
your rights and responsibilities in this process, but note that
there are variations to the process.
| Individuals or groups opposed to the granting of a particular
permit are referred to as protestants. |
The TCEQ is an equal opportunity/affirmative action employer.
The agency does not allow discrimination on the basis of race,
color, religion, national origin, sex, disability, age, sexual
orientation or veteran status. In compliance with the Americans
with Disabilities Act, this document may be requested in alternate
formats by contacting the TCEQ at 512/239-0028, Fax 239-4488, or
1-800-RELAY-TX (TDD), or by writing P.O. Box 13087, Austin, TX
78711-3087.
