Marked Agenda
Commissioners' Work Session
May 13, 1996
1:30 p.m.
Room 201S, Building E, Park 35, Austin
Old Business
- Consideration of issues related to the agency's strategic plan, operating budget, and performance
partnership grants. This old business item was continued from the April 29th Work Session. The
Commissioners chose to continue it to a special Work Session for this item to be held on May 24th at 9:00
a.m.
- Consideration of issues related to National Pollutant Discharge Elimination System (NPDES)
delegation, including issues regarding public participation in the administrative process, the Texas
Private Real Property Rights Preservation Act, and the Texas Environmental, Health, and Safety Audit
Privilege Act. This old business item was continued from the April 3rd, April 19th, and April 29th Work
Sessions. Sharon Smith (Legal - Litigation Support) presented the issue. This issue will be continued to the
May 29th Wednesday Agenda Meeting as old business.
- The Commission will meet in closed session to receive legal advice on agency options relating to
delegation of the National Pollutant Discharge Elimination System (NPDES) program, pursuant to
Section 551.071 of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. The
Commission may also meet in open session to take action on this matter, as required by Section 551.102
of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. This old business item
was continued from the April 3rd, April 19th, and April 29th Work Sessions. Sharon Smith (Legal -
Litigation Support) presented the issue. This issue will be continued to the May 29th Wednesday Agenda
Meeting as old business.
New Business
- Consideration of the Commissioners' priorities on rule and policy development. The
Commissioners chose to take this item up in conjunction with new business item #6.
- Consideration of issues related to the Title V Operating Permits program. The issue was presented
by Karen Olson (Air/Operating Permits) and Jeff Saitas (Air). The Commissioners instructed staff to
convene a meeting of the Title V stakeholders (begin with the list of participants from the 1993 working
group) to discuss implementation of the program and what it will mean for Texas. The meeting should focus
on whether, as a state, we're still headed in the right direction, specifically in regards to new source review.
In the meantime, the Commissioners will meet in open and closed (executive) session during the May 29th
Wednesday Agenda Meeting to receive legal advice from staff and possibly discuss the issue further. Staff
will go forward with rulemaking regarding the elimination of grandfather rates in Regulation XII for sources
subject to the interim program. This agenda item will also be continued to the June 24th Work Session as
old business.
- Consideration of issues related to the statutory aspects and the evolution of standard exemptions
from permitting (382.057) for facilities or changes to facilities that will not result in a significant
increase in air contaminants to the atmosphere. (See instructions under agenda item #4 below.)
- Consideration of issues related to air standard exemptions granted under 30 TAC 116.211,
including the protectiveness of human health, the impact on the regulated community, the cumulative
effects of multiple standard exemption authorizations, and exemptions at grandfathered facilities. The
agency has begun reviewing its standard exemptions. Initially, we will review approximately one third of the
existing exemptions before the next legislative session. We will then attempt to review the remaining
exemptions in smaller increments (according to type). Once a complete review is made of an exemption, the
agency will make a determination of the protectiveness of each exemption and stick by it. If circumstances
indicate that the issue needs to be revisisted, the agency may reconsider its position. However, the public
must be able to rely on our decisions and know what to expect. Keeping these principles in mind, staff will
use the agency's peer review process to determine "reasonableness" in terms of worst case scenarios. Staff
will determine what is meant by "conservative" in our approach to standard exemptions. Staff will review a
few of the standard exemptions using these guidelines and return to the Commissioners for feedback -- are
we on the right track? The Commissioners emphasized that they have faith in the professional judgement of
staff and prefer leaving some decisions to staff rather than writing overly prescriptive regulations. The
Commissioners' underlying concern is always public safety.
- Consideration of certain specific air standard exemption authorizations, including Concrete Batch
Plants. The Commissioners discussed specific standard exemptions, including questions about legislative
history and intent behind the statutory right to public hearings for concrete batch plant protestants. The recent
Ingram decision allows the admission of modeling evidence by protestants. For the time being, the applicant
will have to rebut any modeling evidence presented by protestants, the agency will have to defend its
modeling in such instances, and the State Office of Administrative Hearings (SOAH) will have to weigh the
modeling evidence. Staff will review the legislative history behind the public hearing requirement to make
sure that the legislature meant "public hearing" (and all its implications) and not "public meeting." The
Commissioners also emphasized that if a facility can't meet other applicable standards that significantly and
directly affect the facility, it should have to go through the permitting process rather than qualify for a
standard exemption. The Commissioners also decided to lift the current "hold" on the processing of these
applications, based on their better understanding of the issue. Finally, the Commissioners asked that those
standard exemption rule packages up for final adoption on May 15th should be brought forward. However,
any newly proposed or upcoming standard exemption rule packages should go through the new review
process.
- Planning for the next Commissioners' Work Session. The Commissioners' will hold a special Work
Session on May 24th at 9:00 a.m. to discuss the following old business item: Consideration of issues related
to the agency's strategic plan, operating budget, and performance partnership grants. The next regular Work
Session is scheduled for June 24th at 1:30 p.m. in E-201S. The Commissioners are tentatively scheduled to
address the following issues at the June 24th session: the Title V Operating Permits program, revisions to the
federal particulate matter standard, and the issuance of permits based on compliance history.