SECTION 80.17. Burden of Proof

(a) The burden of proof is on the moving party by a preponderance of the evidence, except as provided in subsection (b) of this section.

(b) In an enforcement case, the executive director has the burden of proving by a preponderance of the evidence the occurrence of any violation and the appropriateness of any proposed technical ordering provisions. The respondent has the burden of proving by a preponderance of the evidence all elements of any affirmative defense asserted. Any party submitting facts relevant to the factors prescribed by the applicable statute to be considered by the commission in determining the amount of the penalty has the burden of proving those facts by a preponderance of the evidence.

(c) In contested cases regarding a permit application filed with the commission on or after September 1, 2015, and referred under Texas Water Code, §5.556 or §5.557:

(1) the filing of the administrative record as described in §80.118(c) of this title (relating to Administrative Record) establishes a prima facie demonstration that the executive director's draft permit meets all state and federal legal and technical requirements, and, if issued consistent with the executive director's draft permit, would protect human health and safety, the environment, and physical property;

(2) a party may rebut the presumption in paragraph (1) of this subsection by presenting evidence regarding the referred issues demonstrating that the draft permit violates a specifically applicable state or federal legal or technical requirement; and

(3) if a rebuttal case is presented by a party under paragraph (2) of this subsection, the applicant and executive director may present additional evidence to support the executive director's draft permit.

Source Note: The provisions of this §80.17 adopted to be effective June 6, 1996, 21 TexReg 4763; amended to be effective September 23, 1999, 24 TexReg 8276; amended to be effective November 15, 2001, 26 TexReg 9105; amended to be effective May 3, 2012, 37 TexReg 3147; amended to be effective December 31, 2015, 40 TexReg 9680; amended to be effective January 3, 2019, 43 TexReg 8611