TCEQ adopts ALJ recommendation and issues draft permit for Municipal Operations wastewater plant despite protest

The Texas Commission on Environmental Quality on Oct. 22 adopted the administrative law judge's proposal for decision and voted to issue a draft Texas Pollutant Discharge Elimination System (TPDES) permit authorizing a new wastewater treatment facility applied for by Municipal Operations LLC (permit WQ0016171001). The commission's vote followed oral arguments from the applicant, protestants and the executive director and a public statement by a state legislator urging denial.

Representative (name not specified), who spoke under the meeting's allowance for legislators, told commissioners the proposed plant "is unwise" and said the Helotes Creek watershed drains recharge to the Edwards Aquifer and poses a risk to drinking-water supplies. "If we're not a 100% certain that the treatment plant won't threaten that wonder of the natural world, we must deny this permit," the representative said.

The applicantrepresented by attorney Helen Gilberturged the commission to adopt the PFD, saying the ALJ "did a thorough job analyzing this case on the facts and on the evidence and recommending issuance of the permit." Gilbert told the commission the project would "beneficially reuse 100% of the highly treated wastewater," that the permit includes a 0.15 mg/L total phosphorus limit and that the site will employ a Class A operator and limits on expansion.

Protestant counsel Lauren Ice and Eric Allman argued the record shows substantive technical and legal issues requiring denial. Ice urged the commission that the QualTex dissolved-oxygen model relied on default (uncalibrated) parameters and that the PFD's use of a nonstandard "margin of safety" lacks a legal basis; she said protestants had presented evidence that the model and its defaults may overpredict dissolved oxygen and thus fail to show downstream attainment of the 3.0 mg/L standard. Allman emphasized karst geology and said Helotes Creek is used for swimming and fishing and that no tier 2 anti-degradation review had been performed for the stream.

Fernando Salazar Martinez, representing the executive director, recommended adoption of the ALJ's decision as revised and told the commission the ALJ found the draft permit "adequately protective of water quality, including surface water, ground water, and drinking water wells," and protective of wildlife and endangered species under the cited Texas surface water quality standards and applicable TCEQ rules.

The Office of Public Interest Counsel urged denial or remand, arguing the record did not show adequate protection for water quality and wildlife and that the proposed phosphorus limit (0.15 mg/L) could be several times higher than background and thus cause more than de minimis degradation in a low-phosphorus stream environment.

After discussion, a commissioner moved to adopt the ALJ's proposed order as revised and issue the draft permit and adopt the executive director's response to comments. The motion passed by voice vote; the commission did not record a roll-call tally in the hearing record.

The decision is administrative and based on the hearing record; the commission noted it must base action on the administrative record and parties' arguments. The applicant may reserve time for rebuttal in earlier proceedings and any future judicial review would be of the administrative record.

Clarifying details recorded in the hearing included the applicant's assertion of 100% planned reuse of effluent and an asserted 0.15 mg/L total phosphorus numeric limit in the draft permit; protestants contested the reliability of the QualTex modeling and said no nitrate limit was included in the draft permit for groundwater protection. The executive director staff told the commission the ALJ granted partial summary disposition on some issues before the hearing and that the ALJ relied on agency procedures where site-specific receiving-water data were unavailable.

The commission's vote concluded item 1 and the meeting recessed briefly afterward; commissioners indicated the decision adopted the ALJ findings and issued the draft permit as the commission's action at this meeting.