The Texas Water Development board met on September 27 to take up items on the agenda here, including updates on OPIC’s annual report and the Environmental Quality Monthly Enforcement Report. A video of this meeting can be found here.
This report is intended to give you an overview and highlight 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.
- Jon Niermann, TCEQ Chair – I agree with the ED and OPEC that the parties stated are entitled to a hearing; Garza, Kent, Brazos River Landowners Coalition lack standing because the organizations failed to identify a member who would have a standing in his or her own right
- Emily Lindley, TCEQ – I would recommend this permit to ADR but I’m in agreement otherwise
- Motion to grant the hearing request of the Brazos River Authority, Justin Dameran, Michael Dameran, R.E. James Gravel, John and Marrian Lovelace, Clark Wood Jr. and deny remaining hearing request and refer to SOAH for contested hearing on the application and refer to the Alternative Dispute Resolution Program
- Motion Carries
- Niermann – The sole requestor on the item failed to identify any issues in his hearing request, I’m moving to deny
- Motion Carries
- Niermann – I would consider if the draft permit is adequately protective of water quality; that includes surface and groundwater as well as aquatic life.
- Motion to deny the request for reconsideration and refer the application to SOAH on five issues: #1 whether it is protective of water quality, surface water groundwater, aquatic life, livestock and wildlife, #2 whether the permit is protective of the health of individuals who reside in the area of the discharge route, #3 whether the draft adequately protects against nuisance odors, #4 based on consideration need under Texas Water quality code, #5 whether the permit includes quality nutrient limits
- Motion Carries
- Niermann – Of the nine hearing requests I believe just one has met the substantive requirement. Herb Flanigan I would deny the request of remaining requesters and refer Herb Flannigan and add an ADR referral
- Motion to grant the hearing request of Herb Flannigan and deny the remaining requests and refer the case to SOAH for a contested case hearing
- Motion Carries
- The current permit will replace the old permit which expires November 10, 2023
- Staff recommends adoption of the permit, additionally staff requests authorization to make nonsubstantive revisions necessary to comply with the Texas Register Requirements
- OPIC has no objection to renewal of the amendments
- Niermann – I agree
- Lindley – I move to adopt the renewal with amendments to general permits
- Motion Carries
Garret Arthur, Office of Public Interest Council
- Performance measures show 100% participation by OPIC
- OPIC recommends 30 TAC sections 80.105 and 80.252 be amended to allow 30 working days rather than 60 calendar days from closed case hearing record until issuance of a proposal for decision
Vasu Behara, State Office of Administrative Hearings
- The 60 days derives from the Administrative Procedure Act
- SOAH deals with 25,000 items a year, all require a written decision; we have 25 qualified ALJ in Austin handling cases under SB 709 which take anywhere from a few days to weeks
- Reducing our window would negatively impact our agency
Charmaine Backens, TCEQ
- ALJ can extend the deadline to complete the proceeding and provide the PFD either by agreement of the parties with the approval of the ALJ or if the judge determines that failure to extend the deadline would unduly deprive a party of due process or constitutional right
- Niermann – In my opinion SOAH is in a better position to balance the parties’ needs on the one hand and on the other hand allow them enough time to draft a high quality PFD; I would decline to undertake that rule making and leave time frame up to SOAH
- Niermann – I move to decline to initiate OPIC’s recommended rule changing to limit the time SOAH ALJ may use to write their proposals for decision and proposed orders because SOAH is generally in a better position to evaluate and manage the competing scheduling interest involved in TCEQ cases
- Lindley – I have a hard time dictating how they should operate, seconds
- Motion Carries
Items 7-21. Enforcement Agreed Orders
Melissa Cordel, TCEQ
- Total assessed penalty is $191,211 and $9,492 deferred
- $17,850 applied to supplemental and encampment projects
- $163,869 to the General revenue
- OPIC Supports
- Bobby Janecka, TCEQ – I move we adopt items 7-21 as recommend by the ED
- Motion Carries
Melissa Cordel, Enforcement Division
- 899 effective administrative orders issued
- 129 contain environmental projects
- $12,349,883 in penalties with payable amount of $7,384,380
- $3,230,040 are to be paid for supplemental environmental projects
- 13,076 issued through field offices of Data in central office
- 1,868 enforcement action referrals have been received
- 2,323 pending administrative orders; 1,227 cases on back log
- Currently 5% of our total pendi9ng and proposed case load is older than 2 years
- Niermann – I have a concern for the back log number of cases, I attribute it to a staffing issue
- Janecka – I have the same concerns
Amy Browning, Environmental Law Division TCEQ
- Substantive change amending 30 TAC 50.131(c)
- Exemption to the motion to overturn process applies except when registration to use standard permit requires a decision by the ED
- Staff recommends adoption of this rulemaking, staff also recommends making nonsubstantive changes necessary to comply with Texas register
- OPIC agrees it is necessary to correct an inconsistency
- Niermann – I have issues with the preamble language; I draw a distinction between those application style registrations and registrations that require no public notice; I don’t see that these types of standard permits involve a decision that would be appealable to the commission, I’m good with rule language but I have some edits to the preamble
- Janecka – I’m satisfied with ED rule language change
- Lindley – Agree with all changes
- Janecka- I worry that this presents a dead end for legislature and it will cost more of our resources to do this; I worry we miss future permitting issues
- Niermann – I move to approve the adoption but with preamble revision and direct staff to make non substantive revisions to comply with The Texas Register
- Motion Carries
Items 24-28. Quadrennial Rule Reviews
Item 24 Docket No. 2022-1690-MIS.
Item 25 Docket No. 2022-1597-MIS.
Item 26 Docket No. 2022-1736-MIS.
Item 27 Docket No. 2022-1739-MIS.
Item 28 Docket No. 2022-1737-MIS.
Gwen Rico, General Law Division
- ED rules will continue to exist and changes to the rules identified as part of this review process be addressed in a separate rule making in Texas Administrative Procedure Act.
- Staff requests non substantive revisions for Texas register Requirements
- OPIC agrees and support readoption of the chapter
- Lindley – I move that we adopt the rule reviews and readopt rules in 30 Texas administrative code chapters 20, 25, 33, 90, and 116withoput amendment recommended by the ED
- Motion carries