The Texas Commission on Environmental Quality met on February 9th to discuss regular agenda items, as well as a request for a hearing by GBRA concerning SAWS and an agreed order between TCEQ and Luminant on SO2 emissions. An archive video of the hearing can be found here.
This report is intended to give you an overview and highlight of the discussions on the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.
Item 1: Consideration of Administrative Law Judge’s Proposal for Decision and Order regarding appeal of denial of Michael Gaines’ application for a Landscape Irrigator License
- Gaines presents his case, TCEQ Exec Dir & OPIC disagree with ALJ decision and recommend denial of application
- Chair Jon Niermann, TCEQ – No reason to second-guess ALJ findings, should adopt ALJ order
- Emily Lindley, TCEQ – Agree, tough case
- Bobby Janecka, TCEQ – Agree, ALJ carries the burden & findings are convincing
- Motion to adopt proposed ALJ order; passes
Item 2: Consideration of an application by San Antonio Water System (Applicant) for a water use permit to authorize use of bed and banks of multiple tributaries to convey 260,991 acre-feet of groundwater-based return flows per year for subsequent diversion of various purposes of use in multiple San Antonio counties.
- TCEQ not taking oral argument but parties may ask questions
- Niermann – While bed & banks permit hearings are not subject to HB 801 or SB 709, we do grant them when the requestor demonstrates its right to a hearing under Chap. 55; at the heart of this is the familiar affected persons requirement
- Niermann cont. – Much of the argument is based on the idea that the Edwards Aquifer is hydrologically and legally distinct from other water features in the state
- Hydrologically it is distinct, but skeptical that it is legally distinct, groundwater is private property and it retains that character when it is discharged into a state water course
- Understand the concerns about SAWS’ pumping of groundwater, but right of capture is not at issue in this item, this authorization is for conveyance
- GBRA also had issues with accounting plan and channel losses, not difficult to imagine future disputes over accounting plan; GBRA was clear that SAWS may come after them for water in the future
- Niermann quotes from the GBRA brief, pg 14 asserts accounting plan inadequately addresses channel losses & SAWS application would effectively creates a most senior water right that could call on any right upstream
- Niermann cont. – I don’t think it matters that TCEQ would not recognize a priority call by SAWS as SAWS would be able to call in a private action; bottom line for me is GBRA does have a personal justiciable interest, would grant GBRA’s request
- Union Carbide may be similarly situated, but their request is short and does not have a personally justiciable interest, concern that SAWS may come for them is a little too attenuated
- Would grant for GBRA and deny the rest
- Lindley – This is super complicated, will be interested to hear what the issues you want to refer are
- Niermann – Not required to specify issues and probably would not do that
- Lindley – That’s fair; read all the hearing requests and thought there were interesting points made, questioning what this means in the long term? Could have some policy decisions interwoven, appreciates Chair Niermann’s comments, can get on board granting a hearing to GBRA
- Janecka – Nothing substantial to disagree with, also keyed on the accounting plan; agree it is a somewhat tenuous link, different views on applicability of the law; has implications, like what would this policy look like in a very severe drought; would like more detail on the water accounting plan process, comfortable moving with them as an affected party
- Niermann – Haven’t formed an opinion on the accounting plan, think it’s GBRA’s right to challenge it before SOAH; legal arguments don’t match to the hydrology very well, putting private groundwater effluent into surface water and this complicates matters
- Niermann cont. – Struggled with teasing out the interest, there are some interests in fact related in the hydrology that don’t exist at law
- Two things will be features of this motion, will deny plea to jurisdiction, ADR referral is appropriate
- Motion to deny GBRA’s plea to the jurisdiction; grant hearing request of GBRA; deny request from Union Carbide, San Marcos, Seguine, Victoria, others; refer this matter to SOAH and ADR to run concurrently; passes
Item 3: Consideration of a Petition by Montgomery Estates, LLC (Petitioner) for the creation of Chambers County Municipal Utility District No. 4 (District).
- Remanded
Item 4:Â Consideration of gifts and donations of $500.00 or more in value given to the TCEQ, submitted for approval in accordance with Chapter 575 of the Government Code, concerning acceptance of gifts by certain state agencies. (Yen Tran)
- Exec Dir has accepted gifts and request acknowledgment of the gifts by the TCEQ; OPIC recommends approval
- Motion to approve resolution acknowledging gifts and donations; passes
Items 5-14:Â Consideration of Agreed Order assessing administrative penalties and requiring certain actions of CITGO Refining and Chemicals Company L.P. in Nueces County; RN102555166; for air quality violations pursuant to Tex. Health & Safety codes and rules of TCEQ, including specifically 30 Tex. Admin. Code ch. 60. (Mackenzie Mehlmann, Michael Parrish)
- Exec Dir and TCEQ discuss enforcement docket and move to approve as discussed; passes
Item 15 & 16 were taken up together
Consideration of adoption of Agreed Order between TCEQ and Luminant Generation Company LLC (the Company), to support attainment and maintenance of the 2010 Sulfur Dioxide (SO2) National Ambient Air Quality Standard (NAAQS), in the Rusk-Panola SO2 nonattainment area, as required by the federal Clean Air Act (FCAA).
- Exec Dir staff request adoption of the agreed order and revision
Joshua Smith, Individual
- Proposed state implantation and order is already failing to protect air quality around Martin Lake, EPA has made clear that this does not comply with Clean Air Act
- TCEQ should adopt an order that complies with Act and protects public health
- Proposal and decree are already failing to ensure that SO2 violations do not occur; plant is emitting SO2 levels that exceed these standards; agreed order is failing to protect public health
- EPA has made clear this plan is not approvable, relies on unapproved modeling platform and not protective of public health
- Urging implementation plan be sent back to TCEQ for adoption of controls that work
Lacey Tuttle-Beckman, Individual
- Advocating for more pollution control around Martin Lake as well; long time resident of Martin Lake area and has seen concerning pollution and contamination
- Martin Lake plant does not meet standards, evidence of health issues in the area
Paulette Gory, Individual
- Resident of Beckville, has been exposed to pollution from Martin Lake, family suffers from respiratory issues
Vic McWherter, OPIC
- OPIC doesn’t oppose adoption of plan and SIP revision, must submit Sip revision by March 9th, 2022; if EPA approves by Sept., EPA will not be required to issue an FIP
- OPIC understands federal regulations allow TX to use an alternative air model and EPA can approve use of the model
- Agreed order would result in significant reduction of SO2 by 70%, designed to meet NACS but Luminant must take additional action if NACS are not met
TCEQ Discussion
- Niermann – Agree with OPIC’s assessment, comfortable with the order and SIP demonstration
- Lindley and Janecka agree
- Motion to adopt agreed order and SIP for the 2010 SO2 standard; passes
Items 18-21. Executive Session
- TCEQ met in executive session from 10:45 am and 11:00 am
- Niermann – Consistent with discussions during executive session, recommends directing Exec Dir to increase salary of general counsel by 7%
- Motion to increase general counsel salary by 7%; passes