Tenn. Comp. R. & Regs. 0400-40-05-.06 - NOTICE AND PUBLIC PARTICIPATION

(1) For an individual application for a new or increased discharge, the applicant shall notify the public of the application by posting a sign near the point of entrance to such facility and within view of a public road. The sign shall contain provisions as specified by the Commissioner. The sign shall be of such size that is clearly visible from the public road. Also, the sign shall be maintained for at least 30 days following submittal of the application to the Division.

(2) Each completed application (or request for permit action) shall be evaluated and a tentative determination of whether to issue or deny a permit action shall be made. If a tentative determination is made to issue a permit, then a draft permit shall be prepared that includes, as applicable, proposed effluent limitations, a proposed schedule of compliance, including interim dates and requirements, and a brief description of any other proposed conditions. A rationale, as defined in paragraph (3) of this rule, shall also be provided along with the draft permit. The Commissioner may attach other relevant information as necessary.

(3) For each application, the Commissioner shall prepare a rationale that includes or considers as appropriate:

(a) The type and quantity of wastes, fluids, or pollutants which are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged;

(b) A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions and relevant facts or data;

(c) Reasons why any requested variances or alternatives to required standards do or do not appear justified;

(d) The location of the discharge or activity described in the application;

(e) A quantitative and qualitative description of the discharge described in the application, which includes at least the following:

1. The rate or frequency of the proposed discharge; if the discharge is continuous, the average and maximum daily flow in gallons per day or million gallons per day;

2. For thermal discharges subject to limitation, the average and maximum summer and winter temperature;

3. The average and maximum daily discharge in pounds per day and/or concentrations in units of mass per volume of any pollutants which are present in significant quantities or which are subject to limitations or prohibition under the provisions of T.C.A. Title 69, Chapter 3, Part 1 or this rule; and

4. Other parameters for which control may be required by the Commissioner;

(f) Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions including a citation to the applicable effluent limitation guideline, performance standard, reasons why they are applicable, or an explanation of how the alternate effluent limitations were developed;

(g) Identification of outfalls, pollutants, and the amount of pollutants disclosed by the permit applicant and within the Department's reasonable contemplation;

(h) When the draft permit contains any of the following conditions, an explanation of the reasons why such conditions are applicable:

1. Technology-based limitations to control toxic pollutants;

2. Limitations on internal waste streams;

3. Limitations on indicator pollutants; or

4. Limitations set on a case-by-case basis;

(i) The tentative determination regarding the discharge;

(j) A brief citation, including a brief identification of the uses for which the receiving waters have been classified, of the water quality standards and effluent standards and limitations applied to the proposed discharge;

(k) A fuller description of the procedures for the formulation of final determinations than that given in the public notice including:

1. The beginning and ending dates of the 30-day comment period required by this rule;

2. The address where comments will be received;

3. Procedures for requesting a public hearing and the nature thereof; and

4. Any other procedures by which the public may participate in the formulation of the final determinations;

(l) Name and telephone number of a person to contact for additional information.

(4) The Commissioner shall ensure that the public is notified that the following actions have occurred:

(a) A permit application has been tentatively denied;

(b) A draft permit has been prepared;

(c) A hearing has been scheduled; or

(d) An appeal has been granted.

(5) No public notice is required:

(a) When a request for permit modification, revocation and reissuance, or termination is denied based on the Commissioner's determination that the request was not justified (written notice of that denial shall be given to the requester and to the permittee); or

(b) For minor permit modifications which include corrections of typographical errors, requiring more frequent monitoring or reporting, changing an interim compliance date, or allowing a change of ownership.

(6) Public notices may describe more than one permit or permit actions.

(7) Public notice of the preparation of a draft permit (including a notice of intent to deny a permit application) required under this rule shall allow at least 30 days for public comment.

(8) Public notice of a public hearing shall be given at least 30 days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit, and the two notices may be combined.

(9) To inform interested and potentially interested persons of the proposed discharge and of the tentative determinations regarding it, public notice shall be circulated within the geographical area of the proposed discharge by the following means:

(a) For major facility NPDES permits and public hearings, publishing in local daily or weekly newspapers and periodicals, or, if appropriate, in a daily newspaper of general circulation;

(b) For all permits, by mailing (either electronically or physically) a copy of the notice to the following persons:

1. The applicant;

2. Any other agency that the Director knows has issued, or is required to issue other permits for the same facility or activity;

3. Federal and state agencies with jurisdiction over fish and wildlife resources and historic preservation;

4. Any affected states and Indian Tribes;

5. Any state agency responsible for plan development under CWA section 208(b)(2), 208(b)(4) or 303(e), the U.S. Army Corps of Engineers, and the U.S. Fish and Wildlife Service;

6. Any user identified in the permit application of a privately owned treatment works;

7. Persons on a mailing list developed by:

(i) Including those who request in writing to be on the list;

(ii) Soliciting persons for "area lists'' from participants in past permit proceedings in that area; and

(iii) Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press, newsletters, environmental bulletins, or state law journals. The Commissioner may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Commissioner may delete from the list the name of any person who fails to respond to such a request;

8. To any unit of local government having jurisdiction over the area where the facility is proposed to be located; and

9. To each state agency having any authority under state law with respect to the construction or operation of such facility; and

(c) If determined necessary by the Commissioner, any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases, website postings, signs, or any other forum or medium to elicit public participation.

(10) Public notice of draft permits or proposed permit denials shall include the following:

(a) Name and address of the Division, and the phone number and electronic mail address of the assigned permit writer;

(b) Name and location address of each applicant;

(c) Brief description of each applicant's activities or operations which result in the discharge described in the application or are adjacent to waters (e.g., municipal waste treatment plant, steel manufacturing, drainage from mining activities);

(d) Name of waterway to which each discharge is made and a short description of the location of each discharge on the waterway indicating whether such discharge/activity is new or existing;

(e) A statement of the tentative determination to issue or deny a permit for the discharge described in the application;

(f) A brief description of the procedures for the formulation of final determinations, including the minimum 30-day comment period required by this rule and any other means by which interested persons may influence or comment upon those determinations;

(g) Instructions for finding additional information online;

(h) Address and phone number of the premises at which interested persons may obtain further information, request a copy of the draft permit, request a copy of the rationale, and inspect and copy forms and related documents; and

(i) Any other information that the Commissioner deems necessary.

(11) Interested persons may submit written comments on the tentative determinations within either 30 days of public notice or such greater period as the Commissioner allows in writing. All written comments submitted shall be retained and considered in the final determination. The Commissioner shall give any state or interstate agencies whose waters will be affected a written explanation of the decision not to incorporate any written recommendation made by that state or agency.

(12) Interested persons may request in writing that the Commissioner hold a public hearing on any application. The request shall be filed as soon as practicable within the period allowed for public comment and shall indicate the interest of the party filing it and the reasons why a hearing is warranted. If there is a significant public interest in having a hearing to address water quality concerns, the Commissioner shall hold one in the geographical area of the proposed discharge. Instances of doubt should be resolved in favor of holding the hearing.

(13) Special provisions regarding public notices for public hearings.

(a) In addition to the public notice procedures of paragraph (9) of this rule, notice of public hearing shall be sent to all persons who received a copy of the notice or rationale for the application, any person who submitted comments on the draft permit action, all persons who requested the public hearing, and any person who specifically requests a copy of the notice of hearing.

(b) Each notice of a public hearing shall include at least the following contents:

1. Name and address of the Division, and the phone number and electronic mail address of the assigned permit writer;

2. Name and address of each applicant whose application will be considered at the hearing;

3. Name of waterway to which each discharge is made or to which each activity is adjacent and a short description of the location of each discharge on the waterway indicating whether such discharge/activity is new or existing;

4. A brief reference to the public notice issued for each application, including identification number and date of issuance;

5. Information regarding the time and location for the hearing;

6. The purpose of the hearing;

7. A concise statement of the issues raised by the persons requesting the hearing;

8. Address and phone number of premises at which interested persons may obtain further information, request a copy of each draft permit, request a copy of each fact sheet, and inspect and copy forms and related documents;

9. A brief description of the nature of the hearing, including the rules and procedures to be followed; and

10. Any other information deemed necessary by the Commissioner.

(14) Public Notice of Commissioner's Decision to Issue or Deny a Permit.

The Commissioner shall notify the applicant in writing of the final permit decision. The Commissioner shall provide public notice of the final permit decision by posting a notice on the Division's website including a copy of the final permit. The Commissioner may also distribute the notice by any other means reasonably calculated to inform interested persons, including any person who participated in the public comment period, of the final permit decision.

Notes

Tenn. Comp. R. & Regs. 0400-40-05-.06

Original rule filed November 20, 2013; effective February 18, 2014. Amendments filed February 14, 2022; effective 5/15/2022.

Authority: T.C.A. §§ 4-5-201, et seq. and 69-3-101, et seq.