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You are here: Home / Agency / Working with Us / Environmental Permitting: Participating in the Process / Overview: Public Participation in Environmental Permitting

Overview: Public Participation in Environmental Permitting

Below is an overview of 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.

 

(Esta página en español. / This page in Spanish.)

Download: Public Participation in Environmental Permitting (GI-233)



Introduction

This page is intended to provide only an overview of public participation in the permitting process. Due to the great number of different scenarios that are possible, we could not cover all the details that could potentially apply. So please read this brochure for a basic understanding of your rights and responsibilities in this process, but be aware that there are variations to the process.

The Texas Commission on Environmental Quality (TCEQ) is the state’s environmental agency. 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 (ED), hired by the commissioners, is responsible for managing the day-to-day operations of the agency.

Among its many functions, the TCEQ must review applications for a wide variety of environmental permits. The procedures outlined in this brochure 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 the 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 languages other than English, too.) The NORI must also be mailed to certain landowners—except in the case of air permit applicants, who instead must post signs with application and contact information around the property.

Responding to the Public Notice

All NORIs provide instructions for submitting comments, getting placed on the mailing list, requesting a public meeting, and requesting a contested case hearing. These comments or requests can be sent to us in any of the following ways:

 

On our Web site:
www.tceq.texas.gov/goto/comment

By U.S. Mail:
Office of the Chief Clerk, MC 105
TCEQ
PO Box 13087
Austin, TX 78711-3087

In person or by courier:
Office of the Chief Clerk
TCEQ
12100 Park 35 Circle, Bldg F
Austin, TX 78753

By fax:
512-239-3311
(Note: If using fax, the original must be mailed or hand delivered to the Chief Clerk and received within three business days.)

 

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 a contested case hearing, it must have been first raised in a comment or in a request for a contested case hearing during the public comment period.

Getting Placed on a Mailing List

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. You may also request to be placed on either of these two kinds of mailing lists:

  1. The permanent mailing list for a specific applicant name and permit number.
  2. The permanent mailing list for a specific county (which includes all air, water, and waste notices in that county).

If you want to be placed on either of these additional mailing lists, you must send a request to the Chief Clerk. In your request, specify the mailing list or lists you want to be placed 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. 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 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 affected 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 persons may use this process to challenge the ED'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), which is an independent agency tasked with conducting 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 certain air permit applications, 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,” immediately below.

Technical Review of Permit Applications

After the application has been determined to be administratively complete and the NORI has been issued, TCEQ staff reviews the application 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 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 provides an additional opportunity to submit comments, request a public meeting and/or hearing, or request to be placed on the mailing list.

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. If a public meeting is held after the close of the comment period, the comment period extends to the end of the public meeting.

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 are sent to the mailing list, including all commenters.

If no requests for hearing are received on an application and it meets all the 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.

Exception: In the case of certain air applications, if there are comments but no contested case hearing requests in response to the first notice, or NORI, TCEQ staff will respond to comments, but there is no longer an opportunity to request a hearing. Persons wishing to seek further Commission review of the permit must file a motion to overturn (see “Motion to Overturn,” below). Persons wishing to exercise all of their rights to challenge the permit must also file a petition for judicial review with the Travis County District Court. This petition may need to be filed prior to a Commission decision on the motion to overturn.

Request for Reconsideration

In addition, after the decision letter has been mailed, any person may file a request for reconsideration, which asks the commissioners to reconsider the ED’s decision. The request should include your name, address, and phone number, and why you believe the decision should be reconsidered. The request for reconsideration must be received by the Chief Clerk 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 the commissioners to overturn the ED’s action. The motion must be filed no later than 23 days after the date the agency mailed the 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 that the agency mailed the notice of the signed permit, the motion is thereby denied, unless an extension of time was 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 decide whether they will grant or deny the requests. In making their decision, they consider public comments and requests, briefs, the ED’s response to comments, and applicable statutes and rules. 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 considered at 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.

Prior to the SOAH hearing, 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 to the SOAH hearing.

Protesting the Commissioners' Decision

If the commissioners deny a request for a contested case hearing or 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 for appealing to the District Court, 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

Public Education Program
800-687-4040

The Public Education Program provides information to the public on the status of applications and the permitting process.

Office of Public Interest Counsel (OPIC)
512-239-6363

OPIC provides information to the public regarding the legal aspects of the contested case hearing process.

Alternative Dispute Resolution (ADR)
512-239-0687

ADR assists with the informal resolution of contested cases.