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Cities, citizens, environmental groups urge TX House Committee to strengthen Contested Case Hearings

Last legislative session, a concerted attack on citizens’ rights to contest environmental permits was launched by the Texas Chemical Council and others ran up against opposition from citizens, property rights advocates, environmental groups, and local government representatives. During an invited-only interim hearing this month, those same interests told the House Committee on Environmental Regulation that Texas’ unique Contested Case Hearing (CCH) process was worth preserving, and in fact, could be strengthened.

The interim hearing was called by the House Committee to discuss whether or not changes were needed in the hearing process in part to spur further economic development. Several speakers – including a representative of the Texas Association of Business – and a representative of “Balanced Energy for Texas” – said a comment and public hearing process similar to EPA federal permits would be sufficient to protect Texas citizens. Nearly everyone else disagreed.

At issue was Texas’s contested case hearing process. For major amendments to existing permits and new air, water right, wastewater and waste permits and radioactive waste disposal licenses, Texas law allows “affected parties” – nearby citizens, businesses and governments to challenge those permits and seek an administrative hearing through the State Office of Administrative Hearings (SOAH). Typically, only a handful of cases actually go through the full SOAH process, which according to witnesses, can take between six and nine months. But those hearings often lead to better, more protective permits, and in a few cases, actually lead to permits not being issued.

Attorney Eric Allmon, who often represents local governments and citizens in contested case hearings, provided the committee with some statistics from 2007 and 2008 that showed that only 1 out of 22 municipal solid waste permits, 5 out of 90 major air permits, and 4 out of 554 water quality permits went through a full contested case hearing.

For their part, Harris County’s Rock Owens noted they had only used the CCH process in a few cases to protect their interests, but the process had allowed them to negotiate a better permit with the applicant. Lesley Carey, on her own behalf, told the story of how her community used the CCH process to defeat a proposed sludge landfarm near their farm land in Colorado County whereby wastewater sludge from the Houston area would have been placed right near their ranchland and homes.

A variety of other citizen and environmental groups also chimed in. Speaking on behalf of the Sierra Club, Conservation Director Cyrus Reed noted that the current process generally works well, that the Legislature had already limited the CCH process to only certain kinds of permits and had in some cases established timelines and the in most cases, permits had improved in large part because the TCEQ staff does not have the time and resources to visit every proposed site and see firsthand the potential impact of a permit.

Reed called for strengthening the CCH process by establishing clearer and more expansive definitions of affected persons, allowing TCEQ to establish a definitive “no” on renewal permits and creating a workable timeline to resolve identified issues.

Wrapping up the day’s testimony, Tom “Smitty” Smith noted that the strength of the CCH process were the citizens who actually lived in the vicinity of proposed plants that knew about the local geography and citizenry, as well as the experts who could come in and show the judge and TCEQ about the “Best Available Control Technology” that might help clean up an application and ultimately save money and lives.

Copies of written testimony given to the Committee can be found here