Texas Court of Appeals, 15th District, 2025

Texas Commission on Environmental Quality and Max Midstream, LLC v. San Antonio Bay Estuarine Waterkeeper, Texas Campaign for the Environment, and S. Diane Wilson

Texas Court of Appeals, 15th District · Decided January 10, 2025

Opinion

ACCEPTED 15-24-00036-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/10/2025 4:11 PM NO. 15-24-00036-CV CHRISTOPHER A. PRINE CLERK FILED IN 15th COURT OF APPEALS IN THE FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 1/10/2025 4:11:58 PM CHRISTOPHER A. PRINE Clerk TEXAS COMMISSION ON ENVIRONMENTAL QUALITY and MAX MIDSTREAM, LLC, Appellants v. SAN ANTONIO BAY ESTUARINE WATERKEEPER, TEXAS CAMPAIGN FOR THE ENVIRONMENT, and S. DIANE WILSON, Appellees

On Appeal from the 201st Judicial District Court, Travis County, Texas, Cause No. D-1-GN-22-002153 APPELLANTS’ EXHIBITS FOR ORAL ARGUMENT DEREK SEAL SARA J. FERRIS State Bar No. 00797404 ASSISTANT ATTORNEY GENERAL [email protected] State Bar No. 50511915 APRIL LUCAS [email protected] State Bar No. 24046323 Office of the Attorney General JORDAN MULLINS Environmental Protection Division State Bar No. 24070308 P. O. Box 12548, MC 066 [email protected] Austin, Texas 78711-2548 MCGINNIS LOCHRIDGE LLP 512.463.2012 (telephone) 1111 W. Sixth St., Bldg. B, Ste. 400 512.320-0911 (telecopier) Austin, Texas 78703 512.495.6000 (telephone) 512.505.6364 (telecopier) Attorneys for Intervenor-Defendant Counsel for Texas Commission Max Midstream, LLC on Environmental Quality INDEX OF APPELLANTS’ EXHIBITS FOR ORAL ARGUMENT 1. Tex. Water Code §5.115(a) and (a-1) – Affected Person Standards 2. Select TCEQ Rules from 30 Tex. Admin. Code, Chapter 55, Subchapter F, Governing Contested Case Hearing Requests 3. Appellees’ Claimed Personal Justiciable Interests (Plaintiffs’ Presentation to District Court, November 8, 2023) 4. Substantial Evidence Affidavit Presented to TCEQ by Max Midstream (A.R. 55 at 59-66) 5. Texas Register Excerpts Regarding Exhaustion of Administrative Remedies (Appellant TCEQ Reply Brief, Appendix R-1: 40 Tex. Reg. 9651, 9654-55 (Dec. 25, 2015), and R-2: 40 Tex. Reg. 9660, 9670 (Dec. 25, 2015)) CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this, Appellants’ Exhibits for Oral Argument, including all attachments, was served on counsel of record through the Court’s electronic filing system on this the 10th day of January, 2025, as set forth below: Erin Gaines Mr. Ethan Siegel Earthjustice Texas RioGrande Legal Aid 10900 Research Blvd, Ste. 160C PMB 3021 4920 N Interstate 35, Suite 100 Austin, Texas 78759 Austin, TX 78751-2717 Phone: (512) 720-5354 [email protected] [email protected] Attorneys for Appellee S. Diane Wilson Ilan Levin Environmental Integrity Project Sara J. Ferris 1206 San Antonio Street Assistant Attorney General Austin, Texas 78701 Erin Snody Phone: (512) 619-7287 Assistant Attorney General [email protected] Office of the Attorney General Attorneys for Appellees Environmental Protection San Antonio Bay Estuarine Division Waterkeeper and Texas Campaign P.O. Box 12548, MC-066 for the Environment Austin, Texas 78711 (512) 463-2012 Karis Adams Fax: (512) 320-0911 Texas RioGrande Legal Aid [email protected] 3825 Agnes St. [email protected] Corpus Christi, Texas 78405 Attorneys for Defendant Phone: (361) 880-5430 TCEQ Fax: (956) 591-8752 [email protected]

/s/Derek Seal Derek Seal TAB 1 Texas Water Code §5.115(a) and a-1) – Affected Person Standards Tex. Water Code, Sec. 5.115. PERSONS AFFECTED IN COMMISSION HEARINGS; NOTICE OF APPLICATION. (a) For the purpose of an administrative hearing held by or for the commission involving a contested case, "affected person," or "person affected," or "person who may be affected" means a person who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the administrative hearing. An interest common to members of the general public does not qualify as a personal justiciable interest. (a-1) The commission shall adopt rules specifying factors which must be considered in determining whether a person is an affected person in any contested case arising under the air, waste, or water programs within the commission's jurisdiction and whether an affected association is entitled to standing in contested case hearings. For a matter referred under Section 5.556, the commission: (1) may consider: (A) the merits of the underlying application, including whether the application meets the requirements for permit issuance; (B) the likely impact of regulated activity on the health, safety, and use of the property of the hearing requestor; (C) the administrative record, including the permit application and any supporting documentation; (D) the analysis and opinions of the executive director; and (E) any other expert reports, affidavits, opinions, or data submitted on or before any applicable deadline to the commission by the executive director, the applicant, or a hearing requestor; and (2) may not find that: (A) a group or association is an affected person unless the group or association identifies, by name and physical address in a timely request for a contested case hearing, a member of the group or association who would be an affected person in the person's own right; or (B) a hearing requestor is an affected person unless the hearing requestor timely submitted comments on the permit application.

3885786.v1 TAB 2 Select TCEQ Rules from 30 Tex. Admin. Code, Chapter 55, Subchapter F, Governing Contested Case Hearing Requests § 55.201. Requests for Reconsideration or Contested Case Hearing, 30 TX ADC § 55.201

Texas Administrative Code Title 30. Environmental Quality Part 1. Texas Commission on Environmental Quality Chapter 55. Requests for Reconsideration and Contested Case Hearings; Public Comment Subchapter F. Requests for Reconsideration or Contested Case Hearing TAC § 55.201 § 55.201. Requests for Reconsideration or Contested Case Hearing Effective: January 7, 2021 Currentness

(a) A request for reconsideration or contested case hearing must be filed no later than 30 days after the chief clerk mails (or otherwise transmits) the executive director's decision and response to comments and provides instructions for requesting that the commission reconsider the executive director's decision or hold a contested case hearing.

(b) The following may request a contested case hearing under this chapter:

(1) the commission;

(2) the executive director;

(3) the applicant; and

(4) affected persons, when authorized by law.

(c) A request for a contested case hearing by an affected person must be in writing, must be filed with the chief clerk within the time provided by subsection (a) of this section, may not be based on an issue that was raised solely in a public comment 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, for applications filed on or after September 1, 2015, must be based only on the requestor's timely comments.

(d) A hearing request must substantially comply with the following:

(1) give the name, address, daytime telephone number, and, where possible, fax number of the person who files the request.

If the request is made by a group or association, the request must identify one person by name, address, daytime telephone number, and, where possible, fax number, who shall be responsible for receiving all official communications and documents for the group;

(2) identify the person's personal justiciable interest affected by the application, including a brief, but specific, written statement explaining in plain language the requestor's location and distance relative to the proposed facility or activity that is the subject of the application and how and why the requestor believes he or she will be adversely affected by the proposed facility or activity in a manner not common to members of the general public;

(3) request a contested case hearing;

(4) for applications filed:

(A) before September 1, 2015, list all relevant and material disputed issues of fact that were raised during the public comment period and that are the basis of the hearing request. To facilitate the commission's determination of the number and scope of issues to be referred to hearing, the requestor should, to the extent possible, specify any of the executive director's responses to comments that the requestor disputes and the factual basis of the dispute and list any disputed issues of law or policy; or

(B) on or after September 1, 2015, list all relevant and material disputed issues of fact that were raised by the requestor during the public comment period and that are the basis of the hearing request. To facilitate the commission's determination of the number and scope of issues to be referred to hearing, the requestor should, to the extent possible, specify any of the executive director's responses to the requestor's comments that the requestor disputes, the factual basis of the dispute, and list any disputed issues of law; and

(5) provide any other information specified in the public notice of application.

(e) Any person, other than a state agency that is prohibited by law from contesting the issuance of a permit or license as set forth in §55.103 of this title (relating to Definitions), may file a request for reconsideration of the executive director's decision.

The request must be in writing and be filed by United States mail, facsimile, or hand delivery with the chief clerk within the time provided by subsection (a) of this section. The request should also contain the name, address, daytime telephone number, and, where possible, fax number of the person who files the request. The request for reconsideration must expressly state that the person is requesting reconsideration of the executive director's decision, and give reasons why the decision should be reconsidered.

(f) Documents that are filed with the chief clerk before the public comment deadline that comment on an application but do not request reconsideration or a contested case hearing shall be treated as public comment.

(g) Procedures for late filed public comments, requests for reconsideration, or contested case hearing are as follows.

(1) A request for reconsideration or contested case hearing, or public comment shall be processed under §55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing) or under §55.156 of this title (relating to Public Comment Processing), respectively, if it is filed by the deadline. The chief clerk shall accept a request for reconsideration or contested case hearing, or public comment that is filed after the deadline but the chief clerk shall not process it. The chief clerk shall place the late documents in the application file.

(2) The commission may extend the time allowed to file a request for reconsideration, or a request for a contested case hearing.

(h) Any person, except the applicant, the executive director, the public interest counsel, and a state agency that is prohibited by law from contesting the issuance of a permit or license as set forth in §55.103 of this title, who was provided notice as required under Chapter 39 of this title (relating to Public Notice) but who failed to file timely public comment, failed to file a timely hearing request, failed to participate in the public meeting held under §55.154 of this title (relating to Public Meetings), and failed to participate in the contested case hearing under Chapter 80 of this title (relating to Contested Case Hearings) may file a motion for rehearing under §50.119 of this title (relating to Notice of Commission Action, Motion for Rehearing), or §80.272 of this title (relating to Motion for Rehearing) or may file a motion to overturn the executive director's decision under §50.139 of this title (relating to Motion to Overturn Executive Director's Decision) only to the extent of the changes from the draft permit to the final permit decision.

(i) Applications for which there is no right to a contested case hearing include:

(1) a minor amendment or minor modification of a permit under Chapter 305, Subchapter D of this title (relating to Amendments, Renewals, Transfers, Corrections, Revocation, and Suspension of Permits);

(2) a Class 1 or Class 2 modification of a permit under Chapter 305, Subchapter D of this title;

(3) any air permit application for the following:

(A) initial issuance of an electric generating facility permit;

(B) permits issued under Chapter 122 of this title (relating to Federal Operating Permits Program);

(C) a permit issued under Chapter 116, Subchapter B, Division 6 of this title (relating to Prevention of Significant Deterioration Review) that would authorize only emissions of greenhouse gases as defined in §101.1 of this title (relating to Definitions); or

(D) amendment, modification, or renewal of an air application that would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted. The commission may hold a contested case hearing if the application involves a facility for which the applicant's compliance history contains violations that are unresolved and that constitute a recurring pattern of egregious conduct that demonstrates a consistent disregard for the regulatory process, including the failure to make a timely and substantial attempt to correct the violations;

(4) hazardous waste permit renewals under §305.65(8) of this title (relating to Renewal);

(5) an application, under Texas Water Code, Chapter 26, to renew or amend a permit if:

(A) the applicant is not applying to:

(i) increase significantly the quantity of waste authorized to be discharged; or

(ii) change materially the pattern or place of discharge;

(B) the activity to be authorized by the renewal or amended permit will maintain or improve the quality of waste authorized to be discharged;

(D) consultation and response to all timely received and significant public comment has been given; and

(E) the applicant's compliance history for the previous five years raises no issues regarding the applicant's ability to comply with a material term of the permit;

(6) an application for a Class I injection well permit used only for the disposal of nonhazardous brine produced by a desalination operation or nonhazardous drinking water treatment residuals under Texas Water Code, §27.021, concerning Permit for Disposal of Brine from Desalination Operations or of Drinking Water Treatment Residuals in Class I Injection Wells;

(7) the issuance, amendment, renewal, suspension, revocation, or cancellation of a general permit, or the authorization for the use of an injection well under a general permit under Texas Water Code, §27.025, concerning General Permit Authorizing Use of Class I Injection Well to Inject Nonhazardous Brine from Desalination Operations or Nonhazardous Drinking Water Treatment Residuals;

(8) an application for a permit, registration, license, or other type of authorization required to construct, operate, or authorize a component of the FutureGen project as defined in §91.30 of this title (relating to Definitions), if the application was submitted on or before January 1, 2018;

(9) other types of applications where a contested case hearing request has been filed, but no opportunity for hearing is provided by law; and

(10) an application for a production area authorization, except as provided in accordance with §331.108 of this title (relating to Opportunity for a Contested Case Hearing on a Production Area Authorization Application).

Credits Source: The provisions of this §55.201 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective September 16, 2004, 29 TexReg 8817; amended to be effective March 29, 2006, 31 TexReg 2482; amended to be effective July 10, 2008, 33 TexReg 5325; amended to be effective March 12, 2009, 34 TexReg 1624; amended to be effective May 3, 2012,

37 TexReg 3133; amended to be effective April 17, 2014, 39 TexReg 2869; amended to be effective December 11, 2014, 39 TexReg 9578; amended to be effective December 31, 2015, 40 TexReg 9660; amended to be effective May 14, 2020, 45 TexReg 3079; amended to be effective January 7, 2021, 46 TexReg 189.

Current through 49 Tex.Reg. No. 9842, dated November 30, 2024, as effective on or before December 6, 2024. Some sections may be more current. See credits for details.

Texas Administrative Code Title 30. Environmental Quality Part 1. Texas Commission on Environmental Quality Chapter 55. Requests for Reconsideration and Contested Case Hearings; Public Comment Subchapter F. Requests for Reconsideration or Contested Case Hearing TAC § 55.203 § 55.203. Determination of Affected Person Effective: December 31, 2015 Currentness

(a) For any application, an affected person is one who has a personal justiciable interest related to a legal right, duty, privilege, power, or economic interest affected by the application. An interest common to members of the general public does not qualify as a personal justiciable interest.

(b) Except as provided by §55.103 of this title (relating to Definitions), governmental entities, including local governments and public agencies, with authority under state law over issues raised by the application may be considered affected persons.

(c) In determining whether a person is an affected person, all factors shall be considered, including, but not limited to, the following:

(1) whether the interest claimed is one protected by the law under which the application will be considered;

(2) distance restrictions or other limitations imposed by law on the affected interest;

(3) whether a reasonable relationship exists between the interest claimed and the activity regulated;

(4) likely impact of the regulated activity on the health and safety of the person, and on the use of property of the person;

(5) likely impact of the regulated activity on use of the impacted natural resource by the person;

(6) for a hearing request on an application filed on or after September 1, 2015, whether the requestor timely submitted comments on the application that were not withdrawn; and

(7) for governmental entities, their statutory authority over or interest in the issues relevant to the application.

(d) In determining whether a person is an affected person for the purpose of granting a hearing request for an application filed on or after September 1, 2015, the commission may also consider the following:

(1) the merits of the underlying application and supporting documentation in the commission's administrative record, including whether the application meets the requirements for permit issuance;

(2) the analysis and opinions of the executive director; and

(3) any other expert reports, affidavits, opinions, or data submitted by the executive director, the applicant, or hearing requestor.

(e) In determining whether a person is an affected person for the purpose of granting a hearing request for an application filed before September 1, 2015, the commission may also consider the factors in subsection (d) of this section to the extent consistent with case law.

Credits Source: The provisions of this §55.203 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective May 3, 2012, 37 TexReg 3133; amended to be effective December 31, 2015, 40 TexReg 9660.

Current through 49 Tex.Reg. No. 9842, dated November 30, 2024, as effective on or before December 6, 2024. Some sections may be more current. See credits for details.

Texas Administrative Code Title 30. Environmental Quality Part 1. Texas Commission on Environmental Quality Chapter 55. Requests for Reconsideration and Contested Case Hearings; Public Comment Subchapter F. Requests for Reconsideration or Contested Case Hearing TAC § 55.205 § 55.205. Request by Group or Association Effective: December 31, 2015 Currentness

(a) A group or association may request a contested case hearing only if the group or association meets all of the following requirements:

(1) one or more members of the group or association would otherwise have standing to request a hearing in their own right;

(2) the interests the group or association seeks to protect are germane to the organization's purpose; and

(3) neither the claim asserted nor the relief requested requires the participation of the individual members in the case.

(b) For applications filed on or after September 1, 2015, a request by a group or association for a contested case may not be granted unless all of the following requirements are met:

(1) comments on the application are timely submitted by the group or association;

(2) the request identifies, by name and physical address, one or more members of the group or association that would otherwise have standing to request a hearing in their own right;

(3) the interests the group or association seeks to protect are germane to the organization's purpose; and

(4) neither the claim asserted nor the relief requested requires the participation of the individual members in the case.

(c) The executive director, the public interest counsel, or the applicant may request that a group or association provide an explanation of how the group or association meets the requirements of subsection (a) or (b) of this section. The request and reply shall be filed according to the procedure in §55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing).

Credits Source: The provisions of this §55.205 adopted to be effective October 20, 1999, 24 TexReg 9015; amended to be effective December 31, 2015, 40 TexReg 9660.

Current through 49 Tex.Reg. No. 9842, dated November 30, 2024, as effective on or before December 6, 2024. Some sections may be more current. See credits for details.

Texas Administrative Code Title 30. Environmental Quality Part 1. Texas Commission on Environmental Quality Chapter 55. Requests for Reconsideration and Contested Case Hearings; Public Comment Subchapter F. Requests for Reconsideration or Contested Case Hearing TAC § 55.211 § 55.211. Commission Action on Requests for Reconsideration and Contested Case Hearing Effective: December 31, 2015 Currentness

(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.

(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;

(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.

Credits Source: 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.

Current through 49 Tex.Reg. No. 9842, dated November 30, 2024, as effective on or before December 6, 2024. Some sections may be more current. See credits for details.

© 2025 Thomson Reuters. No claim to original U.S. Government Works. 4 TAB 3 Appellees’ Claimed Personal Justiciable Interests (Plaintiffs’ Presentation to District Court, November 8, 2023) PLAINTIFFS’ COMMENTS: CONTESTED CASE HEARING REQUESTS Plaintiffs work, recreate, or live within 2 to 5 miles: • Mr. and Ms. Maresh live 1.79 miles from the Terminal. AR70 at 408 (Tab 16, 400). • Ms. Wilson visits 1-3 times/week water monitoring sites less than 1 mile and up to 3 miles from the Terminal to enforce consent decree, and she swims, kayaks and boats in nearby Bays. AR70 at 408-09, 425-33, 440-41 (Tab 16, 400-01, 417-425; Tab 17, 433-34) • Mr. Blanco spends up to 4.5 months/year shrimping and oystering between 1.38 and 2.32 miles from the Terminal. AR70 at 364 (Tab 14, 358); AR61 at 89-93 (Tab 12, 344-48). • Mr. Miller works 50-60 hours/week at his seafood business within 5 miles and recreationally fishes monthly about 2 miles from the Terminal. AR70 at 362-63 (Tab 14, 356-57) Plaintiffs’ Particularized Recreational & Aesthetic Interests • John and Janet Maresh – concerned about worsening “thick acrid smog” and cumulative air pollution impacts that will push the area into non-attainment for federal air quality standards, which will diminish their use and enjoyment of their property. AR70 at 408 (Tab 16, 400); Pl. Br. 35-37. • Curtis Miller – fishes recreationally at reefs just over 2 miles from Terminal monthly, air pollution will interfere with his work and recreational activities due to his asthma. AR70 at 363 (Tab 14, 357); Pl. Br. 38-39. • Diane Wilson – regularly swims, kayaks, fishes, and boats in Lavaca and Matagorda Bays, her deep connection to and enjoyment of the Bays diminished by industrial facilities. AR70 at 440–41 (Tab 17, 433-34); Pl. Br. 31-32.

TAB 4 Substantial Evidence Affidavit Presented to TCEQ by Max Midstream (A.R. 55 at 59-66) TCEQ DOCKET NO. 2021-0157-AIR AFFIDAVIT OF LUCY FRAISER, PH.D., DABT FRAISER TOXICOLOGY CONSULTING, LLC STATE OF ARKANSAS § COUNTY OF WASHINGTON §

BEFORE ME, the undersigned authority, on this day personally appeared Lucy Fraiser, who after being duly sworn upon her oath stated as follows: 1. My name is Lucy Fraiser. I am over 21 years of age, am of sound mind, and am fully competent to make this affidavit. Each and every statement contained in this affidavit is based upon my personal knowledge, and each and every statement is true and correct.

2. I am a toxicologist. I perform air quality health and welfare evaluations, provide litigation and regulatory support and prepare soil/water human health and ecological risk assessments. I formed Lucy Fraiser Toxicology Consulting LLC in July 2017, which is a toxicology consulting firm.

I have been retained on behalf of Max Midstream, LLC ("Max Midstream") to conduct a public health and welfare effects evaluation related to the potential for health and/or welfare effects from maximum allowable emissions from the expansion of the Seahawk Terminal ("Seahawk Terminaf') proposed by Max Midstream's application for Texas Commission on Environmental Quality ("TCEQ") Permit Application No. 162941 ("Application"). I have reviewed the following documents, as well as data regarding the Application provided to me by Trinity Consultants, which prepared the air dispersion modeling for the Application: TCEQ's Air Quality Analysis Audit dated January 26, 2021 ("Modeling Audit"); TCEQ Modeling Audit dated March 4, 2021 ("Supplemental Modeling Audit"); Affidavit of Joe Kupper, Manager of the Austin Office for Trinity Consultants, in the same TCEQ Docket Number listed above for the Application ("Kupper Affidavit"); Affidavit of Tony Nguyen, Senior Vice-President for Global Innovation and Technical Services for Max Midstream, in the same TCEQ Docket Number listed above for the Application ("Nguyen Affidavit"); Comments and Hearing Requests on the Application submitted on November 12, 2020, June 4, 2021, August 17, 2021, and January 10, 2022 by Diane Wilson, San Antonio Bay Estuarine Waterkeeper, Texas Rio Grande Legal Aid, and Environmental Integrity Project ("Group Hearing Requests"); TCEQ's Modeling and Effects Applicability Review: How to Determine the Scope of Modeling and Effects Review for Air Permits (APDG 5874) {2018) ("MERA");

AFFIDAVIT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQDOCKETNO. 2021-0157-AIR PAGE]

2474029.vl TCEQ's Guidelines to Develop Toxicity Factors (RG-442) (September 2015); TCEQ's ESLs for crude oil,< 1% benzene, and fuel oil no. 2, available in the TCEQ Texas Air Monitoring Information System Toxicity Factor Database at https://,vwvvl 7.tceq.texas.gov/tamis/index.cfm; TCEQ's Effects Evaluation Procedure: Marine Vessels dated (August, 2001) ("Extended Tier II Guidance for Marine Terminals" at https://ri,vww.tceq.texas.gov/searchpage?g=TCEO%E2%80%99s+Effects+Evaluation+Pro cedure%3A+Marine+Vessels+dated+August%2C+2001 &btnG=TCEO+Search.

These are the same type of documents that I have reviewed, or any toxicologist would be expected to review, and rely upon in conducting a public health and welfare effects evaluation.

4. I received a Ph.D. in Toxicology in 1992 from the University of Texas at Austin and a B.A.

Degree in Psychology from the University of Texas at Austin in 1984. I am a Diplomate of the American Board of Toxicology ("DABT'). The DABT certification is a globally-recognized credential in toxicology. The DABT C•ertification is a certification by the American Board of Toxicology ("ABT'), which is the largest professional toxicology credentialing organization in the world. The DABT certification represents competency and commitment to human health and environmental sciences. Becoming certified by the ABT requires a combination of higher education and experience, with rigorous certification (testing) and recertification processes. I am also a member of the American College of Toxicology. I have conducted and managed hundreds of multi-pathway exposure and human health risk-assessments and risk-based corrective action evaluations over my 32-year career. Early in my career, I worked in the Toxicology Division of the Tex.as Natural Resource Conservation Commission ("TNRCC'), the predecessor agency to the TCEQ. After leaving the TNRCC in 1998, I worked for a number of different consulting firms as a toxicologist. I started Lucy Fraiser Toxicology Consulting LLC in July 2017. While I work with an environmental media, I specialize in air quality public health and welfare effe.cts evaluations. I have performed these evaluations for many industrial source types and types of pollutants. I have extensive experience performing public health and welfare effects evaluations related to air quality permit applications submitted to the TCEQ and its predecessor agency, the lNRCC. I have conducted health and welfare evaluations for proposed and/or existing emissions from dozens of industrial facilities, including hazardous waste combustion facilities, refineries, electricity generating units, chemical plants, concrete batch plants, rock crushers, cement kilns, and smelters (copper and lead). I have also performed numerous other air quality evaluations in other states not directly related to the air permitting process. I have been qualified as an expert, been deposed, and have provided expert testimony in contested case hearings, federal civil suits, and state toxic tort litigation involving potential effects of air emissions on public health and welfare on numerous occasions.

5. Applicants for TCEQ air permit applications use air dispersion modeling to predict concentrations of the pollutants from the proposed facilities at "receptors," which TCEQ modeling guidance defines as locations "where the public could be exposed to an air contaminant in the ambient air.''. Air dispersion models predict movement of contaminants in the atmosphere and provide conservative estimates {i.e., overestimates) of air pollutant concentrations at different AFFIDAVIT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQ DOCKET No. 2021-0157-AIR PAGE2

2474029.v] distances and directions from the emissions source. Exposure occurs when local populations come into contact with pollutants from an emissions release. Therefore, conservatively estimated air concentrations from air dispersion modeling are routinely used to evaluate potential exposures by providing conservatively estimated air concentrations (i.e., overestimated by comparison to actual expected exposure levels) at different locations. The concentration of a pollutant to which a member of the public is potentially exposed is critical to determining whether adverse health or welfare effects will occur. Toxicologists in TCEQ's Toxicology Division use the results from the air dispersion modeling in their toxicological evaluations of the effects of proposed emissions.

The objectives of the analysis are to: 1) establish off-property ground-level concentrations ("GLCs") of contaminants resulting from proposed and/or existing emissions; and 2) evaluate these GLCs for their potential to cause adverse health or welfare effects. TCEQ's effects evaluation process, which relies on air dispersion modeling results, includes three areas of review.

6. The first TCEQ effects evaluation looks at constituents for which the U.S. Environmental Protection Agency has established a National Ambient Air Quality Standard ("NAAQS"), also known as "criteria pollutants." In the State NAAQS Analysis, proposed emissions of criteria pollutants from the project are modeled to estimate maximum ground-level concentrations ("GLCnurx"), with the objective of determining whether the project has the potential to cause or contribute to an exceedance of the NAAQS. EPA establishes each NAAQS at a level that is protective of public health and welfare with an adequate Margin of Safety ("MOS''). Employing conservative measures in deriving the NAAQS helps EPA to ensure that there is an adequate MOS between exposure concentrations associated with adverse health/welfare effects and the NAAQS.

According to the TCEQ's review of the air dispersion modeling associated with the Application, which is included in the Modeling Audit: a. As indicated in the table below, the GLCmax for PM10 (24-hr), PM2.s (Annual), NO2 (Annual), CO (1-hr) and CO (8-hr) were all below the de minimis level, so no further evaluation was warranted.

Polluta Averaging Time GLCmax (pgfm3) De Minimis (µgfm 3) nt PM10 24-hr 2 5 PM2.s Annual 0.1 0.2 NO2 Annual 0.8 1 co 1-hr 89 2000 co 8-hr 43 500

Thus, the highest modeled criteria pollutant concentrations from proposed Seahawk Terminal sources at or beyond the fence line were below the de minimis NAAQS., otherwise !mown as Significant Impact Levels (''SILs"), for PM10 (24-hr), PM2.s AFFJDA VlT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQDOCKETN0.2021-0157-AIR PAGE3

2474029.vl (Annual), NO2 (Annual), CO (1-hr) and CO (8-hr). Since the SILs are set at a small fraction of the health and welfare-protective NAAQS, these criteria pollutants are not expected to pose a health or welfare threat.

b. For the NAAQS pollutants for which the GLCmax was above the de minimis level, SO2 (1-hr), SO2 (3-hr), PM2.s (24-hr), and NO2 (1-hr), an additional evaluation was conducted. However, based on the additional evaluation summarized in the Modeling Audit, which is summarized in the table below, the GLCmax plus estimated background levels for each of those NAAQS pollutants was only a fraction or a very small fraction of the NAAQS standard.

Total Cone.= Averaging GLCmax Background Standard Pollutant (µg/m3) (µg/m3) [Background+ (pg/ml) Time GLCmax) (pg/m 3) 1-hr 31 15 46 196 3-hr 30 25 55 1300 24-hr 1 23 24 35 NO2 1-hr 42 85 127 188

Thus, total concentrations ofSO2(l-hr), SO2(3-hr), PM2.s(24-hr), andNO2 (1-hr), were each well below their corresponding primary and secondary NAAQS, which included modeled concentrations from the Seahawk Terminal and ambient monitored background concentrations within an extended area. Since the NAAQS are conservatively designed to protect public health and welfare and include a MOS (margin of safety), these criteria pollutants are also not be expected to pose a health or welfare threat.

7. Next, the second TCEQ effects evaluation is a State Property Line Standard analysis completed for sulfur compounds in which measured or modeled GLCmax are compared to TCEQ- derived State Property Line Standards in addition to the federal NAAQS. The Modeling Audit indicates that the GLCmax for each sulfur compound included in the State Property Line Standards, which are included in the table below, are well below the State Property Line Standards.

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2474029.vl Pollutant Averaging Time GLCmax Standard (µg/m 3) Cua/m 3) S02 1-hr 140 1021 (If property is residential, recreational, H2S 1-hr 14 business, or commercial) (If property is not residential, recreational, H2S 1-hr 30 business, or commercial)

Therefore, hourly GLCmax for SO2 and H2S comply with the State Property Line Standards established by the TCEQ. It is my opinion that the hourly GLCmax for SO2 and H2S do not pose a health or welfare threat.

8. The third TCEQ effects evaluation involves a public health and welfare effects evaluation for constituents lacking a NAAQS or TCEQ State Property Line Standards, and for these constituents, an evaluation is conducted in accordance with appendix D of TCEQ's guidance entitled Modeling and Effects Applicability Review: How to Determine the Scope ofModeling and Effects Review for Air Pennits (APDG 5874) (2018) ("A-IERA"). In the MERA evaluation, modeled GLCmax are compared to TCEQ-derived Effects Screening Levels ("ESLs"), which are health and/or welfare-based screening levels (not promulgated standards, such as the NAAQS and State Property Line Standards) used in the TCEQ permitting process. ES Ls are only guidelines or screening levels that TCEQ sets at concentrations that correspond to a "no significant risk level." Therefore, if predicted airborne levels of a compound exceed the relevant ESL, adverse health or welfare effects would not necessarily be expected to occur, but a more in-depth review would be triggered. Because they are designed to be preventative in nature, ES Ls are set at levels: 1) below the threshold for health effects; 2) corresponding to an insignificant risk; or 3) where odor nuisance or vegetative effects are unlikely. Setting ESLs at these conservative levels ensures that public health and welfare are protected by incorporating a MOS. TCEQ's MERA guidance establishes a process for determining the scope of air modeling and the extent of the health effects review necessary. Steps 1 through 7 of the MERA consist of conservative procedures used by air permitting engineers to evaluate the potential for health effects of air contaminants. The Toxicology Effects Evaluation Procedure located in Appendix D of the MERA is based on a three- tiered approach, with Tiers I, II, and III representing progressively more complex levels ofreview.

Tier I involves determining if the off-property GLCmax is below the ESL. If the GLCmax is below the ESL, adverse health/welfare effects are not expected. If the GLCmax is above the ESL, the analysis continues to the next tier. Tier II entails determining if the GLCmax occurs on industrial property. If the GLCmax occurs on industrial property and is less than or equal to two times the ESL, adverse health and welfare effects are not expected to occur. If the GLCmax occurs on non- industrial property ("GLCnt) and the GLCni is less than the ESL, adverse health/welfare effects are not expected to occur. If either the GLCmax on industrial property is greater than two times the AFFIDAVIT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQ DOCKET NO. 2021-0157-AIR PAGES

2474029.vl ESL or the GLCni is greater than the ESL, the analysis continues to the next tier. However, if the hourly GLCmax exceeds two times the ESL for 24 hours or less, a Tier ill evaluation need not be conducted according to TCEQ' S Extended Tier II Guidance for Marine Terminals provided in "Effects Evaluation Procedure: Marine Vessels". Limiting the number of hours that an ESL can be exceeded by a particular magnitude reduces the likelihood of repeated exposure to concentrations above the ESL (which are set at levels that do not pose a significant risk) and further reduces the likelihood of health or welfare effects. Short-tenn ESLs are designed to be protective of more than a single I-hour exposure and, therefore, as long as the frequency of those exceedances is limited, adverse health and welfare effects are not expected. A case-by-case Tier III Analysis is only conducted by TCEQ toxicologists for compounds that do not satisfy Tier I or Tier II criteria.

For constituents eliminated during the MERA process or in Tier I or II of the Toxicology Effects Evaluation Procedure, steps which only require comparing modeled air concentrations (i.e., GLCmax and GLCni) to ESLs (or multiples of the ESL), there is no need for a more detailed review by the Toxicology Division. In other words, the MERA process and Tier I and ll of the Toxicology Effects Evaluation Procedure represent screening procedures by which a permit applicant can demonstrate that emissions of non-criteria pollutants from a facility will be protective of the public's health and welfare.

As reflected in the table below, the Modeling Audit shows that, except for crude oil and crude condensate (both I-hr GLCmax), modeled concentrations for constituents to which the Public Health and Welfare Effects Evaluation applies are well below the applicable ESL. Thus, because concentrations of crude oil (annual), crude condensate (annual), and diesel fuel ( 1-hr) are modeled to be well below the ESL, no health or welfare impacts are expected.

Averaging GLCmax GLCma>e GLCnl GLCn!

Pollutant CAS# ESL (µg/m 3) Time (µg!m 3 ) Location (µgfm 3 ) Location Crude oil. <1% benzene I 1-hr 8782 Eastern Property Line 1718 972m East 3500 ; - - - - - - ----- ' . •·--· · · . - ,., _. ___ _ Crude oil. <1 ~,;, benzene Northern Annual 16 Property Line 7 78m West 350 Eastern Crude condensate 1-hr 8782 1718 972m East 3500 Property Line t - - - - - - - ~ - - - ·- - - - - ·-- - - - - + - - - - - - - - - ~ - - - - t - - - - - - t - - - - - - l Crude condensate Nortnern Annual 16 7 78m West 350 Propl:rty Line i 68334-30-5 Eastern Northern r Diesel fuel 1-hr 15 Property Line Property Line i 1000

Pollutant Averaging Time 2 X ESL GLCmax Crude oil. 1-hr 9 Crude condensate 1-hr 9

Although the modeled GLCma.x for crude oil and crude condensate (both 1-hr) are above the respective ESLs, no additional MERA evaluation was required or needed because, as indicated in in the table above, there were only 9 hours out of 8,760 hours (one year) modeled where the GLCmax concentration exceeded two times the ESL. As explained above, the Extended Tier II AFFIDAVIT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQDOCKETNO. 2021-0157-AJR PAGE6

2474029.vl Guidance for Marine Terminals (TCEQ, 2001) provides that no further justification is generally needed when this number is less than 24 hours.

Thus, the proposed emissions from the Seahawk Terminal expansion do not pose an adverse health or welfare effect because of the small magnitude of the modeled GLCmax and the highly conservative nature of the ESL. The first layer of conservatism in the Health and Welfare Effects Evaluation occurs in the air dispersion modeling, which is conducted to estimate worst-case potential exposure levels (i.e., the maximum predicted concentration over a certain number of years of meteorological data from the worst-case tank/dock for Maintenance Startup Shutdown (MSS) emissions and annual emissions and maximum rates from all tanks and docks simultaneously for routine emissions). The modeled air concentrations used in the public health and welfare effects analysis are also highly conservative because the air dispersion model is conservative by design.

Moreover, there is considerable conservatism built into the ESLs themselves. Specifically, the ESLs for crude oil and crude condensate were derived by dividing the National Institute of Occupational Safety & Health (NIOSH) Recommended Exposure Level (REL), the limit below which no worker harm is expected, by conservative safety factors (100 for short-term ESL and 1,000 for long-tem1 ESL). The safety factor of 100 used in d.eriving the short-term ESL more than accounts for the 3-fold higher exposure to ambient air experienced by the general public (24- hours/day, 7 days/week) by comparison to worker exposure to workplace air (8- to 10-hours/day, days/week). Similarly, the safety factor of 1,000 more than accounts for the 6-fold higher long- term exposure to ambient air experienced by the general public (24-hours/day, 7 days/week for 70 years) by comparison to workplace air exposure (8- to IO-hours/day, 5 days/week for 40 years).

Moreover, the crude oil REL and the fuel oil no. 2 Threshold Limit Value (TL V) that form the initial bases for the ES Ls were highly conservative (i.e., health protective) to start with.

Further, the GLCmax for crude oil and for crude condensate (both 1-hr) were approximately 2.5 times the ESLs, and the exceedance occurred just beyond the proposed fenc•e line at the northeastern boundary in a heavily industrialized area, where public exposure is expected to be minimal. Therefore, it is my opinion that these constituents, as wel1 as other constituents modeled for the health and welfare effects evaluation, do not pose a health or welfare threat.

9. As explained above, the maximum levels of pollutants to be authorized by the Application are a fraction of the state and federal standards and the state ESLs, which are conservatively designed to be protective of public health and we]fare. The only exceptions are crude oil and crude condensate (both 1-hr), which would only be present at levels above the ESL in an industrialized area just beyond the fence line and were subject to additional review that indicated that emissions from crude oil and crude oil condensate are not expected to pose a public health or welfare threat.

10. Based on the mapping and property owner's list of persons and entities that own property within 1.5 miles of the Seahawk Terminal expansion project (as described in the Kupper Affidavit), no person resides within 1 mile of the Seahawk Terminal. Impacts on public health

AFFIDAVIT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQ DOCKET No. 2021-0157-AIR PAGE7

2474029.vl and welfare further than t mile would be indiscernible. At greater distances than t mile from an emissions source, potential impacts are expected to be even less.

11. Based on my review of the Group Hearing Requests, all of the locations described as being visited by Ms. Wilson are further than I mile from the Seahawk Terminal, except for Formosa Outfalls 011 and 013 at the locations described in the Group Hearing Requests. Based on the modeling and on my evaluation as described above, Ms. Wilson would not experience impacts from visiting the locations described in the Group Hearing Requests that are further than I mile from the Seahawk Terminal any differently than anyone else who visits places further than 1 mile from the Seahawk Terminal, and such impacts would be indiscernible. Even ifFonnosa Outfalls or 013 are in the locations described in the Group Hearing Requests, the only locations described as being closer than 1 mile, I would not expect Ms. Wilson to experience discernible health impacts from her visits. Exposure by itself will not result in possible negative effects unless the exposure is of sufficient magnitude, duration, and frequency to cause impacts. Given the modeled concentrations (provided by Joe Kupper) at the locations of Formosa Outfalls 011 or 013, as described in the Group Hearing Requests from the Seahawk Terminal, and given the infrequency and short duration during which the Group Hearing Requests says Ms. Wilson has been present there (3 times in 4 months), I would not expect discernible impacts from any pollutant for which authorization is requested by the Application.

12. The Nguyen Affidavit, which I have reviewed, identifies the location of Formosa Outfalls and 0 13 based on mapping provided therein, that are different from the locations of those outfalls as described in the Group Hearing Requests. However, my conclusions stated above are the same regardless of whether those outfalls are located as described in the Group Hearing Requests or as described in the Nguyen Affidavit.

Further affiant sayeth not.''

Lu. •· rarer -.Z::cology Consulting, LLC

This instrument was acknowledged before me, the undersigned authority, this ~-ca{day of March 2022, by Lucy Fraiser, Fraiser Toxicology Consulting, LLC, on behalf of said company.

ALEXIS TAVARES BENTON COUNTY NOTARY PUBLIC -ARKANSAS My Commission Expires Aug. 31. 2028 c:: ~ ~ Commission No. 12705010 Notary Public in and for the State of A ~ AFFIDAVIT OF LUCY FRAISER FRAISER TOXICOLOGY CONSULTANTS, LLC TCEQ DOCKET NO. 2021-0157-AIR PAGE8

2474029.vl TAB 5 Texas Register Excerpts Regarding Exhaustion of Administrative Remedies (Appellant TCEQ Reply Brief, Appendix R-1: 40 Tex. Reg. 9651, 9654-55 (Dec 25, 2015), and R-2: 40 Tex. Reg. 9660, 9670 (Dec. 25, 2015)) Appendix R-1 40 Tex. 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$'237(' 58/(6 'HFHPEHU 7H[5HJ September 1, 2015, was updated, and a new version was cre- CCH in determining a person's access to judicial review, EPA ated for applications filed on or after September 1, 2015. SB requests TCEQ explain how the TPDES program continues to requires the commission to adopt rules by January 1, 2016; meet the requirements of 40 Code of Federal Regulations (CFR) these rules were adopted on December 9, 2015, and will become § 123.30 and how the authorized air permitting programs con- effective on December 31, 2015. Therefore, the implementation tinue to meet Federal Clean Air Act (FCAA) requirements, in- is complete, and no adverse impacts have been identified nor cluding FCAA, §502(b)(6). are any expected.

Response Comment TPDES: Requesting or participating in a CCH is not a prerequi- HCPCSD is concerned the rulemaking will lessen the public's site to judicial review in Texas, provided the person exhausted ability to oppose permitting actions that may negatively impact their administrative remedies prior to requesting judicial review. public health and safety, and the environment. In contrast to In the 1998 "Statement of Legal Authority for the Texas National the notice and comment process which provides few protections, Pollutant Discharge Elimination System Program" (Statement of HCPCSD's experience has shown that the CCH process can be Legal Authority) , the Texas Attorney General clearly explained an important and valuable tool in the environmental permitting that judicial review of TPDES permits is readily available. process. In many instances, more protective permit provisions, The APA provides that if a CCH was held a person who has in the form of operational improvements, are negotiated during exhausted all administrative remedies available within a state a CCH, and these added provisions minimize the nuisance po- agency and who is aggrieved by a final decision in a contested tential from operations that are either located in an unsuitable case is entitled to judicial review (Texas Government Code, location or have a high potential to create particulate or odor nui- §2001 .171). If a CCH was not held, judicial review is available sances. The result is fewer citizen complaints, notices of viola- under the provisions in TWC, §5.351 . Neither statute has tion , and enforcement actions. been amended since Texas received delegation of the TPDES program in 1998.

Response To place the Texas Attorney General's argument in Sierra Club No changes were made to the rules in response to this com- and Public Citizen v. TCEQ within its proper context, one must ment. The commission understands that there are benefits to be familiar with the facts of the case. In that case, Sierra Club the CCH process but does not agree that the rules compromise and Public Citizen requested a CCH and a hearing was held; the public's ability to oppose permitting actions. The rules do not they then obtained judicial review but abandoned their claims on reduce the amount of public notice provided, nor the opportunity appeal. The hearing was to be conducted in two phases, one to comment on applications and draft permits for the permitting of which was to determine whether Sierra Club and Public Cit- programs that are subject to the requirements of SB 709. Public izen were affected persons. If, and only if, SOAH found either comments are considered in each permitting action. entity to be an affected person, then SOAH was to hold a CCH Comment on the issues referred . At the hearing, SOAH found that neither entity was an affected person ; therefore, SOAH did not address HCPCSD requests TCEQ, after evaluating the consequences of the referred issues. The commission subsequently issued the this rulemaking, reconsider these rules with the goal of determin- permit, and both Sierra Club and Public Citizen appealed raising ing and incorporating rules that allow for more public inclusion in nine points of error. Seven of the nine points of error challenged the permitting process and actual guaranteed consideration of the commission's determination that they were not affected per- the public's concerns by the regulated community and TCEQ . sons; the remaining two points of error challenged the commis- Response sion's decision to issue the permit. Sierra Club and Public Citi- zen waived their challenge to the points of error regarding their No changes were made to the rules in response to this comment. affected person status and, instead, attempted to challenge the The adopted rules implement SB 709 and SB 1267, neither of two points of error regarding the application. which amends the requirements for the commission to provide notice to the public. Further, the rules do not reduce the amount In response to Sierra Club and Public Citizen's appeal, the Texas of public notice provided, nor the opportunity to comment on ap- Attorney General argued that the court did not have jurisdiction plications and draft permits for the permitting programs that are to consider a direct challenge to the issuance of the permit when subject to the requirements of SB 709. Submitted comments are Sierra Club waived its originally pleaded points of error challeng- considered in each permitting action. ing the commission's denial of its hearing request. This position is not in conflict with the language in the Statement of Legal Au- Federal Program Approvability thority because Sierra Club and Public Citizen had requested a Comment CCH, which was denied. They sought and obtained judicial re- view of the commission's decision but abandoned their claims EPA commented that it based its 1998 authorization of the Texas on appeal. If the court agreed with Sierra Club and Public Citi- Pollution Discharge Elimination System (TPDES) program upon zen that they were affected persons, it would have reversed the a finding that participation in a CCH was not a prerequisite to commission's decision and remanded the application back to the judicial review. Recent state court decisions, as well as state- commission. ments made by the Texas Attorney General, indicate this may no longer be true. In a case currently pending at the Texas The State ofTexas, acting through TCEQ, is required by 40 CFR Court of Appeals, Sierra Club and Public Citizen v. TCEQ, No. § 123.30 to provide an opportunity for judicial review of the com- 03-14-00130-CV, the Texas Attorney General filed a brief stat- mission's final approval or denial of a TPDES permit. The oppor- ing that participation in a CCH regarding a water quality permit tunity for judicial review must be sufficient to "provide for, encour- is an essential component of the exhaustion of administrative age, and assist public participation in the permitting process." In remedies, and thus a prerequisite to judicial review. In light of addition, 40 CFR §123.30 also provides that the opportunity for this statement and recent State court holdings on the role of the judicial review is sufficient if it allows the same opportunity for ju-

40 TexReg 9654 December 25, 2015 Texas Register dicial review of a TPDES permit that would be available to obtain §50.115, Scope of CCHs judicial review in federal court for a National Pollutant Discharge Comment Elimination System (NPDES) permit. As discussed earlier, the opportunity for judicial review has not changed since Texas re- TXOGA supports the proposed revisions to §50.115(c)(1) and ceived delegation of the NPDES program, thus the TPDES pro- interprets these and SB 709 to allow referral of both disputed gram continues to meet the requirements of 40 CFR §123.30. questions of fact and mixed questions of law and fact, but not only one or the other. TXOGA requests clarification in the pre- Finally, TCEQ rules have long provided that a person may seek amble that both disputed questions of fact and mixed questions judicial review even if they failed to file a timely public comment, of law and fact can be referred to the same CCH on an applica- failed to file a timely hearing request, failed to participate in the tion, but questions of law are reserved for the commission. public meeting, and failed to participate in the CCH. To do so, such a person must first file a motion for rehearing or a motion Response to overturn the executive director's decision, to the extent of the The commission may refer disputed questions of fact or mixed changes from the draft permit to the final permit decision (See 30 questions of law and fact, or both, for a CCH on an application, TAC §55.201 (h); and §55.25(b)(3), adopted November 5, 1997, but questions of law are reserved for the commission . and effective December 1, 1997, which were derived from pre- decessor rules 31 TAC §263.22 and §263.23). Comment FCAA, including Title V: FCAA, §502(b)(6), applies only to fed- TAM and TXOGA recommend §50.115(c)(1) specify that the list eral operating permits under Title V, which are not subject to the of issues submitted to SOAH be "detailed and complete" consis- CCH opportunity, the primary subject of this rulemaking . tent with new Texas Government Code, §2003.047(e-1) in SB 709, Section 1.

The following information was stated in the most recent public participation rulemaking for new source review (NSR) permit ap- Response plications (35 TexReg 5198, 5201 (June 18, 2010)) which was The commission agrees that the rule should reflect the statutory submitted to EPA on July 2, 2010, and approved on January 6, directive regarding issues for CCH submitted to SOAH must be 2014 (79 FedReg 551). detailed and complete and has added §50.115(9) to implement Access to judicial review for all air quality permits, both NSR and this part of SB 709. Texas Government Code, §2003.047(e-1) Title V, is governed by Texas Health and Safety Code (THSC), in SB 709, Section 1, requires that the list of issues submitted §382.032. Generally, a person must comply with the require- by the commission to SOAH for a CCH must be "detailed and ment to exhaust the available administrative remedies prior to fil- complete." Section 50.115(c)(1) concerns the commission's ing suit in district court. In addition, EPA has approved the Texas evaluation of the issues, and thus the commission declines Title V Operating Permit Program, which required the submis- to amend §50.115(c)(1) as suggested. When commenters sion of a Texas Attorney General opinion regarding sufficient ac- can identify specific draft permit conditions or provide detailed cess to courts, in compliance with Article Ill of the United States information as part of their comments, the commission urges Constitution. The Attorney General Opinion specifically states them to do so. that "(a)ny provisions of State law that limit access to judicial re- Comment view do not exceed the corresponding limits on judicial review imposed by the standing requirement of Article Ill of the United TXOGA commented that the Texas Legislature clearly intended States Constitution." (Section XIX, Supplement to 1993, 1996, that hearing requestors must state with specificity the factual is- and 1998, Statements of Legal Authority for Texas's FCAA Ti- sues that the hearing requestor would like to have referred to a tle V Operating Permit Program by the Attorney General of the CCH rather than allowing hearing requestors to raise broad gen- State ofTexas (October 29, 2001 )). The state statutory authority eralizations and leave the commission and the applicant guess- cited in support of the Texas Title V Operating Program includes ing about specific concerns. TXOGA commented that in order to THSC, §382.032, which is the underlying authority for the appeal implement the legislative intent, the commission should amend of Texas' air quality permit actions. Therefore, the Texas Attor- §50.115(c)(1) to require that issues raised in comments should ney General statement regarding equivalence of judicial review identify a specific draft permit condition. based on THSC, §382.032 in accordance with Article Ill of the Response United States Constitution, is also applicable for eve!)' action of the commission subject to the Texas Clean Air Act. In addition, No changes were made to the rule in response to this comment.

§55.201 (h), also applies to NSR applications. As discussed ear- Texas Government Code, §2003.047(e-1) in SB 709, Section 1, lier, §55.201 (h) provides that a person who failed to file a timely prescribes that the list of issues submitted by the commission public comment, failed to file a timely hearing request, failed to to SOAH for a CCH must be "detailed and complete." Further, participate in the public meeting, and failed to participate in the identifying specific draft permit conditions is not necessary for a CCH must first file a motion for rehearing or a motion to overturn comment to raise a specific factual issue. Common examples the executive director's decision, to the extent of the changes of issues that are not necessarily related to one or more per- from the draft permit to the final permit decision. mit conditions could be comments related to an omission of a requirement in a permit, disagreement regarding the executive In addition, the commission notes that the requirement for a per- director's review of modeling results, or lack of monitoring data son to exhaust available administrative remedies is also present necessary to evaluate protectiveness of the draft permit. How- in federal law. IMlere relief is available from an administrative ever, when commenters can identify specific draft permit condi- agency, the plaintiff is ordinarily required to pursue that avenue of tions or provide detailed information as part of their comments, redress before proceeding to the courts; and until that recourse the commission urges them to do so. is exhausted, suit is premature and must be dismissed (Reiter v. Cooper, 507 U.S. 258, 269 (1993)). Comment

ADOPTED RULES December 25, 2015 40 TexReg 9655 Appendix R-2 40 Tex. Reg. 9660, 9670 (Dec. 25, 2015) The adopted amendment implements Senate Bill 709 (84th The Texas Commission on Environmental Quality (TCEQ, Texas Legislature, 2015). agency, or commission) adopts the amendments to §§55.156, 55.201, 55.203, 55.205, 55.210, and 55.211 .

§50.143. Withdrawing the Application.

Sections 55.156, 55.201, 55.203, and 55.211 are adopted with (a) Upon a request by the applicant at any time before the changes to the proposed text as published in the August 21, application is referred to the State Office of Administrative Hearings 2015, issue of the Texas Register (40 TexReg 5240) and will be (SOAH), the executive director shall allow the withdrawal of the appli- republished in this issue of the Texas Register. Section 55.205 cation and shall file a written acknowledgment of the withdrawal with and §55.210 are adopted without changes to the proposed text the chief clerk. If the application has been scheduled for a commission and will not be republished. meeting, the chief clerk shall remove it from the commission's agenda.

For purposes of this rule, an application is referred to SOAH when the Section §55.156(e) adopted to be withdrawn as part of the State commission votes during a public meeting for referral or when the ex- Implementation Plan (SIP) and the withdrawal will be submitted ecutive director or the applicant file a request to refer with the chief to the United States Environmental Protection Agency (EPA) as clerk under §55.210 of this title (relating to Direct Referrals). a revision to the SIP. (b) Applications filed before September 1, 2015, for which Background and Summary of the Factual Basis for the Adopted chief clerk mailed the executive director's preliminary decision and Rules notice ofa draft permit under §39.419 of this title (relating to Notice This rulemaking is adopted to implement Senate Bills (SB) 709 of Application and Preliminary Decision) that are subsequently with- and 1267, both adopted by the 84th Texas Legislature (2015) drawn by the applicant are governed by the commission's rules as they with an effective date of September 1, 2015. existed immediately before September 1, 2015, and those rules are con- tinued in effect for that purpose if the application is refiled with the Concurrently with this adoption, and published in this issue of commission and the executive director determines the resubmitted ap- the Texas Register, the commission is adopting revisions to 30 plication is substantially similar to the withdrawn application. For pur- Texas Administrative Code (TAC) Chapter 1, Purpose of Rules, poses of making this determination, the executive director may con- General Provisions; Chapter 39, Public Notice; Chapter 50, Ac- sider the following information contained in the withdrawn application tion on Applications and Other Authorizations; Chapter 70, En- and the refiled application: forcement; and Chapter 80, Contested Case Hearings. SB 709 is implemented by rules adopted in Chapters 39, 50, 55, and (1) the name of the applicant; 80. SB 1267, Sections 4, 6, 7, and 9, is implemented by rules (2) the location or proposed location of the construction, adopted in Chapters 1, 50, 55, 70, and 80. activity or discharge, to be authorized by the application; SB 709 (3) the air contaminants to be emitted; SB 709 makes several changes to the current contested case (4) the area to be served by a wastewater treatment facility; hearing (CCH) process for applications for air quality; water qual- ity; municipal solid waste; industrial and hazardous waste; and (5) the volume and nature of the wastewater to be treated underground injection control permits. Most of the changes ap- by a wastewater treatment facility; ply to applications filed and judicial proceedings regarding a per- (6) the volume and type of waste to be disposed; mit initiated on or after September 1, 2015. The specific changes to the CCH process are discussed further. (7) changes in methods of treatment or disposal of waste; or First, members of the public, or interested groups or associa- tions, who request a CCH must make timely comments on the (8) any other factor the executive director determines is rel- application to be considered as an affected person. For issues evant to this determination. to be eligible for a CCH referred to the State Office of Admin- The agency certifies that legal counsel has reviewed the adop- istrative Hearings (SOAH), they must have been raised by the tion and found it to be a valid exercise of the agency's legal au- affected person in a comment made by that affected person. A thority. group or association seeking to be considered as an affected person must specifically identify, by name and physical address Filed with the Office of the Secretary of State on December 11, in its timely hearing request, a member who would be an affected person in the person's own right.

2015.

TRD-201505524 Second, the executive director must notify the state senator and state representative for the area in which the facility is located Robert Martinez or is proposed to be located at least 30 days prior to issuance of Director, Environmental Law Division a draft permit. SB 709 also requires TCEQ to provide sufficient Texas Commission on Environmental Quality notice to applicants and others involved in permit proceedings Effective date: December 31 , 2015 that the changes in the law from SB 709 apply to all applications Proposal publication date: August 21, 2015 filed on or after September 1, 2015; this is required until the rules For further information, please call: (512) 239-2141 implementing SB 709 become effective December 31, 2015. ♦ ♦ ♦ Third , SB 709 identifies specific information that the commis- sion may consider when determining if hearing requesters are CHAPTER 55. REQUESTS FOR affected persons. SB 709 also prohibits the commission from finding a group or association is affected unless their CCH re- RECONSIDERATION AND CONTESTED quest has timely and specifically identified, by name and physi- CASE HEARINGS; PUBLIC COMMENT cal address, a member who would be affected in the member's

40 TexReg 9660 December 25, 2015 Texas Register requests as soon as they are named parties by obtaining a copy Court has restated its holding many times, most recently in June of the administrative record . 2015 (State v. Naylor, 466 S.W.3d 783 (Tex. 2015)).

The administrative record, which consists of certified copies of If a CCH was held, a party to the hearing is entitled to judicial documents, is provided to SOAH, but that action does not consti- review under the authority and procedures of the APA. If a CCH tute an applicant's prefiled testimony. Decisions regarding how is not available, a person affected by a final ruling, order, or de- applicants will present their case in the CCH will be governed by cision of the commission may file a petition for judicial review the ALJ's orders at the hearing based on the applicable rules. under TWC, §5.351 or THSC, §382.032 within 30 days after the Until specific issues arise regarding implementation of the new decision is final and appealable. A person seeking judicial review prima face case requirement and how it practically works with under any authority must have exhausted the available admin- regard to existing discovery rules, the commission declines to istrative remedies, including complying with applicable commis- make changes to its discovery rules. sion rules regarding motions for rehearing or reconsideration, e.g., §§50.119, 55.211, and 80.272. Requesting or participat- §55.211, Commission Action on Requests for Reconsideration ing in a CCH is not among the exhaustion requirements for judi- and CCH cial review of many permit actions under TWC, §5.351 or THSC, Comment §382.032.

EPA commented that the proposed revIsIons to §55. Even a person who failed to file timely public comment, failed to (c)(2)(A)(ii) remove the right of the hearing requestors to file a timely hearing request, failed to participate in a public meet- adopt comments made by others as their own issues for a ing held under the rules, and failed to participate in any CCH held CCH . Commenters frequently adopt the comments of others under Chapter 80 may file a motion for rehearing as provided instead of repeating those comments in their entirety during for in §§50.119, 55.211 or 80.272, or a motion to overturn the the public comment process. EPA requests clarification that executive director's decision under §50.139, as long as the mo- if a commenter adopts someone else's comments during the tion addresses only the changes from the draft permit to the final public comment period through written comments or verbally at permit decision, and thus, may exhaust administrative remedies a public meeting that the hearing requestor could still contest for purposes of seeking judicial review regarding those changes those issues at the hearing. If not, please explain whether (See §55.201 (h)). hearing requestors determined not to be "affected persons" on A finding by an ALJ or the commission concerning a person's sta- this basis could still have access to judicial review, including tus as an affected person would not bind a Texas district judge in standing. considering that person's standing to seek judicial review of the Response commission's action on a permit application, underTWC, §5.351 or THSC, §382.032. The "affected person" standard set out in SB 709, Section 1, Texas Government Code, §2003.047(e-1), §55.203 and TWC, §5.115(a) comes into play only in a decision provides that "(e)ach issue referred by the commission must on entitlement to a CCH, whereas the statutory availability of ju- have been raised by an affected person in a comment submit- dicial review does not depend on requesting or participating in a ted by that affected person in response to a permit application." CCH. (emphasis added) This new section also provides that the com- mission, when referring issues for a CCH , must develop a list For TPDES discharge and Underground Injection Control per- of issues that is detailed and complete and contains either only mits, the OAG agreed, in its "Statement of Legal Authority for the factual questions or mixed questions of fact and law. Prior to Texas National Pollutant Discharge Elimination System (TPDES) the adoption of Texas Government Code, §2003.047(e-1), the Program" in 1998 and "State of Texas Office of the Attorney Gen- controlling applicable law in TWC, §5.556 provides, in part, that eral Statement for Class I, 111, IV and V Underground Injection the commission may not refer an issue to SOAH unless it de- Wells" in 2003 that it will not rely on or refer to the conclusion termines that the issue "was raised during the public comment of an ALJ or the commission that a person is not an affected period" and is relevant and material to the decision on the ap- person as a basis to oppose participation by that person in sub- plication. The commission interprets SB 709 to mean that the sequent judicial proceedings brought under TWC, §5.351 . Al- legislature intends that the person who comments and submits though the OAG has not issued an opinion regarding what its a hearing request must individually and timely submit comments. position would be in judicial proceedings for the Resource Con- New comments cannot be made in a hearing request submitted servation and Recovery Act permitting program , TWC , §5.351 in response to the Executive Director's Response to Comments also applies and presumably the position of the OAG would be (as required by §55.156); this is because the new comments no different for that program. Similarly, although the OAG has would be untimely since they were submitted after the end of the not issued an opinion regarding what its position would be in ju- public comment period. dicial proceedings for the air quality NSR program , the require- ments of THSC , §382.032 are similar to those of TWC , §5.351 .

EPA specifically asks whether persons who comment and re- The OAG may, however, rely on the facts underlying the con- quest a hearing, but who are determined not to be affected per- clusion in opposing a person's standing in court. Also , when an sons, will still have access to judicial review. The following is ALJ or commission conclusion about affected person status is provided to explain judicial review for all possible scenarios with challenged in the judicial proceeding, the Attorney General may regard to degree of participation in the administrative process. defend that conclusion.

Standing is a question of law decided by a court (Cleaver v. Comment George Staton Co. Inc., 908 S.W.2d 468 (Tex. App - Tyler 1995, writ denied)). In 1993, the Texas Supreme Court held that TXSWANA and WEAT/TACWA suggest changing "by the af- standing is a component of subject matter jurisdiction and can be fected person" to "by an affected person whose request is raised for the first time on appeal (Tex. Ass'n of Business v. Tex. granted" in §55.211(c)(2)(A)(ii), stating that this language is Air Control Bd., 852 S.W.2d 440, 445 (1993)). The Supreme

40 TexReg 9670 December 25, 2015 Texas Register Automated Certificate of eService This automated certificate of service was created by the efiling system.

The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Kim McBride on behalf of Derek Seal Bar No. 797404 [email protected] Envelope ID: 96098837 Filing Code Description: Exhibits - Exempt Filing Description: Appellants' Exhibits For Oral Argument Status as of 1/10/2025 4:37 PM CST Associated Case Party: Calhoun Port Authority Name BarNumber Email TimestampSubmitted Status Michael Woodward 21979300 [email protected] 1/10/2025 4:11:58 PM SENT Barton Hejny 24082231 [email protected] 1/10/2025 4:11:58 PM SENT Petrus J.Wassdorf [email protected] 1/10/2025 4:11:58 PM SENT Alan Sanders [email protected] 1/10/2025 4:11:58 PM SENT

Associated Case Party: Texas Oil & Gas Association Name BarNumber Email TimestampSubmitted Status Samia Broadaway 24088322 [email protected] 1/10/2025 4:11:58 PM SENT Beau Carter [email protected] 1/10/2025 4:11:58 PM SENT

Associated Case Party: Max Midstream, LLC Name BarNumber Email TimestampSubmitted Status Derek Seal [email protected] 1/10/2025 4:11:58 PM SENT Jordan Mullins [email protected] 1/10/2025 4:11:58 PM SENT April Lucas [email protected] 1/10/2025 4:11:58 PM SENT Kim McBride [email protected] 1/10/2025 4:11:58 PM SENT

Case Contacts Name BarNumber Email TimestampSubmitted Status Colton Halter [email protected] 1/10/2025 4:11:58 PM SENT Debbie Trevino [email protected] 1/10/2025 4:11:58 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system.

Kim McBride on behalf of Derek Seal Bar No. 797404 [email protected] Envelope ID: 96098837 Filing Code Description: Exhibits - Exempt Filing Description: Appellants' Exhibits For Oral Argument Status as of 1/10/2025 4:37 PM CST Associated Case Party: Texas Commission on Environmental Quality Name BarNumber Email TimestampSubmitted Status Erin Snody [email protected] 1/10/2025 4:11:58 PM SENT Annalisa Guartuche [email protected] 1/10/2025 4:11:58 PM SENT Sara Ferris [email protected] 1/10/2025 4:11:58 PM SENT David Laurent [email protected] 1/10/2025 4:11:58 PM SENT

Associated Case Party: San Antonio Bay Estuarine Waterkeeper Name BarNumber Email TimestampSubmitted Status Erin Gaines [email protected] 1/10/2025 4:11:58 PM SENT Michelle Carlos [email protected] 1/10/2025 4:11:58 PM SENT Claire Huebler [email protected] 1/10/2025 4:11:58 PM SENT Ilan Levin [email protected] 1/10/2025 4:11:58 PM SENT

Associated Case Party: Texas Campaign for the Environment Name BarNumber Email TimestampSubmitted Status Erin Gaines [email protected] 1/10/2025 4:11:58 PM SENT Michelle Carlos [email protected] 1/10/2025 4:11:58 PM SENT Claire Huebler [email protected] 1/10/2025 4:11:58 PM SENT Ilan Levin [email protected] 1/10/2025 4:11:58 PM SENT

Associated Case Party: S.DianeWilson Name BarNumber Email TimestampSubmitted Status Automated Certificate of eService This automated certificate of service was created by the efiling system.

Kim McBride on behalf of Derek Seal Bar No. 797404 [email protected] Envelope ID: 96098837 Filing Code Description: Exhibits - Exempt Filing Description: Appellants' Exhibits For Oral Argument Status as of 1/10/2025 4:37 PM CST Associated Case Party: S.DianeWilson Name BarNumber Email TimestampSubmitted Status Ethan Siegel [email protected] 1/10/2025 4:11:58 PM SENT Karis Adams [email protected] 1/10/2025 4:11:58 PM SENT

Case-law data current through December 31, 2025. Source: CourtListener bulk data.