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The House Environmental Regulation Subcommittee on Air Quality and Municipal Landfills met on April 24 to hear invited testimony regarding interim charges related to the permitting, siting, and regulatory process for solid waste landfills, the economic impact of the National Ambient Air Quality Standards (NAAQS) and the Texas Commission on Environmental Quality (TCEQ)expedited air permitting program.

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.

 

Study the permitting, siting, and regulatory processes for solid waste landfills, including municipal solid waste landfills, and whether current rules, regulations, and notice requirements adequately ensure compliance and maximize participation from the public and stakeholders.

Earl Lott, TCEQ

  • Permitting process is very extensive
  • Have heard that notices of deficiency were too extensive
    • Used as a communication tool for clarity with the applicant
    • Most are administrative not technical
    • Created new forms and checklists to reduce the number of NODs and add clarity for applicants
  • Thompson – most are clerical errors; how do you note which are technical and which are clerical?
    • Generating tools to help identify those differences
  • Thompson – how many FTEs working on applications?
    • About 30 full time employees
  • Discussed the permitting of landfills inside flood plains
    • Do not permit any inside landfills
    • There are options for applicants: working with corps of engineers to build berms or divert the flood water to remove themselves from the flood plain
  • Thompson – there is concern over the FEMA maps used and how accurate they are at this point, should we be looking at the rule regarding reliance on FEMA maps?
    • FEMA maps are always changing, there is a rule that an applicant work with the local flood plain administrator
    • Of all the landfills that were flooded due to Harvey, none experienced catastrophic failure
  • Thompson – there have not been any issues in any of the recent flood events?
    • None that are aware of
  • Reynolds – are levels of deficiencies classified?
    • Yes; between technical and clerical

Kelly Keel Linden, TCEQ

  • TCEQ can issue a notice of enforcement or notice of violation for deficiencies and require the entity to come into compliance
  • Thompson – regarding HB 7, where is the agency regarding coming into compliance with that?
    • Will have to follow up
  • Thompson – in that bill there was a revision to the amount charged to tipping fees, are the funds sufficient to allow for proper investigating and have enough people?
    • Yes, typically TCEQ can move resources where they are needed, and if allowed to continue there will be sufficient resources for this type of investigation
  • Thompson – requested data on the amounts collected pre-2015 and what is being collected now
    • Will provide that information
  • Reynolds – when a complaint is made to the TCEQ, is there a minimum timeline to begin investigation?
    • The complaints are prioritized, the complainant is contacted to gain additional information
  • Reynolds – so its case by case?
    • For odors and nuisances, it is, with a typical response onsite within 5 days
  • Reynolds – one recurring complaint in district regarding odor complaints not being investigated in real time, is there a way to get better real time responses?
    • In terms of prioritizing complains, meteorological conditions are considered, time of day, as well as weekly surveys in your specific circumstance
  • Reynolds – does time of day make a difference?
    • Have not seen extremely noticeable difference in time of day
  • Reynolds – The complainant is notified of the conclusion after the investigation?
    • That is correct if they request that
  • Reynolds – how is enforcement handled?
    • Notice of violation for less severe issues and notice of enforcement for more significant issues
  • Thompson – with the number of complaints, etc. & there being finite resources and people, public perception is that there are not enough resources, does the legislature need to provide additional resources to allow for faster response to complaints?
    • If there were additional investigators we could conduct more investigations
  • Thompson – would like additional information and numbers to better determine the need
  • Reynolds – discussed an odor issue in his district

Greg Giraldo, TCEQ

  • HB 7 led to 25% reduction in fees, but the fees have continued to increase
  • FY 17 revenue was roughly $37.1 million, which is actually higher than pre-2015 number

Bryan Sinclair, TCEQ

  • Described the enforcement process
  • NOE leads to administrative order
    • Includes fees associated with the penalty schedule
  • Thompson – when were the penalties established? And have they been updated?
    • Most caps were changed from $10,000 per day to $25,000 per day in 2011, associated with sunset review
  • Thompson – has anybody been penalized $25,000 per day?
    • Yes, when there has been major environmental harm; in the most egregious cases
  • After penalty calculated and settlement offer made, an agreement is made to pay and get back into compliance or they can contest the violations; would be referred to the litigation team
  • After order is effective compliance is tracked
  • Reynolds – based on the rules allowing for the entity to contest the order, how long does that last?
    • It can vary but typically 1-2 years
  • Reynolds – during that time they do not have to do anything?
    • That is correct
  • Reynolds – is there a TRO or injunction possible?
    • Short of a restraining order, but if there were egregious violations there could be injunctions
  • Reynolds – do the daily violation fines continue during the contesting?
    • It would stop
    • Unless there were additional violations for the same type of action, then there could be additional fines associated
  • Thompson – in recent order, it stated “when needed” or “as needed” in description of actions, who determines “as needed”?
    • In the event of a submittal of a plan for corrective action, the entity is determining what is needed to do to ensure compliance and correct the violation
    • TCEQ would then come in and monitor for compliance
  • Thompson – in some situations, when the determination has been made to close there could be an intermediate cover for years, and concern with who decides what that intermediate cover is? Is it TCEQ or the landfill?
    • Do not believe that rules determine how long they can stay in intermediate cover
    • Will provide additional information to the committee

Steven Minick, Republic Services

  • Regarding resources, solid waste industry has paid TCEQ more than the state has appropriated over the years
    • Increased disposal rates and increased population leading to costs rising again
  • Need to factor in contingency funds in considering reorganizing funding structure
  • need to wither only collect what will spend or spend what we are collecting to increase efficiencies
  • complaint process is difficult to keep up with by the public/complainant
    • do need to give the agency the ability to make determination of which complains are valid and worth following up on
  • NOD issues: happy the agency is working to better clarify this process for the applicant and the public
  • Reynolds – mention unsubstantiated complaints, how did you draw conclusions that they were unsubstantiated?
    • The issue is that many people use the complaint process out of frustration
    • The question is how able the agency is to make a determination to the extent of action related to those complaints

Brenda Haney, Texas Solid Waste Association of North Texas

  • Over 1200 rules being addressed in application
  • Parts 3 and 4 of the application process have a number of scientists and experts involved to make the documents technically accurate
    • NODs should reflect technical inaccuracies
    • Many times, NODs are used for clerical issues and are painted with same brush as technical errors
    • Needs to be better frame of reference for distinguishing
  • Believes agency does have all necessary resources
  • Thompson – technology evolves, at what point does a company/industry look at new technologies?
    • Fees have to pay for new technology, which are paid for by constituents
    • as a profession the industry has changed dramatically and always interested in getting better

Chris Macomb, Waste Management of Texas

  • Would support moving hearing managers from SOWA to TCEQ to handle hearing
  • Support giving the agency more money to develop experts for better consistency
  • NOD process: needs to be some effort to develop guidance as well as creating clearer definitions
    • Believes that application if returned should go instead to the commission for a determination
  • Industrial waste department funding will have to be addressed very soon
  • Thompson – believes fund 5000 will be considered in May to determine if the funds are being used as intended

Adrian Shelley, Public Citizen

  • 2017 report showed 1.7% landfills get complaints
    • TCEQ does not have the resources available to investigate as necessary
    • For every complaint that is received there are dozens of issues that go unreported
  • Should not be permitting facilities that have open enforcement actions or are in active enforcement process
  • Reynolds – saying that the facility should be temporarily shut down?
    • Referencing other permits should not be allowed
  • Waste water permits do not account for amounts of rain seeing in recent years
  • Floodplain maps do not get redrawn unless requested to FEMA
  • Need to require site visit from permitting engineer in application process

Andrew Dobbs, Texas Campaign for the Environment

  • Discussed NODs: more than one round of NODs in insufficient but cannot go on indefinitely
    • Need to create a maximum number of rounds
  • Thompson – need to establish a maximum number?
    • That is correct
  • There is a need to verify what’s in the permit
    • Need additional fees to pay for verification
  • Thompson – part of that fee should include the site visit?
    • Correct, and even more intensive than that

Eric Alemann, Texas Center for Policy Studies

  • Need to adopt a narrower view of the 100-year flood plain
    • Should be able to look at anticipated flooding not just current mapping
  • Discussed placing landfill near high hazard dam, need to be very careful in permitting those areas
  • Need to return to the two rounds of the NODs
  • Reynolds – no consideration of minor deficiencies should be allowed?
    • Would dispute that many deficiencies are not simply minor deficiencies
  • Reynolds – would go to attempts and that’s it?
    • If it is a minor error, then it should be able to be fixed
    • Need to create incentive for people to respect the application process
  • The commission should have discretion for hearing longer than 6 months
  • Due to internet access to information for solid waste applications public is much more engaged on public comment period; should be extended to all other applications

Scott Pasternack, Burns & McDonell

  • Discussed recycling and removing compostable items from landfills to increase landfill space
  • Thompson – can you address what impact limiting plastics in landfills, like china has done will have?
    • The Chinese government have put in place a ban on material types in landfills: plastics and mixed paper
    • That material is no longer being accepted by the Chinese
    • Stock piles have been building
  • HB 2763 (84th) – Burns & McDonnell created study for TCEQ
    • More that 17000 jobs associated with recycling in Texas
    • Number of material types are under recovered in Texas: could represent millions in economic benefits to Texas
    • Discussed more domestic recycling of plastics in Texas: potential opportunity
  • Reynolds – have there been real time investigations compared to TCEQ findings regarding air quality monitoring?
    • Dobbs – have not but will consider that for the future

Rhonda Tiffin, Webb County

  • Floodplain management is the local community responsibility not TCEQ
  • CLOMAR recognition that permits should not be issued based on then because they do not actually change anything
    • LOMAR actually changes the map through FEMA
  • Have many approximate ‘A’ zones in Webb county
    • Costly to do determine where is actually floods
    • When TCEQ uses approximate ‘A’ zones it is an issue
    • True boundary of floodplain is usually much greater than ‘A’ zones
  • TCEQ does not consider auxiliary installations in terms of floodplains
  • Thompson – do other counties have any input into changes that get made in your county?
    • They do not, but many counties do not have studies and mapping completed which is a big deal in terms of permitting through TCEQ
    • In order to ensure compliance should consider getting the TWDB involved in floodplain management
  • Requests prohibiting TCEQ conditional approval based on zoning boundary or CLOMAR and needs local approval

Jorge Travino, Webb County

  • Discussed giving notice to land owners regarding permitting of landfills and NODs
  • Discussed local permitting before application continues to TCEQ
  • Need to ask for title policy before continuing with the application process
  • Need to restrict permits to actual footprint not future use
  • Zone ‘a’ issues with permitting based upon that data
  • Thompson – agree that local administrators and officials need to be brought into the process

Greg Seidenberger, Guadalupe County

  • Discussed bird strike issues related to landfills near Randolph airfield
  • When TCEQ considers permitting landfill near air force activity need to consider the sustainability and viability of the air force base and mission
  • Thompson – does the FAA get reports based on current landfill activity compared to aircraft activity?
    • They do, as does the air force

Kelley Vickers, Guadalupe County

  • Discussed groundwater protections in permitting/application process
  • Thompson – at what point are you notified that a permit application has begun?
    • Understand that applicant needs to come to the groundwater district before going to the TCEQ but there needs to be better coordination between agencies and departments
  • TCEQ has rule to plug oil and gas wells before application is submitted
    • Specific instance TCEQ allowed the permit to continue without capping
    • TCEQ needs to enforce their own policies
    • NODs were involved specifically regarding this
  • TCEQ should limit the number of NOD rounds and be able to return the application unprocessed
  • TCEQ needs additional funds to allow them to investigate all aspects before application processing

Mark Meuth, Bastrop County

  • Discussed specific example of TCEQ allowing permitting of transfer station which allowed circumvention of local flood plain determinations – Cedar Creek Transfer Station
  • Should require TCEQ to yield to local permitting before acting on application
  • Require TCEQ to follow recommendation of the local Council of Governments

Steve Chamberlain, Self

  • Cedar Creek resident
  • Transfer station is now seeking registration as a way to get around permitting rules
  • CAPCOG spend a lot of time investigating this issue
  • TCEQ not following recommendation of local COGs costs the taxpayers a lot of money
  • Lozano – what city is this happening in?
    • Cedar creek is unincorporated Bastrop county
  • Lozano – there has been significant flooding in that area over the past few years, has the area where the proposed facility would be flooded?
    • Mark Meuth – it has

David Morrow, Self

  • Discussed future recycling/landfill facilities in the Waco area
  • Concerned with TCEQ permit application regarding trucking damage to road surface and if the permit accounts for the cost of repair as well as the potential congestion associated with the truck traffic
  • Concerned with the air quality implications of the increased tuck traffic associated with landfills and recycling centers – does not believe that a risk assessment has been completed for this specific site in the application process
  • Concerned with TCEQ waiting 5 days to respond to odor issues/complaints
  • Need to look at diversion as a long-term strategy

Gary Brown, Self

  • Discussed personal experience with landfill in proximity to his home in Houston area
  • Storm water drainage is an issue at landfills, currently flooding his property and others in the area
  • Discussed monitoring of landfill gas emissions

Joe Roland, Caldwell County

  • Special provisions to permits are unacceptable, should be required to be approved by county first

Melanie McAfee, Self

  • Described personal experience living immediately adjacent to a landfill
  • Landfills are not keeping up with modern innovations

Bob Thompson, Self

  • Described involvement with landfills
  • There need to be incentives to put landfills in geological appropriate sites (not near recharge zones)
  • Reynolds – where should they be?
    • Specifically, not in aquifer recharge zones
  • Should require additional liners for landfills in any recharge zone
  • written testimony includes additional recommendations

Marisa Perales, Frederick, Perales, Allmon & Rockwell

  • Should have clear limits on numbers of NODs issued in permitting process
    • 2 rounds of NODs make sense
  • Reynolds – do other states have similar rules?
    • Have not done that research but will follow up
  • Should provide resources for robust verification process
  • TCEQ needs to enforce to data rationale rule in applications
  • Enforcement: should return noncompliance in application
  • Should get rid of bifurcated hearing process

Heather Zayas, Brazoria and Fort Bend MUD

  • Described personal experience living near a landfill
  • Odors became a significant issue
  • Described issues with getting information from TCEQ regarding status of complaints
  • There should be one point of contact as well as a stakeholder management plan to communicate with community

Rosa Saade, Self

  • Noted property value depreciation associated with the odor issues related to the landfill near her home
  • Disagrees with TCEQ assessment of reviewing landfill odor issues at various times as well as meteorologically similar times

Dalia Abdelhalim, Self

  • Discussed over $5 million in tax revenue lost due to lowering of property taxes
  • I recommend we do not accept landfills
  • 24 hour monitoring should be required of TCEQ to identify issues
  • Waste permits should be renewed periodically
  • Blue Ridge Landfill should be held accountable and they should lose their permits until the problem is fixed
  • Studies show there is an increase in cancer risk from landfills distributing hydrogen sulfide into the air

Patton King, Self

  • Bifurcated application process is a problem-
  • Citing ordinance dictates where a landfill can be placed in the county
  • Suggests putting a landfill in an area that wont soak into the water system

Byron Friedrich, Self

  • Land owner near proposed landfill in Caldwell county
  • County passed a citing ordinance, but landfill will likely be grandfathered in
  • Residents should be given significant prior notification before landfills are put in place
  • Should not be any grandfathering allowed based by submitting parts 1 and 2 of the application process
  • TCEQ does not take public opinion into account during permitting process
  • Does not believe that out of state companies histories are considered during permitting process

Frank Sughrue, Self

  • Land owner near proposed landfill in Caldwell county
  • Discussed rules not being followed during the permitting process

Allen Messenger, ANB Cattle Company

  • Has concerns of accuracy of waste disposal guidance documents
  • Hazardous substances in landfills: San Jacinto Waste Pits will cost over $100 million to haul away
  • Texas needs to consider prohibiting placement of landfills in flood zones

Gary Bledsoe, Self

  • Described personal experience living next to a landfill
  • Drainage and runoff is going onto neighborhood properties
  • Needs regulation for maintenance of landfills

Robin Schneider, Texas Campaign for the Environment

  • Discussed daily penalties for landfill companies for those with violations
  • Alternative daily cover: allowed to spray on cover which is ineffective
  • Tipping fees: money that was cut in 2007 was going to COGs and would have been spent on monitoring and enforcement
  • Need better transparency from the agency regarding spending
  • Recommends diversion for creating additional capacity in landfills
  • Permit renewals should be required
  • Reynolds – requested testimony be reduced to writing and provided to the committee

Adrian Hernandez, Self

  • While running for city council in Pear Land head from many in the community regarding landfill odors
  • Concerned with potential negative health aspects from landfills

Jaime Martinez, Self

  • Described personal experience living near a landfill in Pear Land

 

Study the economic impact of the National Ambient Air Quality Standards (NAAQS) and determine if new technologies can be utilized to meet attainment or make an attainment demonstration for all current standards.

David Brymer, TCEQ

  • Current regulatory levels in Houston represents 34% improvement, DFW had 24% improvement
  • Legislature reducing NAAQS emissions and TCEQ regulatory flexibility helped considerably
  • Houston and Dallas are still designated as non-attainment in new attainment standards
  • Discussed exceptional events
    • Cannot be considered for attainment
  • Thompson – in the past it has been costly and time consuming to make that plea for an exceptional event, is something Texas can consider given the June deadlines?
    • Have provided a number of packages to EPA specifically for Ozone deadlines, some have been approved and some have not
    • Potential of regulatory significance is considered in determining which packages to pursue
  • Provision of pollutants originating outside the US are reviewed
    • Estimated 2 part per billion impacts on the Houston area
    • Must identify where it came from
  • Background ozone: ozone not associated with US manmade emissions
    • Some studies show up to 80% in some locations may fall under this definition
  • Thompson – what has been done regarding NAAQS in current administration
    • Discussion of but no changes to standards at this point

 

Review the TCEQ’s expedited air permitting program and examine whether the program is achieving the desired results.

Mike Wilson, TCEQ

  • SB 1736 gave TCEQ ability to obtain surcharge for expedited permitting
  • Not a fast pass process
  • Have seen faster permitting times with expedited permitting program
  • Thompson – funds have been appropriated in addition to gaining fees, is that a stumbling point in the program?
    • Originally only able to pay straight time for overtime
    • Will use all of the appropriated amount
    • Does lead to some limitations
  • Highly effective contributions from contractors
  • Written testimony shows tables of completed projects by fiscal years
    • Seeing increase of about 100 projects each year
    • Expecting 400 projects for this FY
  • Received 6 million in surcharges
    • Refunded 3 million
  • Discussed timer frames of non-expedite compared to expedite time frames
    • Last 4 fiscal year seen 71 or 72 complex federal projects
    • Prior years only say about 40 complex federal projects
  • E-permits system helps getting more immediate response on 2-300 projects per year
  • Thompson – has there been discussions regarding use of VW funds going towards air quality issues?
    • David Brimmer – received about $209 million into trust for finite types of projects with intent to mitigate environmental damage done
    • David Brimmer – plan expected to be out in a few months for public comment for the use of those funds

Cory Pomeroy, Texas Oil and Gas Association

  • Will urge EPA to adhere to doctrine of collaboration with states to designate Bexar County in attainment because it is expecting to meet the NAAQS attainment by 2020 and because of the foreign sources of pollutants in the county
  • Discussed expedite program
  • Thompson – not sure why there is a fee and limited appropriations associated with the program
  • Described environmental partnership within TXOGA members intended to move toward more environmentally friendly practices

Martha Landwehr, Texas Chemical Council

  • Non-attainment designations have severe consequences on industry
    • Leads to increased offset requirements
    • Requires more stringent quality controls
  • Challenges in emissions is that they come from mobile sources in greater quantity
  • Increased NAAQS reduction controls
  • Many companies are working though scenarios for 2015 models
  • Will need to use creative methods like TERP programs to continue to decrease emissions
  • Shale gas has led to Texas becoming more competitive
    • Chemical industry has seen significant growth leading to 150,000 new jobs in the state
    • Need to obtain non-attainment permits to move forward with projects
  • TCEQ needs additional resources/contractors, personnel towards expedite program
  • Thompson – raising the cap in the rider?
    • That is correct
    • Was put in place in 2013 at 1 million per year

Mark Vickery, Texas Association of Manufacturers

  • One of the concerns with expedited permitting is that once everyone is expedited, no one will be expedited
  • New technology, like infrared, allows us to identify problems sooner

Cyrus Reed, Sierra Club Lonestar Chapter

  • Ozone standards are there to protect public health
  • Cleaner air affects the economy because it means less lost school and work days
  • April 30 is the deadline for comments on the proposed non-attainment areas
  • Houston, Dallas, and San Antonio will be above the NAAQS standard and need to be declared non-attainment
  • Strategies for lowering ozone:
    • Look at new control strategies in the gas field

Bakeyah Nelson, Air Alliance Houston

  • Supports sierra club testimony
  • Need for Houston/Harris County to reach NAAQS attainment
  • Many health concerns with non-attainment
  • Communities of color have higher levels of health issues associated with air quality
  • Reynolds – is there any data regarding that?
    • A rice university study show that communities of low income and color are typically closer to higher pollutant areas
  • Community needs better access to the air permitting process through TCEQ
  • TCEQ needs to be funded adequately to better enforce standards

Adrian Shelley, Public Citizen

  • EPA estimates in 2020 a benefit of 30/1 in cost benefit from attainment
  • Air pollution is a leading cause of pre-mature death
  • Relayed statistics regarding clean air health implications
  • Discussed research at Rice regarding Houston area asthma and heart attack instances as it related to air quality
  • Supports technology options at Sierra Club
  • Need as much support for TERP programs as possible
  • Cautions against using new technology for attainment “demonstration”
  • Needs addition citizen input in the permitting process

Shelley Whitworth, Houston-Galveston Area Council

  • Three categories of concern: health, cost of compliance, and business risk
  • New tech has led to formation of ground level ozone
  • Economic importance of attainment areas account for 92% of manufacturing in the state
  • LIRAP is not being utilized effectively, should be used toward local attainment and associated infrastructure
  • Potential TERP adjustments: near zero emission emissions are cost prohibitive, electric refrigerator trailers, etc.

Lori Clark, North Central Texas Council of Governments

  • TERP and LIRAP should be fully funded, or restored at least
  • Anti-idling technology policy/legislation could be very beneficial
  • Estimates show between $6-20 billion

Andrew Hoekzema, Capitol Area Council of Governments (CAPCOG)

  • Largest city in Texas that is in compliance with NAAQS standards
    • Has led to success of the region
    • In process of developing new plan to remain in compliance with 2015 NAAQS standards
  • Discussed long-term regulatory consequences of non-attainment
  • Continually looking for next level of emissions reductions
  • Need to maintain ability to monitor air quality
    • Operating 8 monitors at CAPCOG for demonstrations

Windy Johnson, Texas Conference of Urban Counties

  • Established to get TERP and LIRAP off the ground
  • Been involved with continuing those projects
  • Both programs are very important

Imelda Speck, City of Lancaster

  • A number of potential economic development projects have been affected or cancelled by having a non-attainment status
  • Will continue to see the effects of non-attainment in future projects and site selections
  • Addressing the issue through policies and initiatives like anti idling ordinance, etc.
  • Thompson – many communities have concerns regarding this issue and this is something we need to work on