| (1) Initial notification. After the TNRCC learns through a
person's submittal that the ecological risk assessment at an affected property
has progressed to Paragraph 7 and prior to approval of the ecological risk
assessment by the TNRCC, the TNRCC Trustee shall provide timely notification
to the other Trustees. The parties agree that further evaluation of ecological
risk at an affected property is not warranted for purposes of making response
or corrective action decisions under the TRRP rules when: 1) an appropriately
applied ecological risk assessment is conducted consistent with the most recent
TNRCC guidance on the subject at the time the ecological risk assessment is
performed; and 2) the affected property does not progress to Paragraph 7.
(A) Method of initial 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.
(B) Content of initial notification. The initial notification
shall include the affected property name, location, status of the ecological
risk assessment, and to the extent practical, the type of habitat, receptors
at risk, COCs, and other relevant information necessary to allow the Trustees
to evaluate their level of interest in the affected property. The TNRCC secondary
contact, the TNRCC ecological risk assessor, and the deadline constraints
of the TNRCC remedial/corrective actions project manager (TNRCC PM) shall
also be provided in the initial notification.
(C) Trustee response to initial notification. A written response
(electronic mail is acceptable) from each Trustee to the initial notification
must be provided to both the primary and secondary TNRCC Trustee contacts
within five working days of the initial notification. This response shall
specifically state the Trustee's intent as to whether or not the Trustee chooses
to participate in the ecological risk assessment process. 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 ecological risk
assessment process for that affected property. Subsection (j) of this MOU
explains how a Trustee may enter the process at a later date.
(2) Documents. After the timely receipt of a Trustee's written
intent to participate in the ecological risk assessment process, 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 (unless an alternate method of notification has been mutually
agreed to in advance) that the documents have been mailed. The TNRCC shall
provide documents in a timely manner to ensure that the Trustees have the
maximum time available for the review of documents. The TNRCC Trustee shall
coordinate the review of ecological risk assessment work plans, reports, and
other relevant documents with the Trustees.
(3) Trustee comments. Unless otherwise mutually agreed, the
participating Trustees shall submit a unified set of written comments, if
any, on the ecological risk assessment to the TNRCC ecological risk assessor.
Trustee comments on ecological risk assessment documents must be technically
defensible and relevant to the ecological risk assessment process.
(A) Deadline for comments and extensions.
(i) The Trustees shall have 20 calendar days from the date
of postmark on any documents received to respond to both the TNRCC Trustee
contacts with comments. This time period may be reduced to coincide with a
deadline of less than 20 calendar days if necessary to meet the TNRCC PM's
deadline. 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.
(ii) The Trustees may request an extension of the comment period
of up to seven calendar days by writing (electronic mail is acceptable) to
both the TNRCC Trustee 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.
(iii) 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 has no comments.
(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.
Cont'd... |
