Jeremy L. Dillon
RW Monitor
10/16/2015
The Texas Supreme Court last week denied the Sierra Club’s petition for review in its case against the Texas Commission on Environmental Quality (TCEQ) for allegedly violating state administrative laws in the Waste Control Specialists radioactive waste disposal licensing proceedings. The Sierra Club claimed in its suit that TCEQ failed to adhere to the nongovernmental organization’s request for a hearing on the licensing, which it argued subverted stakeholders’ ability to voice their opposition to the permit. The original court ruled that it is up to TCEQ as the regulatory body to decide what affects public safety, and if the commission determines a contested hearing is not warranted, that is its lawful discretion, an argument upheld in the appeals court decision.
According to the Sierra Club, the administrative process in Texas to receive a hearing invokes a low burden of proof. As long as the person requesting the hearing has some connection to the affected area, such as living near the area, owning land in the area, or visiting the area often, TCEQ needs to grant that request, it said. But TCEQ argued that the members of the Sierra Club who requested a hearing did not live close enough to make the public health claims.
In its briefs, the Sierra Club reasoned that allowing TCEQ to decide the necessity for a hearing could set a precedent that would deny citizens the right to protest a permit. “By focusing only on whether there is substantial information in the record that supports TCEQ’s decision, the appellate court has ceded to TCEQ complete discretion to deny hearing requests without requiring any constitutional standing analysis, leaving affected persons with practically no meaningful legal recourse to challenge the denial of their hearing request,” the Sierra Club said in its petition to the Texas Supreme Court. “This is an unprecedented decision that, if not reversed, will undoubtedly affect a variety of persons with legally protected interests, who seek to protect their property rights by challenging a permit that could adversely impact those rights, via an evidentiary contested-case hearing.” The Sierra Club declined to comment further this week.
In response, TCEQ made the case that under its analysis, the Sierra Club did not have grounds to request a hearing. “The appeals court correctly found that TCEQ’s decisions had reasonable support in the record,” TCEQ said in its response brief. “TCEQ determined that there was no plausible likelihood that Sierra Club’s members would be adversely affected because they are upwind, upstream, and up gradient of WCS’s facilities. A sworn application with attached expert reports and the analysis of TCEQ’s professional staff and its outside consultants supported TCEQ’s determination. Sierra Club’s hearing requests relied on unsubstantiated, conclusory speculation. And the scant expert testimony that Sierra Club did offer actually supported TCEQ’s determination (or didn’t contradict it).” TCEQ declined to comment further this week.
