(a) Any person other than the applicant who has participated in the local review committee process pursuant to this chapter, may be awarded, by the commission, its reasonable costs or any part thereof for technical studies and reports and expert witnesses associated with the presentation of evidence at a public hearing on the permit application subsequent to the local review committee process. Such evidence must relate to issues raised by such person in the local review committee process but which are still unresolved at the time of the commencement of the hearing on the permit applications for a hazardous waste management facility. To be eligible for an award, such person shall file a motion for recovery of costs at the end of the evidentiary portion of the public hearing.
(b) In determining the appropriateness of such an award, the commission shall consider the following:
  (1) whether the evidence or analysis provided through such studies, reports, and witnesses is significant to the evaluation of the application;
  (2) whether the evidence or analysis would otherwise not have been provided in the proceeding; and
  (3) whether the local review committee was established in accordance with §335.391 and §335.392 of this title (relating to Pre-Application Review; and Notice of Intent to File a Permit Application).
(c) The person seeking such an award shall have the burden of proof to demonstrate that the costs are reasonable and consistent with similar services performed in the area. The applicant shall have the opportunity to rebut such evidence. Costs awarded by the commission shall be taxed against the applicant. The total award granted to all such persons by the commission with respect to any particular application shall not exceed $25,000. Judicial review of any award by the commission shall be pursuant to the substantial evidence rule as provided by the Administrative Procedure and Texas Register Act (Texas Civil Statutes, Article 6252-13a).
(d) Except as provided in subsection (e) of this section, when an applicant has not entered into a local review committee process, the commission, in determining the appropriateness of an award of costs, shall waive any requirement that the person seeking an award of costs has participated in a local review committee process.
(e) If an applicant, after reasonable efforts to determine whether any local opposition exists to its proposed facility including, but not limited to, discussing the proposed facility with the county judge and other elected officials, does not enter into a local review committee process because of no apparent opposition or because a local review committee is not established despite the good faith efforts of the applicant, then such applicant shall not be subject to an award of costs pursuant to subsection (a) of this section.

Source Note: The provisions of this §335.393 adopted to be effective August 26, 1986, 11 TexReg 3595.