ft · 2016-11-17 · Effluent limits in the Interim II phase ofthe proposed permit, based on a thirty day average, are 7 mg/L CBOD5, 15 mg/L TSS, 2 mg/L NI-I3-N, 0.5 mg/L total phosphorus,

Assistant Public Interest Couu_i__

Blyan W Shaw PhD PE Chaillnmz Toby Baker Commissionel Jon Niermann Commissioner Richard A Hyde PE Executive Directol Vic McWhe1bullte1bull Public Interest Counsel

~EXAS COMMISSION ON ENVIRONMENTAL QUALITY

Pmtecting Texas by Reducing and P1middoteventing Pollution

November 14 2016

Bridget Bohac Chief Clerk Texas Commission on Environmental Quality Office of the Chief Clerk (MC-105) PO Box 13087 Austin Texas 78711-3087

RE GREEN VALLEY SPECIAL UTILITY DISTRICT TCEQ DOCKET NO 2016-1876-MWD

Dear Ms Bohac

Enclosed for filing is the Office of Public Interest Counsels Response to Request for Reconsideration and Request for Hearing in the above-entitled matter

Sincerely

ft Ul Eli Martinez Attorney

cc Mailing List

Enclosure

TCEQ Public Interest Counsel MC 103 bull PO Box 13087 bull Austin Texas 78711-3087 bull 512-239-6363 bull Fax512-239-6377

Austin Headquarters 512-239-1000 bull tccqtexasgov How is our customer service tceqtexasgovcustomcrsurvey printed onrecyoled paper

DOCKET NO 2016-1876-MWD

IN THE MATTER OF THE sect BEFORETHE APPLICATION BY GREEN sect VALLEY SPECIAL UTILITY sect TEXAS COMMISSION DISTRICT FOR PROPOSED sect WATER QUALITY PERMIT sect ON ENVIRONMENTAL QUALITY NO WQ0015360001 sect

OFFICE OF PUBLIC INTEREST COUNSELS RESPONSE TO REQUEST FOR RECONSIDERATION AND REQUEST FOR

HEARING

To the Members of the Texas Commission on Environmental Quality

The Office of Public Interest Counsel (OPIC) at the Texas Commission on

Environmental Quality (TCEQ) files this response to request for reconsideration and

request for hearing in the above-captioned matter

I INTRODUCTION

A Background of Facility

Green Valley Special Utility District (Green Valley or Applicant) has

applied for new TPDES Permit No WQ0015360001 to authorize the discharge of

treated domestic wastewater at a daily average flow not to exceed 025 million

gallons per day (MGD) in the Interim I phase and an annual average flow not to

exceed 25 MGD in the Interim II phase and 50 MGD in the Final phase The

Santa Clara Creek No 1 Wastewater Treatment Facility is proposed to be an

activated sludge process plant operated in the extended aeration mode

If granted the permit would authorize treatment units in the Interim I

phase to include a lift station bar screen equalization basin aeration basin final

The Office of Public Interest Counsels Response to Request for Reconsideration and Request for Hearing Page 1 of 13

clarifier sludge digester belt filter press chlorine contact chamber and disk

filter Treatment units in the Interim II and Final phases would include a lift

station a bar screen two sequencing batch reactor basins an equalization basin

a sludge digester a belt filter press an ultraviolet light disinfection system and a

disk filter The facility would serve proposed developments in the Santa Clara

Creek watershed in Guadalupe County Texas The facility has not been

constructed

Effluent limits in the Interim I phase of the proposed permit based on a

thirty day average are 10 milligrams per liter (mgL) five-day carbonaceous

biochemical oxygen demand (CBOD5) 15 mgL total suspended solids (TSS) 3

mgL ammonia Page 2 of 26 nitrogen (NH3-N) 05 mgL total phosphorus 126

colony-forming units (CFU) or most probable number (MPN) of E coli per 100

milliliters (mL) and 4 mgL minimum dissolved oxygen The effluent would

contain a chlorine residual of at least 1 mgLand not exceed a chlorine residual of

4 mgL after a detention time of at least twenty minutes based on peak flow

Effluent limits in the Interim II phase of the proposed permit based on a thirtyshy

day average are 7 mgL CBOD5 15 mgL TSS 2 mgL NI-I3-N 05 mgL total

phosphorus 126 CFU or MPN of E coli per 100 mL and 6 mgL minimum

dissolved oxygen

Effluent limits in the Final phase of the proposed permit based on a

thirty-day average are 5 mgL CBOD5 5 mgL TSS 18 mgL NH3-N 05 mgL

total phosphorus 126 CFU or MPN of E coli per 100 mL and 6 mgL minimum

dissolved oxygen The permittee would use an ultraviolet light system for


disinfection purposes in the Interim II and Final phases The pH is required to be

in the range of 6o to 90 standard units in all phases

The proposed wastewater treatment facility would be located at 3930

Linne Road in Guadalupe County Texas 78155 The treated effluent would be

discharged to Santa Clara Creek then to Lower Cibolo Creek ih Segment No

1902 of the San Antonio River Basin The unclassified receiving water use is high

aquatic life use for Santa Clara Creek The designated uses for Segment No 1902

are high aquatic life use and primary contact recreation

B Procedural Background

The TCEQ received Green Valleys application for new TPDES permit No

WQ0015360001 on April 1 2015 and declared it administratively complete on

May 18 2015 The Notice of Receipt and Intent to Obtain a Water Quality Permit

(NORI) was published on June 11 2015 in the Seguin Gazette

The executive directors staff completed technical review of the application

on August 13 2015 and prepared a draft permit The Notice of Application and

Preliminary Decision for a Water Quality Permit was published on October 27

2015 in the Seguin Gazette Notice of Public Meeting was published on February

25 2016 in the Seguin Gazette The public meeting was held on March 29 2016

which was also the day the public comment period ended

The Executive Directors response to comments was mailed on September

22 2016 and the time period for filing hearing requests ended on October 24

2016 The TCEQ received timely hearing requests from Cibolo Creek Municipal

Authority (CCMA) and a timely request for reconsideration filed by Otto Radke

The Office ofPublic Interest Counsels Response to Request forReconsideration and Request for Hearing Page 3 of 13

As discussed below OPIC recommends denying the request for reconsideration

granting the hearing request and referring the matter to the State Office of

Administrative Hearings (SOAH) for a contested case hearing

II REQUEST FOR RECONSIDERATION

A Applicable Law

House Bill 801 created the request for reconsideration as a procedural

mechanism which allows the Commission to review and reconsider the Executive

Directors decision on an application without a contested case hearing Following

the Executive Directors technical review and issuance of the Executive Directors

decision and response to comments a person may file a request for

reconsideration or a request for contested case hearing or both TEXAS WATER

CODE sect5556 30 TEXAS ADMINISTRATIVE CODE (TAC) sect55201(e)

Any person may file a request for reconsideration of the executive

directors decision 30 TAC 55201(e) The request for reconsideration must state

the reasons why the Executive Directors decision should be reconsidered 30

TAC 55201(e) Responses to requests for reconsideration should address the

issues raised in the request 30 TAC sect55209(pound)

B Basis of Request

Otto Radke requests reconsideration of the Executive Directors decision

because due to concerns related to potential negative impacts on his property the

natural environment crops and cattle Mr Radke is also concerned with the

The Office of Public Interest Counsels Response to Request for Reconsideration and Request for Hearing Page4of13

general mismanagement of treated wastewater in Cibolo Creek and the possibility

that inexperienced personnel will operate the facility in an irresponsible manner

C Discussion

While we are sympathetic to the concerns Mr Radke raises in his request

OPIC cannot recommend denial of the permit authorization based on these issues

without development of an evidentiary record OPIC notes however that our

office recommends that each of the concerns Mr Radke raises is recommended

for referral to an evidentiary hearing for and through the requestor CCMA

addressed later in this brief

III DISCUSSION

A Requirements of Applicable Law

This application was declared administratively complete after September 1

1999 and is subject to the requirements of Texas Water Code (TWC) sect 5556

added by Acts 1999 76th Leg ch 1350 (commonly known as House Bill 801)

Under 30 Texas Administrative Code (TAC)sect 55201(d) a hearing request must

substantially comply with the following

(1) give the name address daytime telephone number and where possible

fax number of the person who files the request

(2) identify the requestors personal justiciable interest affected by the

application sho~ng why the requestor is an affected person who may be

adversely affected by the proposed facility or activity in a manner not

common to members of the general public

(3) request a contested case hearing

(4) list all relevant and material disputed issues of fact that were raised during

the comment period that are the basis of the hearing request To facilitate

the commissions determination ofthe number and scope of issues to be

referred to hearing the requestor should to the extent possible specify


any of the executive directors responses to comments that the requestor

disputes and the factual basis of the dispute and list any disputed issues of

law or policy and

(5) provide any other information specified in the public notice of application

Under 30 TACsect 55203(a) an affected person is one who has a personal

justiciable interest related to a legal right duty privilege power or economic

interest affected by the application This justiciable interest does not include an

interest common to the general public 30 TACsect 55203(c) also provides relevant

factors that will be considered in determining whether a person is affected These

factors include

(1) whether the interest claimed is one protected by the law under which

the application will be considered

(2) distance restrictions or other limitations imposed by law on the

affected interest

(3) whether a reasonable relationship exists between the interest claimed

and the activity regulated

(4) likely impact of the regulated activity on the health safety and use of

property of the person

(5) likely impact of the regulated activity on use of the impacted natural

resource by the person and

(6) for governmental entities their statutory authority over or interest in

the issues relevant to the application

This standard does not require the requester to show that they will

ultimately prevail on the merits only that they show that they will potentially

suffer harm or have a justiciable interest that will be affected United Copper

Industries v Grissom 17 SW3d 797 803 (Tex App-Austin 2000 pet dismd)

(citing Heat Energy Advanced Tech Inc v West Dallas Coalition for Envtl

Justice 962 SW2d 288 289 (Tex App-Austin 1998 pet denied))

The Commission shall grant an affected persons timely filed hearing

request if (1) the request is made pursuant to a right to hearing authorized by

The Office of Public Interest Counsels Response to Request for Reconslderation and Request for Hearlrig Page 6 of 13

law and (2) the request raises disputed issues of fact that were raised during the

comment period and that are relevant and material to the commissions decision

on the application 30 TAC sect55211(c)

Accordingly pursuant to 30 TACsect 55209(e) responses to hearing

requests must specifically address

(1) whether the requestor is an affected person

(2) which issues raised in the hearing request are disputed

(3) whether the dispute involves questions of fact or law

(4) whether the issues were raised during the public comment period

(5) whether the hearing request is based on issues raised solely in a public

comment withdrawn by the commenter in writing by filing a

withdrawal letter with the chief clerk prior to the filing of the Executive

Directors response to Comment

(6) whether the issues are relevant and material to the decision on the

application

(7) a maximum expected duration for the contested case hearing

B Determination of Affected Person Status

The TCEQ received timely hearing requests from David Klein and Brad

Castleberry on behalf of CCMA on June 24 2015 August 31 2015 November 12

2015 November 13 2015 and October 24 2016 The hearing requests state that

CCMA is a conservation and reclamation district under Article XVI Section 59 of

the Texas Constitution created in 1971 by the Texas Legislature for the purpose of

regionalizing wastewater systems within its jurisdiction CCMA is the designated

regional entity to develop a regional sewerage system in the Cibolo Creek

watershed-including the cities of Cibolo and Schertz The Applicant has applied

for a TPDES permit to authorize a wastewater treatment plant that will provide

retail wastewater service for its entire certificated area which overlaps the cities

of Cibolo and Schertz CCMA therefore argues that it is an affected person who

has a personal justiciable interest to a legal right duty privilege power or

economic interest that is not common to the members of the general public


because the proposed permit would interfere with its statutory right privilege

and interest as the exclusive TCEQ-designated entity to collect transport treat

and discharge wastewater within its regional area

CCMA raises the concerns that any discharge into the Cibolo Creek

watershed has the potential to negatively impact water quality the application is

incomplete and does not demonstrate compliance with the state regionalization

policy because a cost analysis of expenditures was not completed the facility is

not needed the application fails to identify an operator the facility could

potentially affect human health as well as livestock and other terrestrial life the

application does not identify a disposal site or hauler for sludge the facility has

the potential to create nuisance odors and the site has the potential to create

additional traffic

OPIC finds that CCMA is an affected person by virtue of its status as the

TCEQ-designated regional entity with authority over and interest in the issues

relevant to the application Specifically the proposed location of the plant in the

application is within an area that may affect the regional sewerage systems in the

Cibolo Creek watershed over which CCMA has authority Additionally CCMA has

an interest in protecting the water quality and potential impacts on human and

terrestrial life as the exclusive TCEQ-designated entity to collect transport treat


Based on this authority over and interest in the issues relevant to the

application CCMA has shown a personal justiciable interest related to legal

rights duties privileges powers or economic interests affected by the

application 1 Because of CCMAs concern about regionalization in light of the

expressed intention to serve the area covered by the application OPIC finds that

a reasonable relationship exists between the interests claimed and the activity

1 See 30 Tex Admin Code (TAC) sect55203(a) see also 30 TAC sect55203(b) and 30 TAC sect55203(c)(6)


regulated 2 Therefore OPIC recommends that the Commission find CCMA is an

affected person

C Issues Raised in the Hearing Request

1 Does the application demonstrate compliance with the state

regionalization policy

2 Is the facility needed

3 Will the proposed facility negatively impact water quality

4 Will the facility negatively impact human health or the health of

livestock and other terrestrial life

5 Does the application properly identify an operator

6 Does the application identify a disposal site or hauler for sludge

produced by the proposed facility

7 Will the facility result in nuisance odors

8 Will the proposed facility create additional traffic hazards

D Issues raised in Comment Period

All of the issues in the hearing requests were raised during the public

comment period

E Disputed Issues

There is no agreement on the issues raised in the hearing requests and

therefore these issues are disputed

F Issues of Fact

If the Commission considers an issue to be one of fact rather than one of

law or policy it is appropriate for referral to hearing if it meets all other

applicable requirements All of the issues are issues of fact

G Relevant and Material Issues

In order to refer an issue to State Office of Administrative Hearings

(SOAH) the Commission must find that the issue is relevant and material to

the Commissions decision to issue or deny this permit3 Relevant and material

2 See 30 TAC sect55203(c)(3) 3 30 TAC30 TACsectsect 5520l(d)(4) 55209(e)(6) and 5521 l(c)(2)(A)


issues are those governed by the substantive law under which this permit is to be

issued4

CCMAS concerns related to regionalization and need are relevant and

material to the Commissions decision According to Texas Water Code (TWC) sect

26081(a) TCEQ is mandated to implement the state policy to encourage and

promote the development and use of regional and area-wide waste collection

treatment and disposal systems to serve the waste disposal needs of the citizens

of the state and to prevent pollution and maintain and enhance the quality of the

water in the state Additionally TWC sect 260282 provides that

[i]n considering the issuance amendment or renewal of a permit to

discharge waste the commission may deny or alter the terms and

conditions of the proposed permit amendment or renewal based on

consideration of need including the expected volume and quality of

the influent and the availability of existing or proposed areawide or

regional waste collection treatment and disposal systems not

designated as such by commission order pursuant to provisions of

this subchapter This section is expressly directed to the control and

treatment of conventional pollutants normally found in domestic

wastewater

As to the concerns related to water quality the TCEQ has the authority to

conduct a hearing to determine if a regional waste collection treatment or

disposal system is necessary to prevent pollution or maintain and enhance the

quality of the water in the state based on the existing or reasonably foreseeable

residential commercial industrial recreational or other economic development

in the areas Therefore the concerns related to water quality are material and

relevant

4 See Anderson v Liberty Lobby Inc 477 US 242 248-251(1986) (in discussing the standards applicable to reviewing motions for summary judgment the Court stated [a]s to materiality the substantive law will identify whichacts are material it is the substantive laws identification ofwhich facts are critical and whichacts are irrelevant that governs) 5 TWC sect 26082(a)


CCMAs concerns related to potential hazardous effects on human health

as well as the health of livestock and other terrestrial life are material and

relevant to the Commissions decision According to section 3076(b)(3) of the

standards Water in the state must be maintained to preclude adverse toxic

effects on human health resulting from contact recreation consumption of

aquatic organisms consumption of drinking water or any combination of the

three Additionally section 3076(b)(4) states Water in the state must be

maintained to preclude adverse toxic effects on aquatic life terrestrial life

livestock or domestic animals resulting from contact consumption of aquatic

organisms consumption of water or any combination of the three

The concerns related to nuisance odors are material and relevant under 30

TACsect 30913(e) CCMNs concerns related to identifying an operator and hauler

are material and relevant because the EDs technical report and fact sheet state

that a TCEQ-approved hauler and operator are required

CCMAs remaining concern related to increased traffic falls outside of the

scope of TCEQ jurisdiction to maintain and protect water quality of the state as

implicitly authorized by the Texas Water Code Chapter 26

H Issues for Referral

OPIC recommends that the Commission refer the following disputed issues

of fact to the State Office of Administrative Hearings for a contested case hearing












III MAXIMUM EXPECTED DURATION OF HEARING

Commission Rule 30 TACsect 55115(d) requires that any Commission order

referring a case to SOAH specify the maximum expected duration of the hearing

by stating a date by which the judge is expected to issue a proposal for decision

The rule further provides that no hearing shall be longer than one year from the

first day of the preliminary hearing to the date the proposal for decision is issued

To assist the Commission in stating a date by which the judge is expected to issue

a proposal for decision and as required by 30 TAC sect55209(d)(7) OPIC estimates

that the maximum expected duration of a hearing on this application would be

nine months from the first date of the preliminary hearing until the proposal for

decision is issued

IV CONCLUSION

For the reasons stated above OPic recommends granting the hearing

request of CCMA and referring this application to the State Office of

Administrative Hearings for a contested hearing of no longer than nine months

on the issue listed above

Respectfully submitted

Vic McWherter Public Interest Counsel

Ry V MJt_(Eli M inez State Bar No 24056591 Office of Public Interest Counsel PO Box 13087 MC 103 Austin Texas 78711-3087 Phone (512) 239-6363 Fax(512) 239-6377


CERTIFICATE OF SERVICE

I hereby certify that on November 14 2016 the original and seven true and correct copies of the Office of the Public Interest Counsels Response to Request for Reconsideration and Request for Hearing were filed with the Chief Clerk of the TCEQ and a copy was served to all persons listed on the attached mailing list via hand delivery facsimile transmission Inter-Agency Mail or by deposit in the US Mail


MAILING LIST GREEN VALLEY SPECIAL UTILITY DISTRICT

TCEQ DOCKET NO 2016-1876-MWD

FOR THE APPLICANT Pat Allen Green Valley Special Utility District PO Box 99 Marion Texas 78124-0033 Tel 830914-2330 Fax 830420-4138

Garry Montgomery River City Engineering PLLC 1011 West County Line Road New Braunfels Texas 78130-8339 Tel 830626-3588 Fax 830420-4138

Mark H Zeppa Law Offices of Mark H Zeppa PC 48 3 3 Spicewood Springs Road Suite 202 Austin Texas 78759-8436 Tel 512346-4011 Fax 512346-6847

FOR THE EXECUTIVE DIRECTOR Stefanie Skogen Staff Attorney TCEQ Environmental Law Division MC-173 PO Box 13087 Austin Texas 78711-3087 Tel 512239-0600 Fax 512239-0606

Larry Diamond Technical Staff TCEQ Water Quality Division MC- 148 PO Box 13087 Austin Texas 78711-3087 Tel 512239-0037 Fax 512239-4430

Brian Christian Director TCEQ Environmental Assistance Division MC-108 PO Box 13087 Austin Texas 78 711-308 7 Tel 512239-4000 Fax 512239-5678

FOR ALTERNATIVE DISPUTE RESOLUTION Kyle Lucas TCEQ Alternative Dispute Resolution MC-222 PO Box 13087 Austin Texas 78711-3087 Tel 512239-4010 Fax 512239-4015

FOR THE CHIEF CLERK Bridget Bohac TCEQ Office of Chief Clerk MC-105 PO Box 13087 Austin Texas 78711-308 7 Tel 512239-3300 Fax 512239-3311

REQUESTERS Brad B Castleberry Lloyd Gosselink Rochelle amp Townsend PC 816 Congress Ave Ste 1900 Austin Texas 78701-2478

David J Klein Lloyd Gosselink Rochelle amp Townsend PC 816 Congress Ave Ste 1900 Austin Texas 78701-2478

Otto W Radtke 5925 S Santa Clara Rd Seguin Texas 78155-9485

DOCKET NO 2016-1876-MWD

IN THE MATTER OF THE sect BEFORETHE APPLICATION BY GREEN sect VALLEY SPECIAL UTILITY sect TEXAS COMMISSION DISTRICT FOR PROPOSED sect WATER QUALITY PERMIT sect ON ENVIRONMENTAL QUALITY NO WQ0015360001 sect

OFFICE OF PUBLIC INTEREST COUNSELS RESPONSE TO REQUEST FOR RECONSIDERATION AND REQUEST FOR

HEARING

To the Members of the Texas Commission on Environmental Quality

The Office of Public Interest Counsel (OPIC) at the Texas Commission on

Environmental Quality (TCEQ) files this response to request for reconsideration and

request for hearing in the above-captioned matter

I INTRODUCTION

A Background of Facility

Green Valley Special Utility District (Green Valley or Applicant) has

applied for new TPDES Permit No WQ0015360001 to authorize the discharge of

treated domestic wastewater at a daily average flow not to exceed 025 million

gallons per day (MGD) in the Interim I phase and an annual average flow not to

exceed 25 MGD in the Interim II phase and 50 MGD in the Final phase The

Santa Clara Creek No 1 Wastewater Treatment Facility is proposed to be an

activated sludge process plant operated in the extended aeration mode

If granted the permit would authorize treatment units in the Interim I

phase to include a lift station bar screen equalization basin aeration basin final








constructed












dissolved oxygen


































A Applicable Law













B Basis of Request







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additional traffic


















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E Disputed Issues



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Documents

ft · 2016-11-17 · Effluent limits in the Interim II phase ofthe proposed permit, based on a thirty day average, are 7 mg/L CBOD5, 15 mg/L TSS, 2 mg/L NI-I3-N, 0.5 mg/L total phosphorus,