TCEQ grants contested case hearing for renewal of City’s wastewater treatment plant permit

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By Rachel Madison

Commissioners of the Texas Commission on Environmental Quality (TCEQ) voted Oct. 6 to approve requests from several local landowners for a contested case hearing on Liberty Hill’s sewage discharge permit renewal.

The permit, which authorizes the discharge of treated wastewater from Liberty Hill’s treatment plant into the South San Gabriel River, was originally granted in 2015. Landowners living downstream from the plant and its outfall have been complaining of thick, lime green algae growing on the water at their river-front properties since 2018. At that time, an investigative report was issued by TCEQ, alleging a number of violations at the wastewater plant, but the City denied the allegations that it “failed to properly operate and maintain the facility” and that it “prevented unauthorized discharge of wastewater sludge into the river.”

According to its application, the City asked to renew the existing permit “with a minor amendment of the 2015 permit to add an interim phase for discharge and some updates to comply with new regulatory requirements.” Additionally, the City stated that it was “not applying to increase significantly the quantity of waste authorized to be discharged; or change materially the pattern or place of discharge.”

The City argued further that the permit renewal was “necessary to enable the City to comply with state and federal water quality regulations. It was developed to limit effluent discharge concentrations to levels that are protective of water quality, public health and the environment. Granting the [hearing] requests would only delay the City’s implementation of steps to protect the river.”

While the TCEQ determined in June that the City’s application met the requirements to renew the permit, 30 days for the submission of contested case hearing requests were allowed. During that time, the agency received nearly 30 requests.

“There are 29 requests in this case, and six are for persons who reside within a mile downstream of the discharge point,” TCEQ chair Jon Niermann said. “They all raised personal concerns that are relevant. Five of the six also met the procedural requirements, and I would recommend we grant their requests.”

The sixth request was not filed until after the filing period ended. Ten more requests were from landowners who live just under four miles downstream from the discharge point.

“Normally, this is well beyond the point where requesters’ interests would be distinguishable from an interest common to the general public, but these requesters submitted evidence of algae growth at their properties affecting the enjoyment of their properties, and additional evidence that algae is not present upstream on the City’s discharge point,” Niermann said. “It raises the question: Are these affected persons or are they indistinguishable from the general public? It’s an open question that requires some investigating. That’s why I propose we kick it over to [the State Office of Administrative Hearings (SOAH)] to sort out.”

The final 13 requests were from landowners who live more than a mile from the facility and do not reside on its discharge route, which Niermann said means their interests are indistinguishable from the general public.

Niermann said normally, there is a “threshold question” as to whether there is a right to a contested case hearing.

“There’s normally no right for a contested case for [permit] renewals because, among other requirements, there is no significant increase to the quantity of waste authorized to be discharged and the applicant’s compliance history for the last five years raises no issues regarding the applicant’s ability to comply with the material term of the permit,” he said.

But over the last five years, the City of Liberty Hill has received two notices of enforcement and a dozen notices of violation, Niermann added.

“The City’s compliance history does in fact raise an issue regarding its ability to comply with the material term of their permit,” he said. “I think we clear this threshold question and continue this analysis. It was a pretty easy answer, honestly.”

Mayor Liz Branigan told The Independent this week that she couldn’t speak to the upcoming hearing, but that it would be discussed by the City Council during an executive session after press time Wednesday. City Administrator Lacie Hale did not respond to questions from The Independent by press time Wednesday.

The commissioners moved to grant the hearing request of the five landowners who submitted timely and relevant concerns. They also moved to refer the hearing requests of seven of the 10 residents living within four miles of the facility who submitted evidence of algae growth at their properties for an effectiveness determination.

The hearing will be conducted by a judge in the SOAH, which usually holds hearings within 180 days after authorization. The commissioners asked SOAH to review the following during the hearing:
• Whether the draft permit complies with applicable Texas Pollutant Discharge Elimination System (TPDES) effluent guidelines, meets Texas Surface Water Quality Standards (TSWQS), and/or generally provide adequate water quality protection.
• Whether the permit terms adequately protect the river from contamination caused by the discharge (including algae, vegetation overgrowth, excessive nutrients and E. coli).
• Whether the proposed discharge will adversely impact terrestrial and/or aquatic wildlife.
• Whether the permit should be denied or altered in consideration of the applicant’s compliance history.
• Whether the receiving water bodies can safely dilute and disperse the discharge and avoid algae blooms.
• Whether the proposed discharge will adversely impact recreational activities, including contact recreation.
• Whether the draft permit meets and/or adequately addresses nuisance controls, such as odor.
• Whether the draft permit adequately protects human health, safety and welfare.
• Whether the draft permit contains sufficient testing, monitoring, and reporting requirements.
• Whether the permit renewal should be denied or altered in consideration of the need for the facility in accordance with Texas Water Code 26.0282.

Stephanie Morris, who lives on Orchard Drive in Leander—less than a mile south of the treatment plant—said when she first moved into her home in 2013, there was a beautiful view of the river out the back window, but in recent years, the view has completely changed.

“The City’s effluent flows across our [river-front] property,” she said. “I feel a sense of responsibility to advocate for the river and the health of it. What would be best for me is to ignore it, but I can’t live where I do and do that. I see the muck and have the smell most of the time.”

Morris added that she’d love to feel encouraged by the fact that she and other local landowners were able to make a contested case hearing happen, but she isn’t confident.

“I will say the fact that the commissioners have chosen to admit that there is a history of compliance issues for Liberty Hill is a big deal, but I have heard TCEQ doesn’t want to allow a stricter permit because then everyone in the state will want one, and they don’t want to have to monitor that,” she said.

Morris also said she thinks the permit needs stricter phosphorus limits. The City argued that issuing the permit immediately would allow them to treat and discharge effluent for the plant, which would result in tightening phosphorous effluent quality limits from 0.50 mg/L to 0.15 mg/L, a limit the City says will result in a clear improvement in the quality of waste.

Morris said this still isn’t good enough.

“If [this effluent] is going to be discharged, it should match the level of nutrients in that waterway, whatever is naturally occurring. This permit still allows 15 times the naturally occurring amount in that river. The 0.15 mg/L is not sufficiently protective of instream water quality and will still lead to degradation of the river.”

LaWann Tull, who lives in Gabriel’s Overlook a few miles south of the treatment facility, said she’s been disappointed over the last few years with TCEQ’s failure to set protective limits for the river to begin with.

“They are not in a big hurry to fix anything,” she said. “TCEQ should raise the bar on what wastewater treatment plants can do. I’m hoping the hearing will at least let people have a voice. I don’t know what will come from the hearing, but at least TCEQ has finally come out and said Liberty Hill’s plant has issues and people do have a case.”

Tull said the joy of using the river near her home is gone, adding that she and her family can no longer swim in it, her church can no longer perform baptisms in it, and much of the aquatic life is now gone.

“Unless TCEQ drastically lowers the Liberty Hill plant’s permit limits and demands the plant be compliant and put more water to reuse instead of dumping it into the river, this is going to continue,” Tull said, adding that if developers were required to put in “purple pipe” that reuses the water for things like irrigating fields and flushing toilets, many of the City’s water restrictions could also be remedied. “A number of us have been working on this for years now and our concerns fall on deaf ears. We are looking forward to a hearing and to be heard.”

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