The TCEQ met on November 2, 2022, to take up discussion and possible action on hearing requests, enforcement orders, a petition for rulemaking by Galveston County, and other various matters. A copy of the agenda can be found here. An archive of the meeting can be found here.

 

This report is intended to give you an overview and highlight of 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 a petition by GRBK Edgewood, LLC for the creation of Ellis Ranch Municipal Utility District No. 1

  • Commissioners will not take oral argument; Ellis County is sole requester and cited statutory concerns; county is clearly effected; request an ADR referral
  • Move to grant hearing request, refer matter to SOAH for a contested case hearing on the petition and refer matter to commission’s alternative dispute resolution program to run concurrently with SOAH

 

Item 2: Consideration of an application by Western Refining Terminals, LLC for renewal of Air Quality Permit No. 93546 to authorize the continued operation of support facilities, including tanks, that comprise the Marathon El Paso Refinery’s storage terminal

  • Several hearing requests but no increase renewal so agree with executive director and OPIC that we are compelled to deny request
  • Move to find no right to a hearing on this application and deny all hearing requests, issues renewal of Air Quality permit, passes

 

Item 3: Consideration of gifts and donations of $500.00 or more in value given to the TCEQ

Yen Tran, Executive Director Staff

  • Requests acknowledgement of gifts; no questions for commissioners
  • Lindley- generosity of federal and state agencies, appreciate gifts and donations
  • OPIC recommends approval of resolution
  • Motion to approve, passes

 

Item 4: Consideration for approval to publish and solicit public comment on the Draft Implementation Plan for Two Total Maximum Daily Loads for Indicator Bacteria in Sandy Creek and Wolf Creek, of the Neches River Basin, in Jasper and Tyler counties

Jason Lancaster, Water Quality Planning Division

  • Executive director requesting; stakeholder group formed and tasked with input on document to improve water quality
  • OPIC supports publication of draft and implantation plan
  • Motion to approve, pass

 

Item 5: Consideration for approval to publish and solicit public comment on the Draft Implementation Plan for Two Total Maximum Daily Loads for Indicator Bacteria in the Caney Creek Watershed, of the Brazos-Colorado Coastal Basin, in Brazoria, Matagorda, and Wharton counties

Jason Lancaster, Water Quality Planning Division

  • Executive director requesting; stakeholder group formed and tasking with providing input of document to improve water quality in community, permission request for non-substantive and clarifying changes
  • Janecka- Acknowledge this matter and previous one very similar but reflect different features in community; appreciate acknowledgement of potential in this matter for extra room for sewer facility improvement
  • Niermann- Item 4, Texas Stream Team always looking for volunteers to get involved in feral hog program to keep watchful eye out for quality of Texas surface water
  • Case where usual estimate for feral hogs was way too low; adjusted numbers to be reflective; would welcome any help to try to reduce numbers
  • OPIC supports
  • Move to approve, passes

 

Item 6-26: Water Quality Enforcement Agreed Order

Melissa Cordell, Enforcement Division

  • Total penalties are $653,428 with $55,559 deferred, $225,677 toward supplemental environmental projects and 4372,192 to the general venue
  • OPIC supports adoption of enforcement orders
  • Move to adopt items 6-26, passes

 

Item 27: Consideration of a petition for rulemaking under Section 20.15 of 30 TAC Chapter 20, Rulemaking

Joe Giusti, Galveston County Commissioner of Precinct 2

  • Commissioner’s court unanimously approved approaching a rule change in hopes that TCEQ would help out; peninsula in need of dire help; developers having difficulty with development on peninsula

 

Zach Davidson, Galveston Country Director of County Communications

  • Bolivar peninsula is disconnected from the rest of Galveston County, home to about 3,000 residents, private wastewater service provider has spilled 160,000 gallons-
  • Smith interrupts to remind that this is an enforcement matter that should not be discussed
  • Has led to number of residents and developers to ask for OSSFs on lots of under half an acre; health district reached out and got guidance from TCEQ that says can give variance in certain cases; too many cases so health district advised not give out any variants
  • Developers looking for options; language proposed has in there that system would have to by designed by a registered sanitarian (RS) or permitted engineer (PE) and reviewed by permitting authority
  • Under rule change wouldn’t solve challenges being faced because small number of homes would be workable for a septic system

 

Randy Chelette, Texas Onsite Waster Water Association

  • Visited with board of directors, opposed to this because backside of Bolivar peninsula affected by wastewater, high concentration of people is issue
  • Systems stressed and can’t handle heavy peak flows leads to untreated waste going to the water table; would be disastrous for the region
  • Believe it would be terrible for the environment and public health; changing rule statewide can allow raw sewage coming to the surface and the public coming into contact with raw sewage

 

David Price, Board Member of Texas Onsite Wastewater Association and Texas Rivers Protection Association

  • Proposal would roll back regulations that were tightened up to deal with problems Mr. Chalet mentioned; soils on Bolivar peninsula are extremely permeable and design by PE or RS doesn’t meet current code; design reviews by a DR generally far beyond their technical ability to review
  • TCEQ memorandum directed DRs to follow rule, not been enforced until now so it is a problem
  • Will work with these people to come up with a solution to develop responsibly and sustainably
  • Niermann- Is flow equalization what it sounds like?
    • Yes, slows down disposal but soil class on peninsula doesn’t allow this to work

 

Brian Zabcik, Safe Barton Creek Association

  • Huge issue; asks for allowance of more discussion if voting today
  • Niermann- Want to be clear that if we grant a rulemaking petition that rulemaking is an inquiry into need of rule and shape of rule; doesn’t mean we have adopted rule, simply begin an inquiry into rulemaking
  • When petitioner filed the pristine streams petition you didn’t follow what you said just now
  • Smith- Caution that this is not under petition today and shouldn’t be discussed under this topic
  • Niermann- Intend to call a vote on this item today
  • Opposed to eliminate minimum lot size for onsite sewage facility and ask commissioner refrain from setting up inquiry
  • Overall, like onsite septic systems; proper citing important especially for recharge zone of Edwards aquifer; significant failure rate of onsite septic systems around 10-15%
  • Failing systems dangerous in hill country; wouldn’t oppose rule change for only Galveston County

 

Jeff Miller, Greater Edwards Aquifer Alliance

  • State and Edwards Aquifer region would be adversely affected; aerobic treatment units do a better job of treating but don’t undergo inspection after 2 years of service; could see more contaminants reaching public’s drinking water
  • Would lead to dramatic increase in impervious cover and have effects on flooding, statewide impacts of rule change
  • Niermann- Can you explain the point on impervious cover?
    • As minimum lot sizes change and get smaller you end up with increased development and density that could lead to an increase in flood potential as well

 

Bob Stokes, Galveston Bay Foundation

  • Water quality and bacteria issues in bay; don’t believe proposed rule change is protecting human health and environment; long history of high bacteria levels; going to smaller systems will lead to bacteria problems
  • Many homes have lots of people on Bolivar; overuse of systems and making smaller lot sizes would lead to water quality issues
  • History and science tell us there would be problems

 

Michael Brayden, self

  • Concerned about rule change and oppose, years of experience as a licensed installer and maintenance provider

 

Donna Cosper, Executive Directors Staff

  • Gives review of the rule and amendments; lot size requirement hasn’t been reviewed or amended since inception of rule
  • Ask for time to research proper lot size to better understand implications of amending rule
  • Janekca- To what extent do the current PE designs consider the soil?
    • Any designer must consider the soil
  • Janecka- Do we have concerns about the Bolivar peninsula? What would be an acceptable design? Hearing from you that it is a factor being considered
    • Approximately 95% of permits authorized by local entities
  • Janecka- Any consideration of necessary minimum populations for facilities and design of entities for particular residence with surge populations or seasonal difference
    • Consider the number of bedrooms to determine flow to be treated; encourage local entities to consider if property is used for purposes other than just permanent living
  • Lindley- So executive director considering granting rule petition because it would give you opportunity to see what basis is of a half acre; Why now? Have we heard that we need a stronger basis for this half acre requirement
    • Have heard from authorized agents when requested to grant a variance; not required to review any variants but we do get questions and they want our opinion; not aware of an official petition but comments given for greater increased sizes

 

Jacob Young, Representative at Trinity River Authority

  • Lake Livingston gives about 4 million people in Houston drinking water; in late 60s lake was developed and so were subdivisions with smaller than half acre lots; since 2008 have undesirable lots that are becoming more desirable and creates obstacles for functional sewer systems
  • To change half acre rules for the whole state would be a step in the wrong direction; reached out to staff that helped look through complaints, most of the complaints were associated with lots smaller than a half acre

 

OPIC Staff Member

  • OPIC understands issues, however it is necessary for public health and safety to encourage use of regional wastewater systems; will use stakeholder process to ensure adequate protection of environment and population; not opposed to inquiry into rulemaking to look into this
  • Lindley- Good reasons why there is a minimum acreage; local issue before us today, not convinced it needs to be a statewide level, but not opposed to development; I don’t think I would vote supporting a rule petition, would take a significant amount of convincing on my part
  • Lindley- Not sure if granting rule petition is best way to get this done; think enforcement division (ED) could just do that and we continue to try to work with Galveston County on their issues
  • Janecka- Agree, think we need to continue to work on this; see some value in considering a denial and a stakeholder process; this indicates existing concerns with substance of this request; at end of time to act on this petition
  • Niermann- Thoughts aligned with colleagues; sounds like there’s a real but local problem; skeptical of statewide solution for local problem and doesn’t seem appropriate to me without consideration of geology and hydrology; too big of a solution to the problem
  • Niermann- Could be local conditions or instances where it might be appropriate to have development on under a half-acre; wouldn’t categorically rule out a rule making to address Bolivar peninsula; don’t need rule making process for ED to revisit half acre requirement
  • Lindley- Don’t know if we need a stakeholder process; just want to look at the issue right now
  • Niermann- Let’s start with a Bolivar peninsula stakeholder group
  • Janecka- Think answer is our ability to give a yes or no on exception case on Bolivar peninsula; could do that by increasing amount of information we need and specific Bolivar peninsula guidance for technical features necessary; dilemma initially is that we can’t rest on 25-year-old information for policy
  • Niermann- Want to help Galveston County solve their issue; don’t think it’s a statewide issue
  • Motion to deny petition for rulemaking and recommend a motion to direct general council to deny petition consistent with discussion today, passes

 

Item 28: Public Comment

Stan Mitchell, self

  • Gives overview of how voluntary compliance is in opposition with timely enforcement as listed on website of TCEQ
  • Receding waters may be Texas aquifers “canary in a coal mine”; Why no involvement of your agency in aquifer pumping rights?
  • Aquifer quality concerns; please rectify regulatory capture inequities
  • Niermann- TCEQ largely lacks jurisdiction over ground water which is technically private property in the state of Texas

 

Item 29-32: Closed session

Meeting Adjourned