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House Environmental Regulation met on March 23 to discuss TCEQ’s Sunset bill HB 1505 (Bell, Keith). An archive of this hearing can be found here.

 

This report is intended to give you an overview and highlight the various topics taken up. It is not a verbatim transcript of the discussions 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.

 

Robert Romig, Sunset Advisory Commission

  • Overviews the Sunset process

 

HB 1505 (Bell, Keith) Relating to the continuation and functions of the Texas Commission on Environmental Quality.

  • Bell – Have a CS; bill reflects Sunset findings that TCEQ performs admirably
  • Update violations and ensures consistent treatment of applicants/permit holders
  • Bill continues agency for 12 years; bill is necessary for continuation of agency
  • Bill includes recommendations for decision-making, transparency, efficiency, opportunities for public input, dissemination of public information and updating TCEQ’s enforcement
  • Requires a public comment period for air permit applications to be open 36 hours after a public meeting on the permit
  • TCEQ required to post all permit applications and related materials on their website once it is administratively complete
  • Authorizes virtual public meetings and virtual postings; must accommodate with those lacking internet access
  • Must adhere to federal requirements concerning fiscal notices and in-person meetings
  • Changes on violation classification in terms of repeat offenders
  • Increase maximum administrative fines from $25k to $40k per day for the worst violations
  • Create an enforcement diversion program for small businesses/local govs
  • Entities with temporary or open-ended permits to annually confirm their operation status
  • Creates permit for temporary concrete batch plant operations supporting a public works project
  • Requires legislative Environmental Flows Advisory Group to adopt a biannual statewide workplan to update environmental flow standards
  • TCEQ subject to abolishment under the Sunset Act on September 1, 2023 unless continued by the legislature
  • Chair Landgraf – No safety net for the agency?
    • This Sunset bill is necessary for continuation of agency
  • Meza – Explain the temporary permits language? Asks about temporary permits
    • Temp batch plants permits are already extended for the life of the project; wanted to ensure these standards are in statute
  • Meza – Commission may publish electronic notice? Do not have to do?
    • Correct; must provide additional means for internet capability issues
  • Meza – Did not want to tell them to do both?
    • Would direct that to TCEQ staff
  • Meza – Know what TCEQ defines as a major violation?
    • Have a matrix for repeat violators; is in code
  • Meza – Major violation defined in the base versus CS?
    • CS removed some detail; TCEQ will have more information
  • Lopez – Asks to explain diversion section
    • Diversion for small businesses/local govs can get resources developed for them with a compliance assistance program
  • Lopez – Small business struggle to handle TCEQ fines; how ensure this doesn’t happen?
    • Gives them an opportunity to be a part of diversion program to ensure compliance

 

Erin Chancellor, Interim ED TCEQ – Neutral

  • Reynolds – Heard from stakeholders and citizens that TCEQ is a reluctant regulator?
    • Have heard that, but do not believe that is true
    • Agency implements state/federal laws we have jurisdiction over
  • Reynolds – Required to have hearing request granted in order to appeal a commission decision?
    • Yes; are hearing standards in code that defines what an effected person is and determining factors
  • Reynolds – Statutorily authorized to consider underlying merits?
    • Would go to a hearing if they are considered an effected person; would go to SOA
  • Reynolds – TDPS program; AG opinion to not consider merits of underlying application?
    • Do not know specifics
  • Reynolds – Would regular fishing activities could include someone as an effected person?
    • Can be a factor
  • Reynolds – Statutory burden that a protestant demonstrate that the draft permit violates state/federal requirement different than placing burden of proof on protestant
    • Would go to SOA
  • Reynolds – Commission on Texas discharge pollutant applications presumes that the draft permit meets all state/federal requirements
    • Yes
  • Morales Shaw – On Pg 8 of the CS regarding online posting of permit applications, is this the complete permit application process?
    • Elizabeth Sifuentez Koch, TCEQ Sunset Liaison – Our understanding that it would include the entire application
  • Morales Shaw – So it includes that the way it is worded now? Intended to have the entire process?
    • Would need to confirm
  • Morales Shaw – Can you clarify what “unduly burdensome” would be?
    • Well log or injection control, etc.; might be excessively long and not easily scannable
  • Morales Shaw – So if it is too voluminous to scan and put online?
    • If we don’t have the IT support
  • Morales Shaw – Unduly burdensome or too large encompasses both; would be available at the office, Is the online permitting process in addition to brick & mortar or replacement?
    • Replacement
  • Morales Shaw – you’ll have some mechanism to assist if someone has difficulties?
    • Correct
  • Morales Shaw – Does this permitting part only apply to water permits?
    • Includes air, water, and waste
  • Guerra – Confirms name and role of Elizabeth Koch
  • Lopez – When it comes to meetings TCEQ will have, if there are virtual meetings will you still have in person meetings?
    • Chancellor – Bill is written for virtual, but can make accommodations
  • Lopez – What would qualify you to have in person meetings?
    • Sunset – Insufficient internet access in the area
  • Lopez – Align deadlines for contested case hearing with deadline to submit public comments?
    • To request a contested case hearing, needs to be submitted with public comments and that would be at the conclusion of the public hearing
    • For Concrete Batch Plants concludes at point of notice if public hearing hasn’t occurred
  • Lopez – On air permits, constituents requesting TCEQ consider cumulative affect of multiple air permits
    • Chancellor – Air impact from proposed source emissions are considered along with nearby emissions
  • Lopez – Sometimes on the border companies are getting fined for air quality violations from Mexico; anything that TCEQ is doing on that?
    • For attainment for the NAQS we can make determination that some emissions come from foreign sources
  • Lopez – Does need to be considered
  • Morales Shaw – Main location?
    • Main location in Austin, 16 regional offices
  • Morales Shaw – Happy you’re doing online permitting, however if large portions of permit applications will be located in the regional offices that could be an extreme hardship for anyone interested in seeing permit materials
  • Meza – Labeling of TCEQ as reluctant regulator, in a previous conversation you stated that if a person meets all requirements then you have no other choice but to grant permits?
    • Some statutes are “shall issue”
  • Meza – Any situations you think there should be another checkbox?
    • Takes ques from the legislature, reluctant to go outside jurisdiction
  • Meza – wondering if you have a suggestion for the legislature?
    • Do not
  • Chair Landgraf – Something we need to consider

 

Public Testimony

Shea Pearson, Texas Chemical Council – On

  • Thanks Rep. Bell for leadership and efforts to accommodate stakeholders
  • Supports continuation of TCEQ and efforts of Sunset to improve public participation and permitting process, incl. online posting of notice and application materials
  • Support enforcement diversion program
  • Have concerns about blanket penalty cap move to $40k/day, would like a more proscriptive cap and consideration for minor violations/clerical errors
  • Morales Shaw – Penalties are meant to be a deterrent, won’t apply to good actors; are you aware that from the inception there hasn’t been an increase? Understand the issue with clerical errors or ones that don’t cause harm
    • Don’t have exact dates, when TCEQ updated penalty policy in 2021 they did reference that some penalties hadn’t been raised in some time, were raised by 20%-30% at the time; aware that legislature sets the cap
    • Clerical errors should be considered when being defined as a repeat violator, certain errors that don’t rise to the threshold of harm shouldn’t be considered
  • Morales Shaw – You feel like commensurate raises make sense in penalties, but your asking for more detailed nuances? Asking about $25k to $40k?
    • TCC is supportive of administrative penalty cap increase that would apply to major events, but not supportive of $40k increase for any violation

 

Mark Vickery, Texas Association of Manufacturers – On

  • Appreciates Rep. Bell response to stakeholders
  • TAM supports HB 1504 as filed with a few exceptions; support continuation to 2035, posting permit and notice online, virtual public meetings
  • On Sec. 13 relating to temporary and indefinite permits requiring submission of annual reports, close to 100k entities that would need to file; suggesting notice to CTEQ when an entity has ceased operating
  • Not opposed to raising penalty cap, but more narrow focus would be appropriate, don’t support using cap for all violations

 

Luke Metzger, Environment Texas – For

  • Agency is too often a reluctant regulator, Texans too often left out of permitting process, through affirmative defense 97% of companies avoid any penalty
  • Appreciate mechanism to review affirmative defense, but need to eliminate it altogether
  • Appreciate penalty crease to up to $40k, shouldn’t confine TCEQ’s hands further, already have broad discretion to apply penalties

 

Randy Chellette, Texas On-Site Wastewater Association – For

  • Have felt non-enforcement, many times needs to start at the local level; if you can’t get local enforcement, does tie TCEQ’s hands
  • TCEQ is in desperate need of educated staff, need more money to keep qualified people

 

Cyrus Reed, Lone Star Chapter Sierra Club – For

  • Do often view TCEQ as a reluctant regulator, have had to sue companies for not complying with the law before; appreciate legislature’s focus on public participation and enforcement
  • CS does make it clear that $40k applies to major violations, good way to thread the needle
  • Also like online permits and hearings
  • Would like to make sure extension of time to speak after a hearing is also after contested case hearings
  • There are problems in TX law in terms of how affected persons are defined, burden of proof, etc.

 

Eric Allmon, Granbury Fresh, Save the Cutoff, Environmental Stewardship – On

  • TX program is deficient in several places in terms of federal requirements; must provide equal opportunity for judicial review as if EPA was hearing the case; TCEQ handling of contested cases and affected persons is not in line with federal law, should be changed to conform with AG’s representation
  • TCEQ requires protestants to prove permit violates federal law, this should also be corrected
  • Reynolds – Did the EPA just approve delegation of CWA authority in 2021?
    • Yes, but was based on certain representations by the AG on what TX law said and this is not what TX statutes provide for, asking that these be corrected
    • EPA is investigating & finding it is not as AG represented
  • Reynolds – Why did the EPA not object to SB 709 in 2015?
    • Primarily an issue of shifting burden of proof to the public, TCEQ places burden on public even at time of final decision
  • Reynolds – Would applying federal test for affected persons remove all limits?
    • No, federal test is limited & not interested in allowing anyone in federal court
    • Would expand beyond what Texas allows now

 

Adrian Shelley, Public Citizen – For

  • Agree with characterization of agency as reluctant regulator; entire areas of issue like cumulative impacts, siting facilities next to each other, environmental justice, etc. not addressed in the bill
  • Largely supportive of what is in the bill like increased fine, increased time for comment, putting application materials online
  • Contested case haring deadline should be extended to after contested case hearing
  • Virtual meeting should supplement in person hearing
  • Hope the entire draft permit will be posted online
  • Reynolds – What do yo9u mean we should have some aspect of environmental justice?
    • Problem of siting polluting entities in low income and communities of color
    • TCEQ essentially tells you it cannot address this, says they do not do siting and not an acceptable answer to the problem
  • Reynolds – Any consequences to environmental justice issues?
    • Communities with poor overall reported health, less access to health care and have co-vulnerabilities
  • Reynolds – What would TCEQ office of environmental justice do?
    • At federal level they do environmental impact statements, could do that here
    • Could make recommendations based on impacts, could give TCEQ authority to deny a permit on this basis
    • Could collect data and develop reports
  • Reynolds – EPA implemented this at the federal level?
    • Has been some good progress, had an environmental justice tour, funding direction
  • Reynolds – What are cumulative impacts?
    • When you have multiple pollutants in a single facility and clusters of similar pollutants
    • TCEQ can only look at permits in isolation, cannot consider if they approved 5 coal plants in the last 5 years in the same community
  • Reynolds – How does TCEQ address this now?
    • Would say they do not and are not able to
  • Reynolds – Why would facilities cluster in one community, why are they in low-income or communities of color?
    • Clustering could have to do with customers, feed stocks, pipelines, etc.
    • Public works projects need to be near projects themselves
    • Location near communities of color is largely due to historical reasons & lack of resources to oppose the facilities
  • Lopez – Communities may not have resources, may also not have resources to improve issues with pollution
  • Lopez – Asks about reforms
    • Specific bills have been proposed on some of these reforms, like Rep. Reynolds HB 648 Office of Environmental Justice
    • Miles SB 179 requires consideration of existing source pollution
    • Authority to deny permits based on considerations of fairness and justice

 

Craig Nazor, Lone Star Chapter Sierra Club – On

  • Texas needs more environmental protection, need a good TCEQ & don’t have as strong a TCEQ as we need yet; part of this is passing good laws, part is how TCEQ interprets these laws

 

Myron Hess, National Wildlife Federation – For

  • On Sections 18 & 19 dealing with environmental flows, important for water quality and wildlife protection
  • SB 3 in 2007 established comprehensive flow protection process, HB 1504 would help get this back on track
  • As per sunset recommendation, terms for regional groups should extend until replacements are found
  • Reviewing technical standards should stay with TCEQ in line with Sunset standards

 

Sandra Scott, S.A.F.E. Diversity Communities – For

  • For the bill, but do not support having virtual only public meetings, does not account for demographics of cities like Houston

 

Becky Smith, Clean Water Action – For

  • Reluctant support for HB 1504, not looking for TCEQ to go away
  • Critical reforms include established of environmental justice office, ability for TCEQ to consider cumulative impacts, denial on consideration of equity and justice, eliminating economic interests from the Commission, consideration of affected persons should be better, in person meetings should continue & virtual should only be in addition to
  • Lopez – why do you think meetings should continue to be in person?
    • TCEQ is intended to bring people into process of environmental regulation, virtual meetings will only limit participation from those without online access and also wouldn’t allow for community building & gathering

 

Craig Ross, Self – For

  • Speaks on impact of pollution on 5th and 3rd Ward; pollution is evident

 

Thelma Scott, Self – For

  • Live in an area that has been forgotten, off of 1960 in Kuykendahl; have gas storage and batch plants nearby that leads to pollution in the area

 

Molly Cook, Self – On

  • In favor of TCEQ existing, but have bad health outcomes in the state and need to change approach to environmental quality; air quality has significant poor effects on health
  • Not seeing people accounted for in language of HB 1504 and in TCEQ
  • Saddened that bill reports increased revenue to the state from the penalty cap increase
  • Chair Landgraf – That is just a requirement of the legislative process
    • Would just like a complete thought that the increased penalty would lower incidence of violations

 

Andy Escobar, Coalition for Environment, Equity and Resilience – For

  • Should meet climate catastrophe we’re facing and create a TCEQ that protects people over profits

 

Dolores McGruder, Coalition for Environment, Equity and Resilience – Against

  • TCEQ doesn’t reflect interests of minorities in low-income communities
  • Supports HB 642 by Rep. Reynolds; disregarding children and disrespecting families

 

Crystal Ngo, Air Alliance Houston – For

  • Economic considerations need to be removed from TCEQ’s mission statement, people should be at the forefront
  • Polluting entities are commonly sited near communities of color
  • Bill could go further to establish office of environmental justice, resources should be translated into multiple resources that represent the community

 

Genesis Granados, Air Alliance Houston – For

  • TCEQ does not work for the people and needs further recommendations for environmental justice
  • Real reform would include what other witnesses have said, incl. eliminating economic interest from mission, allowing Commissioners to consider equity & justice, establishing office of environmental justice, eliminating affirmative defense for air pollution, etc.

 

Taylor Laredo, Air Alliance Houston and Self – For

  • Want the peace of mind of an agency that will work for the people; support this bill
  • Recommend strengthening regulatory power of TCEQ including adding cumulative impacts on approving air permits, remove economic development from the agency’s statement, agency to put environmental justice at the forefront

 

Victoria McDunna, Self – For

  • Support increase of maximum daily fines and other measures of the bill
  • Encourage further reforms such as establishing an office of environmental justice, allowing both in person and virtual meetings, among others

 

Dr. Brian Shaw, Texas Oil and Gas Association – Neutral

  • Believe author’s intention for the bill is good; optimistic the CS describes a framework that would improve measures and minimize unintended consequences
  • Support legislature raises penalties if they are applied narrowly to bad actors

 

In closing

  • Bell closes on the bill
  • Chair Landgraf – Commend you on your open-door policy

 

HB 1505 left pending