Travis County Commssioners Court
September 23, 2003
The Closed Caption log for this Commissioners Court agenda item is provided by Travis County Internet Services. Since this file is derived from the Closed Captions created during live cablecasts, there are occasional spelling and grammatical errors. This Closed Caption log is not an official record the Commissioners Court Meeting and cannot be relied on for official purposes. For official records please contact the County Clerk at (512) 854-4722.
Item A1
Now ... Ms. English. And if tom and john are nearby,ed one added item a 1 is to consider and take appropriate action by rule making on Texas commission of environmental quality. (docket no. 2003-0722-rul), 30 tac chapter 330, regarding site operating plans for municipal solid waste, and commission hearing schedule for Wednesday, September 24, 2003.
>> tom, my backup was kind of weird in the sense that I got -- I guess it didn't really answer my question. Why are we doing this, what prompted this, and why is it in Travis County's best interests to weigh in on this particular item. I was just -- I would appreciate some perspective that I didn't really feel was in the backup that I got. Help me understand it.
>> well,.
>> my understanding is that the judge put it on the agenda at the request of some of the northeast landfill neighbors. In terms of how it affects Travis County the rule deals with the site operating plans that are required for landfills.
>> okay.
>> the site operating plans deal with issues like fire protection, access control, unloading of waste, operating hours, control of wind blown waste and litter, buffer zones, air pollution, disease vectors, land fill gas control, daily cover a lot of nuts and bolts on how landfills are operated. Through our experiences working with the landfills specifically back in the day when's we were considering the operating agreements, I think what we came to find was that -- that tceq generally doesn't require a lot of detail in the site operating plans. As a matter of fact they sort of just repeat what is in tceq rules. The tceq rules will have a provision on all of these individual matters that I just ran off to you. But -- but they are somewhat open ended and vague. They use words like do what is sufficient, do what is appropriate, taking necessary steps. Things that are fairly subjective and the -- apparently the design of the rule was for each landfill, tceq was supposed to look at these general rule provisions and then have the landfill operator write a -- write an operating plan, took the again ram provision, sort of applied on it a site specific basis to the landfill and fleshed out what's in the rule. Tceq just allowed the landfills to just repeat the language verbatim. This rule change that's been in tceq came about because b.f.i. Was requesting tceq to approve an expansion of their landfill down near san antonio. Some of the neighboring residences and business owners, a city down there, city trying to grow, challenged tceq, tceq went ahead and approved the site operating plan, sort of the way they had also done it without the detail. The protestants appealed to district court here in Travis County and the judge basically said, yeah, tceq rules say that the plans are supposed to have details that are site specific. That's not in this plan, it's not a good plan, I'm sending the permit back to tceq. Well, b.f.i. Appealed, b.f.i. And tceq appealed to the third court of appeals, but they basically said the same thing. At that point tceq said, we are not appealing, we are going to start complying with the third court of appeals ruling. B.f.i. Went ahead and appealed to the supreme court and at that point some of the other landfill operators in the state said, this rule change, we have got pending applications, this rule change is going to -- well, this third court of appeals decision is going to force tceq to do things that are -- in a different way. That's going to slow down action on our applications, and they suggested that tceq basically get rid of the part of the rule that the third court of appeals said they had violated which would obviously sort of ratify the way tceq had historically done things, therefore allowing tceq to approve those applications without setting up those applications for a court challenge.
>> right. Okay. Now, how it affects Travis County directly, as you know, sometimes perhaps in the near future b.f.i. And w.m.i. Will apply for expansions of their landfill to tceq. If the rulings through, then I would submit that it directly increases the chances that tceq basically leaves the b.f.i. And w.m.i. Site operating plans the way they are. Lacking the detail we found they had back when we were working on the operating group. >.
>> [one moment please for change in captioners]
>> .
>> ... That let's the permitee and people affected by what the per mety does know what is acceptable or not. And if they just replace -- repeal this sufficient detail standard without replacing it, then I don't know that they have, you know, advanced the cause or created certainty for everybody. They've basically just left it up to tceq to decide on a case-by-case basis and really nobody is going to know what's adequate or sufficient or enforceable.
>> so this is kind of the first foot in the door to weigh in on this issue because I didn't see a lot of detail about well, do we have any opinion what sufficient detail is. You need to get more sufficient detail, that we would weigh in a second time on some very specific things that Travis County thinks are appropriate related to a definition of sufficiency.
>> I think when john and I were talking about this, having been through the operating agreements, we were perfectly happy for tceq to deal with this and our suggestion was we don't have a specific suggestion on what specific detail is, but tceq ought to sit down and go through the process of inviting the landfills and the landfill opponents and everybody involved and go through that consensus building enter size and decide what is sufficient detail. If there's problems, no one that we're wed to it.
>> this is sort of vague and I'm going wouldn't we want to offer some suggestions what it is. What I'm hearing is we're not here yet, that might be second which we would want to weigh in on.
>> I haven't been intimately involved with this. I've gotten some e-mails and read what's on tceq's website. I don't know that tceq is proposing, you know, to go through that exercise of replacing the standard that they are about to repeal. If they would provide some assurances that yeah, they are going to do that within the next year or whatever, it would be a whole lot more comforting knowing that Travis County is going to be facing these expansion applications sometime in the near future.
>> thank u that's a good explanation.
>> after talking with john also on this and I know as far as Travis County is concerned, you mentioned some things I think we need to take a position on this and as far as when the public hearing and things, tceq as far as Travis County and I remember I requested some basic some type of bullets or verbally or whatever we need to do to address this concern when it comes before tceq. So I didn't know what format it should be in. It should be written format per se with certain bullets, these are the points we're concerned about speaks advertise teu or what point do we make entry. I was waiting to hear basically what you guys recommend.
>> well, Commissioner, hopefully you received the brief backup that we did provide, and there are I guess four bullets that --
>> I know as far as you -- go ahead and elaborate on that, though. That's what I'm trying to get you going to.
>> basically we're making the recommendation you all authorize to us attend the hearing and make the following basic points. And that would be, I guess the first one the site operating plants clearly need to contain sufficient detail. It's inappropriate response to the court ruling to weaken this requirement. The s.o.p.'s, in other words, site operating plants for all future applications should be written to meet the sufficient detail requirement t. Second major bullet would be that tceq should consider relaxing this for pending applications only if resulting delay would cause kris kal short tphaeupblg a regional of the state. And a third would be tceq should develop standards for the level of sufficient detail that is necessary to satisfy the court ruling within the next year. And if tceq -- the fourth bullet would be if tceq approves an application for a permit or an application with the site operating tphrapbt does not contain sufficient dial a degree meeting the requirements of the court ruling, the permit or amendment or the site operating plan should expire within one year and be replaced with an amendment or permit or site operating plan that meets the new standards. That's pretty much it.
>> and that was a point that I remember that we had brought up and I didn't know whether or not if you wanted to go ahead and if we could put that into some type of format where they could actually see there is something tangible in writing, per se, and then go forward with the recommendation. That was a big concern, something in writing or verbally delivered. So -- and I guess -- I guess and trek english is wanting to leave hear from the community itself on this particular issue and to see what their point of view is. I know they have been pretty much alert and on top of this and thank goodness they did e-mail the judge, and I also got a copy of that on their response to this as far as bringing this to our attention. I'm just wondering what position they are going to take as far as is this something consistent with the approach they would like to take as we go forward. So I was kind of wanting to hear what trek had to say. Trek?
>> good afternoon, Commissioners.
>> how are you doing, trek?
>> county attorney. My name is trek english, and I really appreciate you taking the time to deal with this issue a little bit. This is very important because, as you know, we've been putting up complaints the last two years based on the fact the present rules allow these landfills, the two northeast landfills to, ruin their sites and to the point where they now have to run millions of dollars of equipment 24 hours a day seven days a week in order not to [indiscernible] residents in a five-mile radius. I think this in itself should have prevented the Commissioners from even asking to initiate rule making. So I'm very surprised that we are even discussing weakening the rule and making even more ambiguous language in the site operating plans to where you have a inspect their goes to a site and cannot issue a violation even though he knows something is terribly wrong and is causing harm to neighboring residents, but he cannot issue a violation because basically the personnel has followed the site operating plan and has not -- and followed the conditions of the permit. This is what we're going to encounter on a regular basis. Especially if you are dealing with a vertical expansion where there's so much more exposure not only of the landfill operations but to the neighboring residents. Also what really amazes me is that when a landfill is permitted, this is not like a health bar or a restaurant. We're talking about a bioreactor here. The landfill process is shortlived. You basically open a cell, fill it and close it. That's it. Then you go to another cell. If a landfill could get away with it, they would go away with that cell and never see it again. The reason they are anchored to it for 30 years after that is because it's a bioreactor. The gases are forming and elevating in concentrations. The kphels are mixing. -- chemicals. You have a time bomb there. If the process is not addressed properly at the initial phase when the operator is actually landfilling and doing the right thing he's supposed to do to slow down the production of gases, then you are facing -- you may be facing an environmental disaster later on. Now, on the contradictory side, when you are start to look at a thousand acres of landfill, we're talking about some real serious problems that could happen. And we saw some of those problems on a big scale in the -- after the rain event when part of the cell collapsed in one of the landfills and we saw the damage done to the creeks and we saw the leachate accumulation. I could just go on like this. So I think it is important to weigh in on this issue and tell the Commissioners that the discussions that were going on at the tceq with stakeholders, I was not at the beginning of these discussions. They were mostly attorneys representing various industry and environmental groups and I guess landfill opponents. And they were discussing what was needed to be inserted into the site operating plan that would not so much burden the landfill operators, but it would satisfy the court to where the landfill operators would not be going to court trying to defend themselves. But somehow they couldn't wait for the supreme court to rule before the process was even halfway through at the tceq, we had two major companies that filed for rule making asking the commission to change their own rules. Basically it's you don't tell me what I have to do and I don't tell you what I'm going to do, we are almost sure to circumvent the judicial process and overturn the decisions of the court of appeal. This to me is a back way of doing it. You know, it's the court -- if the court rules against you, you go around it and you find a way to tell the court, well, thanks a lot, but I'm going to find a way to not do this. This is why I'm outraged this is even being proposed mainly because half of the city has been involved in this nightmare because of the landfill. You could go back two years, you never every I even exist to some of you. And so I really appreciate your efforts and I think this is needed from almost all of the environmental community in Austin. I'm trying to get them on the train with me. And I think basically we've had enough damage done that the legislature -- at the legislature this year and in an era where more enforcement is required almost on every level of society, I don't think a landfill should get away with it as far as I'm concerned. They are not quite that immune to terrorism either. However, that's another matter. And after all, you've got a massive explosion could take place.
>> i'll second the motion that anybody makes.
>> i'll move approval. But I really --
>> I have a couple questions. So we're saying basically that if there's more specificity, more detail, it promotes enforceability?
>> right.
>> that was one of my main issues, judge Biscoe, because I felt like how can you interpret compliance if you don't have specificity in the elements of an infraction.
>> on the other hand, the operators will argue that flexibility gives them a greater ability to remedy problems. And if a particular remedy is not set forth in the operating plan, they have to go back and get the plan amended in order to put that recommend necessitated place. -- that recommended plan in place.
>> it is such a rigid process with tceq. There are a whole host of remedial areas that can be done administratively very easily without -- even though it may state that you have a working face of a certain number of feet in dimension, if it causes excess problems in odor or whatever, they can modify that. Particularly if little a modification that enhances public health and safety and environmental protection. So I guess my answer is nice try, not a real issue. You know, flexibility -- the process that we're talking about going on in the future hopefully will be that, as tom kind of mentioned earlier, that there would be a stakeholder process where they go through the big questions of what within operation plans need to have specificity and what would those criteria be. You know, that ideally will take place in the future.
>> okay. All things considered, we believe that more detail, more specifics would outweigh flexibility is what I'm hearing.
>> right. I mean I think flexibility has to be a part of this stakeholder process and be a consideration certainly. And site specific details for individual landfills need to be considered. All of those are sensible things. But I --
>> and judge, I would say that when you are drafting regulations like this, there's always a tension between detail on the one hand and flexibility on the other. And generally the goal is always to find a happy medium. And I think tceq felt that they had that in this standard, which was you got to provide sufficient details to let the landfill what they are supposed to do to operate it. That standard has been there a long time. If there are problems with it, fine, reexamine it and replace it. But again, at this point all tceq is saying is we're going to repeal that. We don't know what the balance is and we're not even going to try to find it. We're sort of going to give up on finding the happy medium between detail and flexibility. And I think that's the real issue, the fact that they are dropping this standard without replacing it without anything.
>> did we address that issue in the comments?
>> yeah, I think that's what we were hitting on when we said over the next year, tceq should look at this issue and come up with new standards. You can deal with the issues landfills raise about having flexibility and at the same time pwaeult with the need for specificity from enforcement.
>> it's almost like in a sense it's almost like here you've gone [indiscernible] and there has been some ambiguity in the site operating plan and this is the whole point through going through the court system. Then when it gets to the top of the supreme court, then we want to go back to the folks that make the rules and doing away with the rules. Clearing up the ambiguity by clearing up the rules. I think that specificity should be the law so you know what to do and site plan just needs to be in place and have specificity. That was the intent of the suit as it premiered it to the top level of our court system.
>> and the motion and second -- has the motion been seconded? Was to do what?
>> go with the staff recommendation.
>> staff recommendation is to reduce these comments to a formal -- formal written comments by Travis County to attend the hearing.
>> right.
>> and --.
>> go ahead, judge.
>> I would like to say --
>> hold on. I'm trying to understand. Those are two parts of the motion t third part basically is to give the comments.
>> right.
>> now, do those comments need to be signed by the Commissioners court?
>> judge, that's entirely up to your discretion. We brought the substance of the comments to you.
>> would it have more clout signed by the court or without it?
>> sure.
>> then should the motion be basically to authorize preparation of an appropriate document that captures this with our signature today or tomorrow morning. Is this tomorrow morning the hearing?
>> I wanted to say tomorrow the vote is going to be whether the Commissioners adopt the new rules and post them.
>> it's just to propose them.
>> the proposed rules. And there's a period of comment for 30 days. So it would be nice to tell them yes tomorrow that the rules as drafted are not acceptable. That's really my main quest tomorrow. And after that if they do accept them, there's a 30-daytime where you can say what's wrong with them. That may help knew your resolution.
>> and I guess the question though is, john, do you think you can have that letter in a timely manner for us to get the court's signature of approval?
>> yes.
>> that was the bottom line because I knew it was coming up. And then I guess, trek, you guys will be there in the morning and I want to make sure you get a chance to look at this letter after we get through going through the motion if the court decides to approve it.
>> so the comments in the backup basically ask the commission not to adopt the rules. These seem to be suggesting we need a rule that requires specifics, but we also need additional time to study it. Right?
>> it can certainly be modified to say. That I think what our comments say is that --
>> what I'm hearing is don't throw it out. Rather than saying we're just not going to deal with sufficient detail, to spend the time wisely and come up with some specifics on sufficient detail.
>> right. Because the rule as proposed right now just basically says we're going away from the detail comments. Don't throw it out without knowing what you are going to replace it with.
>> that's the recommendation that will be in the comments that you prepare for court approval.
>> and keep it that simple.
>> that's the motion.
>> and second. Any more discussion? All in favor? That passes by unanimous vote. Thank you very much.
Last Modified: Wednesday, September 24, 2003 7:52 AM