| also be
responsible for the scheduling of meetings of the TTT and notifying TTT members
of those meetings on a timely basis, preparing agendas for those meetings,
acting as a central contact point for the TTT, and establishing and maintaining
records and relevant documents related to the ecological services analysis.
The Trustee team leader may delegate any of his or her duties to another Trustee
with the concurrence of the TTT. The duties of the Trustee team leader do
not provide the Trustee team leader with any decision-making rights beyond
those normally held by each Trustee member of the TTT.
(i) Approval and performance of the ecological services analysis.
The Trustees agree that the TTT shall act timely to either approve the ecological
services analysis or disapprove with comments which may include a recommendation
for additional work. This process shall be repeated each time the revised
ecological services analysis report is resubmitted until the ecological services
analysis report is approved, rejected, or is withdrawn. If the TTT cannot
reach agreement with the person or the person fails to perform the ecological
services analysis as proposed, the Trustees shall refer the affected property
back to the TNRCC for further decisions on remedial/corrective action. The
TNRCC PM shall be kept informed of all TTT activities, shall be copied on
all comments, and shall be invited to participate in all meetings with the
person concerning performance of the ecological services analysis.
(ii) Approval and completion of the compensatory ecological
restoration. Upon reaching a final decision on all reports which involve compensatory
ecological restoration, the Trustees shall provide a written statement to
the person and the TNRCC PM of the Trustees' final decision. When the compensatory
ecological restoration is completed consistent with Trustee-approved criteria,
the TTT shall also provide a written statement to both the person and the
TNRCC PM certifying satisfactory completion of the compensatory ecological
restoration. If the compensatory ecological restoration is not completed to
the Trustees' satisfaction, the Trustees shall refer the affected property
back to the TNRCC for further decisions on remedial/corrective action.
(C) Agreement. Where determined appropriate by the Trustees,
the Trustees shall pursue a written agreement with a person conducting an
ecological services analysis to govern Trustee coordination with that person.
The agreement will include issues such as the payment of Trustees' costs associated
with the ecological risk assessment and ecological services analysis processes,
public participation requirements, and a mechanism for addressing natural
resource damages liability, as applicable.
(D) Dispute resolution. In the event of a dispute between any
of the parties concerning activities under subsection (h)(2) of this MOU,
the Trustee contacts shall attempt to resolve the dispute informally. If the
dispute is not resolved informally at the Trustee contact level, any Trustee
may invoke the following dispute resolution procedures by sending notice to
all primary Trustee contacts involved in the dispute. Such notice must include
a brief description of the disputed issue(s) and acceptable alternatives for
resolution. The Trustee contacts shall elevate the dispute to the appropriate
first tier agency representatives with successive elevations to second tier
agency representatives and third tier agency representatives as necessary.
(i) Within four calendar days after receiving the notice invoking
dispute resolution, the Trustees involved in the dispute shall designate the
names and titles of their first, second, and third tier agency representatives
via electronic mail (or another mutually agreed upon method) to all primary
Trustee contacts involved in the dispute.
(ii) Within 14 calendar days after receiving the notice invoking
dispute resolution, the first tier agency representatives involved in the
dispute shall discuss the disputed issue(s), assisted by other technical or
legal staff as appropriate. If the disputed issue(s) cannot be resolved by
the first tier agency representatives within the 14 calendar days after receiving
the notice, the disputed issue(s) shall be elevated by the first tier agency
representatives to the second tier agency representatives within five calendar
days after the expiration of the discussion period. The second tier agency
representatives shall have 14 calendar days within which to discuss and attempt
to resolve the disputed issue(s), assisted by other technical or legal staff
as appropriate. If the disputed issue(s) cannot be resolved by the second
tier agency representatives within the 14 calendar days after it is elevated,
the disputed issue(s) shall be elevated by the second tier agency representatives
to the third tier agency representatives within five calendar days after the
expiration of the discussion period. The third tier agency representatives
shall have 14 calendar days within which to discuss and attempt to resolve
the disputed issue(s), assisted by other technical or legal staff as appropriate.
If the third tier agency representatives cannot resolve the dispute, then
the dispute resolution process is terminated and each agency may proceed independently
according to its rights under state and federal law.
(iii) Each Trustee may automatically obtain one 14-calendar-day
extension in this process by sending notice of such to all primary Trustee
contacts involved in a particular dispute. Additionally, the 14-calendar-day
period may be extended by mutual agreement of all Trustees involved in a particular
dispute.
(3) Waiver of a Trustee's role in the ecological services analysis
process. If a Trustee has waived its involvement in the ecological services
analysis process outlined in this MOU (either specifically or through failure
to respond to notification within the required time frame) and has not reentered
the process pursuant to subsection (j) of this MOU, then the Trustee has waived
its role in the ecological services analysis process as set forth by TRRP
rules, specifically 30 TAC §350.33(a)(3)(B) and §350.77(f)(2).
(i) Efficiencies. The parties recognize that due to the nature
of a person's submittal, efficiencies may be gained by combining the notification
and other processes under subsections (g) and (h)(1) of this MOU. Any such
combined notification shall be clearly identified as such and shall serve
to satisfy both of these subsections.
(j) Trustee re-entry and early exit from process.
(1) If a Trustee has waived its involvement in the ecological
risk assessment or ecological services analysis process (either specifically
or through failure to respond to notification within the required time frame),
the Trustee may resume its involvement in the process by advising the TNRCC
Trustee in writing (electronic mail not acceptable)
of its intent to participate in subsequent notification and coordination activities.
However, upon a deferred entry or a re-entry to the ecological risk assessment
or ecological services analysis processes, the Trustee involvement in the
TRRP process shall be prospective only and may not challenge previous decisions
regarding the ecological risk assessment and ecological services analysis.
Additionally, a Trustee may not challenge joint decisions made within the
TRRP process on the ecological risk assessment or ecological services analysis
during that Trustee's prior participation in the process.
(2) Likewise, a Trustee participating in the ecological risk
assessment or ecological services analysis process may decline future involvement
by advising the TNRCC Trustee in writing (electronic mail
not acceptable) of its intent not to participate in future notification
and coordination activities.
(3) In the event that all the Trustees have waived involvement
in the ecological services analysis process (either specifically or through
failure to respond to notification within the required time frame), the TNRCC
Trustee shall provide oversight of and approval or disapproval with comments
on the compensatory ecological restoration and other activities associated
with the ecological services analysis.
(k) Affected property activities. The Trustees shall promptly
notify the TNRCC PM prior to initiating any Trustee activities (e.g., site
visits) on an affected property and shall coordinate with the TNRCC PM on
any such activities which may affect the remedial/corrective action at an
affected property.
(l) September 1995 Memorandum of Agreement. Any Trustee activities,
issues, or responsibilities not specifically addressed herein, shall be governed
by the September 1995 Memorandum of Agreement between the Trustees.
(m) Reservation of rights. Except as specifically stated herein,
this MOU does not compromise or affect any legal rights of the parties, nor
does it narrow the scope of any party's authority or jurisdiction. This MOU
does not compromise or affect any rights of the parties with regard to natural
resource damage actions.
(n) Third party challenges or appeals. The rights and responsibilities
contained in this MOU may not be the basis of any third party challenge or
appeal. Nothing in this MOU creates any rights or causes of action in persons
not parties to this MOU.
Cont'd... |
