| (B) Reconciliation of comments. Prior to submitting comments
to the TNRCC ecological risk assessor, the participating Trustees shall first
coordinate all comments among themselves and provide a unified Trustee response
through a mutually agreed upon Trustee representative. In the event that the
TNRCC ecological risk assessor or TNRCC PM disagrees with any comments provided
by the Trustees, the TNRCC will make diligent efforts to reach resolution
between the parties. The TNRCC ecological risk assessor shall be responsible
for coordinating the resolution of conflicting comments and shall schedule
and coordinate comment resolution meetings as appropriate. Each participating
Trustee's primary contact shall be copied on all ecological risk assessment
related correspondence to the person and shall be provided copies of all ecological
risk assessment related correspondence from the person to the TNRCC. In the
event that differences cannot be resolved, the Trustees maintain the right
to independently provide comments to the TNRCC PM and/or person conducting
the ecological risk assessment, either as a unified group of two or more Trustees
or as a single Trustee.
(C) Recognition of comments. The TNRCC ecological risk assessor
shall evaluate the Trustee comments and the TNRCC PM shall incorporate them
into the TNRCC's response to the person, as appropriate. The TNRCC shall use
its regulatory authority to ensure that the incorporated Trustee comments
are recognized in the development of the ecological risk assessment. If any
Trustee comments are not incorporated, the Trustees shall be informed.
(4) Coordination of meetings. After the timely receipt of a
Trustee's written intent to participate in the ecological risk assessment
process, the TNRCC shall, to the extent practical, coordinate with the Trustees
concerning their availability at least ten calendar days in advance of meetings
concerning the ecological risk assessment. The TNRCC shall provide the Trustees
notification of the ecological risk assessment meetings via electronic mail
or via another mutually agreed upon method. The TNRCC and the Trustees shall
work together to ensure that all parties to this MOU which are participating
in the ecological risk assessment process have input into that process and
that reasonable timelines are established and met to ensure that Trustee involvement
in the ecological risk assessment does not impede progression of the ecological
risk assessment. In the event that any participating Trustee is unable to
attend a meeting concerning the ecological risk assessment, any absent Trustee
shall contact the other Trustees to obtain information regarding the meeting,
and if necessary, shall contact the TNRCC ecological risk assessor within
a reasonable time after the meeting to be briefed on the issues discussed.
(h) Ecological services analysis process. The TRRP rules require
that the TNRCC consult with the Trustees prior to approval of a person's request
to conduct an ecological services analysis (30 TAC §350.33(a)(3)(B) and §350.77(f)(2)).
Furthermore, TRRP rules also require the person to conduct any compensatory
ecological restoration and other activities associated with the ecological
services analysis with the approval of and in cooperation with the Trustees
(30 TAC §350.33(a)(3)(B)). The parties agree that an ecological services
analysis must be conducted whenever concentrations of COCs which exceed ecological
PCLs are proposed to be left in place with the potential for continuing exposure
in accordance with 30 TAC §350.33(a)(3)(B).
(1) Consultation on person's request to perform an ecological
services analysis. Although the following sets forth a separate process for
consultation on a person's request to perform an ecological services analysis,
subsection (i) of this MOU explains how the processes under subsections (g)
and (h)(1) of this MOU may be combined to achieve efficiencies.
(A) Notification. After the TNRCC receives a person's written
request to perform an ecological services analysis, the TNRCC Trustee shall
provide timely notification to the other Trustees.
(i) Method of notification. Notification by the TNRCC Trustee
shall be provided via electronic mail, or via another mutually agreed upon
method, to the primary and secondary contacts for each Trustee.
(ii) Content of notification. The notification shall include
the affected property name, location, the fact that the person is requesting
to perform an ecological services analysis, and to the extent practical, the
type of habitat, receptors at risk, COCs, and other relevant information necessary
to evaluate the level of interest in the affected property. The TNRCC secondary
contact, the TNRCC ecological risk assessor, and the deadline constraints
of the TNRCC PM shall also be provided in the notification.
(iii) Trustee response to notification. A written response
(electronic mail is acceptable) from each Trustee to the notification must
be provided to both the TNRCC Trustee contacts within five working days of
the notification. This response shall specifically state the Trustee's intent
as to whether or not the Trustee chooses to be consulted on the person's request
to perform an ecological services analysis. In the event that any Trustee
fails to respond within the five working days, the TNRCC will proceed as if
the Trustee chose not to participate in the consultation on the person's request
to perform an ecological services analysis. Subsection (j) of this MOU explains
how a Trustee may enter the process at a later date.
(B) Documents and other information. After the timely receipt
of a Trustee's written intent to be consulted on the person's request to perform
an ecological services analysis, the TNRCC Trustee shall send copies of pertinent
documents to the primary contacts by regular mail (unless an alternate contact
or method is identified in advance). The TNRCC Trustee shall provide the primary
and secondary contacts with electronic mail notification that the documents
have been mailed.
(i) The TNRCC shall provide documents in a timely manner to
ensure that the Trustees have the greatest time available for the review of
documents. The TNRCC Trustee shall coordinate the review of such documents
with the Trustees.
(ii) Any participating Trustee may make a request for additional
information not less than three calendar days prior to the comment deadline,
but such request must be very specific as to the type of information requested.
(C) Trustee comments. Unless otherwise mutually agreed, the
participating Trustees shall submit a unified set of written comments, if
any, on the person's request to perform an ecological services analysis to
the TNRCC ecological risk assessor. Trustee comments must be technically defensible
and relevant to the ecological services analysis process. Such Trustee responses
shall specifically include a statement of each participating Trustee's recommendation
for approval or disapproval of the person's request to perform an ecological
services analysis. If feasible, the Trustee responses shall also include any
response action recommendations for the affected property. If the person's
request to perform an ecological services analysis is not recommended for
approval by any Trustee, a reasoned explanation must be provided.
(i) Deadline for comments and extensions. The Trustees shall
have 20 calendar days from the date of postmark on any documents received
to respond to the TNRCC primary and secondary contacts with comments. The
TNRCC may request that the Trustees respond within a shorter time. In the
event that a greater period of time is available, as determined by the TNRCC
PM, an extended deadline shall be provided to the Trustees. The Trustees may
request an extension of the comment period of up to seven calendar days by
writing (electronic mail is acceptable) to the TNRCC primary and secondary
contacts not less than three calendar days prior to the comment deadline.
The TNRCC may, in its sole discretion, grant or deny such requests for extensions.
The TNRCC will respond to all participating Trustees regarding such requests
within 24 hours after receipt. If the Trustees do not receive a response from
the TNRCC, the request for an extension is presumed to be denied. In the event
that any Trustee fails to provide comments within the prescribed deadline
(including any extension), the TNRCC will proceed as if the Trustee concurs
with the TNRCC's decision on the person's request to perform an ecological
services analysis.
(ii) Reconciliation of comments. Prior to submitting comments
to the TNRCC, the participating Trustees shall first coordinate all comments
among themselves and provide a unified Trustee response through a mutually
agreed upon Trustee representative. In the event that the TNRCC ecological
risk assessor or TNRCC PM disagrees with any comments provided by the Trustees,
the TNRCC shall make diligent efforts to reach resolution between the parties.
The TNRCC ecological risk assessor shall be responsible for coordinating the
informal resolution of conflicting comments and shall schedule and coordinate
comment resolution meetings as appropriate. Each participating Trustee's primary
contact shall be copied on all ecological services analysis related correspondence
to the person and shall be provided copies of all ecological services analysis
related correspondence from the person to the TNRCC. In the event that differences
cannot be resolved, the Trustees maintain the right to independently provide
comments to the TNRCC PM and/or person requesting to conduct the ecological
services analysis, either as a unified group of two or more Trustees or as
a single Trustee.
(iii) Recognition of comments. The TNRCC ecological risk assessor
shall evaluate the Trustee comments and the TNRCC PM shall incorporate them
into the TNRCC's response to the person, as appropriate. The TNRCC PM shall
inform the person in writing of the results of the TNRCC/Trustee consultation
and shall copy the Trustees on such correspondence. If any Trustee comments
are not incorporated, the Trustees shall be informed.
(D) Coordination of meetings. After the timely receipt of a
Trustee's written intent to participate in the consultation on the person's
request to perform an ecological services analysis, the TNRCC shall, to the
extent practical, coordinate with the Trustees concerning their availability
at least ten calendar days in advance of meetings concerning the person's
request to perform an ecological services analysis. The TNRCC shall provide
the Trustees notification of these meetings via electronic mail or via another
mutually agreed upon method. The TNRCC and the Trustees shall work together
to ensure that all parties to this MOU which are participating in the ecological
services analysis process have input into that process and that reasonable
time lines are established and met to ensure that Trustee involvement in the
ecological services analysis does not impede progression of the ecological
services analysis. In the event that any participating Trustee is unable to
attend a meeting concerning the ecological services analysis, any absent Trustee
shall contact the other Trustees to obtain information regarding the meeting
and if necessary, shall contact the TNRCC ecological risk assessor within
a reasonable time after the meeting to be briefed on the issues discussed.
(2) Ecological services analysis cooperation and approval process.
To enhance the coordination between the Trustees and the person and provide
efficiencies in the development of the ecological services analysis, the Trustees
will initiate a dialogue with the person in a timely manner to establish the
nature and scope of a cooperative ecological services analysis. The Trustees
will maintain open communications with the person and actively participate
in the entire ecological services analysis.
(A) Trustee interaction. Unless otherwise specified herein,
cooperation between the Trustees in the development, review, and approval
of the ecological services analysis shall be consistent with the September
1995 Memorandum of Agreement between the Trustees. The Trustees shall strive
for consensus on all decisions related to the development and implementation
of the ecological services analysis. The Trustees shall coordinate their efforts
to ensure a single unified Trustee position is provided on all written comments/statements
to the person.
(B) Trustee technical team (TTT). For each affected property
involving significant participation by two or more Trustees, the Trustees
shall create a TTT to which a representative shall be designated by each Trustee.
The Trustees agree to designate representatives to the TTT who, at a minimum,
have: 1) the level of knowledge and expertise needed to effectively guide
the ecological services analysis process; and 2) the level of authority necessary
to make decisions on issues presented to the TTT. The TTT shall be responsible
for, among other things, communications with the person, outlining the scope
and objectives of the ecological services analysis with the person, identifying
additional data needs, reviewing and approving ecological services analysis
reports and work plans, overseeing implementation of such plans, and certifying
the satisfactory completion of the compensatory ecological restoration, where
appropriate. The TTT may take any other actions as necessary to carry out
its duties under this MOU. The TNRCC Trustee shall act as Trustee team leader
unless otherwise agreed to by all Trustees. The Trustee team leader shall
be responsible for, among other things, the coordination and monitoring of
the progress of the development of technical comments, and implementation
of the ecological services analysis. The Trustee team leader shall 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 Cont'd... |
