Section 39.426 - Alternative Language Requirements(a) Applicability. (1) The following are subject to this section:(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 section 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 Bilingual Education Exceptions and English as a Second Language Waivers).(3) Elementary or middle schools that offer English as a second language under 19 TAC § 89.1205(d), and are not otherwise affected by 19 TAC § 89.1205(a), will not trigger the requirements of this section.(4) This section also applies when the executive director determines that alternative language notice is necessary to provide proper notice and meaningful access to affected communities.(b) Alternative language newspaper notice. (1) The notice required by § 39.418 or § 39.419 of this title 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.(2) 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 (relating to Newspaper Notice).(3) 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;(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.(4) 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.(5) 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. (A) For permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022, if this notice is waived, the applicant will provide the alternative language notice required in paragraph (3)(A) of this subsection to the Office of the Chief Clerk (chief clerk), and this notice will be posted electronically on the commission's website;(B) The published English language notice will include instructions in the alternative language explaining how to access the electronic version of the alternative language notice.(6) Notice under this subsection will only be required to be published within the United States.(7) Each alternative language publication must follow the requirements of this chapter that are consistent with this section.(8) If a waiver is received under this section 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 section on a waste or water quality application, the applicant shall complete a verification and submit it to the chief clerk and the executive director.(c) Alternative language requirement for applicant's summary of application. For permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022, when an application is subject to the requirements of this section, the applicant shall also provide an alternative language version of the summary of application that is required by § 39.405(k) of this title (relating to General Notice Provisions). This summary shall be posted on the commission's website.(d) Alternative language requirements for public meetings:(1) When a public meeting is held under § 55.154 of this title (relating to Public Meetings), the chief clerk shall mail notice of that public meeting in the alternative language, if alternative language notice is required to be published by subsection (b) of this section. (A) Notice of the public meeting shall be given as required by § 39.411(d) or (g) of this title (relating to Text of Public Notice), as applicable.(B) For air quality permit applications, this notice shall be mailed by the chief clerk's office at least 30 calendar days prior to the date of the public meeting.(C) The alternative language notice of the public meeting will be published on the commission's website.(2) The applicant shall provide for competent interpretative services in the same alternative language at the public meeting. Interpretation services must be provided if:(A) the chief clerk has received comments in the alternative language at least two weeks before the public meeting is scheduled; or(B) there is substantial or significant public interest that would be served by having translation services available.(3) This subsection will apply to permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022.(e) Alternative language requirements for response to comments.(1) The executive director is required to evaluate the need to provide a written response to comments in accordance with § 55.156(b)(1) of this title (relating to Public Comment Processing) in an alternative language when formal written or oral comments are received on the permit application in the alternative language; the executive director will consider the following factors when making this determination: (A) if the comments received on the application were substantive;(B) how many comments in an alternative language were received on the proposed application;(C) if the language in which the comments were received is commonly spoken in the community in which the proposed application would be located;(D) if a notice was required by this section to be published in that language; and(E) if an alternative language response is necessary to ensure that the commenter can fully participate in the processes of the commission related to the permit application.(2) The executive director may also provide the response to comments in the alternative language when there is significant public interest that would be served by the response to comments in the alternative language.(3) When a translated response to comments is provided, the transmittal letter mailed out by the chief clerk in accordance with § 55.156(c) of this title shall: (A) also be provided in the alternative language; and(B) the instructions for further public participation that are required by § 55.156(d) and (e) of this title shall also be provided in the alternative language.(4) When a translated response to comments is necessary, the executive director may use any resources available to translate the response; the translated response to comments may include a statement as to the source of the translation, and information for how to obtain answers to questions related to the translation.(5) When the executive director determines that it is not necessary to translate a response to comments even though comments have been received in an alternative language, the transmittal letter will include information in both English and the alternative language about how to use available translation tools to translate the response into an alternative language.(6) This subsection will apply to permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022.(f) Alternative language requirements for response to requests for reconsideration or hearing requests. This subsection applies whenever requests for reconsideration or hearing requests are received in accordance with § 55.201 of this title (relating to Requests for Reconsideration or Contested Case Hearing) in an alternative language.(1) the notice transmitted by the chief clerk in accordance with § 55.209 of this title (relating to Processing Requests for Reconsideration and Contested Case Hearing) concerning commission action on hearing requests shall be provided in the alternative language;(2) any written responses to the requests for reconsideration or hearing requests submitted by the executive director, the Office of Public Interest Counsel, and the applicant shall be provided in the alternative language;(3) when a translated response to requests for reconsideration or hearing is required, the executive director, the Office of Public Interest Counsel, and the applicant may use any resources available to translate the response; the translated response may include a statement as to the source of the translation, and information for how to obtain answers to questions related to the translation;(4) written commission orders on hearing requests subject to this subsection shall also be provided in the alternative language;(5) when hearing requests that require alternative language documents are heard by the commissioners at agenda, the commission shall provide oral interpretation of the agenda consideration in the alternative language;(6) notice required in accordance with § 50.119 of this title (relating to Notice of Commission Action, Motion for Rehearing), shall also be provided in the alternative language when this subsection applies;(7) notice required in accordance with § 39.423 of this title (relating to Notice of Contested Case Hearing), shall also be provided in the alternative language; and(8) this subsection will apply to permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022.(g) Remedy for Alternative Language Translation Errors.(1) For notices, only substantive errors in translation require that notice be re-published or re-mailed. Substantive errors include, but are not limited to, errors in deadlines, meeting locations, log-in information for virtual meetings, time of meetings, information relating to means to obtain further information about the subject of the notice, and information about the permit applicant.(2) Absent a demonstration of willful misconduct in connection with the translation, a minor translation error shall not be grounds for preventing, vacating, delaying, or otherwise impairing the effectiveness of an action by the executive director or the commission.(3) In the event of an alleged translation error, the original English version of a document shall be deemed conclusive.(4) A complainant's remedy shall be to receive a revised translation within a reasonable period of time.(5) This subsection will apply to permit applications that are declared by the executive director to be administratively complete on or after May 1, 2022.30 Tex. Admin. Code § 39.426
Adopted by Texas Register, Volume 46, Number 37, September 10, 2021, TexReg 5838, eff. 9/16/2021