Travis County Commssioners Court
February 17, 2004
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Item 21
21, consider and take appropriate action on the following notices received from the Texas commission on environmental quality: a, notice of February 26th, 2004 public meeting regarding application of magna-flow international, incorporated for approval of a site for land application of sludge on taylor lane one mile north of fm 969; and 21-b, notice of March 11, 2004, public hearing regarding application of cap tex incorporated for approval of a site for land application of sludge on skog road, 7.2 miles northeast of the fm 1100/highway 290 intersection. Can we take a first?
>> judge, did we have a motion on 16?
>> didn't need it.
>> we just gave directions and it will be back on next week as an action.
>> all right. Thank you.
>> we didn't hear any objection to the directions that we discussed.
>> okay.
>> magna flow international in 21-a.
>> good morning again. Magna-flow is, as we just went over, a project that's about at the point in terms of the tceq process where there has been sufficient out cry or concern from the community that they're willing to hold a public meeting. And that is, like most public meetings, for the primary purpose of receiving community input and documenting that input. So I felt like it was a good idea to just bring that up to the court and discuss whether or not we would like to provide commentary at that public meeting. I plan on being there regardless. If you recall just going back in time, what is it is a -- it's a site that's out off of 969 on taylor lane, very close actually to 969 on the eastern side of the road. It's what they call beneficial land application site for wastewater treatment plant sludge as well as water treatment plant sludge run by a company called magna-flow international. They do not own the land. It's owned by a local landowner. And they have an arrangement whereby magna-flow is allowed to put the stuff down on the pasture. And the londer receives somewhat of a benefit by increased yield of hay hay and so forth. The problem that we have had tradition ally with this site is it's in a very low area, it's actually within the 100 year floodplain of gilly land creek. It violates our floodplain ordinance regarding solid waste in the placement and management of solid waste in the floodplain. It has been there for quite some time and predates our ordinance, however, we felt like by virtue of the fact that this was originally a registration level approval from tceq, which has now changed and is up in the air for an actual permit that in effect it's a new project. That's sort of -- last time I talked to tom knuckles, that was his position. So frankly, based on the siting challenge and our opinion the conflict with our ordinance, we're a little bit surprised that it's moving along as it appears to be. This is, as I said, a permit application, which means it has the potential to go to a contested case hearing at tceq in front of the state office of administrative hearings, which is in a sense a trial. So this is not something we walk into lightly. We feel like if there's somewhat of a poster child for a bad location, this might be it. And so that's why we're here talking to you about it. The question is do we go to the public meeting, do you want me to put some comments together, bring it back next week and we put that in front of --
>> I think it probably needs to happen, but I would say that nowhere east of i-35. North or south of the colorado river. And perhaps it would be something that could be looked upon as a regional project. It defines some -- maybe define some sites for these things as well, just like a landfill.
>> right.
>> Commissioner, were you finished?
>> yes. I just wanted -- didn't want it from one side of the county to the other.
>> Travis County, as far as this stuff is concerned, has been the dumping ground for Travis County for quite some time and we're kind of tired of it. And the residents are also. But my question, do we know who actually the clients are of these persons? I understand there may have even been some illegal discharge of sludge and stuff like that that may have even taken place with these magna-flow folks? Do we know who their clients are?
>> yes, sir.
>> in Travis County itself?
>> yes, sir, there are a couple in Travis County. Unfortunately I don't have the entire permit in front of me and I don't have that list. We talked about it last time we had this item up, and I can certainly get that to you.
>> i'd like to have that list.
>> they're required to put that in their application for a number of reasons.
>> I would like to have that list. And also, what's the difference between a public meeting which this would come up under? And of course the other one being a public hearing. What's the difference in those two?
>> yes. The public meeting process is really just almost a courtesy by the executive director when there's a lot of out cry. They just take comments. It is not -- there are no official findings that are produced. There's no win or lose in terms of whether the project moves forward. They're basically allowing the public to comment and see if they can pick up additional information that may have technical bearing on the evaluation of the project.
>> okay.
>> does the law or regulation in place provide for like an automatic conversion from registration to permit?
>> I don't know that I can answer that question. I don't know the answer, judge. We can't imagine that it would because the legislature came forward and said, these operations are no longer going to be approved merely by registration. They now need permits. And so I don't think it can be automatic.
>> it would have to be treated as a permit, like a new application?
>> right.
>> if we -- did we submit comments on this time?
>> yes, August 12th, 2003 we submitted comments.
>> and were those comments consistent with what you stated a few minutes ago?
>> uh-huh.
>> and maybe we can beef up that language and submit the comments?
>> what I'm planning to do is go through the latest version of the permit and attachments, kind of cross-check it from our comments, see if any of those were addressed, and like you say, if not -- if we're not satisfied with how they addressed any of our comments, then it is merely a dusting off.
>> what's the deadline for submitting comment?
>> it's just at the actual meeting.
>> 26th?
>> right.
>> we can come back and visit.
>> I think it would be good for us to see the exact wording.
>> I can get that to you by the end of this week.
>> motion?
>> yes, judge, I would like to move approval with the direction that they will bring this back to us -- I guess the 24th would be the next meeting before the 26th. And with those particular commenttaries, the conclusion of what Commissioner Gomez also stated, to have that included in the comment. And along with that, john, is there any way possible to know whether or not -- I think the judge hit something on the head here when he said we're looking at this as a new application because it is a permit. Is there any way for us to allow the elected officials and the state representatives that represent this area, such as representative stick and others, that may be -- I don't know where the boundary is exactly on that. To let them know where we are and where we're going on this because as a state legislator, they basically have a lot of pull with tceq, I would suspect, more so than Travis County. So if that is the case, I would like to have everything that we're doing here, to make sure that it filters to those state representatives and also senator gonzalo barrientos in the same record. Let everybody -- keep the line of communication open.
>> okay. So qut is to -- the request is to cc the comments that we eventually will approve and sort of keep them verbally appraised?
>> exactly.
>> give them a list of officials that should be notified next week when we look at the language of the comments, we can basically decide who all to get it?
>> that would be good.
>> i'll circulate today what we've said back in August so that you can have it fresh in your files. And then work on the revised version by Friday, have it to you.
>> any more discussion of the motion?
>> real quick. It would seem to me that at some point in the future we would need something scheduled for executive session to talk about our legal options.
>> okay.
>> would you like for this to be posted for executive session next week?
>> whenever it's appropriate, judge. If next week is the time to do it, that would be fine, but if there's a more appropriate time --
>> Commissioner?
>> if I'm understanding it right, john, this may be one of the first times, if this is a new application, that we may have an opportunity to use the actual solid waste siting ordinance. The deal was major landfills and stuff like that -- not landfills, but solid waste cility if it's a new application or a new permit, if it's treated that way, is that correct?
>> well, to be honest with you, probably not. They beat our deadline on the -- yes, Commissioner. However, it's the floodplain ordinance that -- I think it's the more precedent that we need to look at.
>> I thought we did. Okay. All right. Thank you.
>> it seems to me that on the solid waste ordinance we would at least argue that although the application predates our ordinance, the ordinance does set forth Travis County standards. And although in this case it may not prevent the application from being granted, per se, we certainly think that the standards ought to be considered.
>> and you made that argument eloquently in this comment letter.
>> thank you, john. [ laughter ]
>> and we incorporated the floodplain ordinance [overlapping speakers]. At some point I'm just ready to go to the mattresses related to all of this stuff. It's like I read them in the houston chronicle all the time about how harris county just takes people to the mattresses, to court and just fights these things. And I'm ready. I mean, it's like --
>> I think the matt may be a little better, it has a little bit less romantic -- [ laughter ]
>> obviously you do not watch the godfather because going to the mattresses... [ laughter ] [overlapping speakers], I'm not going to get into this.
>> any more discussion?
>> no more discussion. All in favor? That passes on unanimous vote. B is the cap tex incorporated application. Which we did oppose before.
>> they got initial approval for a registration. There was a successful motion to overturn once a couple of years ago. They worked with staff, got a few more technical requirements added to the permit. It became approved again. And then just this past fall there became another opportunity for motions to be overturned to be filed, which were filed accordingly. And believe it or not, the executive director had a reversal of the approval of the registration before the commission. And then the question became, will this proceed further in either the registration or the permit process. And in the process of all of this, the application for land application requirements was passed and ultimately this cap tex, if it proceeds, will have to get a permit. So now the question became simply based on compliance history alone, will this be able to move forward? And so that's -- as I understand it, kevin can probably clarify a bit more. But that's the principal question to be answered in the hearing. So that's the gist of today is to discuss whether or not the court would like us to go forward and actually seek affected party status at that particularly hearing.
>> john, the last time this came up and the laj and the thing that we had at that point and what we use to take before the tceq, can that language still be used and incorporated into this particular public hearing and maybe have a few things added to it that may have enhanced it since our last position? And -- go ahead, I'm sorry, I didn't mean to cut you off.
>> I just kind of wanted to cut to the chase on this one. This is not one of those walk in and give some comments situations. This is like a trial. And so we'll need to -- my understanding is, and kevin can address this better than i. We don't have to necessarily put on a strong case necessarily. We can just be there and participate in whatever form is deemed appropriate at that time. There are other parties, the black land prairie folks and so forth, that we're pretty sure are going to be affected parties. And be sort of pulling a lot of the weight there. Kevin, did you want to add something to that?
>> I think this is one more step toward a formal administrative hearing. And what you have to decide or what you're being asked to decide today is how do you want to join or do you want to join that formal hearing? Your options are to join it as a party. And, of course, if you want to be a party, then you have to let the administrative judge know that it is your request that you be considered a party. There are several ways to do that. You can do it by formal motion that you file with the administrative official before the hearing or you can carry the resolution from the court to the hearing and announce your indication that you represent or john would represent Travis County and ask them to consider Travis County as a party in the proceeding. Of course, that doesn't limit -- what I'm saying is if you want to be a party in the proceeding and you all as a court have to resolve that the county should go in that direction. And there are two ways to do that, we file a motion now and ask them -- and it will be decided whether or not you're granted party status or you can carry the court's resolution to that preliminary hearing and announce your intentions at that point. Either way, though, you all have to declare a form at Commissioners court resolution to become a party in this action. Does that answer your question?
>> yeah. And I guess in essence, though, what would have the most clout, a filing of a motion or a resolution from the Commissioners court? Since they're two separate documents could both suffice?
>> no. A resolution is manned terry. If you want -- mandatory. If you want to be a party, you have to resolve as a court, Travis County asks the administrative judge to permit you to function as a party. To partake in the rest of the proceedings as a party. And john can write it up or however you want. Obviously you have abilities as Travis County to address beneficial use application; therefore that is one of the grounds you would state in your request to become a party. Now, as far as what has a fwrr impact, I have -- greater impact, I have no insight on what has a greater impact. I think the name Travis County is going to have a greater impact whether it's done in a formal motion 20 days ahead of time, which we would want to file by this Friday, or whoever you sent up there as your representative, it would still be Travis County walking up there as a party. So I think that a county entity through this Commissioners court has asked someone to be there, is going to have an impact. I can't say if a motion will have more formal strength than showing up with your representative on that date. Either way, though, it does require a resolution of the court.
>> a resolution is required. Okay.
>> I have two or three questions. The first thing is Friday is the deadline for a motion for party status.
>> yes, motion to intervene in the formal proceeding would have to be filed by Friday. Let me just say one more thing, judge. Of course, no matter what we do, it's discretionary with the administrative judge whether they let you in or not.
>> last time we simply submitted comments as a governmental entity. Where does this application stand relative to our floodplain ordinance and the signing ordinance?
>> this one has no floodplain problems. It is borderline on being a bit too close to some residences, but even that, this project really doesn't have siting issues nearly as much as -- of course, the black land prairie folks cringe when they hear me say that, but from the perspective of our set back and so forth, this project does not have the siting problems, for example, that magna flow has. The issue here is compliance history.
>> that's what we discussed last time.
>> yes, sir?
>> [inaudible - no mic].
>> have a seat in front of that microphone and give us your name again.
>> my name is john carlson. I represent the black land group legally and have for the last three years in this proceeding. The summaries that you all have heard are good and they're correct. What basically happened is cap tex is still pursuing a registration. It probably the last registration application pending because of this change to permitting. The Commissioners, tceq Commissioners referred the case to soah at their November 15th agenda meeting for a very limited issue, and it's the issue that's been discussed here, cap tex's compliance history. Our group is presented, as has Travis County and others, very thick list of violations, problems and whatnot. This will be a contested case hearing. I don't know how long it will take to go through the process. Tceq had asked for an expedited one, but that doesn't seem to be happening already. I suspect, best guess, is what we're looking at maybe a four or six-month process. Our group is going to take the lead. There are other entities both public and private that are going to participate as parties with attorneys. We strongly encourage Travis County to continue its support, but we may be able to help by doing a lot of the legwork ourselves. But certainly having the county request to be a party in this proceeding will carry a lot of weight, both with the alj and later on with the Commissioners again. So we would strongly encourage as much participation as possible, but certainly an effort to secure party status and have your attorneys or others attend key parts of this particular proceeding and file a few briefs and motions along the way.
>> what would be the disadvantage of our moving to interested party status?
>> frankly, just as john laid out, four to six-month process. You're stepping into. And I c tell you, you're not going to send a sling shot, you're going to send one of the county attorneys. You need an attorney that's fully managing the project. I'll be happy to assist, but it just staff time primarily, distraction from other important projects that we're doing.
>> i've heard you describe there's a lot of things, but never a sling slot.
>> thank you, judge, I guess.
>> Commissioner Davis?
>> yes, I would like to move that we -- Travis County file a motion to intervene to the administrative judge and also participate under a resolution showing our interest and concerns, objectives to the cap tex application for registration.
>> i'll second that.
>> is it also a motion to intervene as a party?
>> yes.
>> this must be filed Friday of this week.
>> yes, this Friday.
>> in the motion to achieve party status, you make all the arguments in the motion or do you make that motion and then later submit the argument?
>> yes, we'd just take trooi to make our party status position. It won't be the limit of your argument, judge?
>> the motion is basically to file the motion to establish status and start putting together motions that we will submit.
>> and also resolution.
>> and I want to support this, but I don't want to wind up having to fight it south of the colorado river as well. So I need to make sure that they understand that this is not good for east of i-35, north or south of the colorado river.
>> amen to that.
>> I'm at the point of just saying that I'm getting frustrated with laws being passed over at the state capitol that things are supposed to be a new day over there and it seems like we're fighting the old battles. So go to the mattress for this part too. [ laughter ]
>> john, you mentioned earlier about some parties that were -- and I remember we did sit in a meeting at the state capitol and there were several parties involved and listening to what captex compliance history and a lot of other things. Is this the same person this would be notified coming up in this particular administrative hearing?
>> I can't exactly for who all has participated, but I expect continued representation for -- I represent the blackland group and adjoining landowners. There are more individuals in the area. Travis County has participated in opposition. Lcra has participated in opposition. Aqua water corporation, and a few others. And I have no reason to expect that any of these entities or individuals have changed their mind since November.
>> thank you.
>> any more discussion? We'll have this back on next week for more specific wording?
>> yes.
>> of any argument.
>> if we're going to file it by Friday, this has to function as the resolution to support that pleading. We can certainly hear it again next week, absolutely...
>> so there would be a motion filed on Friday.
>> exactly.
>> but if we're elaborating argument in a document, will we have that document to review next Tuesday snirks yes, absolutely.
>> the official standard is just describing how we might be feaked in a way not common to members of the general public. So that's really -- in terms of -- is that correct?
>> also, if it addresses any issue which Travis County has enforcement authority over. And that's the one that's the primary argument that we will make to determine our party status.
>> so two things really. The second one is being back on the agenda next week, the argument.
>> yes, sir.
>> any more discussion? Allin favor? That passes by unanimous vote.
Last Modified: Tuesday, February 17, 2004 5:44 PM