(a) Hearing.
  (1) Notice. An applicant who does not receive notice
as to the complete or deficient status of a certificate application
within the period established in this subchapter for such application
may petition for a hearing to review the matter.
  (2) Processing. An applicant whose permit is not approved
or denied within the period established in this subchapter for such
certificate may petition for a hearing to review the matter.
  (3) Procedure. A hearing under this section shall be
in accordance with the Administrative Procedure Act and Subchapter
E of this chapter (relating to Contested Cases).
(b) Petition. A petition filed under this section must
be in writing and directed to the executive director. The petition
shall identify the applicant, indicate the type of certificate sought
and the date of the application, specify each provision in this subchapter
that the agency has violated, and describe with particularity how
the agency has violated each provision. The petition shall be filed
with the office of the executive director.
(c) Decision. An appeal filed under this section shall
be decided in the applicant's favor if the executive director finds
that:
  (1) the agency exceeded an established period under
this subchapter; and
  (2) the agency failed to establish good cause for exceeding
the period.
(d) Good cause. The agency is considered to have good
cause for exceeding a notice or processing period established for
a permit if:
  (1) the number of certificates to be processed exceeds
by 15% or more the number of certificates processed in the same calendar
quarter of the preceding year;
  (2) the agency must rely on another public or private
entity for all or part of its certificate processing, and the delay
is caused by the other entity;
  (3) the hearing and decision-making process results
in reasonable delay under the circumstances;
  (4) the applicant is under administrative review; or
  (5) any other conditions exist giving the agency good
cause for exceeding a notice or processing period.
(e) Commission review. A permit applicant aggrieved
by a final decision or order of the executive director concerning
a period established by these sections may appeal to the commission
in writing after the decision or order complained of is final, in
accordance with §401.63 of this title (relating to Final Decision
and Orders).
(f) Relief.
  (1) Complete or deficient status. An applicant who
maintains a successful appeal under subsection (c) of this section
for agency failure to issue notice as to the complete or deficient
status of an application shall be entitled to notice of application
status.
  (2) Certificate approval or denial. An applicant who
maintains a successful appeal under subsection (c) of this section
for agency failure to approve or deny a certificate shall be entitled
to such approval or denial of the certificate and to full reimbursement
of all filing fees that have been paid to the agency in connection
with the application.


Source Note: The provisions of this §401.127 adopted to be effective March 8, 2001, 26 TexReg 2040; amended to be effective January 20, 2002, 27 TexReg 382; amended to be effective February 26, 2015, 40 TexReg 826