| (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 Cont'd... |
