About Air and Water

Sunday, July 22, 2007

Learn the status of Air and Water Permits and Participate in the Permitting Process

By Faith Chatham - July 21, 2007
Information and Participation can make a difference in our environment. Currently several environmental groups are objecting to decisions of the current Executive Director of the Texas Environmental Air Quality Commission. Citizens usually only catch a snippet on a television news broadcast or occasionally read of controversies regarding air quality and water quality permits in the newspaper. Citizens can go directly to the source to find out the status of permits. There are ways to find out the facts for yourself so that you can decide for yourself what is best for you environmentally. When you oppose a permit, or disagree with the decision of the TCEQ, there is a public participation process which enables you to protest or contest agency decisions.


The Texas Environmental Air Quality Commission publishes the status of permits on their website. For several of the searches, the permit number must be entered in the query field. These projects and their permit number, name of company and county are listed in the Director's Marked Agenda, They are listed by month and year for 2005-2007. In the archives they are listed by year from 1999-2004.

So far this month (July 2007) the executive director has signed 30 permit authorizations. To see the details of these permits. Some are permit amendments, permit renewals or new permit applications.

Citizens can track a pending enforcement complaint, track status of a complaint or read about the enforcement process.

Public Participation
The TCEQ's Public Participation Policies are posted on their website describing how citizens can participation in the process for approving/rejecting applications for water quality, waste, and air permits, when a contested case hearing is possible under Texas law.

Past and Future Agendas and Work Sessions for Commmission and Executive Director are online. Webcast of Commission Agenda Meetings and Work Sessions can be viewed online live or from the archive. The action taken by TCEQ Commissioners are posted on the Commissioners' Marked Agenda's link. (The archive contains marked agenda's from 1990-to present). The TCEQ Chief Clerk's database will show:
1. Status of pending permit applications, registrations, license applications, enforcement actions, transfers of ownership of facilities and issuance of bonds for water districts, utility and rate services.
2. Comment period deadline, information about whether a contested case hearing has been requested on an item or whether comments have been received. (The TCEQ Office of Public Assistance provides detailed information about scheduled contested case hearings or public hearings.)
3. Whether the item has been set for consideration at the TCEQ Commissioners' Agenda or for the Executive Director's Agenda

Subscribe to e-mail news releases and updates for TCEQ Rules, Commission Meetings and Actions, Enforcement, Publications and Online Resources, Air Quality, Water Quality, Air Permitting and Compliance, Waste Water Exchance Network and sources for acquiring or selling recycled materials. There are mailing lists of businesses which help in the recycling process.

There are also 5 listservers (similar to mailing lists) for updates and announcements concerning air permitting applications.
To join an Advisory and Stakeholder Listserver E-mail Group, send a blank email to one of the following:
for the landfill listserver: join-mswl@listserv.tceq.state.tx.us

for the oil and gas listserver: join-oilandgas@listserv.tceq.state.tx.us

for the Bulk Fuel Terminal GOP listserver: join-bulkfuel@listserv.tceq.state.tx.us

for the Site-Wide GOP listserver: join-sitewide@listserv.tceq.state.tx.us

for the PBR study listserver: join-pbrproj@listserv.tceq.state.tx.us

for the aci listserver: join-aci@listserv.tceq.state.tx.us

An email will be sent confirming your subscription to the list.

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

The first phase of the environmental review process is the Administrative Review where staff inspects the application to see that all the required parts of the application have been submitted. if it is complete, the agency issues a NORI (Nothce of REceipt of Applicatin and Intent to Obtain Permit)

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
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.

Getting on a Mailing List

A citizen can request to be placed on two kinds of mailing lists by sending a written request to the chief clerk, specifying the mailing list or lists you want to be on, and provide your complete name and address.
The lists are:
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).

Those who submit a comment, request a public meeting, or request a contested case hearing regarding a specific application, are automatically added to the mailing list for that specific permit application.

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."

The agency distinguished between PUBLIC HEARINGS and PUBLIC MEETINGS.
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:

1. The requester's name, address, and daytime telephone number.
2. The permit number and applicant's name.
3. A statement clearly requesting a "contested case hearing."
4. The location of the requester's home, business, or property that is affected, and its distance from the proposed facility.
5. 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.
6. 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 agency staff have determined the application to be complete, staff reviews it to see if it complies with state and federal regulations. It it passes this TECHNICAL REVIEW, the executive director (ED) issues a preliminary decision in a NAPD (Notice of Application and Preliminary Decision. The NAPD is published in a newspaper and mailed to the mailing list. It contains the same information as the NORI and provides additional opportunity for the public to submit comments, request a public meeting and/or hearing.

Second notices are required for most permits. However, Air Quality Applications for registration of a concrete batch plant standard permit are required only when a request for a contested case hearing was made during the first notice (NORI) and was not withdrawn before the preliminary decision was announced.

Public Comment Period closes 30 days after the publication of the NAPD. If no contested case hearing was requested for an Air Quality permit, the public comment period ends on the "end of public notice date" announced in the NORI.

There are three ways to protest the permit decision of the Executive Director:

1. Request a contested case hearing

2. Request a reconsideration
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

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.

When it appears that the parties may reach a compromise, the Commissioners may refer the application for alternate dispute resolution so that the dispute can be settled through mediation. If the dispute is not resolved, the hearing process is continued.

3. File a motion to overturn the decision of the Executive Director.
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.

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
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
Explains legal procedures for challenging permit applications, such as hearings.

Alternative Dispute Resolution
Assists with the informal resolution of contested matters.

If you can't find it online, you can submit an OPEN RECORDS REQUEST.
Instructions are online.

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