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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 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 Cont'd... |
