Section 205.4 - Authorizations and Notices of Intent(a) A qualified discharger may obtain authorization to operate under a general permit by complying with the general permit's conditions for gaining coverage. (1) A general permit shall specify either an applicable deadline for filing the notice of intent (NOI), or that an NOI is not required prior to commencement of a qualifying discharge.(2) No new discharge under the authority of a general permit may commence after a general permit has expired.(3) For those general permits requiring an NOI, a discharger may begin discharging under the general permit after the date or period of time specified in the general permit unless the executive director or commission before that time notifies the discharger pursuant to subsections (c) or (e) of this section that the discharger is not eligible for authorization under the general permit.(4) The executive director shall provide written notice to a discharger if the executive director determines that the discharger is not eligible for authorization under the general permit. The content of the notice is described in subsections (c) and (d) of this section.(5) An NOI shall be submitted to the executive director in a form or format that is specified in the general permit or otherwise set out in commission rules.(b) The following requirements apply to existing individual permittees. (1) The general permit shall specify how a discharger covered by an individual permit may substitute authorization to discharge waste under the general permit. At a minimum, the general permit shall provide that coverage under the general permit shall not commence until: (A) the permittee has submitted an NOI, if one is required by the general permit, as specified by subsection (f) of this section; and(B) the executive director has received the discharger's written request that the individual permit be canceled or amended, as appropriate.(2) The general permit may allow a discharger who is covered by an individual permit to obtain authorization to discharge waste from a new outfall under a general permit. Agency action on a new discharge does not affect the status of the discharger's existing individual permit. The general permit shall describe how to obtain authorization to discharge waste from a new outfall. Authorization under the general permit shall not commence until the discharger: (A) submits an NOI, if one is required by the general permit, as specified in subsection (f) of this section; and(B) requests and receives written approval from the executive director of a minor modification to their individual permit exempting the new outfall from coverage under the individual permit.(3) Except as provided under subsection (b)(2) of this section, the commission shall cancel an individual permit if the executive director or commission does not deny the NOI or authorization under subsection (c) or (e) of this section.(c) The following requirements apply to denial of an authorization or notice of intent. (1) The executive director shall provide written notice to a discharger if the executive director denies the discharger's NOI or authorization to discharge under a general permit, including, at a minimum, a brief statement of the basis for this decision.(2) The executive director shall deny authorization to discharge under an existing general permit for the following reasons:(A) the quantity of discharge, the type of waste, or the type of operation does not comply with the general permit;(B) the discharge is required to be authorized under the Texas Pollutant Discharge Elimination System (TPDES), and discharging under the general permit would result in backsliding prohibited under 40 Code of Federal Regulations §122.44(l), as amended and adopted under § 305.531(3) of this title (relating to Establishing and Calculating Additional Conditions and Limitations for TPDES Permits);(C) the discharge causes a violation of the Texas Surface Water Quality Standards;(D) the discharge is located where it causes or could cause an adverse impact upon a critical area, as defined in 31 TAC §501.3(relating to Definitions and Abbreviations), and there is a suitable location that is available and capable of being used in light of cost, technology, and logistics;(E) the discharger or facility: (i) has failed to pay any portion of a delinquent fee or charge assessed by the executive director;(ii) is not in compliance with all requirements, conditions, and time frames specified in an unexpired commission final enforcement order relating to the activity regulated by the general permit; or(iii) is subject to an unexpired enforcement order that requires the facility to comply with operating conditions different from or additional to the requirements of the general permit;(F) the discharge would be inconsistent with the state water quality management plan (WQMP).(3) The executive director may deny authorization to discharge under an existing general permit for reasons including, but not limited to, the following: (A) a change has occurred in the availability of demonstrated technology or practices for the prevention, control, or abatement of pollutants applicable to the discharge necessary to be implemented to meet applicable federal or state standards;(B) specific effluent limitation guidelines are promulgated for a discharge covered by the general TPDES permit, but the general permit has not yet been amended to incorporate the new effluent limitation guidelines;(C) the owner and/or the operator of the facility has not filed an NOI in accordance with § 305.43 of this title (relating to Who Applies);(D) the discharger has been determined by the executive director to have been out of compliance with any rule, order, or permit of the commission, including non-payment of fees assessed by the executive director;(E) the discharge contains pollutants that cause significant adverse effects to water quality. In making this determination, the executive director shall consider the following factors: (i) the location of the discharge;(ii) the size of the discharge;(iii) the quantity and nature of pollutants discharged;(iv) whether the discharge would adversely affect groundwater quality, inconsistent with the policy specified in the Texas Water Code (TWC), §26.401; and(v) other factors relating to the protection of water quality standards; and(F) the discharger or facility is the subject of an unresolved agency enforcement action in which the executive director has issued written notice that enforcement has been initiated.(4) If authorization to discharge is denied under this subsection, the executive director may require the person whose authorization is denied to apply for and obtain an individual permit. If the discharger is seeking to replace its individual permit with general permit coverage, but the discharger's general permit authorization is denied, the discharger shall apply for renewal of the individual permit prior to the expiration date of its individual permit to maintain authorization to discharge, in accordance with § 305.63 of this title (relating to Renewal).(d) The following requirements apply to suspensions of authorizations and NOIs. (1) The general permit shall describe the procedures for suspension of authorization and NOIs under a general permit. The general permit shall require the executive director to provide written notice to a discharger that the executive director intends to suspend a discharger's authority to discharge under a general permit, including: (A) a brief statement of the basis for this decision under this subsection;(B) a statement of whether the discharger shall immediately cease the discharge;(C) a statement setting the deadline for filing the application for an individual permit; and(D) a statement that the person's discharge authorization under the general permit shall be suspended on the effective date of the commission's action on the individual permit application unless the commission expressly provides otherwise, or unless the executive director has required the discharger to immediately cease the discharge;(2) Except for suspensions under paragraph (5)(F) of this subsection relating to storm water discharges, if a discharger's authorization under a general permit is suspended, the discharger shall immediately cease the discharge.(3) The executive director may require the person whose authorization to discharge is suspended to apply for and obtain an individual permit.(4) After providing written notice to the discharger, the executive director shall suspend authorization to discharge under an existing general permit for the following reasons: (A) the quantity of discharge, the type of waste, or the type of operation does not comply with the general permit;(B) the discharge causes a violation of the Texas Surface Water Quality Standards;(C) the discharger or facility: (i) has failed to pay any portion of a delinquent fee or charge assessed by the executive director;(ii) is not in compliance with all requirements, conditions, and timeframes specified in an unexpired commission final enforcement order relating to the activity regulated by the general permit, or(iii) is subject to an unexpired enforcement order that requires the facility to comply with operating conditions different from or additional to the requirements of the general permit;(D) the discharge is inconsistent with the state WQMP;(E) an application is not received by the deadline specified by rule or in the general permit.(5) After providing written notice to the discharger, the executive director may suspend authorization to discharge under an existing general permit for reasons including, but not limited to, the following: (A) a change has occurred in the availability of demonstrated technology or practices for the prevention, control, or abatement of pollutants applicable to the discharge necessary to be implemented to meet applicable federal or state standards;(B) specific effluent limitation guidelines are promulgated for a discharge covered by the general TPDES permit, but the general permit has not yet been amended to incorporate the new effluent limitation guidelines;(C) the owner and/or the operator of the facility has not filed an NOI in accordance with § 305.43 of this title;(D) circumstances have changed since the time of the NOI so that the discharge is no longer appropriately controlled to meet applicable water quality standards under the general permit, or either a temporary or permanent reduction, or elimination of the authorized discharge is necessary;(E) the discharger has been determined by the executive director to have been out of compliance with any rule, order, or permit of the commission, including non-payment of fees assessed by the executive director;(F) the discharge contains pollutants that cause significant adverse effects to water quality. In making this determination, the executive director shall consider the following factors: (i) the location of the discharge;(ii) the size of the discharge;(iii) the quantity and nature of pollutants discharged;(iv) whether the discharge would adversely affect groundwater quality, inconsistent with the policy specified in the TWC, §26.401; and(v) other factors relating to the protection of water quality standards; and(G) the discharger or facility is the subject of an unresolved agency enforcement action in which the executive director has issued written notice that enforcement has been initiated.(e) The commission, after hearing, shall deny or suspend a discharger's authority to discharge under a general permit if the commission determines that the discharger operates any facility for which the discharger's compliance history contains violations constituting a recurring pattern of egregious conduct that demonstrates a consistent disregard for the regulatory process, including a failure to make a timely and substantial attempt to correct the violations. A hearing under this subsection is not subject to Texas Government Code, Chapter 2001.(f) The general permit shall describe the content of the NOI, if one is required by the general permit. At a minimum, the NOI shall require the submission of information necessary for adequate program implementation including, at a minimum, the legal name and address of the owner and operator, the facility name and address, specific description of its location, type of facility or discharges, and the receiving water(s). An NOI shall be signed in accordance with § 305.44 of this title (relating to Signatories to Applications).(g) Unless otherwise provided in the general permit or in § 305.53 of this title (relating to Application Fee), a person seeking authorization by general permit shall submit a $100 application fee payable to the agency at the time of filing an NOI. If a person is denied coverage under the general permit in accordance with subsection (c) or (e) of this section, any application fee will be applied to the application fee required for an individual permit application for the same discharge.(h) The general permit shall require a person authorized to discharge waste under a general permit to submit up-to-date information to the executive director in a notice of change within a specified period of time prior to a change in previous information provided to the agency or any other change with respect to the nature or operations of the facility or the characteristics of the discharge. In cases where the general permit requires that an NOI be submitted, the general permit shall require that when the ownership of the facility changes or is transferred, a notice of termination be submitted by the present owner, and a new NOI be submitted by the new owner, not later than ten days prior to the change in ownership.(i) When requested by a county or municipality, the commission may establish a provision in a general permit for notification by the discharger to a county judge or mayor of a municipality of NOIs that would allow discharges within their respective jurisdiction. If the executive director or commission denies authorization for a proposed discharge in the county or municipality, the executive director shall notify the county judge or mayor.(j) The executive director's decisions on NOIs under this chapter are subject to § 50.139 of this title (relating to Motion to Overturn Executive Director's Decision).30 Tex. Admin. Code § 205.4
The provisions of this §205.4 adopted to be effective June 21, 1998, 23 TexReg 6227; amended to be effective September 13, 2000, 25 TexReg 8862