Kathleen White
Ralph Marquez
Larry Soward
OLD BUSINESS AGENDA
Wednesday, January 28, 2004
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
9:30 a.m.
12100 Park 35 Circle
Bldg E, Room 201S
AGRICULTURAL ENFORCEMENT DEFAULT ORDER
Continued from the December 17, 2003 agenda.
Item 1. Docket No. 2001-0236-AGR-E. Consideration of a Default Order assessing administrative penalties and requiring certain actions of John Roof dba Roof Dairy in Johnson County; TCEQ ID No. None; for dairy operation water quality violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality. (Laurencia Fasoyiro, Mariam Hall)
Item remanded to the Executive Director.
PUBLIC WATER SUPPLY ENFORCEMENT AGREED ORDER
Continued from the December 17, 2003 agenda.
Item 2. Docket No. 2002-0981-PWS-E. Consideration of an Agreed Order assessing administrative penalties and requiring certain actions of HMW Special Utility District dba Kipling Oaks Section 1 in Montgomery County; TCEQ ID No. 1700228; for public drinking water violations pursuant to Tex. Health & Safety Code ch. 341, Texas Water Code chs. 7 and 13, and the rules of the Texas Commission on Environmental Quality. (Lindsay Andrus, Miriam Hall)
Item continued to February 25, 2004. KW/LS; all agree.
RULE MATTER
Continued from the December 17, 2003 agenda.
Item 3. Docket No. 2003-1274-RUL. Consideration for publication of, and hearing on, proposed new Sections 70.201 - 70.206 of 30 TAC Chapter 70, Enforcement. The proposed new sections would implement Senate Bill 1265, 78th Legislature, Regular Session, 2003.
The proposed rulemaking would establish procedures for Texas peace officers to use when referring alleged environmental violations for criminal enforcement review. (Paul Sarahan, Micheal Blinn, Michael Bame) (Rule Log No. 2003-061-070-AD)
Approve publication of, and hearing on, proposed new Sections 70.201 - 70.206 of 30 TAC Chapter 70. KW/LS; all agree.
AGENDA
Wednesday, January 28, 2004
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
9:30 a.m.
12100 Park 35 Circle
Bldg E, Room 201S
MOTION TO OVERTURN
Item 1. Docket No. 2003-1579-MIS. Consideration of a Motion to Overturn filed by the City of Shoreacres, the City of Taylor Lake Village, the City of Seabrook, and Galveston Bay Conservation and Preservation Association regarding the Executive Director’s December 16, 2003 letter granting §401 certification of the Port of Houston Authority’s proposed Bayport Ship Channel Container/Cruise Terminal project in Harris County, Texas and finding consistency with the Texas Coastal Management Program goals and policies; USACE Permit Application No. 21520 (revised). The Commission will also consider timely-filed briefs and replies to the Motion to Overturn.
Decline to take action on the MTO, due to a lack of jurisdiction. KW/RM; all agree
HEARING REQUEST
Item 2. Docket No. 2003-1067-WR. Consideration of Application No.18-3834B by the Canyon Regional Water Authority, to authorize an amendment to Certificate of Adjudication No. 18-3834. Certificate of Adjudication No. 18-3834 authorizes Canyon Regional Water Authority to divert from a point on the perimeter of Lake Dunlap, Guadalupe River, Guadalupe River Basin, 18.52 acre-feet of water for municipal purposes in Guadalupe County at a maximum rate of .23 cubic feet per second (cfs)(103 gallons per minute(gpm)), and to divert 71.48 acre-feet of water for irrigation of 45.11 acres of land in the J.S Johnson survey, Abstract No. 190, Guadalupe County at a maximum diversion rate of .88 cfs (397 gpm). Canyon Regional Water Authority seeks to amend the Certificate by changing the place of use for the 18.52 acre-feet to Canyon Regional Water Authority’s service area within the Guadalupe Basin, adding an additional diversion of 5600 acre-feet for municipal purposes in Canyon Regional Water Authority’s service area within the Guadalupe Basin, and to increase the maximum diversion rate to 93 cfs (41,738.4 gpm). The Executive Director has recommended denial of this application. The Guadalupe-Blanco River Authority submitted a motion to deny the application pursuant to Texas Water Code Section 11.131. The Commission will also consider requests for hearing or reconsideration, related responses and replies, public comment and the Executive Director's Response to Comments. No public comment will be allowed, although the Commission may ask questions. (Kathy Hopkins, Jason Haas)
Grant the hearing requests of the Canyon Regional Water Authority, American Electric Power, the City of Victoria, the Guadalupe-Blanco River Authority, the San Marcos River Foundation, and Small Hydro of Texas, Inc.; refer the application to SOAH for an evidentiary hearing along with the requests of Linda Parker and the San Antonio River Authority for a determination of party status; set the duration of the hearing as nine months; and before referral to SOAH, refer the matter to the Commission's alternative dispute resolution staff for a period of four to six weeks for mediation.
AGRICULTURAL ENFORCEMENT AGREED ORDER
Item 3. Docket No. 2002-1224-AGR-E. Consideration of an Agreed Order assessing administrative penalties and requiring certain actions of Tapia Dairy #3, L.L.C. in Tom Green County; Water Quality Permit No. 0004012-000; for agriculture violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (Jill Reed, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
MUNICIPAL SOLID WASTE ENFORCEMENT AGREED ORDER
Item 4. Docket No. 2003-0606-MSW-E. Consideration of an Agreed Order assessing administrative penalties against Richard Escalona dba Javelina Pit in Hidalgo County; Regulated Entity ID No. RN102731981; for municipal solid waste violations pursuant to Tex. Health & Safety Code ch. 361, Tex. Water Code ch. 7, and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (Laura Clark, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
MUNICIPAL WASTE DISCHARGE ENFORCEMENT AGREED ORDER
Item 5. Docket No. 2002-1079-MWD-E. Consideration of an Agreed Order assessing administrative penalties and requiring certain actions of GEUS in Hunt County; Texas Pollutant Discharge Elimination System Permit No. 02984-000 (Expired); for water quality violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (Wendy Cooper, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
PETROLEUM STORAGE TANK ENFORCEMENT AGREED ORDERS
Item 6. Docket No. 2003-0321-PST-E. Consideration of an Agreed Order assessing administrative penalties against Amin S. Maredia dba Gas N Stuff #4 in Montgomery County; Petroleum Storage Tank Facility ID No. 0018396; for petroleum storage tank violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (Trina Grieco, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
Item 7. Docket No. 2003-0888-PST-E. Consideration of an Agreed Order assessing administrative penalties against K & K, Inc. in Carson County; Petroleum Storage Tank Facility ID No. 12411; for petroleum storage tank violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (Stacey Young, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
Item 8. Docket No. 2003-1178-PST-E. Consideration of an Agreed Order assessing administrative penalties against Metro Suppliers, Inc. dba METRO MART 4 in Travis County; Petroleum Storage Tank Facility ID No. 51472, Regulated Entity Number RN102462744; for petroleum storage tank violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (J. Craig Fleming, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
Item 9. Docket No. 2002-0708-PST-E. Consideration of an Agreed Order assessing administrative penalties and requiring certain actions of Naji Othman Ahmad dba Hopper Road Food Market in Harris County; Petroleum Storage Tank Facility ID No. 0030096; for petroleum storage tank violations pursuant to Tex. Health & Safety Code ch. 382, Tex. Water Code chs. 7 and 26, and the rules of the Texas Commission on Environmental Quality. (Trina Grieco, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
Item 10. Docket No. 2003-1217-PST-E. Consideration of an Agreed Order assessing administrative penalties against J & J Powermart LLC dba Texaco Food Mart in Hays County; Petroleum Storage Tank Facility ID No. 35786, Regulated Entity Reference No. RN102953130; for petroleum storage tank violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (Erika Fair, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
Item 11. Docket No. 2003-1040-PST-E. Consideration of an Agreed Order assessing administrative penalties against Woody's Smokehouse, Inc. dba Woody's Food Mart in Leon County; Petroleum Storage Tank Facility ID No. 04577; for petroleum storage tank violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (Harvey Wilson, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
STORM WATER ENFORCEMENT AGREED ORDER
Item 12. Docket No. 2003-0353-WQ-E. Consideration of an Agreed Order assessing administrative penalties and requiring certain actions of A & A Salvage, Inc. in Galveston County; Texas Pollutant Discharge Elimination System Permit No. TXR05L093; for water quality violations pursuant to Tex. Water Code chs. 7 and 26 and the rules of the Texas Commission on Environmental Quality, including specifically 30 Texas Administrative Code ch. 60. (Catherine Albrecht, Subhash Jain)
Approve the agreed order. RM/KW; all agree.
AFFIRM, MODIFY, OR SET ASIDE EMERGENCY ORDERS
Item 13. Docket No. 2003-0604-MLM-E. Consideration of whether to Affirm, Modify, or Set Aside an Emergency Order issued on December 10, 2003 by the Executive Director of the Texas Commission on Environmental Quality pursuant to Tex. Water Code chs 5 and 13, Tex. Health & Safety Code ch. 341, and the rules of the Texas Commission on Environmental Quality to address the abandonment of a retail public utility (Utility) consisting of a public water supply and wastewater collection system owned by V V Water Supply System, Inc., TCEQ ID No. 0610052, and CCN Nos. 11524 and 20566 in Denton County, to ensure continued operation of the Utility, and to provide continuous and adequate service to its customers. The Emergency Order appointed Joe Mulroy as temporary manager of the Utility. (Lindsay Andrus)
Affirm the emergency order. KW/LS; all agree.
Item 14. Docket No. 2002-1342-PWS-E. Consideration of an Order Affirming and Modifying or Setting Aside an Emergency Order pursuant to Tex. Water Code Sections 5.501, 5.505, 5.507, and 13.4132, and chs. 11 and 13; Tex. Health & Safety Code ch. 341; and 30 Tex. Admin. Code Sections 35.22, 35.201, 291.142, 291.143(a), and chs. 288 and 290 to address the continuing unauthorized abandonment of a retail public utility (Utility) by Patrick Milliken dba P & M Service Company and Michael Privett dba P & M Service Company in Denton County; TCEQ PWS ID No. 0610070; TCEQ CCN No. 12347, to ensure continued operation of the Utility, and to provide continuous and adequate service to the Utility's customers. The Emergency Order appoints George Oberdorf as temporary manager of the Utility. (Rebecca Nash Petty)
Re-posted as Item 25.
RENEW OR EXTEND COMMISSION ORDER
Item 15. Docket No. 2003-0697-UCR. Consideration of an application filed by Victoria Palms Resort, Inc., (VPR) to renew or extend the Commission Order affirming the Emergency Order requiring the City of Donna (Donna) in Hidalgo County, Texas, to continue to provide continuous and adequate water and sewer service to VPR pursuant to Texas Water Code Section 13.041(d)(1) and Title 30, Section 291.14(a)(1) of the Texas Administrative Code. The Commission issued an Emergency Order at an emergency agenda meeting on June 27, 2003, requiring Donna to reinstate water and sewer service to VPR. The Commission affirmed the Emergency Order and extended the original expiration date for 150 days at the July 23, 2003 agenda meeting. The Commission Order affirming the Emergency Order has expired. VPR's application seeks a new emergency order in the alternative to a renewal or extension. (Todd Burkey, Sheresia Perryman)
Item continued to a future agenda date to be determined.
MISCELLANEOUS AGENDA ITEM
Item 16. Docket No. 2003-1517-MIS. 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. [Elizabeth West]
Approve staff recommendations as reflected in the adopted Resolution including Exhibit A, which contains the names of the donors and descriptions and statements of the purposes of the gifts and which is attached to and incorporated in these minutes. KW/LS; all agree.
UTILITY CERTIFICATION AND RATES
Item 17. Docket No. 2003-1159-UCR. Consideration of a request for a Commission order approving a contract designating service areas between the City of McKinney (McKinney), water CCN No. 10194, and Danville Water Supply Corporation (Danville WSC), water CCN No. 10190, in Collin County, Texas, pursuant to Section 13.248 of the Texas Water Code. The retail public utilities propose to designate parts of Danville WSC's existing service area exclusively to McKinney's service area and to designate other parts as dually certificated between Danville WSC and McKinney. (Todd Burkey, Tammy Holguin-Benter)
Approve order. KW/RM; all agree.
RULE MATTERS
Item 18. Docket No. 2003-0588-RUL. Consideration of the adoption of proposed amendments to 30 TAC Chapter 290, Public Drinking Water, Sections 290.38, 290.39, 290.41 - 290.47, 290.104, 290.106, 290.107, 290.111, 290.117, 290.121, and 290.122.
The adoption would address requirements of the federal Long Term 1 Enhanced Surface Water Treatment Rule, Filter Backwash Recycling Rule, Lead and Copper Rule Minor Revisions, and Public Notification Rule promulgated by the United States Environmental Protection Agency. The adoption would also: specify how the agency implements the minimum capacity requirements for public water systems; provide requirements for laboratories at surface water treatment plants; describe air relief device requirements; revise sanitary control easement, operator certification, security, maintenance, meter calibration, and electrical wiring requirements; revise reporting requirements; add items to Appendix I, Assessment of Hazard and Selection of Assemblies; reorganize and modify source water, water treatment, and turbidity requirements; and provide non-substantive revisions, including typographical error and formatting corrections, to conform with Texas Register requirements. The proposed rules were published in the August 8, 2003 issue of the Texas Register (28 TexReg 6206). (Jack Schulze, Geoff Kirshbaum, Ray Henry Austin) (Rule Log No. 2003-013-290-WT)
Adopt the proposed amendments to 30 TAC Chapter 290, with the exception of Section 290.42(d)(15), which the Commissioners voted to exclude from the rules as adopted. RM/LS; all agree.
Item 19. Docket No. 2003-0754-RUL. Consideration of the adoption of amendments to 30 TAC Chapter 114, Subchapter K, Division 3, Diesel Emissions Reduction Incentive Program for On-Road and Non-Road Vehicles, Sections 114.620 - 114.622 and 114.629; and new Section 114.623; and corresponding revisions to the state implementation plan. The amendments implement House Bill 1365, 78th Legislature, Regular Session, 2003.
The adopted rules would expand the types of applicants and projects eligible for the Texas Emissions Reduction Plan funding, add counties to the list of the applicable counties wherein projects are eligible for funding, and establish a simplified grant and reimbursement process for small businesses. The proposed rules were published in the November 7, 2003 issue of the Texas Register (28 TexReg 9711). (Steve Dayton, Rebecca Davis, Debra Barber) (Rule Project No. 2003-048-114-AI)
Adopt amendments to 30 TAC Chapter 114 and related SIP revisions. RM/KW; all agree.
Item 20. Docket No. 2003-0713-RUL. Consideration of the adoption of amendments to Sections 115.600, 115.610, 115.612, 115.613, 115.615 - 115.617, and 115.619; and the repeal of Section 115.614 of 30 TAC Chapter 115, Control of Air Pollution from Volatile Organic Compounds; and corresponding revisions to the state implementation plan.
The adoption would remove volatile organic compound standards for all consumer products except automotive windshield washer fluid. The proposed rules were published in the September 26, 2003 issue of the Texas Register (28 TexReg 8287). (Ashley Forbes, Rebecca Davis, Emily Barrett) (Rule Project No. 2003-039-115-AI)
Adopt amendments to 30 TAC Chapter 115 and related SIP revisions. RM/LS; all agree.
Item 21. Docket No. 2003-0699-RUL. Consideration of the adoption of amendments to 30 TAC Chapter 116, Control of Air Pollution by Permits for New Construction or Modification, Subchapter H, Permits for Grandfathered Facilities, Division 1, General Applicability, Sections 116.770 and 116.772; and Division 2, Small Business Stationary Source Permits, Pipeline Facilities Permits, and Existing Facility Permits, Section 116.776. Sections 116.770 and 116.772 were proposed as revisions to the state implementation plan. The adopted amendments implement House Bill 638, 78th Legislature, Regular Session, 2003.
The adopted rules would eliminate the requirement for certain grandfathered reciprocating internal combustion engines located in the Houston-Galveston nonattainment area to obtain a permit and add a requirement for registration; change an eligibility requirement for obtaining partial reimbursement of the cost of controls for grandfathered reciprocating internal combustion engines; make a person or an affiliate of a person who pays or contributes money to the emissions reductions incentives account ineligible to receive money from the account; and alter the criteria for distributing money in the emissions reductions incentives account. The proposed rules were published in the October 10, 2003 issue of the Texas Register (28 TexReg 8814). (Tara Capobianco, Terry Salem, Debra Barber) (Rule Project No. 2003-043-116-AI)
Adopt amendments to 30 TAC Chapter 116 and related SIP revisions. RM/KW; all agree.
EXECUTIVE SESSION
Item 22. Docket No. 1998-1154-EXE. The Commission will meet in closed session to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of the Commission’s Executive Director, as permitted by Section 551.074 of the Texas Open Meetings Act, Chapter 551 of the 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 Government Code.
No action taken.
Item 23. Docket No. 1999-0024-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. The Commission may also meet in open session to take action on a legal or personnel matters considered in the closed meeting as required by Section 551.102 of the Texas Open Meetings Act, Chapter 551 of the Government Code.
No action taken.
Item 24. Docket No. 1999-0025-EXE. THE COMMISSION WILL CONDUCT A CLOSED SESSION TO DISCUSS THEIR DUTIES, ROLES, AND RESPONSIBILITIES AS COMMISSIONERS OF THE TCEQ PURSUANT TO SECTION 551.074 OF THE OPEN MEETINGS ACT, CODIFIED AS CHAPTER 551 OF THE 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 Government Code.
No action taken.
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ADDENDUM TO THE AGENDA
Wednesday, January 28, 2004
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
9:00 s.m.
12100 Park 35 Circle
Bldg E, Room 201S
Item 25. Docket No. 2002-1342-PWS-E. Consideration of an Order Affirming, Modifying or Setting Aside an Emergency Order signed by the Executive Director on December 11, 2003 pursuant to Tex. Water Code Sections 5.501, 5.505, 5.507, and 13.4132, and chs. 11 and 13; Tex. Health & Safety Code ch. 341; and 30 Tex. Admin. Code Sections 35.22, 35.201, 291.142, 291.143(a), and chs. 288 and 290 to address the continuing unauthorized abandonment of a retail public utility (Utility) by Patrick Milliken dba P & M Service Company and Michael Privett dba P & M Service Company in Denton County; TCEQ PWS ID No. 0610070; TCEQ CCN No. 12347, to ensure continued operation of the Utility, and to provide continuous and adequate service to the Utility’s customers. The Emergency Order appoints George Oberdorf as temporary manager of the Utility. (Rebecca Nash Petty)
Adopt the order modifying the Emergency Order. KW/RM; all agree.
OLD BUSINESS AGENDA
Wednesday, January 28, 2004
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
1:00 p.m.
12100 Park 35 Circle
Bldg E, Room 201S
Item continued from agendas of June 18, July 23, September 10, October 22, and November 19, 2003.
Item 1. TCEQ Docket No. 2002-0834-UCR; SOAH Docket No. 582-02-3838. Consideration of the Administrative Law Judge's Proposal for Decision and Order regarding the application of the City of Southlake to amend its water Certificate of Convenience and Necessity No. 10101 and decertify a portion of AquaSource Utility, Inc.'s water Certificate of Convenience and Necessity No. 11157 in Denton County.
Continued to the February 25, 2004 agenda.
AGENDA
Wednesday, January 28, 2004
TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
1:00 p.m.
12100 Park 35 Circle
Bldg E, Room 201S
Item 1. Docket No. 2002-0364-MSW-E. Consideration of the Administrative Law Judge's Proposal for Decision and Order assessing administrative penalties and requiring certain actions of Larry Fulton dba Chopperman in Gray County, Texas; regarding municipal solid waste violations pursuant to 30 Tex. Admin. Code § 328.60(a) and the rules of the Texas Commission on Environmental Quality.
Adopt the ALJ’s PFD with the Executive Director’s modifications. KW/RM; all agree.