The House Committee on Environmental Regulation met on April 25 to hear invited testimony regarding an interim charge related to the Texas Commission on Environmental Quality’s (TCEQ) response and clean-up efforts related to Hurricane Harvey as well as to discuss new developments in NAAQS litigation.
This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. This report is not a verbatim transcript of the hearing; it 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.
Committee discussed new developments in NAAQS Litigation
David Brymer, TCEQ
- There is a legal challenge pertaining to prior ozone implementation rule/standard
- When NAAQS standard is implemented, changed or revised there are associated rules that come out with that
Terry Salem, TCEQ
- Court opinion came out in February challenging the EPA’s final implementation rule regarding changes from 1997 ozone standard to 2008 ozone standard
- EPA put in place several rules for how areas could remove particular obligations during transition
- Some obligations have other complications for how the states are required to issue control measure, et.
- Court opinion vacated several parts of EPA rule
- Re-designation substitute mechanism: Dallas and Houston were the only two areas in the country that had received re-designation substitutes for both the one-hour ozone standard and the 1997 8-hour standard
- Re-designation meant the cities no longer had to comply with the classification requirements for those standards
- Would have implications for air quality permitting and planning
- Do not yet know how EPA will handle the requirements of all of the other areas of the state after this opinion
- On Monday the EPA and the southwest coast management district filed a request for re-hearing on this case
- Still waiting to find out what parts of the vacatur still remain and how the remaining parts apply
- EPA has issued no formal or informal guidance
- Currently evaluating how potential changes would impact Texas, will provide information to the committee as it becomes available
- Brymer, TCEQ – this has the potential to impact the Houston/Galveston/Brazoria non-attainment area for ozone as well as DFW, El Paso and the Beaumont/Port Arthur areas
James Bass, TxDOT
- Pickett – what could the downsides be if the ruling stands?
- There is still a lot of uncertainty in continuing a court challenge regarding the recent ruling by the court
- Did receive some guidelines from the federal highway administration on Monday
- Guidelines state “do not speculate regarding the next steps under review”
- All metropolitan transportation planning organizations adopt a transportation improvement plan (TIP) for their area, including 4 years’ worth of projects
- All projects in the state that are in a TIP four-year plan are good to go
- FHWA guidance shows as MPOs work toward updating TIPs additions to them in Dallas, Houston and Beaumont must show that they are in conformance with both the 2008 and 1997 standard
- Do not yet know how the MPOs will have to show both standards are being met
- Pickett – concerned with the amount of time that could take if we are still trying to move projects in the longer-term plan into the short-range plans, very concerned with the added capacity projects
- If a project is in the current 4-year plan then TIP has cleared the environmental portion
- Unsure on what happens if a project is in the TIP but has not received NEPA clearance, will it have to go back and show 1997 and 2008 conformity after it does get NEPA clearance before the project can move forward
- The Beaumont area is separated because it was found to be in non-attainment of the 1997 standards; when the 2008 standard came out they were found to be in compliance, with the new ruling that both standards apply they are in a unique position of meeting the newer one and not the old
- Pickett – this could be a negative thing for us if there isn’t any clarification
- Our belief that projects in the 4-year plan are good to go could change at any time
- For Beaumont it is kind of split, have questions over projects in the 4-year plan that do not have NEPA clearance
- Pickett – because there is some speculation, are you going to make any recommendations to the MPOs or the commission to change priority status because of the unknown factor?
- Perhaps too early to make those decisions
- Discussed El Paso, not yet been re-designated as in attainment
- Do not wholly understand the implications for Beaumont yet
- Pickett – the good news is that this is not just a Texas Issue, that many other states are affected
- American Association of State Highway and Transportation Officials (AASHTO) will be filing an amicus brief on Monday asking D.C. Circuit to re-hear this case
- Richard O’Connell, TxDOT – Texas is consulting with AASHTO as they prepare the amicus brief
- Pickett – hopefully AASHTO will include Texas’ remarks in that, but as far as the plans going forward, nothing is in jeopardy except those projects outside the 4-year plan, correct?
- That is correct
Terry Salem and David Brymer, TCEQ
- Pickett – what else do we have to look forward to with this ruling as far as permitting?
- Salem – The mandate has not been issued yet
- Salem – Do not yet know hoe that will play out or how EPA will direct states to react to that
- Salem – TCEQ staff is working on putting together the necessary air quality plans to re-designate Dallas and Houston for attainment of 1997 standards
- Pickett – what are some of the other things we might be looking out for related to 185 fees?
- Brymer – that was a Clean Air Act section 185 requirement that if an area is designated sever non-attainment and they do not attain by the deadline there are potential feeds that can kick in until they reach attainment; depending on the ruling some areas could come back into 185 fees based on 1997 standards
- Pickett – that is directly on industry
- Brymer – Correct, the Clean Air Act has it written on industry but there are fee offsets regarding TERP and LIRAP fees
Mike Wilson, TCEQ
- Thompson – spoke yesterday regarding expedited permitting, if a permit is in the expedited process and there is an adverse ruling, what happens?
- Have spoken to companies with applications in the process with that same concern
- Are trying to carefully manage those which are application which are close to finishing the process and get them done as quickly as possible but the ones that are not very far along in the process are the ones that would have implications depending on the ruling
- Pickett – what type of permits and how many are in process right now?
- There are about 50-100 applications that would be in this situation
- Those are more complex longer-term refinery type applications
- Pickett – new facilities?
- There will be both existing facilities with new amendments as well as new permits
Examine the Texas Commission on Environmental Quality’s (TCEQ) response and clean-up efforts related to Hurricane Harvey. Study whether current air, water, waste, and wastewater rules and regulations adequately protect the public, natural resources, environment, infrastructure, residential areas, and industrial facilities from damage caused by natural disasters. Evaluate the debris cleanup and removal process and whether current rules and regulations are effective in expediting cleanup efforts. Make recommendations on how natural disaster responses can be improved.
Bryan Shaw, TCEQ
- About 226 approved debris management sites
- Temporary sites have been and remain critical
- Thompson – the temporary sites helped a lot, in the future can communities pre-establish temporary sites?
- Yes, a part of what was utilized was similar to that relying heavily on prior approved sites
- Trying to get communities to be proactive in identifying those areas
- Finding the location is the time-consuming process
- Thompson – discussed sorting and efficiencies in temporary sites
- Temporary sites seem to be the most efficient method of debris removal, offering an opportunity to sort
- Estimates of debris: 13 million cubic yards
- 12,380,000 cubic yards removed
- Pickett – why is there still debris and taken so long?
- It is slow due to many factors including people not living in their house or waiting to do demo
- Pickett – were there two processes, was there regular municipal solid waste being taken but debris still out on the curb?
- That part gets restored very quickly for health reasons
- Cannot get reimbursements from FEMA for ordinary house trash, so documentation and verification of keeping that trash separate is important to avoid claw backs
- and Legislature authorized use of Fund 5000 for 10% fee match for debris removal
- Contracted with TDEM to allocate those funds
- $14 million has been paid and expecting $28 million after everything comes in
- Air monitoring: first priority is to make equipment secure to be able to restore them after the storm
- Able to get back to 100% operational by September 29th due to lack of electricity
- Pickett – what kind of back up systems do you have or are necessary for these?
- Had 48 sites that were hardwired without backup generation capacity
- Pickett – we’ve had other situations like this, did we do anything different during Harvey or moving forward? And do you have the ability to go into a facility to verify plans moving forward?
- There are a number of handheld tool to be utilized in the event the stationary monitors are down and are better for situations like that
- Pickett – even before that, in situations like ARKEMA, was there anybody saying, “I knew that would happen”? people were just waiting for it to explode without anything that could be done
- If we have a concern about something like that from a monitoring standpoint, we were able to work with EPA and with the first responders to make sure it was safe
- Pickett – was anybody evacuated because of after the fact monitoring?
- Exclusion zones and evacuation zones were established to maintain safety
- Pickett – just because the governor has the authority to suspend the rules, you can go back and say, “you need to do this”. Are there going to be fines even given the storm event?
- Yes, just because there was a 1,000-year flood doesn’t mean that we won’t go back and find faults
- Pickett – with the Arkema explosion, did they do something wrong and will they be fined for something?
- Cannot speak to the enforcement side
- Any time there is an incident, we go back and evaluate to see if there are anything that requires fines
- Going forward, what level backup should be required and the associated rules that need to be in place
- Pickett – we do need recommendations, perhaps leading to laws, but want to know insufficiencies within the agency
- The after-action report will be hugely beneficial in that process
- Pickett – one criticism is that the agency is lenient on the fines imposed, before session begins would like to know who got fined and for what and how much
- The purpose of the fines is to incentivize good behavior
- Want to continue to work with legislature of what the fines are and the balance should be
- The complexity of the facilities means that there will always be failures but want tot to create a mindset that enforcement action is an incentive for compliance
- Pickett – where are you post-Harvey and what do you need from us?
- Potentially 11 million people with water system issues that were being monitored
- 61 public water systems that were inoperable at one point
- There is 1 water system that is still out of service that is being worked on currently
- 203 systems under “boil water notice” at the peak impact of Harvey
- Thompson – of those, how many were the small water systems?
- Do not have the number, but most of them were
- Will provide that information
- Still have 3 systems under that notice but not related to Harvey
- Waste water treatment facilities – had 40 out of service at one point and currently have 3 that are still us of service
- Had a number of sanitary sewers overflowed
- Anticipate about $700,000 in direct cost of response which will be reimbursed by FEMA
- Statewide response costs: $15 million which should be reimbursed by FEMA
- 17 state superfund sites within impacted area which have been cleared
- San Jacinto Pits were affected, ongoing efforts to relocate that material to another location
- Pickett – was that something that could have been avoided?
- Not easily, the cap that was in place seemed to be the appropriate one
- Thompson – in subcommittee discussions, it seems that some of the material in the San Jacinto pits could have been classified as Class 1 waste and end up in the local landfill. Have concern about putting that material in a landfill, how much input do we have in the placement of the material and preventing it from ending up in a landfill?
- Defer to scientists to confirm, but most of that material should be in a landfill.
- Municipal landfills are designed to capture any potential leachate to ensure that they do not make it into the ground water below
- Can give input as an agency, but will be up to the EPA at this point
- Thompson – we should in fact give input to the EPA
- Will provide recommendations for placement of that material
- Reynolds – what additional technology would have been helpful during/after Harvey in terms of air pollution monitoring?
- The technology we have is good, there is some technology that is better which was borrowed from other states/organizations
- Reynolds – do we need to appropriate funds for that?
- It would be helpful not just in times of disasters but for other times as well
- Mobile equipment would aid in response
- Reynolds – you have a mobile monitoring unit at the headquarters?
- We have transportable stationary units but do not have truly mobile units like the EPA has
- Reynolds – that is something you think would be helpful for future events?
- That is correct it would be a very well used piece of equipment
- Pickett – I assume that will be a part of your legislative request?
- Feel an obligation to include that
- Will look into ways to take advantage of federal funding opportunities for that
- Continually working on communication in the field between agencies and local communities
- Pickett – when will we hear about proposed changes from the agency?
- Do not have a timeframe at this point
- Pickett – would be beneficial if you implemented as many things as possible before making those recommendations
- Pickett – would like that by at least October
- Will have those well before October
- Pickett – was there anything good in the lessons learned from Harvey?
- Our relationship has improved with EPA
- Pickett – reiterated need technical needs from the agency in requests
- Thompson – you did not speak to dam safety, why does that fall under purview of TCEQ?
- That was a decision made in the legislature
Kelly Cook, TCEQ
- The Dam Safety Program at TCEQ visited and spoke to administrators for 340 dams in the impacted area
- Only a few had damages, none significant
- Some earthen dams were breached with no loss of life attributed to that
- The dams help up so well due to repairs made after 2015 floods
- Thompson – are the resources there to do the evaluations on these dams? Do you have the enforcement ability, and are there people coming up that will continue to be able to do this?
- Do have staff and resources
- Dam owners typically are having trouble with the upkeep
- Influx of homes being build below the dam changes the requirements for that dam
- Thompson – at what point is the developer responsible for cost of improvements to dams?
- That is a problem that is across the country
- Have been successful working with local governments to get dams upgraded
- Thompson – we do not have a way of assessing an impact fee on a development below a dam?
- No
- As far as enforcement, anything we have relies on civil penalties
- The biggest “stick” is with the liability after finding and evaluations made by TCEQ
- Thompson – concern that some areas do not have the taxing structure set up to make the repairs
- There are times that special districts may be excessive, but this is a time that certain ones are very beneficial
- Thompson – has there been any modeling done on the other dams more statewide that the legislature can do?
- Per TCEQ rules, we have to inspect every high hazard dam every 5 years
- 7200 dams in the state of Texas, 4000 are oversight dams, 1800 are high hazard dams
- Models are run to determine areas that would be affected in the event of a breach
- Have a significant number of emergency action plans in place
- Will forward recommendations made last session to the committee
- Dale – what puts a dam in a “high hazard” category?
- Mainly determined by what is downstream, not the quality of the dam
- Pickett – what about the army corps of engineers and the dams that they have built?
- Federal dams are not under TCEQ purview
- Pickett – do you have a list of all of the federal dams? And what are their standards, and what happens if they fail?
- Do have a list of federal dams
- They have very similar standards, and are typically funded well for upkeep
- Described unified command during hurricane Harvey
- After action report from Hurricane Ike led to new measures implemented for Harvey
- Created Natural Disaster Operations Workgroup (NDOW) in 2009 for standard operating procedure and sharing of resources between many natural resources agencies
- Assessed superfund site with EPA
- Unified command worked extremely well during Harvey response
- Have had a practical exercise in Galveston in preparation for 2018 hurricane season
Romiro Garcia, TCEQ
- One lesson learned was that field office employees are usually affected, so creating strike teams from other regions to come in to man the operations centers
- Worked out well during Harvey
- Regarding enforcement – will be going through normal enforcement/investigative processes
- Will be looking at issues that happened outside of the rule waivers
- Considering “act of god” statements
- Pickett – still detailing that, has have enforcement action taken yet?
- We have, described specific incident with Valero
- Determining penalty associated the excessive events
- Pickett – will you be putting something together for the Board? Like a synopsis of things directly related to Harvey?
- We will be, and have been working on consistency in labeling and identifying issues and
- Thompson – noticed that many storage tanks have a dome over them to collect emissions, can you speak to that?
- That is an option to help control the tanks and the emissions
- Thompson – that is not anything that we can ask them to do?
- Do not believe that it can be mandated but it is an option
- Pickett – what happens when a gas station is flooded, and water gets in the tanks? What happens to the gasoline product in the tanks?
- For underground tanks, they are required to be watertight
- They are required to gauge how much water is in the tank, after a certain level it must be pumped out to disposed of properly
- Pickett – where does that go?
- It could go to Ag Department or to TCEQ
- Pickett – can you give an update regarding the Valero fire?
- Received a report on April 19th of a fire
- TCEQ, EPOA and coast guard responded
- They have submitted an initial report for emissions exceeding reportable quantity
- Currently reviewing report
- They will have an opportunity to submit a final report
- Pickett – is it too soon to tell?
- It is too soon to tell and is under investigation
Ilan Levin, Environmental Integrity Project
- Working to promote transparency and compliance with anti-pollution laws
- Seems too early to tell how we did managing hurricane flood waste after Harvey
- Believes that current laws are sufficient but must be enforced
- Issuing proclamation of suspending many water and air pollution rules
- Believes it was the wrong thing to do
- The law is clear regarding air water and waste rules
- Pickett – you have taken an opposite stance on that from me, would like your help coming up with things that can and should be waived versus things that cannot
- There is not a lot of disagreement that the rules are still in effect
- Industry should not be penalized for issues caused by events like this
- Fuel waivers to aid with recovery can be issued by TCEQ
- Railroad Commission offered the best approach, notice on website stated the law,
in effect at all times unless impossible to comply - Could have left it at that instead of listing out the regulations waived
- Many rules waived, especially air pollution rules were federal rules
- A need for industry to continue to file reports
- Should consider in the future finding a clear way to convey the expectation to industry
- Thompson – many of the emissions were due to shut down and start up processes, how do we deal with this in a common-sense way during these kinds of catastrophes, and they are worried about safety vs. standard practices?
- Most companies have procedures/plans in the permits for planned shutdowns
- One thing TCEQ could do, was review planned shutdowns versus emergency shutdowns
- Pickett – it’s a tough decision to work with if the state should mandate a shutdown based on a hurricane maybe making landfall
- Dale – usually with weather events there is 120 hours of planning and with hurricane Harvey it became a hurricane in 48 hours and became so large so quickly that it was not the typical planning situation. Where there any documented death caused by emissions releases due to Harvey?
- Do not have documentation, typically the health effects are felt years after the event
- Dale – was anybody hospitalized do to emissions?
- At 6 or 7 months out, it is too early to tell the effects
- Have heard anecdotally of circumstances
- Agree that TCEQ must go back after the fact to determine if somebody had intentional emissions or if it was unavoidable and what the penalty should be
- Regarding the tanks – disasters put the rules to the test, many tank failures were reported, and failure could be eliminated in the future by implementing the domed roof that was spoken of earlier
- TCEQ needs to enforce rules during normal times to ensure that facilities are storm resilient
- Deploying areal monitoring as quickly as possible after an event as well as beefing up mobile testing will help
- Need to preapprove temporary debris sites to make it easier during an event
Robert Royall, Harris County Fire Marshal’s Office
- Responsible for emergency response
- One of two counties with a HAZMAT team – other is Fort Bend County
- Thompson – curious about coming up with regional HAZMAT teams as opposed to county teams, have you considered that at all?
- We do employ a regional approach within the COG
- Have employed that as a best practices model since 2002
- Thompson – discussed that Texas does not have a statewide fire code, curious why there is not a more consistent code
- Understands the concern, noted that there are only a few counties with fire Marshalls
- Reynolds – commented that the HAZMAT Team provides great resources, do you do air monitoring often?
- We do provide that as a service in many instances
- Reynolds noted that in a specific instance that the HAZMAT team was able to immediately provide confirmation that an area was safe after an incident
- Reynolds – why do only two counties have dedicated HAZMAT teams?
- There are many HAZMAT teams on a regional basis, but only two county fire Marshalls office HAZMAT teams
- Pickett – was there any issue working with TCEQ?
- Worked well together
Bob Allan, Harris County Pollution Control Services Department
- Provided the committee with a list of all emissions released during two-week period of Harvey
- Approximately 6 times normal emissions
- Conducted investigations on the violations to build database on causes of emissions events
- Most often the drain size was too small on floating roof tanks
- Some tanks failed do to lack of maintenance
- Pickett – is that standardized by TCEQ?
- No it is not, the entity gets to decide
- Pickett – who does set the standard?
- ASTM – American Society for Testing Materials
- Pickett – one stands out on the list, Magellan terminals?
- That wasn’t floating roof failure, that was a tank being lifted off its foundation
- Without that failure we would only have doubled the normal emissions
- Office in Pasadena did not flood, allowed employees to return to work quickly
- Received number of calls regarding air safety
- Idea of regional asset mobile unit would go a long way to providing real time data for people
- Requested same notification that the TCEQ gets go to the public
- Reynolds – regarding funding coming down through the state, can you tap those resources to get the mobile monitoring unit?
- Did not put a unit on that list but discussed the potential
- Did put environmental testing on the wish list
- Reynolds – what is the cost of the unit?
- Roughly $700,000 for the van itself
- Robert Royall- agreed with and discussed the Magellan reporting issue
- Many entities were notified
- 24-hour notification requirement for TCEQ and local emergency planning committee/entity
- 24 hours is a long time to wait in an emergency
- Recommends local notifications be made moving forward
- Pickett – maybe we need to ask TCEQ to pass on and notify certain agencies