Marked Agenda
Commissioners' Work Session
Thursday, July 30, 1998
1:30 p.m.
Room 201S, Building E, Park 35, Austin


This meeting is a work session for discussion between commissioners and staff. No public testimony or comment will be accepted except by invitation of the commission.

  1. Discussion of two agency reports on enforcement actions for various media including agriculture, air, industrial and hazardous waste, municipal solid waste, occupational certification, petroleum storage tanks, public water supply, water quality, and multi-media. Anne Dobbs (Enforcement Division) presented this item. No action taken.

  2. Consideration of petition for rulemaking for an amendment to 30 TAC Chapter 335, Subchapter J, Section 335.324(a), concerning Facility Fee Assessment. If approved, the petition would exempt permitted Class I industrial solid waste facilities and hazardous waste facilities from the annual facility fee for facilities that have not been built or begun operation. (Wayne Lee / Patti Hershey) (Rule Log No. 98034-335-WS) The commission heard from Kenneth Ramirez, Counsel for American Envirotech, Inc., and Kay Crouch, CEO and President of American Envirotech, Inc., who submitted the petition. Chairman McBee moved to grant the petition, specifying that the rulemaking should not propose elimination of the facility fee for unbuilt facilities, but rather should propose the prospective assessment of the minimum fee under 30 Tex. Admin. Code § 335.324(d). The minimum fee would be applicable only until any facility construction commences, at which time the fee structure set forth in Section 335.324(I) would apply. Commissioner Marquez seconded the motion which passed unanimously. The commission also requested that staff examine opportunities for cross-media consistency. Minor Hibbs (Industrial and Hazardous Waste Division); Steve Minick (Financial Administration); Jim Phillips (Office of Legal Services); Patti Hershey (Legal Division); and Blas Coy (Public Interest Counsel) provided comments on this item.

  3. Consideration of issues related to proposed amendments to 30 TAC Chapter 213, Subchapter A: Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson Counties and proposed new 30 TAC Chapter 213, Subchapter B, §§213.20 through 213.28, concerning the Contributing Zone to the Edwards Aquifer in Medina, Bexar, Comal, Kinney, Uvalde, Hays, Travis, and Williamson Counties. The proposed amendments and new subchapter would regulate activities having the potential for polluting the Edwards Aquifer and hydro-logically connected surface water by expanding the scope of regulated activities to the contributing zone of the aquifer and providing for water quality performance standards for all best management practices and measures. Mary Ambrose (Office of Policy and Regulatory Development); Steve Musick (Office of Water Resource Management), Anthony Tatu (Legal), and Larry Smith (Field Operations) presented this item. The commission provided the following guidance regarding the multiple issues presented by the staff.

    1. Best Management Practice Performance Standards (in the Recharge and Contributing Zone) and possible alternatives.

      • Use the EPA NPDES general permit for storm water discharges from construction activities for temporary (during construction) activities in the Contributing Zone. A copy of the general permit should be filed with the appropriate regional office.

      • In the Recharge Zone, adopt the requirements of the EPA NPDES general permit for storm water discharges from construction activities for temporary (during construction) best management with provisions to protect sensitive features.

      • Require permanent best management practices to remove 80% of the post-development loadings of total suspended solids in both the Recharge and Contributing Zones.

    2. The geographic area for inclusion of the contributing zone into the rule remains unchanged from the proposal and will be by county currently affected by the Edwards Rules.

    3. Exempt the individual home owner who has less than 20% impervious cover from having to submit a plan or pay a fee in either the Recharge or Contributing Zone.

    4. Exempt low density residential developments on the recharge and contributing zones from permanent structural control requirements. If a subdivision has less than 20% impervious cover, then there will be no requirement for permanent structural controls; however, pollution abatement plans would be submitted and approved by the executive director. Sensitive features in the Recharge Zone must be taken into account in the plans. Staff were directed to look at the feasibility of a similar exemption for non-residential construction.

    5. For regulated activity occurring in the currently defined recharge zone, Edwards Aquifer pollution abatement plans submitted prior to the effective date of the new rules will be reviewed under the current Chapter 213 rules.

    6. For regulated activity occurring in the proposed redefined recharge zone or in the contributing zone, activities will be considered to have commenced prior to the effective date of the rules (and therefore not subject to the rules ) if the applicant has obtained all federal, state, and/or local approvals or permits required to begin physical construction, and if either: on-site construction directly related to the development has begun; or construction commences within six months of the effective date of the rule.

    7. Any person can file a motion for reconsideration of the Executive Director’s decision on a plan. The General Counsel will review such motions for reconsideration and decide whether to set them for Commission Agenda, which is the process that the General Counsel currently follows for motions for reconsideration.

    Staff was asked to distribute a draft final rule prior to consideration by the commission. Chairman McBee indicated that the commission was compelled to be more proactive in this matter due to the sensitive nature of the aquifer, prompting these controls in the contributing zone, as well as the recharge zone.

  4. Discussion of issues relating to and consideration for publication of proposed new 30 TAC Chapter 7, §7.118; amendments to Chapter 305, §305.521; new Chapter 331, §331.16; amendments to Chapter 336, §336.11; and amendments to Texas Department of Health 25 TAC §289.101, concerning Memorandum of Understanding Between the Texas Department of Health and the Texas Natural Resource Conservation Commission Regarding Radiation Control Functions. The proposed MOU related actions further implement the SB 1857 transfer of jurisdiction over source material licensing and by-product disposal from the Texas Natural Resource Conservation Commission to the Texas Department of Health. Minor Hibbs and Alice Rogers (Industrial and Hazardous Waste); Hygie Reynolds (Office of Policy and Regulatory Development); Snehal Patel (Legal) presented this item. Commissioner Marquez moved to approve publication of this proposal. Commissioner Baker seconded the motion which passed unanimously.

  5. Consideration of issues related to the agency’s Strategic Plan, Legislative Appropriations Request, operating budget, and performance partnership grants. Machelle Pharr and Jeff Grymkoski (Office of Administrative Services) presented this item. Information was to be included in the Chairman’s Statement in the Legislative Appropriations Request which describes potential funding needs for items that may go beyond normal funding, such as the drought response.

  6. Consideration of the agency's implementation of legislation enacted by the 75th Texas Legislature including the agency's efforts to work with the Interim Legislative Committees. The commission may also meet in closed meeting to receive legal advice regarding these matters, or any of the above matters, as authorized by Section 551.071 of the Open Meetings Act, Chapter 551 of the Government Code. Any commission action, decision, or vote on these matters will be made in open meeting in accordance with Section 551.102 of the Open Meetings Act, Chapter 551 of the Government Code. Chairman McBee provided three additional concepts for legislative consideration:

  7. Planning for the next Commissioners’ Work Session. V.A. Stephens (Chairman’s Executive Assistant) presented this item. Commissioners’ Work Sessions (CWS) on August 31 and September 3 were canceled. Another CWS was scheduled for September 14, 1998. The CARE Update was removed from the list of pending issues, while a future discussion of the agency’s legislative proposals was added.