| (a) Failure to publish notice. If the chief clerk prepares
a newspaper notice that is required by Subchapters G - J, L, and 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 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 be
exempt from any application fee requirements.
(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 - J and
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;
(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; and
(3) air quality permit applications required by Subchapters
H and K of this chapter (relating to Applicability and General Provisions
and Public Notice of Air Quality Permit Applications, respectively)
to publish notice shall comply with the requirements of §39.603
of this title (relating to Newspaper Notice).
(g) Copy of application. 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 comply with the following.
(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; and
(3) where applicable, for air quality permit applications
filed on or after June 24, 2010, the applicant shall also make available
the executive director's draft permit, preliminary determination summary
and air quality analysis for review and copying beginning on the first
day of newspaper publication required by §39.419 of this title
(relating to Notice of Application and Preliminary Decision) 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) Applicability. The following are subject to this
subsection:
(A) Air quality permit applications; and
(B) Permit applications other than air quality 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 filed on or after November 30, 2005.
(2) This subsection applies whenever notice is required
to be published under §39.418 or §39.419 of this title,
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 has been granted an exception
from the requirements to provide the program as provided for in 19
TAC §89.1207(a) (relating to Exceptions and Waivers).
(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 the applicable portions
of §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) Waste and water quality alternative language must
be published in the public notice section of the alternative language
newspaper and must comply with §39.411 of this title.
(8) 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.
(9) Notice under this subsection will only be required
to be published within the United States.
(10) Each alternative language publication must follow
the requirements of this chapter that are consistent with this subsection.
(11) If a waiver is received under this subsection
on an air quality permit application, the applicant shall complete
a verification and submit it as required under §39.605(3) of
this title (relating to Notice to Affected Agencies). If a waiver
is received under this subsection on a waste or water quality application,
the applicant shall complete a verification and submit it to the chief
clerk and the executive director.
(i) Failure to publish notice of air quality permit
applications. If the chief clerk prepares a newspaper notice that
is required by Subchapters H and K of this chapter for air quality
permit applications 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 (j) 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 be
exempt from any application fee requirements.
(j) Notice and affidavit for air quality permit applications.
When Subchapters H and K of this chapter require an applicant for
an air quality permit action 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 (i) of this section, the chief
clerk shall file a copy of the published notice and a publisher's
affidavit.
(k) For applications filed on or after September 1,
2015, and subject to providing notice as prescribed by Texas Water
Code, §5.115, the commission shall make available on the commission's
website notice of administratively complete applications for a permit
or license authorized under the Texas Water Code and the Texas Health
and Safety Code.
|
| Source Note: The provisions of this §39.405 adopted to be effective September 23, 1999, 24 TexReg 8190; amended to be effective August 15, 2002, 27 Texas Reg 7132; amended to be effective November 30, 2005, 30 TexReg 7877; amended to be effective June 24, 2010, 35 TexReg 5198; amended to be effective December 31, 2015, 40 TexReg 9644 |
