1. (a) Except to the extent superseded by subsection (b) of this section, the executive director shall not participate as a party in the following contested case hearings concerning permitting matters:

   1. (1) an application concerning municipal solid waste where land use is the sole issue at hearing, including hearings held for determination of land use compatibility under Texas Health and Safety Code (THSC), §361.069;
   2. (2) an application for an air quality standard permit to authorize a concrete batch plant under THSC, §382.05195;
   3. (3) an application for an air quality permit to authorize emissions from facilities which solely emit the types of emissions that do not require health and welfare effects review as specified on the Toxicology and Risk Assessment (TARA) Section Emissions Screening List;
   4. (4) an application for a permit for a municipal solid waste transfer facility under §330.4 of this title (relating to Permit Required);
   5. (5) an application for a permit for the processing of grit and grease trap waste under §330.4 of this title;
   6. (6) an application for a permit for composting facilities under §332.3 of this title (relating to Applicability); and
   7. (7) an application to authorize solely the irrigation of domestic or municipal wastewater effluent meeting the requirements for secondary treatment in Chapter 309 of this title (relating to Domestic Wastewater Effluent Limitation and Plant Siting).

2. (b) The executive director shall participate as a party in the following contested case hearings relating to permitting matters:

   1. (1) an application concerning water rights;
   2. (2) an application for which the executive director has recommended denial of the permit;
   3. (3) an involuntary amendment; and
   4. (4) an application for which the draft permit includes provisions opposed by the applicant.

3. (c) For permitting matters not included in subsections (a) or (b) of this section, the executive director shall, on a case-by-case basis, consider the following criteria in the manner specified in determining whether to participate as a party.

   1. (1) The executive director shall, as a preliminary matter, determine whether there is any issue to be presented in the hearing that merits participation of the executive director, based on the existence of one or more of the following:

      1. (A) one or more of the issues to be presented in the hearing are new, unique, or complex, including consideration of whether an issue relates to more than one medium, and whether it is likely that construction of prior agency policy or practice will be involved;
      2. (B) it is likely that the decision on any of the issues to be presented in the hearing will have significant implications for other agency actions or policies;
      3. (C) it is likely that changes to proposed permit conditions could adversely affect human health or the environment; or
      4. (D) any issue to be considered is likely to affect federal program approval or authorization.

   2. (2) If the executive director finds that there are issues weighing in favor of participation under paragraph (1) of this subsection, the executive director may elect to participate as a party or he may also consider the following factors in the manner described:

      1. (A) whether there is a significant disparity in the experience and resources of the parties. A significant disparity weighs in favor of executive director participation. In evaluating whether there is a significant disparity, the executive director shall consider:

         1. (i) the legal capacity of the parties, based on whether any party is not represented by counsel and the prior contested case hearing experience of the parties at the agency;

         2. (ii) the financial capacity of the parties, including documentation or evidence of financial disparity if offered by any party, and including whether any party is:

            1. (I) a qualifying local governmental entity;
            2. (II) a non-profit entity; or
            3. (III) a small business; and

         3. (iii) the technical capacity of the parties, including an evaluation of:

            1. (I) the number and complexity of the administrative and technical notices of deficiency issued during the administrative and technical review of the application;
            2. (II) the number and complexity of the technical issues raised by parties to the hearing during the comment period or at the preliminary hearing; and
            3. (III) whether any of the parties does not have access to a technical expert; and
      2. (B) whether there are limitations on the availability of agency staff, including specialized staff expertise on the issues to be presented at hearing, which shall weigh against executive director participation; and
      3. (C) whether the draft permit contains any provision that has been included by the executive director to address an applicant's compliance history, which shall weigh in support of executive director participation.
4. (d) The executive director's participation as a party under subsection (b) or (c) of this section shall be for the sole purpose of providing information to complete the administrative record.

5. (e) When the executive director participates as a party in a contested case hearing concerning a permitting matter before the commission or SOAH, the executive director may not assist an applicant in meeting its burden of proof unless the applicant is eligible to receive assistance because:

   1. (1) the applicant is a qualifying local governmental entity; or
   2. (2) the applicant is a non-profit entity; and
   3. (3) there is a significant public need for the permitting action to avoid adverse impact to human health or the environment.
6. (f) The executive director may elect to participate as a party for the purpose of assisting an applicant in meeting its burden of proof in accordance with subsection (e) of this section notwithstanding the provisions of subsections (a) - (d) of this section.
7. (g) The executive director must notify all parties and the SOAH judge of his intention to participate as a party to a contested case hearing concerning a permitting matter in writing or on the record as soon as practicable, but not later than one week after the end of the preliminary hearing.
8. (h) The executive director's decision on participation as a party in contested case hearing concerning a permitting matter and the executive director's decision on whether an applicant is eligible to receive assistance in accordance with subsection (e) of this section are not subject to review by the commission or SOAH.
9. (i) This section does not apply to matters in which the executive director is a party in accordance with §80.109(b)(1) of this title (relating to Designation of Parties).

10. (j) For purposes of this section:

    1. (1) "qualifying local governmental entity" means a district, authority, county, or municipality that demonstrates that it lacks the technical, legal, and financial resources to support its application in the contested case hearing process; and
    2. (2) "small business" means a small business as defined by §70.9(b)(1) and (2) of this title (relating to Installment Payment of Administrative Penalty).
    3. (3) "non-profit entity" shall mean those entities which are defined in 26 United States Code, §501(c)(3) and (4).
11. (k) The executive director shall record his decision on party participation and the grounds for his decision under this section on a case-by-case basis.
12. (l) The executive director shall on an annual basis compile the records required by subsection (k) of this section and present this information to the commission in a written report.

Source Note:The provisions of this §80.108 adopted to be effective November 15, 2001, 26 TexReg 9105.