House Environmental Regulation – April 17, 2019

The House Committee on Environmental Regulation met on April 17 to take up a number of bills. This report covers only HB 907 (Huberty), HB 798 (Walle), HB 999 (Collier), HB 1310 (Dutton), and HB 3798 (Biedermann).

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. It is not a verbatim transcript of the hearing but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

HB 907 (Huberty) – Relating to the penalty for failure to register certain aggregate production operations with the Texas Commission on Environmental Quality.

• Huberty – Increases penalty asses in aggregate production operators who fail to register with TCEQ.
• Zwiener – Does this bill apply to all APOs under the chapter?
• Thompson – Regarding the settlement is Lake Houston, where is the city in respect to that? I am concerned that is not being addressed.
  • We have other pieces of legislation looking to solve that.
• Thompson – So does you bill fit with those other efforts?
  • HB 907 is another way of getting support to TCEQ.

Rob Van Till, Texas Aggregate & Concrete Association

• For the bill.

Grant Dean, Texas Environmental Protection Coalition

• For the bill.

HB 907 left pending.

 

HB 798 (Walle) – Relating to plot plan requirements for an application for a standard permit for a concrete batch plant issued by the Texas Commission on Environmental Quality.

• Walle – This is a transparency bill that would create in statute, the requirement for facilities that perform wet batching, dry batching, or central mixing, including a temporary specialty or permanent concrete batch plan, to submit a plot plan when applying for a standard air permit.
• Zwiener – How did you decide on what to include in the plot plan?
  • We took the language exactly from the application by the TCEQ.
• Zwiener – So this is already required by TCEQ in the application?
  • Yes, we are trying to codify it in statute.

David Perkins, Texas Aggregates & Concrete Association

• On the bill.
• Zwiener – What do you think about including something like holding ponds to this list of requirements in the plot plan?
  • The bill is concerning air permits, so that would need to be covered in a different requirement.

Raudel Macias, self

• For the bill.
• Constituent in Walle’s district shared issues his community faces with bad actors.

Adrian Shelley, Public Citizen

• For the bill.
• This is necessary because they’re very imprecise permits that get filed and TCEQ does not have the capacity to conduct sight visits when it issues these permits.

Grant Dean, Texas Environmental Protection Coalition

• For the bill.
• Permitting process has been virtually undeniable 2008 and is due for change.
• TCEQ is not to blame because they cannot make change, this is the responsibility of the legislature.
• Asked for a moratorium on any future permits by the TCEQ if the issues cannot be resolved this session.

HB 798 left pending.

 

HB 999 (Collier) – Relating to who may request a public hearing from the Texas Commission on Environmental Quality related to the construction of a concrete plant.

• Collier – HB 999 would expand the class of affected persons that may request a public hearing regarding the permit for a construction of a concrete plant. Bill would allow for a definition of an affected persons to be expanded to representative of a school, place of worship, licensed daycare, hospital medical facility, or any person residing within 880 yards of the proposed site.

Mark Frizenhan, self

• For the bill.

David Perkins, Texas Aggregates & Concrete Association

• Against the bill.
• This bill would further burden the system and cause it to take more time and money with really no change to the permit outcome.
• Zwiener – How many hours have you been at the capital at work today?
  • About 12.
• Zwiener – Do you think the air quality here would have an impact on your health?
  • If I were to be here for seventy years, and spend twelve hours every day here, that would be a different question. That is how air quality should be evaluated.
• Zwiener – I’m struggling with an idea people in a school or daycare center would not have health impacts because they don’t live there.
  • My point is that the permit requirements that are developed are meant to be protected at the property line. As long as you meet the conditions that are established, you won’t have an adverse impact on health and the environment.
• Zwiener – The monitoring that is currently in place on these permits?
  • The monitoring is done in some places, but not all.
• Collier – The information that you are providing today is dealing with cost, efficiency, and time. You haven’t mentioned health. Without worrying about your self-interests, how would this not help the general welfare of the community?
  • As long as you meet the standards set by the permit conditions, you are not going to have an adverse impact on human health and the environment. The 880 is an arbitrary distance limitation, in that case they would not have an impact or are related.
• Collier – I read to you that particulate can get up to a mile away. You do understand that there are students and children who are in schools and daycares that are sensitive to contaminants. We want to make sure that representatives at these schools and daycares have the ability to voice their opinion.
  • I think what we have to look at is how is how the standard permit was established.
• Collier – OPIC did the study for efficiency.
  • Every standard that the agency requires is through the state and federal clean air acts. Therefore, every permit standard that they require meets requirements to not adversely impact human health and the environment.
• Zwiener – Does TCEQ have the authority to look at the combined or aggregate impact of multiple aggregate operators.
  • I do not know the answer to that question.
• Zwiener – They do not. With that, combined with that there is so little modeling, I’m struggling with your confidence that there is no impact to human health and the environment.
  • I’m saying that the standard permits is established with conservative assumptions and methodology. As long as those requirements are put in place, and as long as those requirements are met, the methodology used to establish that will assure that the fence line will not exceed any standards that would have an adverse impact on human health and the environment.
• Zwiener – Would your organization support a comprehensive review of these standards to ensure that they are working?
  • It is worth having a discussion about.

Grant Dean, Texas Environmental Protection Coalition

• For the bill.

Fred Fernandez, self

• For the bill.

Adrian Shelley, Public Citizen

• For the bill.
• TACA testified that the contesting process does not change anything. However, the contested case hearing process forms bonds with the community and its stakeholders, even if the permit is unchanged.
• Zwiener – Is this bill something that would dramatically change the behavior of the good neighbors or would it impact the bad actors?
  • This would go towards the couple of permits out there that end up going to contested case hearings, which are generally going to be bad actors.
• Zwiener – Are the folks who are good neighbors generally already having these conversations with places like schools, daycares, etc?
  • Yes, the people who end up in contested case hearings are usually the ones who ignore the community.

Mia Hutchens, Texas Association of Business

• Against the bill.
• HB 999 would end up driving the price of concrete and impact the economy.
• Zwiener – Has your organization conducted any economic analysis on how much this legislation would increase the cost of concrete?
  • We can get you that data once it is all collected.
• Zwiener – You don’t expect to have that data in time for us to use it to make a determination?
  • Likely not.
• Zwiener – The supposition that increasing the number of parties able to bring a contested case might increase the price of concrete is highly hypothetical, is that accurate?
  • Extending the permitting process would lead to a more expensive permitting process.
• Zwiener – The bill does not change the timeline of the process; it only increases the number of potential parties.
  • The point we are trying to make is that increasing the number of potential parties would increase the draw out.

Robert Martinez, TCEQ

• Kuempel – Is there any scientific basis showing that the 440 setback has any detriment to society?
  • We believe the standard permit is protective.
• Kuempel – What does TCEQ ensure that off-sight emissions are mitigated?
  • The standard permit has requirement that the facility needs to comply with, which includes ensuring that off-sight emissions are mitigated.
• Thompson – Would you have any information regarding findings from air quality testing?
  • I don’t have any information as to the modeling that went into the permit. I can provide that to the committee.
• Zwiener – Do you have the authority to look at the combined impact of multiple aggregate facilities in a facility?
  • No, we do not have the authority to look at cumulative effects.
• Zwiener – The bill does not impact setbacks, it just impacts potential affected parties, correct?
• Collier – Do you know how many contested hearings were held in relation to this type of permit last year?
  • We have about 5-7 every year.
• Collier – Have you guys done any studies about the impact of the distance particulates would travel?
  • I don’t know.
• Collier – When was the last time TCEQ updated their standards?
  • I don’t know.
• Collier – Was it twenty years ago?
  • I don’t know.
• Collier – Even if you had studies and found that it should be 880 yards, do you have the authority to change the affected persons requirement, correct?
• Collier – We are here to give you that authority, correct?
• Zwiener – Do you have the numbers on what the trend has been in the number of these permits you have been issuing?
  • I can provide that information.
• Zwiener – Do you know enough to know if they are increasing?
  • I don’t know.

Toni Lott, Boerne to Bergheim Coalition for a Clean Environment

• For the bill.
• TACA’s website claims “TACA has strong relationships with the state and federal regulatory authorities to insulate our members from adverse rulings in the case of an inspection or an audit”

Michael Honeycutt, TCEQ

• Lozano – Based on your expertise, what adverse health impacts have you seen from off-site particulates?
  • PM 2.5 can be harmful, and it can travel a long distance. However, there are national PM standards; and, as long as we meet those standards, we feel there is no health impact.
• Zwiener – Could you talk about the monitoring options you have at TCEQ and how you ensure that modeling is accurate at each site?
  • Modeling is based on monitoring. As long as modeling inputs are correct, the modeling outputs are conservative if anything. We put PM monitors around the state where we expect to find high concentrations.
• Zwiener – When was the last time you updated those models?
  • Those are EPA models.
• Zwiener – Do you know when the last time they updated them?
  • I don’t know.
• Zwiener – Do you have cases where the model failed?
  • Generally, they do not fail.
• Kuempel – is there any scientific proof that goes into the 440-yard setback?
  • We rely on EPA models for that.

HB 999 left pending.

 

HB 1310 (Dutton) – Relating to who may request a public hearing from the Texas Commission on Environmental Quality related to the construction of a concrete plant.

• Dutton – Substitute added state representatives and state senators to the proposal. HB 1310 adds an agent of a school, a place of worship, a licensed daycare center, a hospital center, and a medical center that is located within 440-yards.

David Perkins, Texas Aggregates & Concrete Association

• Against the bill.
• Bill significantly expands the list of affected persons that are not residents that live within the areas of these facilities. We believe this would not change the permit and cause a significant amount of burden including time and money.

Adrian Shelley, Public Citizen

• For the bill.
• Disagrees that there is no value in the contested hearing process.

Mia Hutchens, Texas Association of Business

• Against the bill.
• The bill increases costs and time involved in the process.

HB 1310 left pending.

 

HB 3798 (Biedermann) – Relating to the regulation of and permit requirements for certain facilities that extract, produce, or process aggregates and of related facilities by the Texas Commission on Environmental Quality and the Railroad Commission of Texas; providing administrative penalties and other civil remedies; creating criminal offenses.

• Biedermann – CS enhances the application process for aggregate operations to include notification for schools, districts, hospitals, and place of worship within 5 miles of the site. Allows to adopt the standard air and sampling program. TCEQ should also adopt the policy that encourages voluntary compliance with environmental, occupational, health, and safety laws. TCEQ should prohibit the operation of rock crushing facilities within 1 mile of schools, residence, place of worship, and hospitals. Bill also requires a ground water application permit before the air permit.
• Zwiener – Could you talk about the impact on property values that the facilities have?
  • It creates pollution, which decreases the value of property.
• Blanco – The bill had a $6 million fiscal note, and $14 million over 5 years, including 38 new FTEs. Does the CS change that?
  • Yes, it is less in the CS.

 

Tracy Schieffer, AGC of Texas, Highway, Heavy, Utilities & Industrial Branch

• Against the bill.
• Increasing setbacks and expanding distance requirements is not based on current modeling and will result in increased capital costs.

Mark Frizenhan, self

• For the bill.
• Concerned about the human and environmental health of the hill country.
• Bill would cost APOs about 3%, which would be passed on to the consumers anyways.

Don Everinham, self

• For the bill.
• The hill country needs to be preserved.
• Concerned about the APO.
• There needs to be a mining plan that requires an EIR.

Martin Frizenhan, self

• For the bill.
• A study should be done to review the water usage and reclamation of land in the future.

Larry Bailey, Office of Representative Biederman

• On the bill.
• We are not adding a physical note to this bill other than the 1-3 million.
• There is also no additional staff at this time.
• TCEQ air models are upwind from where the models should be.
• We need to collect real time air data to allow the people to know that the models are accurate.
• Right now they are not using the best data.

Windell Canon, self

• We need scientific data from air models.

Ron Bigby, self

• I am going to be affected, because I have a ranch, cattle, and horses.
• Property values are going to go down and this bill can affect school districts.
• My first well has gone dry since Vulcan set up their wells.
• The groundwater is all we have.

Chris Hopman, self

• We need to put a moratorium on permits now.
• The quarries affect the people who live next to them
• The devaluation in those is $144 million.
• We need state of the art air monitors.
• Zwiener- I understand your frustration with TCEQ and I also have questions about the agency. I suggest that your frustration should be directed towards your elected officials.

Cory Chism, TCEQ

• Lozano- Do we have monitors or gages at the border or on the four corners of the current facilities?
  • We do not.
  • Our air monitoring networking is for regional use.
• Lozano- Who placed those?
  • The locations re determined by the TCEQ and are consistent with federal requirements.
• Wilson- There were 90 plus surface mining operations being done in 2008 and now in 2018 there are over 1100.
• Lozano- What do we have to do to allow you to create more air monitoring stations?
  • It becomes a resource issue, because these monitors are costly.
  • We are in the process of locating new stations that are down wind from quarries in Comal County.
• Wilson- Permitting is about the equipment not the entire operation of the quarry.
• Zwiener- Are there any more cost-effective monitoring technology available?
  • We use the material mandated to use by federal and state standards.
• Zwiener-Does TCEQ have the regulation to use the other options?
  • We have the flexibility to use other methods.
• Blanco- Do you know if the committee sub has any fiscal note to it?
  • No, I am not sure.
• Larry Bailey
  • I am on the bill.
  • Blanco- Do you know of a fiscal note on the sub?
    • Bailey- No fiscal note associated with resources.
  • Blanco- I would prefer a non-biased testimony.

Justin Frizenhan, self

• Support the bill.

David Drewa, self

• Support the bill.
• This bill gives a description about how air pollution from APOs affect the citizens of Texas.

Milen Duckien, self

• For the bill.
• Regulations already need to be in place.
• The aggregate industry in Texas is one of the least regulated.

Richard Cady, self

• For the bill.
• Texas has no regulation on aggregate mining.

David Perkins, Texas Aggregate and Concrete Association

• Against the bill.
• We are against the 2-mile buffer.
• Zwiener- Has your organization done studies about how some of the different legislation that has come forward will affect the price?
  • No, we do not have any specific economic studies.
• Zwiener- We struggle to see the economic impact.
  • Our statement is that roads are going to cost a substantial amount.
• Zwiener- As legislators, we need to know an estimation to make a cost-benefit analysis.
• Zwiener- is this an actual TACA publication?
  • I would encourage you to go on our website and check.
  • That is an inappropriate way to describe what we do, and we change it over a year ago.
• Zwiener- This was on your website?
• Zwiener- I am concerned that TACA has relationships with State/federal regulatory authorities. Do you understand why we find this concerning?
  • Yes, absolutely.
• Zwiener- Is one of the purposes of TACA to help shield members from enforcement of TCEQ enforcement operations.
• Zwiener- How can you listen to all these people who have significant concerns and you continue to say there are no problems with the current regulatory oversight of aggregate mining in Texas.
  • The agency has developed processes to protect the quality of life, water, and air.
  • We just need to trust the regulations in place.
• Zwiener- Your organization should actively support monitoring.

Tony Lott, self

• For the bill.
• Reads TACA’s current website.
• The modeling is protected if the models are followed, but they are never checked.
• Thompson- can you go online at TCEQ and make a complaint?
  • You have to go to the general section and see that there are generalized complaints.
• Thompson- If you make a complaint against a facility that you feel is violating, do you get a notification back from TCEQ about your complaint?
  • You get a report back.
  • I waited three months.
• Thompson- So you are saying it takes 3 and a half months to get a report back from TCEQ?

Adrian Shelly, self

• For the bill.
• There are only 76 monitors around the state.
• Houston only has 11 monitors and they are clustered around the ship channel.

HB3798 is left pending.