Marked Agenda
Commissioners' Work Session
Thursday, November 7, 1996
1:30 p.m.
Room 201S, Building E, Park 35, Austin
Old Business
- Docket No. 96-1694-EXE. THE COMMISSION WILL CONDUCT A CLOSED MEETING TO RECEIVE LEGAL ADVICE AND WILL DISCUSS PENDING OR CONTEMPLATED LITIGATION, SETTLEMENT OFFERS, AND/OR THE APPOINTMENT, EMPLOYMENT, EVALUATION, REASSIGNMENT, DUTIES, DISCIPLINE OR DISMISSAL OF SPECIFIC COMMISSION EMPLOYEES, as permitted by Sections 551.071 and 551.074, the Open Meetings Act, codified as Chapter 551 of the Government code. No final action, decision or vote with regard to any legal or personnel matter considered in the closed meeting shall be made in the absence of further notice issued in accordance with Chapter 551 of the Government Code. The Commissioners chose not to discuss this item at this time.
- Docket No. 96-1695-EXE. THE COMMISSION WILL CONDUCT A CLOSED SESSION TO DISCUSS THEIR DUTIES, ROLES, AND RESPONSIBILITIES AS COMMISSIONERS OF THE TNRCC PURSUANT TO SECTION 551.074 OF THE OPEN MEETINGS ACT, CODIFIED AS CHAPTER 551 OF THE GOVERNMENT CODE. No final action, decision, or vote with regard to any matter considered in closed session shall be made in the absence of further notice issued in accordance with Chapter 551 of the Government Code. The Commissioners chose not to discuss this item at this time.
New Business
- Consideration of the Commissioners' priorities on rule and policy development. The Commissioners chose to discuss this item in conjunction with item #7.
- Consideration of issues related to the agency's alternative fuels report to the legislature. Jeff Saitas (Air), Hazel Barbour (Clean Fuels and Commute Options), Bill Jordan (Clean Fuels), and David Duncan (Legal) presented this item. The Commissioners directed staff to proceed with developing the report based on the following actions:
- Chairman McBee moved that the agency continue the existing LEV percentage requirements for nonattainment area transit authorities covered by the Health and Safety Code and continue to monitor the program. The motion was seconded by Commissioner Baker and approved unanimously.
- Chairman McBee moved that the agency continue the existing LEV percentage requirements for transit authorities statewide covered by the Texas Transportation Code and continue to monitor the program. The motion was seconded by Commissioner Marquez and approved unanimously.
- Chairman McBee moved that the agency continue the existing percentage requirements for state agency fleets and continue to monitor the program. The motion was seconded by Commissioner Baker and approved unanimously.
- Docket No. 96-1719-RUL. Consideration for publication of proposed amendments to 30 TAC Chapter 335, Subchapter K, Section 335.344, concerning Hazardous Substance Facilities Assessment and Remediation. The proposed rules would streamline the procedures for delisting and modification of sites on the state superfund registry. Jim Feeley (Pollution Cleanup), Ramon Dasch (Legal), and Ray Austin (OPRD) presented this item. The Commissioners provided staff with some corrections to the draft rule. Blas Coy, the Public Interest Counsel, provided comments on the draft. Chairman McBee moved that the rule (as corrected) be published and that the agency take public comment on it. The motion was seconded by Commissioner Marquez and approved unanimously.
- Consideration of communiques between the Governor of the State of Texas and the Governor's of the Mexican States of Tamaulipas, Nuevo Leon, Coahuila, and Chihuahua. Diana Borja (Border Affairs) and Jorge Garces (Border Affairs) presented this item. The Commissioners endorsed the four communiques for forwarding on to the Secretary of State and the Governor of Texas for the Governor's approval and signature.
- Consideration of the Commission's procedures relating to the agenda process and operation of the Office of the Chief Clerk. Geoff Connor (General Counsel) and Mamie Black (Acting Chief Clerk) presented this item. The following issues were discussed:
- File room management -- additional control needed; some controls have already been implemented; staff will develop a log for tracking files.
- Freezing draft permits once they have been noticed and made available for public comment -- staff will work with the Executive Director on an errata sheet, a list of statutorily-mandated turnaround times, and a list of programs that work off of draft permits; the Executive Director will report back to the General Counsel on these items; if changes to the draft permits are minor, the Chief Clerk may continue processing these changes during the interim.
- Problems scheduling rooms for SOAH hearings -- the agency will build a new hearing room for the State Office of Administrative Hearings; in the meantime, two existing on-site conference rooms will be designated for SOAH's use; the agency may need to make greater use of the J.J. Pickle Center for large meetings.
- Chief Clerk preparation of content of notices; submission of applications to the Chief Clerk for notice and related processing before they are complete; and style and terminology of draft permits and applications -- the Chief Clerk will prepare an ongoing report of incomplete applications, including the name of the program staff and other contact names, which will be provided to the Executive Director; the Chief Clerk also will provide to the Executive Director a list of suggested changes for improving the process.
- Correspondence from the public, including hearing requests, sent directly to the program staff must be forwarded immediately to the Chief Clerk.
- Setting matters on agenda based upon the availability of interested persons -- the Chief Clerk will set items on the next available agenda without spending time negotiating with other persons for date setting purposes; the General Counsel will generally continue issues on first request; however, issues which are sought to be delayed more than once will be closely examined by the General Counsel.
- Assigning docket numbers to all applications -- this issue will be discussed further once a permanent Chief Clerk is hired.
- Placing matters on the Commission's agenda -- the burden of determining whether or not an issue is ready for agenda scheduling should fall on the presenting staff; the Chief Clerk should assume that the material provided to them by the program staff is what needs to be provided to the Commission for agenda.
- Consideration of staff's requests for additional filings or additional agenda items -- the General Counsel does not want the Chief Clerk to accept any late filings unless the General Counsel has approved the late filing; the General Counsel's staff may act on his behalf; staff requesting a late filing should work directly with the General Counsel's Office.
- Attendance at the Agenda Review Committee (ARC) meetings -- effective communication among staff negates the need for the ARC; the ARC is abolished.
- Withdrawal of hearings requests -- the Chief Clerk gets the original withdrawal letter, then will notify the Executive Director.
Additional discussion of these issues, as well as other issues related to the operation of the Chief Clerk's Office, will resume at a later date.
- Consideration of issues related to the upcoming legislative session. David Duncan (IGR), David Duncan (Legal), Robert Martinez (Legal), John Riley (Litigation Support), and Lisa Dyar (Litigation Support) presented this item. The Commissioners discussed:
- Consolidated permits -- all programs (except Title V) will be part of the consolidated permit effort; consolidated permits will be voluntary; regarding permit terms, the agency will go with the shortest term of all of the permits under the consolidated permit; staff will make sure that protections that exist under current permitting exist under consolidated permitting; if someone has entered into the consolidated permitting process and then wishes to opt-out, they may do so depending on where they are in the process (at any time prior to the notice of the opportunity for hearing, an applicant may opt out for any reason; after the notice of the opportunity for hearing, and until the notice of hearing, the applicant may opt out upon a showing of good cause; after that, the agency rules regarding withdrawal of permits applies -- with/without prejudice); staff will look into legislative options for consolidating fees/developing fee incentives; after reviewing input from outside of the agency, the Commissioners may want to reconsider their options.
- Penalties -- the agency would like all penalty language consolidated under a single place in the statutes; staff is directed to work on replacing the current penalty system with a two-tiered system for civil and administrative penalties (with a programmatic focus and some consideration of severity); staff will continue to meet with the regulated community as part of the agency's effort to revamp the penalty matrix.
- Permit revocation -- staff will examine other legislation for possible language to clarify the revocation standards.
- General permits for minor wastewater discharges, replacing the current permit-by-rule system -- the agency must be able to explain to the legislature why this permit is necessary; before the agency goes forward with general permits, the permit terms and conditions should be published in the Texas Register; the general permit proposal should return later to the Commission for adoption.
- Planning for the next Commissioners' Work Session. The next Commissioners' Work Session will be held on Monday, November 25th, at 2:00 p.m. in E-201S. The following issues are tentatively scheduled for discussion: issues related to the upcoming legislative session, OTAG/FCAAAC meetings, and the agency's Internal Auditor. This last item will be held in executive (closed) session.
Addendum to the Commissioners' Work Session Agenda
- The Commission will meet in closed session to receive legal advice on the petition of the Environmental Defense Fund to withdraw EPA delegation of the Underground Injection Control Programs of the Texas Natural Resource Conservation Commission under the Safe Drinking Water Act. The Commission will also receive legal advice on issues related to EPA delegation to the Commission of the hazardous waste program as authorized under Section 3006 of the Resource Conservation and Recovery Act, and on issues related to the Commission's application submitted to the EPA concerning delegation of the National Pollutant Discharge Elimination System program to the Commission. The closed session is held pursuant to Section 551.071 of the Texas Open Meetings Act, Chapter 551 of the Texas Government Code. No final action, decision or vote on any legal matter considered in the closed meeting shall be made in the absence of further notice issued in accordance with Chapter 551 of the Government Code. The Commissioners chose not to discuss this item at this time.