Part 1.
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
Chapter 39.
PUBLIC NOTICE
The Texas Commission on Environmental Quality (commission) proposes
amendments to §§39.405, 39.418, 39.419, 39.503, 39.603, 39.604,
and 39.651.
BACKGROUND AND SUMMARY OF THE FACTUAL BASIS FOR THE PROPOSED RULES
Currently, alternative language notice is required for air quality authorizations.
The requirement to publish notice in an alternative language newspaper is
triggered for air authorizations when either the elementary or middle school
nearest to the facility or proposed facility is required to provide a bilingual
education program under the Texas Education Code. This standard applies to
newspaper publication of the Notice of Receipt of Application and Intent to
Obtain Permit (NORI) and the Notice of Application and Preliminary Decision
(NAPD), as identified under §39.418 and §39.419.
In response to recent legislative inquiries concerning the absence of bilingual
public notice in other media, the commission proposes revisions to existing
public notice regulations to maximize public participation in the permitting
process, while complementing the goal of House Bill (HB) 801, enacted in 1999,
to encourage early public participation. Under the proposed amendments, the
requirement to provide published, public notice in an alternative language
would extend to NORIs and NAPDs for Municipal Solid Waste Permits, Industrial
or Hazardous Waste Facility Permits, Class 3 Modifications of Industrial or
Hazardous Waste Facility Permits, Wastewater Discharge Permits (including
permits for the disposal of sewage sludge or water treatment sludge, but excluding
registrations and notifications for sludge disposal under 30 TAC §312.13),
Underground Injection Control Permits, and applications for production area
authorizations. It is important to note that this proposed rulemaking is not
intended to change current notice requirements applicable to a particular
program, but rather to require alternative language notice under specified
circumstances. The proposal ensures meaningful participation in the permitting
process.
SECTION BY SECTION DISCUSSION
To conform with commission and Texas Register formatting requirements,
non-substantive revisions are made throughout the sections to correct citations,
acronym usage, and other minor issues. The commission also proposes to change
the word "shall" to "must," "must" to "shall," and "which" to "that" in numerous
locations to the proposed amendments to conform to the drafting rules in the
Section 39.405, General Notice Provisions
The proposed amendment to §39.405 would require newspaper publication
of notice in alternative language(s) under certain circumstances. Specifically,
when an applicant is required to publish a NORI or a NAPD, and either the
elementary or middle school nearest in proximity to the facility subject to
the permit application is required to provide a bilingual education program
under the applicable provision of the Texas Education Code, in conjunction
with the satisfaction of one of three elements identified in this proposed
section, the applicant must publish the notice in an alternative language
newspaper that is printed in the same language as that taught through the
school bilingual education program.
Section 39.405(h) would also set standards for the acceptable circulation
of an alternative language newspaper that may publish the required notice.
The standards differ between notice for air quality permits and notices for
all other media, which require alternative language notice publication under
this proposed subsection. This difference is based upon the existence of specific
statutory direction regarding the circulation standards for air quality alternative
language notice publications. The standard proposal for non-air quality alternative
language notice publications is designed to achieve appropriate public notice,
consistent with the approach implemented in the English newspaper publication
requirements for certain HB 801 authorizations. It should be noted that the
newspaper circulation requirements differ between English and alternative
language notices. This is due to the inherent differences between English
and alternative language newspaper publications, and the statutory requirements
which prescribe the circulation standards for newspapers qualified to publish
English notices. The English newspaper circulation requirements also differ
between media, such as solid waste versus water quality, per statutory mandate.
For air quality authorizations, an applicant would be required to publish
in a newspaper or publication of general circulation within either the municipality
or county in which the subject facility is or will be located. This circulation
requirement is mandated by statute. For waste and water quality authorizations,
an applicant would be required to publish in the county where the facility
is or will be located. However, if there is a newspaper or publication of
general circulation in the municipality that is home to the subject facility,
then the applicant must publish in that newspaper or publication. The rationale
behind this requirement is to avoid a result in which an applicant publishes
notice in a part of the facility's county that is far in proximity from the
potentially interested community.
Additionally, the proposed amendment provides a waiver under limited circumstances
if all qualifying newspapers refuse to publish the notice or no qualifying
publication exists within the applicable geographical area as currently provided
for in the air quality permitting program.
Section 39.418, Notice of Receipt of Application
and Intent to Obtain Permit
The proposed amendment to §39.418(b)(1) and (3) would add language
clarifying that published notices under paragraphs (1) and (3) are subject
to the alternative language newspaper publication requirements of §39.405(h).
Section 39.419, Notice of Application and Preliminary
Decision
The proposed amendment to §39.419(b) and (e)(3) would add language
clarifying that published notices under subsection (b) and (e)(3) are subject
to the alternative language newspaper publication requirements of §39.405(h).
Section 39.503, Application for Industrial or
Hazardous Waste Facility Permit
The proposed amendment to §39.503(d) would add language clarifying
that published notices under subsection (d) are subject to the alternative
language newspaper publication requirements of §39.405(h).
Section 39.603, Newspaper Notice
The proposed amendment to §39.603 would delete subsection (d), which
sets forth procedural and substantive requirements for publishing certain
notices of air quality permit applications in an alternative language newspaper.
In light of proposed §39.405(h), the effect of the air-specific alternative
language newspaper notice provision would be duplicative and unnecessary.
There would be no alteration to the current alternative language newspaper
notice requirements for air quality permits as a result of the proposed amendment
to §39.603.
Section 39.604, Sign-Posting
The proposed amendment to §39.604 would change the existing cross-reference
in subsection (e), which applies the trigger for the air-specific alternative
language newspaper notice requirements to alternative language sign-posting
requirements within the air quality permitting program. Under the current
proposal, §39.603, as it pertains to alternative language newspaper notice,
would be deleted. However, the requirements of current §39.603(d) remain
in full force and effect under proposed §39.405(h). Therefore, the substitution
of the cross-reference to §39.603 in favor of §39.405(h) will achieve
regulatory accuracy without imposing any different substantive change in requirements
to the sign-posting requirements under §39.604.
Section 39.651, Application for Injection Well
Permit
The proposed amendment to §39.651(d) would add language clarifying
that published notices under subsection (d) are subject to the alternative
language newspaper publication requirements of §39.405(h).
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Nina Chamness, Analyst, Strategic Planning and Grants Management Section,
determined that for the first five-year period the proposed amendments are
in effect, no significant fiscal implications are anticipated for the agency
or other units of state as a result of administration or enforcement of the
proposed amendments. There are anticipated fiscal implications for local governments
due to increased publication. The proposed amendments would require that all
Notices of Receipt and Intent (NORI) and Notices of Application and Preliminary
Decision (NAPD), required for authorizations subject to the public notice
requirements in Chapter 39, Subchapters H - N, be published in an alternative
language in a bilingual newspaper in addition to the English publication requirements.
Current rules only require the Air Quality Permitting Program to provide
notice in an alternative language when either an elementary or middle school
closest to a facility or proposed facility offers a bilingual education program.
The proposed amendments would extend the alternative language requirement
to all NORI and NAPD notices for all House Bill (HB) 801 media if the nearest
elementary or middle school to the facility or proposed facility has a bilingual
education program. The experience of the Air Quality Permitting Program shows
that approximately 60% of its notices are affected by the bilingual rules.
This fiscal note assumes that the waste and water NORIs and NAPDs could be
translated into Spanish templates through the use of contracted services.
Based upon the experience of the air quality program, the vast majority of
required alternative notices are published in Spanish. The agency does not
provide templates to the applicants in other languages. In the rare circumstances
in which publication is required in a non-Spanish alternative language, an
applicant is required to ensure proper translation for publication.
An increase in the number of alternative language notices required will
increase the cost to translate notices in a template format. Translation costs
are negotiable and can vary widely depending on the vendor, the number of
words in the document, the language difficulty of the document, and the number
of documents a vendor may be asked to translate. Costs to translate 23 NORI
and 25 NAPD templates are estimated to range from $2,000 to $7,000 for NORIs
and $2,500 to $7,000 for NAPDs. These costs assume that a NORI for water quality
issues would have an estimated 665 words and a NAPD would have 691 words.
Recent quotes for translation costs ranged $.15 cents a word to $30 for 225
words and $225 for 300 words. The number of words above the base word limits
quoted were estimated to cost $.15 cents per word to translate. If the actual
number of words in a translated NORI or NAPD exceed the number of words used
for cost estimates, then translation costs could be higher. Translation costs
are expected to be one-time costs, but additional costs could be incurred
in future years and will vary depending on legislative or rule changes that
would affect the need to change the wording of the templates.
Local Governments
Local governments would be fiscally impacted by the proposed amendments.
Local governments could see publication costs increase since NORIs and NAPDs
will be required to be published in both English and an alternative language.
However, the exact amount of publication costs, which for some local governments
could be significant, is not known since such costs vary widely across the
state depending on the circulation numbers of the newspaper, the size of the
notice, and the number of competitors in the newspaper market. Costs to publish
in alternative language newspapers with a circulation of 10,000 in an East
Texas county where there is no large metropolitan area can range from $600
to $630. Costs to publish public notices in an alternative language newspaper
serving Hidalgo, Cameron, Starr, and Willacy Counties with a circulation of
15,000 is estimated to be $255. In Harris County, publication costs in an
alternative language newspaper can range from $700 to $1,000 depending on
the circulation statistics of the paper. In Travis County, publication of
public notices can range from $400 to $500.
PUBLIC BENEFITS AND COSTS
Ms. Chamness also determined that for each year of the first five years
the proposed amendments are in effect, the public benefit anticipated from
the changes seen in the proposed amendments will be in compliance with legislative
mandates and increased opportunity for non-English speaking citizens to become
more involved in environmental issues that could affect them.
Fiscal implications are anticipated for businesses and individuals required
to publish NORIs and NAPDs. Businesses and individuals, dealing with water
and waste actions, will see an increase in publication costs since NORIs and
NAPDs will be required to be published in both English and an alternative
language. However, the exact amount of publication costs, which for some local
governments could be significant depending on number of authorizations sought,
is not known since such costs vary widely across the state depending on the
circulation numbers of the newspaper, the size of the notice, and the number
of competitors in the newspaper market. Costs to publish in alternative language
newspapers with a circulation of 10,000 in a county where there is no large
metropolitan area can be $600 to $630. Costs to publish public notices in
an alternative language newspaper serving Hidalgo, Cameron, Starr, and Willacy
Counties with a circulation of 15,000 is estimated to be $255. In Harris County,
publication costs in an alternative language newspaper can range from $700
to $1,000 depending on the circulation statistics of the paper. In Travis
County, publication of public notices can range from $400 to $500. Additional
costs borne by regulated entities, may be passed on to rate payers, taxpayers,
or consumers.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
Adverse fiscal implications are anticipated for small or micro-businesses
because of the proposed amendments. A small business is defined as having
fewer than 100 employees or less than $1 million in annual gross receipts.
A micro-business is defined as having no more than 20 employees.
Small or micro-businesses would be subject to the same publication costs
as those experienced by larger businesses when publishing waste and water
NORIs and NAPDs in an alternative language. If publication costs for water
and waste NORIs and NAPDs in an alternative language newspaper range from
$255 to $1,000, cost per employee would range from $2.55 to $10 per employee.
For a micro-business, these publication costs could range from $12.75 to $50
per employee.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed amendments
do not adversely affect a local economy in a material way for the first five
years that the proposed amendments are in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirements of Texas Government Code, §2001.0225, and determined
that the proposed rulemaking is not subject to §2001.0225 because it
does not meet the definition of a "major environmental rule" as defined in
the Texas Government Code. A "major environmental rule" is a rule the specific
intent of which is to protect the environment or reduce risks to human health
from environmental exposure and that may adversely affect in a material way
the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. The primary purpose
of this proposed rulemaking action is to extend the alternative language notice
requirements, as they currently exist within the air quality permitting program,
to waste and water quality authorizations subject to HB 801 procedural requirements.
The goal of this expansion is to maximize public awareness of, and involvement
in, the commission's authorization activities. The rulemaking is procedural
in nature and does not address environmental risks or exposures. Therefore,
the proposed rulemaking does not constitute a major environmental rule, and
thus is not subject to a formal regulatory analysis.
TAKINGS IMPACT ASSESSMENT
The commission completed a takings impact analysis for the proposed rulemaking
action under Texas Government Code, §2007.043. The specific primary purpose
of the proposed amendments is to revise the TCEQ rules to establish procedures
for the provision of bilingual notice to the public of certain TCEQ permitting
proceedings. The proposed amendments will substantially advance this purpose
by providing specific provisions on the previously mentioned matters. Promulgation
and enforcement of the proposed amendments will not affect private real property,
which is the subject of the amendments because the proposed rulemaking is
related to the commission's procedural rules, rather than substantive requirements.
Implementation of the proposed amendments would not result in any taking of
real property. Alternative approaches to the amendments as proposed would
include shifting financial burdens associated with providing notice in alternative
language upon the state, or altering the scope of authorizations that would
be subject to alternative language notice requirements. The alternatives to
the proposed amendments would advance the underlying goal of maximizing public
involvement in environmental matters that concern the citizens of Texas. If
implemented, neither the amendments as proposed, nor these alternatives, would
constitute a taking.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that the proposal
is a rulemaking identified in the Coastal Coordination Act Implementation
Rules, 31 TAC §505.11(b)(2), relating to the rules subject to the Texas
Coastal Management Program (CMP), and will, therefore, require that goals
and policies of the CMP be considered during the rulemaking process.
The commission reviewed this rulemaking for consistency with the CMP goals
and policies in accordance with the regulations of the Coastal Coordination
Council and determined that the rulemaking is consistent with the CMP goals
and policies because the rulemaking concerns public notice rules. The public
notice rules are a procedural mechanism for notifying the general public of
certain permitting actions, but will not have a direct or significant adverse
effect on any coastal natural resource areas; will not have a substantive
effect on commission actions subject to the CMP; and promulgation and enforcement
of the proposed amendments will not violate (exceed) any standards identified
in the applicable CMP goals and policies.
Comments on the consistency of this proposed rulemaking with the CMP may
be submitted to the contact persons at the addresses listed under the SUBMITTAL
OF COMMENTS section of this proposal.
EFFECT ON SITES SUBJECT TO THE FEDERAL OPERATING PERMITS PROGRAM
This rulemaking proposal will not affect sites subject to the federal operating
permits program in Chapter 122.
ANNOUNCEMENT OF HEARING
A public hearing for this proposed rulemaking has been scheduled for June
10, 2005, 10:00 a.m., at the Texas Commission on Environmental Quality, 12100
Park 35 Circle, Building F, Room 2210, Austin. The hearing will be structured
for the receipt of oral or written comments by interested persons. Registration
will begin 30 minutes prior to the hearing. Individuals may present oral statements
when called upon in order of registration. A time limit may be established
at the hearing to assure that enough time is allowed for every interested
person to speak. There will be no open discussion during the hearing; however,
commission staff members will be available 30 minutes before the hearing to
discuss the proposal and will answer questions before and after the hearing.
Persons planning to attend the hearing who have special communication or
other accommodation needs should contact Ms. Patricia Durón, Office
of Legal Services at (512) 239-6087. Requests should be made as far in advance
as possible.
SUBMITTAL OF COMMENTS
Written comments may be submitted to Ms. Patricia Durón, MC 205,
Texas Register Team, Office of Legal Services, Texas Commission on Environmental
Quality, P.O. Box 13087, Austin, Texas, 78711-3087, or faxed to (512) 239-4808.
All comments should reference Rule Project Number 2005-014-039-LS. Comments
must be received no later than 5:00 p.m., June 13, 2005. For further information,
please contact Mr. Les Trobman of the Environmental Law Division at (512)
239-6056 or Ms. Kerrie Qualtrough of the Environmental Law Division at (512)
239-3990.
Subchapter H. APPLICABILITY AND GENERAL PROVISIONS
30 TAC §§39.405, 39.418, 39.419
STATUTORY AUTHORITY
The amendments are proposed under Texas Water Code, §5.013, concerning
General Jurisdiction of Commission; §5.102, concerning General Powers; §5.103,
concerning Rules; §5.105, concerning General Policy; §5.115, concerning
Persons Affected in Commission Hearings; Notice of Application; §5.552,
concerning Notice of Intent to Obtain a Permit; and §5.553, concerning
Preliminary Decision; Notice and Public Comment. The amendments are also proposed
under Texas Water Code, §26.028, concerning Action on Application; Texas
Health and Safety Code, §361.011, concerning Commission's Jurisdiction:
Municipal Solid Waste; §361.017, concerning Commission's Jurisdiction:
Industrial Solid Waste and Hazardous Municipal Waste; §361.024, concerning
Rules and Standards; §361.064, concerning Permit Application Form and
Procedures; §361.0665, concerning Notice of Intent to Obtain Municipal
Solid Waste Permit; §361.082, concerning Application for Hazardous Waste
Permit: Notice and Hearing; and §361.121, concerning Land Application
of Certain Sludge; Permit Required. The proposed extension of alternative
language notice requirements to the regulated underground injection control
media is also supported by Texas Water Code, §27.019, concerning Rules,
Etc.
The proposed amendments implement Texas Water Code, §§5.013,
5.102, 5.103, 5.115, 5.552, 5.553, 26.028, and 27.019; and Texas Health and
Safety Code, §§361.011, 361.017, 361.024, 361.064, 361.0665, 361.082,
361.121.
§39.405.General Notice Provisions.
(a)
Failure to publish notice. If the chief clerk prepares
a newspaper notice that is required by Subchapters G - M of this chapter (relating
to Public Notice for Applications for Consolidated Permits, Applicability
and General Provisions, Public Notice of Solid Waste Applications, Public
Notice of Water Quality Applications and Water Quality Management Plans, Public
Notice of Air Quality Applications, Public Notice of Injection Well and Other
Specific Applications, and Public Notice for Radioactive Material Licenses)
and the applicant does not cause the notice to be published within 45 days
of mailing of the notice from the chief clerk, or for Notice of Receipt of
Application and Intent to Obtain Permit, within 30 days after the executive
director declares the application administratively complete, or fails to submit
the copies of notices or affidavit required in subsection (e) of this section,
the executive director may cause one of the following actions to occur.
(1)
The chief clerk may cause the notice to be published and
the applicant shall reimburse the agency for the cost of publication.
(2)
The executive director may suspend further processing or
return the application. If the application is resubmitted within six months
of the date of the return of the application, it
will
[
(b)
Electronic mailing lists. The chief clerk may require the
applicant to provide necessary mailing lists in electronic form.
(c)
Mail or hand delivery. When Subchapters G - L of this chapter
require notice by mail, notice by hand delivery may be substituted. Mailing
is complete upon deposit of the document, enclosed in a prepaid, properly
addressed wrapper, in a post office or official depository of the United States
Postal Service. If hand delivery is by courier-receipted delivery, the delivery
is complete upon the courier taking possession.
(d)
Combined notice. Notice may be combined to satisfy more
than one applicable section of this chapter.
(e)
Notice and affidavit. When Subchapters G - L of this chapter
require an applicant to publish notice, the applicant must file a copy of
the published notice and a publisher's affidavit with the chief clerk certifying
facts that constitute compliance with the requirement. The deadline to file
a copy of the published notice which shows the date of publication and the
name of the newspaper is ten business days after the last date of publication.
The deadline to file the affidavit is 30 calendar days after the last date
of publication for each notice. Filing an affidavit certifying facts that
constitute compliance with notice requirements creates a rebuttable presumption
of compliance with the requirement to publish notice. When the chief clerk
publishes notice under subsection (a) of this section, the chief clerk shall
file a copy of the published notice and a publisher's affidavit.
(f)
Published notice. When this chapter requires notice to
be published under this subsection:
(1)
the applicant shall publish notice in the newspaper of
largest circulation in the county in which the facility is located or proposed
to be located or, if the facility is located or proposed to be located in
a municipality, the applicant shall publish notice in any newspaper of general
circulation in the municipality. For air applications subject to §39.603
of this title (relating to Newspaper Notice), applicants shall instead publish
notice as required by that rule; and
(2)
for applications for solid waste permits and injection
well permits, the applicant shall publish notice in the newspaper of largest
general circulation that is published in the county in which the facility
is located or proposed to be located. If a newspaper is not published in the
county, the notice must be published in any newspaper of general circulation
in the county in which the facility is located or proposed to be located.
The requirements of this subsection may be satisfied by one publication if
the newspaper is both published in the county and is the newspaper of largest
general circulation in the county.
(g)
The applicant shall make a copy of the application available
for review and copying at a public place in the county in which the facility
is located or proposed to be located. If the application is submitted with
confidential information marked as confidential by the applicant, the applicant
shall indicate in the public file that there is additional information in
a confidential file. The copy of the application
must
[
(1)
A copy of the administratively complete application must
be available for review and copying beginning on the first day of newspaper
publication of Notice of Receipt of Application and Intent to Obtain Permit
and remain available for the publications' designated comment period.
(2)
A copy of the complete application (including any subsequent
revisions to the application) and executive director's preliminary decision
must be available for review and copying beginning on the first day of newspaper
publication required by this section and remain available until the commission
has taken action on the application or the commission refers issues to
State Office of Administrative Hearings
[
(h)
Alternative language newspaper
notice.
(1)
Air applications or registrations that are declared
administratively complete by the executive director on or after September
1, 1999, are subject to this subsection. Permit applications that are required
to comply with §39.418 or §39.419 of this title (relating to Notice
of Receipt of Application and Intent to Obtain Permit; and Notice of Application
and Preliminary Decision) that are declared administratively complete by the
executive director on or after March 31, 2006, are subject to this subsection.
(2)
This subsection applies whenever notice is required
to be published under §39.418 or §39.419 of this title (relating
to Notice of Receipt of Application and Intent to Obtain Permit; and Notice
of Application and Preliminary Decision), and either the elementary or middle
school nearest to the facility or proposed facility is required to provide
a bilingual education program as required by Texas Education Code, Chapter
29, Subchapter B, and 19 TAC §89.1205(a) (relating to Required Bilingual
Education and English as a Second Language Programs) and one of the following
conditions is met:
(A)
students are enrolled in a program at that school;
(B)
students from that school attend a bilingual
education program at another location; or
(C)
the school that otherwise would be required
to provide a bilingual education program waives out of this requirement under
19 TAC §89.1205(g).
(3)
Elementary or middle schools that offer English
as a second language under 19 TAC §89.1205(e), and are not otherwise
affected by 19 TAC §89.1205(a), will not trigger the requirements of
this subsection.
(4)
The notice must be published in a newspaper
or publication that is published primarily in the alternative languages in
which the bilingual education program is or would have been taught, and the
notice must be in those languages.
(5)
The newspaper or publication must be of general
circulation in the county in which the facility is located or proposed to
be located. If the facility is located or proposed to be located in a municipality,
and there exists a newspaper or publication of general circulation in the
municipality, the applicant shall publish notice only in the newspaper or
publication in the municipality. This paragraph does not apply to notice required
to be published for air quality permits under §39.603 of this title.
(6)
For notice required to be published in a newspaper
or publication under §39.603 of this title, relating to air quality permits,
the newspaper or publication must be of general circulation in the municipality
or county in which the facility is located or is proposed to be located, and
the notice must be published as follows.
(A)
One notice must be published in the public notice
section of the newspaper and must comply with §39.411 of this title (relating
to Text of Public Notice).
(B)
Another notice with a total size of at least
six column inches, with a vertical dimension of at least three inches and
a horizontal dimension of at least two column widths, or a size of at least
12 square inches, must be published in a prominent location elsewhere in the
same issue of the newspaper. This notice must contain the following information:
(i)
permit application number;
(ii)
company name;
(iii)
type of facility;
(iv)
description of the location of the facility;
and
(v)
a note that additional information is in the
public notice section of the same issue.
(7)
The requirements of this subsection are waived
for each language in which no publication exists, or if the publishers of
all alternative language publications refuse to publish the notice. If the
alternative language publication is published less frequently than once a
month, this notice requirement may be waived by the executive director on
a case-by-case basis.
(8)
Notice under this subsection will only be required
to be published within the United States.
(9)
Each alternative language publication must follow
the requirements of this chapter that are consistent with this subsection.
(10)
If a waiver is received under this subsection,
the applicant shall complete a verification and submit it as required under §39.605(3)
of this title (relating to Notice to Affected Agencies).
(11)
Waste and water quality alternative language
notices are subject to the requirements set forth in paragraph (6)(A) and
(B) of this subsection.
§39.418.Notice of Receipt of Application and Intent to Obtain Permit.
(a)
When the executive director determines that an application
is administratively complete, the chief clerk shall mail this determination
concurrently with the Notice of Receipt of Application and Intent to Obtain
Permit to the applicant.
(b)
Not later than 30 days after the executive director declares
an application administratively complete:
(1)
the applicant shall publish Notice of Receipt of Application
and Intent to Obtain Permit once under §39.405(f)(1) of this title (relating
to General Notice Provisions) and, for solid waste applications and injection
well applications, also under §39.405(f)(2) of this title
. The applicant
shall also publish the notice under §39.405(h) of this title, if applicable
;
(2)
the chief clerk shall mail Notice of Receipt of Application
and Intent to Obtain Permit to those listed in §39.413 of this title
(relating to Mailed Notice), and to:
(A)
the state senator and representative who represent the
general area in which the facility is located or proposed to be located; and
(B)
the river authority in which the facility is located or
proposed to be located if the application is under Texas Water Code, Chapter
26
;
[
(3)
for air applications, paragraphs (1) and (2) of this subsection
do not apply. Instead the applicant shall provide notice as specified in Subchapter
K of this chapter (relating to Public Notice of Air Quality Applications).
Specifically, publication in the newspaper
must
[
(4)
the notice must include the applicable information required
by §39.411(b) of this title (relating to Text of Public Notice).
§39.419.Notice of Application and Preliminary Decision.
(a)
After technical review is complete, the executive director
shall file the preliminary decision and the draft permit with the chief clerk,
except for air applications under subsection (e)(1) of this section. The chief
clerk shall mail the preliminary decision concurrently with the Notice of
Application and Preliminary Decision. Then, when this chapter requires notice
under this section, notice
must
[
(b)
The applicant shall publish Notice of Application and Preliminary
Decision at least once in the same newspaper as the Notice of Receipt of Application
and Intent to Obtain Permit, unless there are different requirements in this
section or a specific subchapter in this chapter for a particular type of
permit.
The applicant shall also publish the notice under §39.405(h)
of this title (relating to General Notice Provisions), if applicable.
(c)
Unless mailed notice is otherwise provided under this section,
the chief clerk shall mail Notice of Application and Preliminary Decision
to those listed in §39.413 of this title (relating to Mailed Notice).
(d)
The notice must include the information required by §39.411(c)
of this title
(relating to Text of Public Notice)
.
(e)
For air applications:
(1)
The
[
(A)
no hearing request is submitted in response to the Notice
of Receipt of Application and Intent to Obtain Permit;
(B)
a hearing request is submitted in response to the Notice
of Receipt of Application and Intent to Obtain Permit and the request is withdrawn
before the date the preliminary decision is issued;
(C)
the application is for any amendment, modification, or
renewal 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 unless the application 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; or
(D)
the application is for initial issuance of a permit described
in §39.403(b)(11) or (12) of this title (related to Applicability) or §39.404
of this title (relating to Applicability for Certain Initial Applications
for Air Quality Permits for Grandfathered Facilities);
(2)
If notice under this section is required, the agency shall
mail notice according to §39.602 of this title (relating to Mailed Notice);
and
(3)
Notice of Application and Preliminary Decision
must
[
(A)
applications under Chapter 116, Subchapter B, Division
5 of this title (relating to Nonattainment Review);
(B)
applications under Chapter 116, Subchapter B, Division
6 of this title (relating to Prevention of Significant Deterioration Review);
and
(C)
applications under Chapter 116, Subchapter C of this title
(relating to Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources (FCAA, §112(g), 40 CFR Part 63)).
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on April 29, 2005.
TRD-200501759
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 12, 2005
For further information, please call: (512) 239-6087
30 TAC §39.503
STATUTORY AUTHORITY
The amendment is proposed under Texas Health and Safety Code, §361.017,
Commission's Jurisdiction: Industrial Solid Waste and Hazardous Municipal
Waste; §361.024, Rules and Standards; §361.064, Permit Application
Form and Procedures; and Texas Water Code, §5.103, Rules; §5.552,
Notice of Intent to Obtain Permit; and 5.553, Preliminary Decision; Notice
and Public Comment.
The proposed amendment implements Texas Health and Safety Code, §§361.017,
361.024, and 361.064; and Texas Water Code, §§5.103, 5.552, and
5.553.
§39.503.Application for Industrial or Hazardous Waste Facility Permit.
(a)
Applicability. This section applies to applications for
industrial or hazardous waste facility permits that are declared administratively
complete on or after September 1, 1999.
(b)
Preapplication requirements.
(1)
If an applicant for an industrial or hazardous waste facility
permit decides to participate in a local review committee process under Texas
Health and Safety Code, §361.063, the applicant must submit a notice
of intent to file an application to the executive director, setting forth
the proposed location and type of facility. The applicant shall mail notice
to the county judge of the county in which the facility is to be located.
If the proposed facility is to be located in a municipality or the extraterritorial
jurisdiction of a municipality, a copy of the notice
must
[
(2)
The requirements of this paragraph are set forth at 40
Code of Federal Regulations (CFR) §124.31(b) - (d), which is adopted
by reference as amended and adopted in the CFR through December 11, 1995,
at 60 FedReg 63417, and apply to all hazardous waste part B applications for
initial permits for hazardous waste management units, hazardous waste part
B permit applications for major amendments, and hazardous waste part B applications
for renewal of permits, where the renewal application is proposing a significant
change in facility operations. For the purposes of this paragraph, a "significant
change" is any change that would qualify as a Class 3 permit modification
under §305.69 of this title (relating to Solid Waste Permit Modification
at the Request of the Permittee). The requirements of this paragraph do not
apply to an application for minor amendment under §305.62 of this title
(relating to Amendment), correction under §50.45 of this title (relating
to Corrections to Permits), or modification under §305.69 of this title,
or to an application that is submitted for the sole purpose of conducting
post-closure activities or post-closure activities and corrective action at
a facility, unless the application is also for an initial permit for hazardous
waste management unit(s), or the application is also for renewal of the permit,
where the renewal application is proposing a significant change in facility
operations.
(c)
Notice of Receipt of Application and Intent to Obtain Permit.
(1)
Upon the executive director's receipt of an application,
or notice of intent to file an application, the chief clerk shall mail notice
to the state senator and representative who represent the area in which the
facility is or will be located and to the persons listed in §39.413 of
this title (relating to Mailed Notice). For all hazardous waste part B applications
for initial permits for hazardous waste management units, hazardous waste
part B permit applications for major amendments, and hazardous waste part
B applications for renewal of permits, the chief clerk shall provide notice
to meet the requirements of this subsection and 40 CFR §124.32(b), which
is adopted by reference as amended and adopted in the CFR through December
11, 1995, at 60 FedReg 63417, and the executive director shall meet the requirements
of 40 CFR §124.32(c), which is adopted by reference as amended and adopted
in the CFR through December 11, 1995, at 60 FedReg 63417. The requirements
of this paragraph relating to 40 CFR §124.32(b) - (c) do not apply to
an application for minor amendment under §305.62 of this title, correction
under §50.45 of this title, or modification under §305.69 of this
title, or to an application that is submitted for the sole purpose of conducting
post-closure activities or post-closure activities and corrective action at
a facility, unless the application is also for an initial permit for hazardous
waste management unit(s), or the application is also for renewal of the permit.
(2)
After the executive director determines that the application
is administratively complete:
(A)
notice
must
[
(B)
the executive director or chief clerk shall mail notice
of this determination along with a copy of the application or summary of its
contents to the mayor and health authority of a municipality in whose territorial
limits or extraterritorial jurisdiction the solid waste facility is located,
and to the county judge and the health authority of the county in which the
facility is located.
(d)
Notice of Application and Preliminary Decision. The notice
required by §39.419 of this title (relating to Notice of Application
and Preliminary Decision)
must
[
(1)
The applicant shall publish notice at least once in a newspaper
of general circulation in each county
that
[
(2)
If the application concerns a hazardous waste facility,
the applicant shall broadcast notice of the application on one or more local
radio stations that broadcast to an area that includes all of the county in
which the facility is located. The executive director may require that the
broadcasts be made to an area that also includes contiguous counties.
(3)
The notice
must
[
(e)
Notice of public meeting.
(1)
If an applicant proposes a new hazardous waste facility,
the agency shall hold a public meeting in the county in which the facility
is to be located to receive public comment concerning the application.
(2)
If an applicant proposes a major amendment of an existing
hazardous waste facility permit, this subsection applies if a person affected
files a request for public meeting with the chief clerk concerning the application
before the deadline to file public comment or hearing requests.
(3)
If an applicant proposes a new industrial or hazardous
waste facility that would accept municipal solid waste, the applicant shall
hold a public meeting in the county in which the facility is proposed to be
located. This meeting must be held before the 45th day after the date the
application is filed.
(4)
A public meeting is not a contested case proceeding under
the
Administrative Procedure Act
[
(5)
The applicant shall publish notice of any public meeting
under this subsection, in accordance with §39.405(f)(2) of this title,
once each week during the three weeks preceding a public meeting. The published
notice
must
[
(A)
permit application number;
(B)
applicant's name;
(C)
proposed location of the facility;
(D)
location and availability of copies of the application;
(E)
location, date, and time of the public meeting; and
(F)
name, address, and telephone number of the contact person
for the applicant from whom interested persons may obtain further information.
(6)
For public meetings held by the agency under paragraph
(1) of this subsection, the chief clerk shall mail notice to the persons listed
in §39.413 of this title.
(f)
Notice of hearing.
(1)
This subsection applies if an application is referred to
State Office of Administrative Hearings
[
(2)
Newspaper notice.
(A)
The applicant shall publish notice at least once in a newspaper
of general circulation in the county in which the facility is located and
in each county and area
that
[
(B)
If the application concerns a hazardous waste facility,
the hearing must include one session held in the county in which the facility
is located. The applicant shall publish notice of the hearing once each week
during the three weeks preceding the hearing under §39.405(f)(2) of this
title. The published notice
must
[
(3)
Mailed notice.
(A)
If the applicant proposes a new solid waste management
facility, the applicant shall mail notice to each residential or business
address located within 1/2 mile of the facility and to each owner of real
property located within 1/2 mile of the facility listed in the real property
appraisal records of the appraisal district in which the facility is located.
The notice
must
[
(B)
If the applicant proposes to amend or renew an existing
permit, the chief clerk shall mail notice to the persons listed in §39.413
of this title.
(4)
If the application concerns a hazardous waste facility,
the applicant shall broadcast notice of the hearing under subsection (d)(2)
of this section.
(5)
Notice under paragraphs (2)(A), (3), and (4) of this subsection
must
[
(g)
This section does not apply to applications for an injection
well permit.
(h)
Information repository. The requirements of 40 CFR §124.33(b)
- (f), which is adopted by reference as amended and adopted in the CFR through
December 11, 1995, at 60 FedReg 63417, apply to all applications for hazardous
waste permits.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 29, 2005.
TRD-200501760
Stephanie Bergeron Perdue
Director, Environmental Law Division
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 12, 2005
For further information, please call: (512) 239-6087
shall
] be exempt from any application fee requirements.
shall
] comply with the following.
SOAH
].
.
]
shall
]
follow the requirements under §39.603 of this title (relating to Newspaper
Notice), sign posting
must
[
shall
] follow the requirements
under §39.604 of this title (relating to Sign-Posting), and the chief
clerk shall mail notice according to §39.602 of this title (relating
to Mailed Notice)
. The applicant shall also follow the requirements,
as applicable, under §39.405(h) of this title
; and
shall
] be given as
required by subsections (b) - (e) of this section.
the
] applicant is not required
to publish Notice of Application and Preliminary Decision, if:
shall
] be published as specified in Subchapter K of this
chapter (relating to Public Notification of Air Quality Applications)
and, as applicable, under §39.405(h) of this title
for permits
that are not exempt under paragraph (1)(A) - (D) of this subsection or are
for the following federal preconstruction approvals:
Subchapter I. PUBLIC NOTICE OF SOLID WASTE APPLICATIONS
shall
] also be mailed to the mayor of the municipality. Mailed notice
must
[
shall
] be by certified mail. When the applicant submits
the notice of intent to the executive director, the applicant shall publish
notice of the submission in a paper of general circulation in the county in
which the facility is to be located.
shall
] be given as required
by §39.418 of this title (relating to Receipt of Application and Intent
to Obtain Permit). Notice under §39.418 of this title will satisfy the
notice of receipt of application required by §281.17(d) of this title
(relating to Notice of Receipt of Application and Declaration of Administrative
Completeness); and
shall
] be published
once as required by §39.405(f)(2) of this title (relating to General
Notice Provisions). In addition to the requirements of
§39.405(h)
and
§39.419 of this title, the following requirements apply.
which
] is
adjacent or contiguous to each county in which the facility is located. One
notice may satisfy the requirements of §39.405(f)(2) of this title and
of this subsection, if the newspaper meets the requirements of both rules.
shall
] comply with §39.411
of this title (relating to Text of Public Notice). The deadline for public
comments on industrial solid waste applications
will
[
shall
] be not less than 30 days after newspaper publication, and for hazardous
waste applications, not less than 45 days after newspaper publication.
APA
]. A public meeting
held as part of a local review committee process under subsection (b) of this
section meets the requirements of paragraph (1) of this subsection if public
notice is provided under this subsection.
shall
] be at least 15 square inches (96.8
square centimeters) with a shortest dimension of at least
three
[
3
] inches (7.6 centimeters). For public meetings under paragraph (3)
of this subsection, the notice of public meeting is not subject to §39.411(d)
of this title, but instead
must
[
shall
] contain at least
the following information:
SOAH
] for a contested
case hearing under Chapter 80 of this title (concerning Contested Case Hearings).
which
] is adjacent or
contiguous to each county in which the proposed facility is located.
shall
] be at least
15 square inches (96.8 square centimeters) with a shortest dimension of at
least
three
[
3
] inches (7.6 centimeters) or have a total
size of at least
nine
[
9
] column inches (18 square inches).
The text of the notice
must
[
shall
] include the statement
that at least one session of the hearing will be held in the county in which
the facility is located.
shall
] be mailed to the persons listed
as owners in the real property appraisal records on the date the application
is determined to be administratively complete. The chief clerk shall mail
notice to the persons listed in §39.413 of this title, except that the
chief clerk shall not mail notice to the persons listed in paragraph (1) of
that section. The notice must be mailed no more than 45 days and no less than
30 days before the hearing. Within 30 days after the date of mailing, the
applicant
shall
[
must
] file with the chief clerk an
affidavit certifying compliance with its obligations under this subsection.
Filing an affidavit certifying facts that constitute compliance with notice
requirements creates a rebuttable presumption of compliance with this subparagraph.
shall
] be completed at least 30 days before the hearing.
Subchapter K. PUBLIC NOTICE OF AIR QUALITY APPLICATIONS