1. (a) Permit Required for Development Over a CMSWLF Unit.

   1. (1) No person may commence or continue physical construction of an enclosed structure over a CMSWLF unit without first submitting a development permit application in accordance with §330.956 of this title (relating to Permit Application for Development Over a Closed Municipal Solid Waste Landfill Unit) and receiving a development permit from the commission, except as noted in paragraph (5) of this subsection.

      1. (A) The permit issued by the commission under this subchapter is a development permit and not a permit for the management of solid waste. A permit application for a development permit shall comply with those requirements in this subchapter. A permit application to manage municipal solid waste shall comply with the applicable sections of Chapters 281 and 305 of this title (relating to Applications and Consolidated Permits) and Subchapters A-L of this chapter (relating to Municipal Solid Waste).
      2. (B) A development permit is not required for an enclosed structure that is to be built on a tract of land that contains a CMSWLF, if the enclosed structure is not built over the waste disposal area.
   2. (2) The permit application under this subchapter must be received at least 45 days prior to the proposed commencement of construction over the CMSWLF unit.
   3. (3) If a person directs his engineer to conduct Soil Test I, and the soil test reveals the existence of a CMSWLF unit after the commencement of construction, construction of the enclosed structure being built over the CMSWLF shall cease immediately, and a permit application shall be submitted and a development permit issued before construction of the enclosed structure over the CMSWLF unit can resume. The person may proceed with construction and development of other facilities including those items listed in the definition of essential improvements.
   4. (4) If a person directs his engineer to conduct either Soil Test II or Soil Test III and the engineer discovers a CMSWLF unit as a result of the test, he shall submit a permit application. Development of an enclosed structure over the CMSWLF unit cannot begin until a development permit is issued.
   5. (5) If a person directs his engineer to conduct either Soil Test II or Soil Test III and the engineer does not detect a CMSWLF unit as a result of the test, but subsequently discovers a CMSWLF unit during the development, the person is not required to submit a permit application but must meet the provisions of §330.959 of this title (relating to Requirements for Registration of an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit).
   6. (6) As part of the application, the applicant shall provide the name and physical and mailing addresses of a public building with normal operating hours such as library, city hall, or county courthouse where the application can be viewed by the general public, and information on the location for the public hearing including physical and mailing addresses and the name and phone number of a contact person. The facilities where the public hearing will be held and where the permit can be viewed shall be in compliance with all applicable requirements of the Americans With Disabilities Act. The application shall also include an adjacent landowner list.
   7. (7) The Health and Safety Code, §361.532, requires TNRCC to charge an application fee equal to the actual cost of reviewing the application prior to the issuance of a development permit. The applicant shall submit an initial application fee of $2,500 to be submitted in the form of a check or money order made payable to the Texas Natural Resource Conservation Commission. Upon completion of the review process, including the public hearing, the commission will present the applicant with a refund for an overcharge, or an invoice for an undercharge.
   8. (8) If the municipal solid waste facility is covered by an existing permit for the management of solid waste, no person may commence physical construction of an enclosed structure without submitting an amendment application for the existing permit in accordance with §§330.50-330.65 of this title (relating to Permit Procedures) and receiving the amended permit from the commission.

2. (b) Review and Approval of Permit Application.

   1. (1) The commission shall set a public hearing to be held not later than the 30th day after the application has been received.
   2. (2) The commission shall notify the applicant by mail of the date and time of the hearing not later than the 15th day before the hearing.
   3. (3) The commission shall publish notice of the hearing in a newspaper that is generally circulated in the county in which the property proposed for development is located. The published notice must appear at least once a week for the two weeks before the date of the hearing. The commission shall also notify all individuals on the list of adjacent landowners at least 15 days prior to the hearing. The notice shall list the location, date, and time of the public hearing, and the location of the public building where the development permit application can be viewed.
   4. (4) TNRCC Municipal Solid Waste staff will conduct the public hearing at the designated location. The applicant will make a presentation of their application, TNRCC staff will describe the development permit, and public comment will be received. The public hearing is not an evidentiary proceeding.

   5. (5) On or before the fifth day following the public hearing but not later than 35 days following receipt of the application by the commission:

      1. (A) The executive director will issue his decision either to approve or to deny the development permit application. The executive director shall base his decision on whether the application meets each of the requirements of §330.956 of this title (relating to Permit Application for Development Over a Closed Municipal Solid Waste Landfill Unit) and §330.957 of this title (relating to Technical Requirements of Part A of the Application). A decision denying the permit shall state the deficiencies that were cause for the denial and any modifications necessary to correct those deficiencies.
      2. (B) A person may submit in writing to the chief clerk of the commission a request to be notified of the executive director's decision on the application.
   6. (6) The date on which the executive director issues the order shall be construed as the date on which notice of the decision is mailed to the applicant and to each person who requested notification of the executive director's decision pursuant to paragraph (5)(B) of this subsection (relating to Development Permit and Registration Requirements, Procedures, and Processing).

   7. (7) Petition for review of executive director's decision.

      1. (A) The applicant or a person may file a petition for review not later than the tenth day after the date the executive director issues the order. The applicant or person who files a petition shall file the petition with the chief clerk of the commission, and shall mail a copy of the petition to the applicant and to each person who requested notification of the executive director's decision pursuant to paragraph (5)(B) of this subsection (relating to Development Permit and Registration Requirements, Procedures, and Processing).
      2. (B) If a petition for review is filed, the commission shall act on the petition for review within 35 days after issuance of the executive director's order or at the next scheduled commission meeting, whichever is later. The commission may affirm or reverse the order issued by the executive director.
      3. (C) A commission order ruling on a petition for review is final and effective on the date issued.
   8. (8) If no petition for review is filed ten days after the executive director issues his decision, the decision is final and effective on the 11th day after the date the decision was issued.
   9. (9) If the actual cost of reviewing the permit is not equal to the application fee, the applicant will be presented with either a refund or an invoice pursuant to subsection (a)(7) of this section (relating to Development Permit and Registration Requirements, Procedures, and Processing). If an invoice is submitted, a development permit will not be issued until the invoice is paid.
   10. (10) An applicant who is denied a development permit may submit a new application to the commission.

3. (c) Registration for Existing Structures.

   1. (1) The owner or lessee of an existing structure that existed or began development prior to September 1, 1993, and is built over a CMSWLF unit, shall submit a registration application to the TNRCC. The registration application shall be submitted to the executive director and shall include those items listed in §330.959 of this title (relating to Requirements for Registration of an Existing Structure Built Over a Closed Municipal Solid Waste Landfill Unit). This paragraph is not intended to require that owners and lessees of enclosed structures initiate investigations for CMSWLFs.
   2. (2) A registration issued by the commission under this subchapter is not a registration for the management of solid waste. A registration application for an existing structure shall comply with those requirements in this subchapter. A registration application to manage municipal solid waste shall comply with the applicable sections of Chapters 281 and 305 of this title and Subchapters A-L of this chapter.

   3. (3) The owner shall submit the registration within 180 days from one of the following dates:

      1. (A) the effective date of these regulations; or
      2. (B) determination that the structure overlies a CMSWLF.
   4. (4) Upon receipt of written approval of the SGMP or approval with modifications to the SGMP from the executive director, the owner or lessee of the existing structure shall implement the plan in accordance with its approved schedule.

Source Note:The provisions of this §330.954 adopted to be effective May 17, 1995, 20 TexReg 3241.