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©2004 Haynes and Boone, LLP PUBLIC PARTICIPATION IN ENVIRONMENTAL PERMITTING AND ENFORCEMENT PROCEEDINGS by Jeff Civins and Iris Gibson Copyright © Haynes and Boone July
© 2004 Haynes and Boone, LLP Public Participation in Environmental Proceedings Legal Framework Procedural Overview Public Participation –Permitting –Enforcement
© 2004 Haynes and Boone, LLP Legal Sources of Environmental Liabilities and Responsibilities Common Law (e.g., Trespass, Strict Liability, Nuisance & Contract) Statutes Violations or Environmental Threat Administrative OrdersJudicial Orders Self-Implementing Statutory Provisions Implemented by Agency Rules Directly Applicable Rules Rules implemented Through Permits Permits (including Licenses, Approvals and Registrations)
© 2004 Haynes and Boone, LLP TCEQ Legal Framework for Regulatory Programs Independent State Programs Federally-driven Programs –State assumption –Federal oversight
© 2004 Haynes and Boone, LLP TCEQ Permitting Air Quality Water Quality Solid Waste Management –Hazardous –Industrial –Municipal Other
© 2004 Haynes and Boone, LLP TCEQ Pollution Enforcement Administrative Civil Criminal
© 2004 Haynes and Boone, LLP Permitting and Enforcement Procedures TAPA SOAH Regulatory evolution to common procedures
© 2004 Haynes and Boone, LLP Contested Case A proceeding in which the legal rights, duties, or privileges of a party are to be determined after an opportunity for adjudicative hearing. TAPA § (i)
© 2004 Haynes and Boone, LLP Contested Case Issues Permitting –whether compliance with regulatory requirements –whether proposed permit conditions are appropriate Enforcement –whether a violation has occurred –if so, what sanctions are appropriate
© 2004 Haynes and Boone, LLP TCEQ Procedural Bases Texas Water Code Chapter 5 TSWDA TCAA Texas Water Code Chapter 26 TAPA SOAH Enabling Statute
© 2004 Haynes and Boone, LLP OPIC OPIC was created to represent the public interest OPIC is a party to every permitting and enforcement contested case proceeding OPICs goal to ensure that all relevant evidence is developed and made part of the record so that the Commission can make informed decisions and issue permits that are protective of human health and the environment OPIC is not authorized to seek judicial review of Commission decisions
© 2004 Haynes and Boone, LLP Parties to contested case hearings before the TCEQ Permitting –the Applicant –the Executive Director (ED), depending on whether certain criteria are satisfied –OPIC –Affected persons Enforcement –the Defendant –the ED –OPIC
© 2004 Haynes and Boone, LLP Executive Directors Participation in Permit Proceedings ED is generally precluded from participating in certain specified permit hearings. ED is required to participate in certain specified permit proceedings, e.g., –an application for which ED has recommended denial –an application for which draft permit includes provision opposed by the Applicant
© 2004 Haynes and Boone, LLP Executive Directors Participation in Permit Proceedings (contd.) ED, for other permitting matters, must, on a case-by-case basis, consider specified criteria in determining whether to participate, relating to, e.g., the nature of the issues, potential impact on public health and environmental, effect on federal authorizations, and nature of parties. Texas Water Code § 5.228(c); 30 T.A.C. §80.108
© 2004 Haynes and Boone, LLP Statutory History of TCEQ Contested Case 1975 Administrative Procedure and Texas Register Act (APTRA) 1991 State Office of Administrative Hearings (SOAH) 1995 Natural Resource Conservation Division in SOAH (NRCD)
© 2004 Haynes and Boone, LLP SOAH Hearing Procedures SOAH rules TCEQ rules and policy, but no TCEQ supervision TCEQ Deference to SOAH –may amend, but must explain –in hazardous waste permit proceedings, may overturn finding of fact if not supported by great weight of evidence conclusion of law only if clearly erroneous SOAH Deference to TCEQ – only consider issues referred by TCEQ unless material, supported by evidence, and good cause
© 2004 Haynes and Boone, LLP SOAH Procedure Determination of party status Discovery Non-jury trial Proposal for Decision Briefing by Parties TCEQ Determination
© 2004 Haynes and Boone, LLP Public Participation in Permitting Public notice of application Public comment and ED response Public meeting – optional unless –Legislator request –Substantial public interest Public notice of EDs preliminary determination and ED response to comments Request for contested case hearing Commission determination and referral to SOAH Participation in hearing TCEQ determination Appeal
© 2004 Haynes and Boone, LLP Request for Contested Case Hearing In writing Filed with chief clerk Includes –Contact information –Description of justiciable interest Requestors location and distance How adversely affected –Relevant and material disputed issues of fact raised during public comment period
© 2004 Haynes and Boone, LLP Contested Case Hearings Based on request Based on public interest
© 2004 Haynes and Boone, LLP When a Hearing is Requested ED provides comments Chief Clerk refers to ADR and sets request for TCEQ agenda ED, OPIC, and Applicant submit comments and Requestor responds TCEQ Commissioners decide If yes, referral to SOAH, which determines if additional parties
© 2004 Haynes and Boone, LLP Prerequisites to Granting of Request whether the request was filed by an affected person as defined by Section 5.115, and whether the request included one or more issues that –involve a disputed question of fact –were raised during the public comment period –are relevant and material to the decision on the application Texas Water Code §5.556(d)
© 2004 Haynes and Boone, LLP Affected Person An affected person is one who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by an application but not an interest that is common to the general public Justiciable means that the matter falls within the TCEQs regulatory authority and jurisdiction
© 2004 Haynes and Boone, LLP Affected Person Pertinent Factors whether the interest claimed is one protected by the law under which the application will be considered distance restrictions or other limitations imposed by law on the affected interest whether a reasonable relationship exists between the interest claimed and the activity regulated 30 T.A.C. §55.29
© 2004 Haynes and Boone, LLP Affected Person Pertinent Factors (contd.) the likely impact of the regulated activity on the health, safety, and use of property of the person the likely impact of the regulated activity on the use of the impacted natural resource by the person for governmental entities, their statutory authority over or interest in the issues relevant to the application 30 T.A.C. § 55.29
© 2004 Haynes and Boone, LLP Associational Standing one or more members of the group or association would otherwise have standing to request a hearing in their own right the interest the group or association seeks to protect are germane to the organizations purpose neither the claim asserted nor the relief requested requires the participation of the individual members in the case 30 T.A.C. §
© 2004 Haynes and Boone, LLP TCEQ Affected Person Collins v. Texas Natural Resource Conservation Commission, 94 S.W.3d 876 (Tex.App.-Austin 2002) United Copper Industries, Inc. v. Grissom, 17 S.W.3d 797 (Tex.App.- Austin 2000)
© 2004 Haynes and Boone, LLP Public Interest Prong In absence of request Issue: what if contested case is not otherwise authorized
© 2004 Haynes and Boone, LLP Pros of Public Participation in Contested Case Permit Hearings Full opportunity for public input More rigorous evaluation More protective permit conditions or Denial of inadequate application
© 2004 Haynes and Boone, LLP Cons of Public Participation in Contested Case Permit Hearings More costly and time consuming for Applicant and State Interest of protestant may reflect personal concerns and not concerns of the public May discourage business from locating in State
© 2004 Haynes and Boone, LLP Enforcement Options Administrative Civil Criminal
© 2004 Haynes and Boone, LLP Administrative Contested Case Hearing Executive Director, OPIC and Defendant Not Affected Persons
© 2004 Haynes and Boone, LLP TCEQ Enforcement Substantive statutes Standard Procedures
© 2004 Haynes and Boone, LLP TCEQ Procedures Investigation NOV –Informal –Formal If formal, NOE and opportunity for contested case hearing
© 2004 Haynes and Boone, LLP Public Participation in Administrative Enforcement No intervention in state environmental enforcement proceedings Public comment on proposed enforcement orders or settlements Texas Water Code §7.075 Enforcement based on citizen evidence Texas Water Code §7.0025(a) Citizen complaints Texas Water Code §5.177
© 2004 Haynes and Boone, LLP Public Participation in State Judicial Enforcement Citizen Suits Texas Litter Abatement Act Compelling state enforcement Koch v. TNRCC, 52 S.W.3d 833 (Tex.App.Austin 2001) Intervention in judicial enforcement proceedings TRCP 40?
© 2004 Haynes and Boone, LLP Public Participation in Federal Enforcement Government Enforcement Citizen Enforcement
© 2004 Haynes and Boone, LLP Federal Citizen Suits Against agency to compel performance of non-discretionary duty Against defendant for violation
© 2004 Haynes and Boone, LLP Federal Citizen Suits Prerequisites Notice Delay period No diligent governmental prosecution Standing
© 2004 Haynes and Boone, LLP Standing Constitution Prudential
© 2004 Haynes and Boone, LLP Constitutional Standing the individual has suffered an actual or threatened injury the injury is fairly traceable to the defendants action the injury can be redressed through the relief available in the suit
© 2004 Haynes and Boone, LLP Prudential Standing whether a plaintiffs grievance falls within the zone of interests protected by the statutory provision involved in the suit whether the complaint raises abstract questions or a generalized grievance more properly addressed by the legislature whether the plaintiff is asserting her own rights and interest rather than those of third parties
© 2004 Haynes and Boone, LLP Conclusion OPIC participates in permitting and enforcement In permitting, public has right to –comment –participate in public meeting –request and participate in contested case In enforcement, public has right to –comment –provide evidence –file a complaint Views regarding opportunities of public to participate depend on perspective
©2004 Haynes and Boone, LLP PUBLIC PARTICIPATION IN ENVIRONMENTAL PERMITTING AND ENFORCEMENT PROCEEDINGS by Jeff Civins and Iris Gibson Copyright © Haynes and Boone July
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