©2004 Haynes and Boone, LLP PUBLIC PARTICIPATION IN ENVIRONMENTAL PERMITTING AND ENFORCEMENT...

©2004 Haynes and Boone, LLP

PUBLIC PARTICIPATION INENVIRONMENTAL PERMITTING

AND ENFORCEMENT PROCEEDINGS

byJeff Civins

[email protected]

Iris [email protected]

Copyright © Haynes and BooneJuly 2005

179798.1

© 2004 Haynes and Boone, LLP

Public Participation in Environmental Proceedings

• Legal Framework• Procedural Overview• Public Participation

– Permitting– Enforcement


Legal Sources of Environmental Liabilities and Responsibilities

Common Law (e.g., Trespass, Strict

Liability, Nuisance & Contract)

Statutes

Violations or Environmental Threat

Administrative Orders Judicial Orders

Self-ImplementingStatutory Provisions

Statutory ProvisionsImplemented by Agency Rules

Directly Applicable Rules Rules implementedThrough Permits

Permits (including Licenses,Approvals and Registrations)


TCEQ Legal Frameworkfor

Regulatory Programs

• Independent State Programs• Federally-driven Programs

– State assumption– Federal oversight


TCEQ Permitting

• Air Quality• Water Quality• Solid Waste Management

– Hazardous– Industrial– Municipal

• Other


TCEQ Pollution Enforcement

• Administrative• Civil• Criminal


Permitting and Enforcement Procedures

• TAPA• SOAH• Regulatory evolution to common

procedures


“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 § 2001.003(i)


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


TCEQ Procedural Bases

• Texas Water Code Chapter 5• TSWDA• TCAA• Texas Water Code Chapter 26• TAPA• SOAH Enabling Statute


OPIC

• OPIC was created to represent the “public interest”

• OPIC is a party to every permitting and enforcement contested case proceeding

• OPIC’s 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


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


Executive Director’s 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


Executive Director’s Participation in Permit Proceedings (cont’d.)

• 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


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)


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


SOAH Procedure

• Determination of party status• Discovery• Non-jury trial• Proposal for Decision• Briefing by Parties• TCEQ Determination


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 ED’s preliminary determination and ED response to comments

• Request for contested case hearing• Commission determination and referral to

SOAH• Participation in hearing• TCEQ determination• Appeal


Request for Contested Case Hearing

• In writing• Filed with chief clerk• Includes

– Contact information– Description of justiciable interest

• Requestor’s location and distance• How adversely affected

– Relevant and material disputed issues of fact raised during public comment period


Contested Case Hearings

• Based on request• Based on public interest


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


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)


“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 TCEQ’s regulatory authority and jurisdiction


“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


“Affected Person” Pertinent Factors (cont’d.)

• 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


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 organization’s purpose

• neither the claim asserted nor the relief requested requires the participation of the individual members in the case

• 30 T.A.C. § 55.205


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)


Public Interest Prong

• In absence of request• Issue: what if contested case is not

otherwise authorized


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


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


Enforcement Options

• Administrative• Civil• Criminal


Administrative

• Contested Case Hearing• Executive Director, OPIC and

Defendant• Not Affected Persons


TCEQ Enforcement

• Substantive statutes• Standard Procedures


TCEQ Procedures

• Investigation• NOV

– Informal– Formal

• If formal, NOE and opportunity for contested case hearing


Public Participation in Administrative Enforcement

• No intervention in state environmental enforcement proceedings

• Public comment on proposed enforcement orders or settlementsTexas Water Code §7.075

• Enforcement based on citizen evidenceTexas Water Code §7.0025(a)

• Citizen complaintsTexas Water Code §5.177


Public Participation in State Judicial Enforcement

• Citizen SuitsTexas Litter Abatement Act

• Compelling state enforcementKoch v. TNRCC, 52 S.W.3d 833 (Tex.App.—Austin 2001)

• Intervention in judicial enforcement proceedings

TRCP 40?


Public Participation in Federal Enforcement

• Government Enforcement• Citizen Enforcement


Federal Citizen Suits

• Against agency to compel performance of non-discretionary duty

• Against defendant for violation


Federal Citizen Suits Prerequisites

• Notice• Delay period• No diligent governmental

prosecution• Standing


Standing

• Constitution• Prudential


Constitutional Standing

• the individual has suffered an actual or threatened injury

• the injury is “fairly traceable” to the defendant’s action

• the injury can be redressed through the relief available in the suit


Prudential Standing

• whether a plaintiff’s 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


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 INENVIRONMENTAL PERMITTING

AND ENFORCEMENT PROCEEDINGS

byJeff Civins

[email protected]

Iris [email protected]

Copyright © Haynes and BooneJuly 2005

179798.1

©2004 Haynes and Boone, LLP PUBLIC PARTICIPATION IN ENVIRONMENTAL PERMITTING AND ENFORCEMENT...

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