1. (a) New Permittees. A discharger who is not covered by an individual permit may submit to the executive director a written notice of intent to be covered by the general permit in accordance with this section. The executive director may deny the request for coverage under the general permit, in accordance with subsection (e) of this section.

2. (b) Existing Individual Permittees.

   1. (1) A discharger who is covered by an individual permit may obtain substitute authorization to discharge waste under a general permit if, at least 180 days prior to the expiration date of the individual permit, the permittee submits a notice of intent as specified by subsection (g) of this section. The discharger shall also request that the individual permit be canceled or that the existing permit be amended to remove an authorization pertaining to an affected outfall. The commission will cancel or amend the permit if the executive director does not deny the NOI under subsection (e) of this section.
   2. (2) The individual permit will be automatically canceled when authorization under the general permit becomes effective.
   3. (3) If the NOI is denied under subsection (e) of this section, the discharger shall apply for renewal of the individual permit prior to the expiration date of the individual permit to maintain authorization to discharge, in accordance with §305.63 of this title (relating to Renewal).
   4. (4) A discharger who is covered by an individual permit may obtain authorization to discharge waste from a new outfall under a general permit if the discharger submits a written NOI as specified in subsection (f) of this section. Agency action on a new discharge does not affect the status of the discharger's existing individual permit.
3. (c) A general permit will specify any applicable deadline for filing the notice of intent. A discharger may begin discharging under the general permit on the 31st day after the executive director receives the discharger's notice of intent unless the executive director before that time notifies the discharger pursuant to subsection (e) of this section that the discharger is not eligible for authorization under the general permit. An NOI must be submitted to the executive director by certified mail, return receipt requested.
4. (d) Authorization to discharge under a general permit does not confer a vested right. After written notice to the discharger, the executive director may suspend a discharger's authority to discharge under a general permit. The executive director may require a person discharging under a general permit to immediately cease the discharge. The executive director may also require the person to apply for and obtain an individual permit. The notice of suspension to such a person shall include a brief statement of the basis for this decision under subsection (f) of this section, a statement of whether the discharger shall immediately cease the discharge, an application form, a statement setting the deadline for filing the application for an individual permit, and 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. If an application is not received by the deadline specified, the executive director shall suspend a discharger's authority to discharge under a general permit.

5. (e) The executive director shall deny an NOI to discharge under an existing general permit and may require the person to apply for and obtain an individual permit if the discharger is not eligible for authorization under the general permit for reasons including, but not limited to, the following:

   1. (1) The quantity of discharge, the type of waste, or the type of operation does not comply with the general permit;
   2. (2) In the case of determining eligibility to discharge under the Texas Pollutant Discharge Elimination System (TPDES), a determination that backsliding under 40 CFR §122.44(l) would occur if the general permit replaced the individual permit;

   3. (3) The discharge is a significant contributor of pollutants impairing the quality of surface or ground water in the state. In making this determination, the executive director shall consider the following factors:

      1. (A) The location of the discharge;
      2. (B) The size of the discharge;
      3. (C) The quantity and nature of pollutants discharged; and
      4. (D) Whether the discharge would impair existing or potential uses of ground water, inconsistent with the policy specified in §26.401 of the Texas Water Code;
      5. (E) Other factors relating to the protection of water quality standards;
   4. (4) The discharge is located where it poses or could pose an adverse impact upon a critical area, as defined in 31 TAC §501.3 (Definitions and Abbreviations), and it is practicable to locate the discharge in a more suitable location. An alternative is practicable if it is available and capable of being done in light of cost, technology, and logistics;

   5. (5) The discharger or facility:

      1. (A) has failed to pay any portion of a delinquent fee or charge assessed by the commission;
      2. (B) is the subject of an unresolved TNRCC enforcement action in which the executive director has issued written notice that enforcement has been initiated;
      3. (C) is not in compliance with all requirements, conditions, and timeframes specified in an unexpired TNRCC final enforcement order relating to the activity regulated by the general permit; or
      4. (D) 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;
   6. (6) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the discharge necessary to be implemented to meet applicable federal or state standards;
   7. (7) 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; or
   8. (8) The discharge would be inconsistent with the state Water Quality Management Plan.

6. (f) The executive director may suspend a discharger's authorization under a general permit, and may require the discharger to immediately cease the discharge. The executive director may also require the person to apply for and obtain an individual permit if the discharger is not eligible for authorization under the general permit for reasons including, but not limited to, the following:

   1. (1) The owner and/or the operator of the facility has not filed a notice of intent in accordance with §305.43 of this title (relating to Who Applies);
   2. (2) The quantity of discharge, the type of waste, or the type of operation does not comply with the general permit;
   3. (3) In the case of determining eligibility to discharge under the Texas Pollutant Discharge Elimination System (TPDES), a determination that backsliding under 40 CFR §122.44(l) would occur if the general permit replaced the individual permit;
   4. (4) 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;

   5. (5) The discharge is a significant contributor of pollutants impairing the quality of surface or ground water in the state. In making this determination, the executive director shall consider the following factors:

      1. (A) The location of the discharge;
      2. (B) The size of the discharge;
      3. (C) The quantity and nature of pollutants discharged;
      4. (D) Whether the discharge would impair existing or potential uses of ground water, inconsistent with the policy specified in §26.401 of the Texas Water Code; and
      5. (E) Other factors relating to the protection of water quality standards;
   6. (6) The discharge is located where it poses or could pose an adverse impact upon a critical area, as defined in 31 TAC §501.3 (Definitions and Abbreviations), and it is practicable to locate the discharge in a more suitable location. An alternative is practicable if it is available and capable of being done in light of cost, technology, and logistics;
   7. (7) The discharger has been determined by the commission to have been out of compliance with any rule, order, or permit of the commission, including non-payment of fees assessed by the commission;
   8. (8) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the discharge necessary to be implemented to meet applicable federal or state standards;
   9. (9) 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; or
   10. (10) The discharge would be inconsistent with the state Water Quality Management Plan.
7. (g) The content of the notice of intent shall be specified in the general permit which 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).
8. (h) A person seeking authorization by general permit shall submit an application fee payable to the commission at the time of filing a notice of intent. The amount of the fee shall be set in accordance with §305.53 of this title (relating to Application Fee) or will be specified in each general permit and NOI form. If a person is denied coverage under the general permit in accordance with subsection (e) of this section, the application fee will be applied to the application fee required for an individual permit application for the same discharge.
9. (i) A person authorized to discharge waste under a general permit must submit up-to-date information to the executive director in a new NOI not later than 10 days prior to a change in previous information provided to the commission or any other change with respect to the nature or operations of the facility or the characteristics of the discharge. When the owner of the facility changes or has been transferred, a new NOI must be submitted not later than 10 days prior to the change in ownership.
10. (j) 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 denies an NOI for a proposed discharge in the municipality, the executive director will notify the county judge or mayor.

Source Note:The provisions of this §205.4 adopted to be effective June 21, 1998, 23 TexReg 6227.