(a) Commission consideration of the following items is not itself a contested case subject to the Texas Administrative Procedure Act (APA):
  (1) public comment;
  (2) executive director's response to comment;
  (3) request for reconsideration; or
  (4) request for contested case hearing.
(b) The commission will evaluate public comment, executive director's response to comment, requests for reconsideration, and requests for contested case hearing and may:
  (1) grant or deny the request for reconsideration;
  (2) determine that a hearing request does not meet the requirements of this subchapter, and act on the application; or
  (3) determine that a hearing request meets the requirements of this subchapter and:
    (A) if the request raises disputed issues of fact that were raised during the comment period, that were not withdrawn by the commenter in writing by filing a withdrawal letter with the chief clerk prior to the filing of the Executive Director's Response to Comment, and that are relevant and material to the commission's decision on the application:
      (i) specify the number and scope of the specific factual issues to be referred to the State Office of Administrative Hearings (SOAH);
      (ii) specify the maximum expected duration of the hearing; and
      (iii) direct the chief clerk to refer the issues to SOAH for a hearing; or
    (B) if the request raises only disputed issues of law or policy, make a decision on the issues and act on the application; or
  (4) direct the chief clerk to refer the hearing request to SOAH. The referral may specify that SOAH should prepare a recommendation on the sole question of whether the requestor is an affected person. If the commission refers the hearing request to SOAH it shall be processed as a contested case under the APA. If the commission determines that a requestor is an affected person, SOAH may proceed with a contested case hearing on the application if either the commission has specified, or the parties have agreed to, the number and scope of the issues and maximum expected duration of the hearing.
(c) A request for a contested case hearing shall be granted if the request is:
  (1) made by the applicant or the executive director;
  (2) made by an affected person if the request:
    (A) is on an application filed:
      (i) before September 1, 2015, and raises disputed issues of fact that:
        (I) were raised during the comment period;
        (II) were not withdrawn by the commenter by filing a withdrawal letter with the chief clerk prior to the filing of the executive director's response to comment; and
        (III) are relevant and material to the commission's decision on the application; or
      (ii) on or after September 1, 2015, and raises disputed issues of fact or mixed questions of fact or law that:
        (I) were raised during the comment period by the affected person whose request is granted;
        (II) were not withdrawn by filing a withdrawal letter with the chief clerk prior to the filing of the executive director's response to comment;, and
        (III) are relevant and material to the commission's decision on the application;
    (B) is timely filed with the chief clerk;
    (C) is pursuant to a right to hearing authorized by law; and
    (D) complies with the requirements of §55.201 of this title (relating to Requests for Reconsideration or Contested Case Hearing).
(d) Notwithstanding any other commission rules, the commission may refer an application to SOAH if the commission determines that:
  (1) a hearing would be in the public interest; or
  (2) the application is for an amendment, modification, or renewal of an air permit under Texas Health and Safety Code, §382.0518 or §382.055 that involves a facility for which the applicant's compliance history contains violations which are unresolved and which constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including the failure to make a timely and substantial attempt to correct the violations.
  (3) the application is for renewal of a hazardous waste permit, subject to §305.65(8) of this title (relating to Renewal) and the applicant's compliance history as determined under Chapter 60 of this title (relating to Compliance History) raises an issue regarding the applicant's ability to comply with a material term of its permit.
  (4) the application is for renewal or amendment of a wastewater discharge permit and the applicant's compliance history as determined under Chapter 60 of this title raises an issue regarding the applicant's ability to comply with a material term of its permit.
(e) If a request for a contested case hearing is granted, a decision on a request for reconsideration or contested case hearing is an interlocutory decision on the validity of the request or issue and is not binding on the issue of designation of parties under §80.109 of this title (relating to Designation of Parties) or the issues referred to SOAH under this section. A judge may consider additional issues beyond the list referred by the commission as provided by §80.4(c)(16) of this title (relating to Judges). A person whose request for reconsideration or contested case hearing is denied may still seek to be admitted as a party under §80.109 of this title if any hearing request is granted on an application. Failure to seek party status shall be deemed a withdrawal of a person's request for reconsideration or hearing request.
(f) If all requests for reconsideration or contested case hearing are denied, §80.272 of this title (relating to Motion for Rehearing) applies. A motion for rehearing in such a case must be filed not later than 25 days after the date that the commission's final decision or order is signed, unless the time for filing the motion for rehearing has been extended under Texas Government Code, §2001.142 and §80.276 of this title (relating to Request for Extension to File Motion for Rehearing), by agreement under Texas Government Code, §2001.147, or by the commission's written order issued pursuant to Texas Government Code, §2001.146(e). If the motion is denied under §80.272 and §80.273 of this title (relating to Motion for Rehearing and Decision Final and Appealable) the commission's decision is final and appealable under Texas Water Code, §5.351 or Texas Health and Safety Code, §361.321 or §382.032, or under the APA.
(g) If all hearing requestors whose requests for a contested case hearing were granted with regard to an issue, withdraw in writing their hearing requests with regard to the issue before issuance of the notice of the contested case hearing, the scope of the hearing no longer includes that issue except as authorized under §80.4(c)(16) of this title.

Source Note: The provisions of this §55.211 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective August 29, 2002, 27 TexReg 7822; amended to be effective December 31, 2015, 40 TexReg 9660