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The Senate Committee on Natural Resources heard public and invited testimony regarding interim charges related to environmental safety, waste disposal regulation, and monitoring relevant legislation passed in the 85th legislative session

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.

Opening Remarks

  • Final interim hearing for the committee

Waste Disposal Regulation: Study the permitting and compliance processes for waste disposal and processing, including evaluating the criteria for approval, denial, and application return. Make recommendations for improving and streamlining the permitting and compliance processes while maximizing public participation for effective outreach and education. Review the allocation of the Municipal Solid Waste disposal fees and make recommendations regarding allocation methods to adequately support existing programs.

Earl Lott, Texas Commission on Environmental Quality (TCEQ)

  • Described permitting process for landfill applications
    • Contains 4 parts from application to site operating plan
    • Includes public comment period
    • Applications reviewed under oversight of PE and geologist
  • Described notice of deficiency as method of fixing/editing application
  • Have returned 8 applications since 2015
  • Application review is in coordination with many other state agencies
  • Health and safety code allow for bifurcated application allowing for land use application before completing application process
    • Allows for public notice and comment as well as contested case hearing
    • Can double up resources needed to complete application review
    • Extends time period for review completion
  • Statute allows for counties to identify areas that are not suitable for landfills prior to applications being submitted to help streamline the process

Ramiro Garcia, TCEQ

  • Conduct reviews and investigations
  • Investigates public complaints at facilities
  • Consistency in violation is key, there are three types
    • Violation A – will have a penalty
    • Violation B and C – will be paperwork/warning
    • Notice of violation are written and the facility is given opportunity to come into compliance
    • Notice of enforcement follows notice of violation – office of enforcement calculates penalty
    • Commission votes on order and penalty
  • In any case there is accountability and they are required to come into compliance
  • Penalties are calculated according to statute
  • Also able to seek civil penalties through OIG

Greg Yturralde, TCEQ

  • Referenced charts in written handouts
  • Described waste management account – $36 million per year in collections
    • Agency was appropriated $32.7 million
    • Regulates approx. 195 active landfills and approx. 202 processing facilities
  • Fund balance grew from 2012-2015 and not costs are exceeding growth causing a declining fund balance
  • Solid Waste Disposal account collects $11 million per year
    • Expenditures are roughly $5.5 million
    • Appropriations are allocation to councils of governments
    • Fund balance dropped in 2018 – result of debris removal from Harvey
    • Fund balance will continue to grow and double by 2024
  • Municipal Solid Waste Disposal Account
    • $32.9 million in collection in FY 18
    • Handout shows collection history of the tipping fee
  • Recommends redistributing revenue between accounts – reducing amount distributed to Account 5000 to 17%
    • 17% would fully fund current operations

Mike Sutherland, Texas Association of Regional Councils of Governments

  • Stressed funding to local governments as necessary
  • Landfills pay tipping fee – deposited into GR dedicated account
    • 33% funds regional solid waste grant programs
    • Appropriation level has remained the same for the last few sessions despite increased funding need
  • Need for full appropriation and collection of funds
    • Will aid in responsible regional waste management
    • Also goes to training and investigations

Questions to the Panel

  • Zaffirini – Lott – are there exceptions to TCEQs prior testimony related to approving toxic waste facilities in flood plains?
    • Lott – take the location within a 100-year flood plain – applicant is required to address concerns in coordination with county and regional authorities and FEMA process
  • Zaffirini – does the agency permit toxic disposal facilities in flood plains?
    • Lott – Correct, the agency does not
  • Zaffirini – what are specific examples of exceptions?
    • Lott – Numerous landfills constructed within 100-year floodplain, but have sought appropriate approval through FEMA
  • Zaffirini – do you require an updated FEMA floodplain map?
    • No
  • Zaffirini – how many have gone through bifurcated process and should the bifurcated process be eliminated?
    • Lott – do not have an opinion, statute provides for the process
  • Zaffirini – does TCEQ allow for foreign waste disposal?
    • Lott – yes on international waste, they have to have special waste permit or conditional approval describing exactly what they will be taking in
  • Zaffirini – how many sites are receiving waste from Mexico?
    • Lott – There are three: Pleasanton, Brownsville, and Laredo
  • Zaffirini – has TCEQ changed review process for landfills after Harvey?
    • Lott – no
  • Zaffirini – has Texas been reviewing floodplain maps, and if so would it affect landfills?
    • Lott – No
  • Zaffirini – questioned related to background checks on landfill applicants
    • Do not require them
  • Zaffirini – said she would follow up with questions on discrepancy of handouts later
  • Hinojosa – what is the time frame for a landfill permit to be issued?
    • Lott – designed 360-day review, but due to lawsuits, etc. we have seen 6 years or more
  • Hinojosa – what is the process for a community to disallow landfills?
    • Lott- If there is an ordinance before the application, we do not review the application, if after we will continue to review and process the application
  • Hinojosa – what role does the local citizen play in the decision process?
    • Lott – all comments and concerns are reviewed
  • Hinojosa – do they have an impact on denying a permit application?
    • Lott – Depending on the nature of the comments – have added specific requirements due to comment
    • Lott – Have not denied permit application due to specific public comment
  • Hinojosa – does not feel that there is enough public outreach when there is an application
    • Lott – described public outreach and public meetings to address specific questions from the public
  • Hinojosa – what is the concern of building over an aquifer?
    • Lott – there are technical designs that have to be met for all permits – if they are adequately following those standards then they are protecting the aquifer
  • Hinojosa – what is the fund balance?
    • Yturralde –TERP is over $1 billion
    • Regarding resources – have additional 8 FTEs for landfill inspections
  • Garcia – what are the penalties you do assess and when does the public find out?
    • Garcia – penalty maximum is up to $25,000 per day
    • Garcia -Begins at time of violation
    • Garcia -Minimum is figured by going through the penalty formula
  • Garcia – what is the violation for notice of deficiency?
    • Garcia -There is no penalty for that in the application process
  • Garcia – what is the response time on complaints?
    • Garcia -Within 24 hours of health effect complains, otherwise within 30 days
    • Garcia – do take trends into account, like time of day, etc.
  • Garcia – what is the penalty for unauthorized disposal?
    • Garcia – Up to 25,000 per day
  • Garcia – would like to get an update on VW settlement
    • Lott – will prove that to the committee
  • Rodriguez – discussed council of governments tire collection program and role in complaints process, and what recommendations do you have for the legislature for next session related to tire clean up and safe storage?
    • Sutherland – Over the last 3 years, received $35,000 for the program through Fund 5000 and collected over 6,400 tires
    • Sutherland – are aware of complaints when they are made to the TCEQ, local governments are the first responders to many of the complaints
  • Rodriguez – have you given proposals for prevention of illegal dumping?
    • Sutherland – have put some prevention measures in place but it is very difficult to keep up with it
    • Sutherland – the funding has made it a little easier
  • Miles – related to fund 5000 – over $100 million in the fund after Harvey, funds were not made available to Houston for debris removal – what is the rationale for not providing those funds after Harvey?
    • Garcia – the agency reallocated $90 million to TDEM for emergency management – $30 million went to debris removal via grants
    • Garcia – interagency contract gave administration of grants to TDEM
  • Birdwell – related to the bifurcated process – does the bifurcation mean that you will have multiple contested case hearings?
    • Lott – that is correct
  • Birdwell – is that what is taking so long for permit process to get through?
    • That is correct
  • Birdwell – is there any criteria related to geopolitical boundaries?
    • Lott – adjacent property owners are required to be notified and the adjacent county/city if the facility will be within that control
  • Birdwell – a city or county can pass ordinance precluding a landfill?
    • Lott – county has ordinance authority at any time, but as part of that they also have to designate areas that are appropriate
  • Birdwell – is there a statutory number on deficiencies in applicant?
    • Lott – no there is not
  • Birdwell – is there an increasing penalty for deficiencies?
    • Lott – NODs are during the permit review process
  • Birdwell – is there a better way to clarify between substantive and clerical errors in the permit application?
    • Lott – that is a very good recommendation – over 70% of deficiencies are non-substantive
  • Birdwell – if a waste disposal site is operating but changes operator, how does that change the permitting? Does it restart anything or trigger a review if the operator changes?
    • Lott – that would be a modification of the permit and does not hinder the operation of the that site
  • Zaffirini – there were discrepancies in the provided documents, would like explanation of the deficiencies?
    • Will provide that information
  • Zaffirini – should soil samples be preserved from application process – soil boring plan?
    • Lott – will accept that as a recommendation
  • Zaffirini – how does the commission determine if a facility is a captive waste or commercial?
    • Lott – there are different definitions of the two
  • Zaffirini – should need be used in determination of a site?
    • Lott – need is not taken into account?
  • Zaffirini – have you advised facility operators how to avoid regulations?
    • Lott – no
  • Zaffirini – noted there are many members of the legislature have expressed concern regarding waste disposal permitting process, how do you respond to that?
    • Lott – have been in the program for many years, and it is not a popular program, but it is a necessity – the goal is to ensure that the facilities have been permitted in accordance with policies and regulations
  • Zaffirini – how does the agency deal with a COG determination that an application is not in conformance with the regional plan?
    • Lott – TCEQ program director and staff have final determination if it is in conformance
  • Zaffirini – should accordance with regional conformance plan be required for a permit?
    • Sutherland – should be taken into consideration
  • Zaffirini – how satisfied are you with relationship between COG and the agency?
    • Sutherland – have worked with them as partners, and there are certainly difference in interest but have worked well together
  • Zaffirini – how can the perceived conflict of interest be addressed?
    • Lott – there is a two-year revolving door policy established in 2015
  • Miles – in addition to Harvey, there have been other flood issues that led to dumping issues – related to Fund 5000, how does City of Houston tap into that fund?
    • Yturralde – have requested specific riders for instances – but are limited by appropriation process
  • Miles – requested more information from TCEQ on use of the fund
    • Yturralde – will work with staff on that issue

Rhonda Tiffin, Webb County Floodplain Administrator

  • Concern with maps set out by FEMA and limited mapping of floodplains
  • FEMA designates areas and rules by available mapping – hold local community responsible
  • Concern with TCEQ making determinations without consulting with local administrators
  • Implications on local community to meet conditions related to NFIP
  • Use of Zone A’s as flood plain boundaries is not appropriate use
  • CLOMR is not guarantee of improvement and there may be conditions the applicant can never meet
  • Self-reporting of applicants is of concern – TCEQ requiring H&H study by applicant is concerning

 

Joshua Stuckey, Harris County

  • CLOMR is required by TCEQ – mainly driven by developer
  • Different communities have different standards – NFIP standards are very minimal
  • Questioned what TCEQ is trying to get out of CLOMR – should be working with the floodplain administrator to ensure no impact on floodplain
  • Noted there are many ways to distort the NFIP regulations to allow for development
  • Zone A’s do not have base flood plain elevation determined
    • Flood plain administrator can force a developer to conduct full determination
  • Flood plain administrator should have authority to demand study on area impact after a permit is issued
  • Birdwell – what are the duties of a floodplain administrator?
    • To protect the communities through administration of the floodplain
  • Zaffirini – do you believe having a hydrologist on TCEQ staff would be beneficial for reviewing permit applications?
    • It could be beneficial, but should be left to the floodplain administrator

Questions to the Panel

  • Zaffirini – does TCEQ have a hydrologist on staff?
    • Lott – no, and encourage applicants to work with floodplain administrator for permitting before coming to TCEQ
  • Zaffirini – discussed issues with mapping
    • Tiffin – need to ensure H&H study has been performed if there is not a flood plain map
    • Tiffin – agency should require LOMR
  • Zaffirini – what are the risks of putting landfills in floodplain areas?
    • It is a health and safety issue
  • Zaffirini – what are the potential ramification if the agency issues permit based on CLOMR?
    • You’d have just placed a landfill in the floodplain without actually updating the mapping
    • Tiffin – the applicants believe that a CLOMR is a permit – need to mandate that the applicant gets a LOMR first to ensure that they have finished the process
  • Zaffirini – is that something the agency would consider?
    • Lott – that is something we would consider
    • Need to be aware that it would add additional delay to the process
  • There is no current legislation regarding counties impacting adjacent/regional counties due to flood plains
  • Garcia – when was the last time the floodplains were revised?
    • In 2013 for Harris County – each jurisdiction will be different
    • FEMA has set goal to have 80% of the country mapped by 2020
  • Garcia – are there some counties that have not revised floodplains?
    • Yes, there are many that have not – it is all based on insurance and risk
  • Garcia – is there a role for the state to coordinate floodplain management – what recommendations do you have?
    • Coordination needs to happen – Water Development Board has staff to help but need more resources at the county level
    • Important to have discussion between administrators
    • Need studies on how communities impact each other to make better decisions on a regional level
    • Need to be careful not to put additional oversight mechanisms at the state or COG level that could hinder more rigorous standards
    • Law should include prohibition of not impacting adjacent counties
  • Rodriguez – related to self-reporting, there is no follow-up on the reporting?
    • Tiffin – believe that it is differed to the applicant’s proof that they are not in the floodplain
  • Rodriguez – do you propose verification in the rules?
    • Tiffin – there should be some reasonable verification of the validity of the proof
  • Birdwell – what was Harvey in terms of year-flood?
    • Lott – a multi thousand-year flood
  • Birdwell – is it a reasonable expectation to try to hold landfills to Harvey standard, probably not, but what is the standard that should be held to?
    • Lott – 100-year flood comes from federal rules

Stephen Minick, Republic Services

  • There is a need for flexible regulations to allow to keep up with the flexible industry
  • Difficulty in permitting has led to need for current landfills to expand to keep up with demand
  • Need fair and reasonable decisions made to protect interests of all entities
  • Permitting process is often misunderstood – should be to translate the application into the most effective permit possible
  • Public is often frustrated with the NOD process
  • Agency should not be allowed to return an application without due process – should go through the full commission
  • Tipping fee pays for the solid waste disposal program
    • Industry pays more in tipping fees than the state provides to the agency
  • Industry is prepared to ensure the program is fully funded

Bob Gregory, Texas Disposal Systems

  • Supports having a checklist to help be sure that the application is done as correctly as possible from the beginning
  • Supports moving away from NOD system to request for clarification and format issues
  • MSW regulations require applicants to submit clearly understandable application and site operating plan
  • There are numerous areas that TCEQ needs to update – state MSW regulations need to be modified
  • There should be consequences for non-compliance in application
  • Supports tipping structure and spending

Ellen Smyth, City of El Paso

  • Supports funding the TCEQ through tipping fee
  • Noted extremely long permitting process
  • The intent of mapping is insurance
  • Some changes need to be made – but they are tweaks not an overhaul of the process
  • Noted low salary for engineers at TCEQ causing high turnover rate
  • Support more resources going towards TCEQ

Chris Macomb, Waste Management of Texas

  • Need a definition of deficiency in statute, if it doesn’t deal with health and safety then it should be an administrative issue
  • Floodplains could be dealt with through statutory authority – but the problem is the amount of time and money for authorizations that would them be wasted if determined that cannot build at the end
  • Absolutely concerned about flooding
  • Does not know of failure in Houston after Harvey – and not a documented offsite impact

 

Questions to the Panel

  • Rodriguez – related to funding the TCEQ – fees paid are supposed to go to enforcement and oversight and the legislature has not appropriated the funding, is there a reason why we have not appropriated the fees?
    • Minnick – discussed history of the tipping fee and its use to certify budget not to fund the budget in reality
  • Hinojosa – you are correct – but have continued to reduce dedicated funds, and cannot give you everything in the fund – has to be based on need
  • Zaffirini – related to the consequences for noncompliance – what were you referring to?
    • Gregory – specifically speaking to amendments to existing permits and new facilities by operator that has not been operating properly
  • Zaffirini – have you faced insurmountable opposition?
    • Gregory – Not insurmountable, but significant opposition?
  • Zaffirini – should there be a limit to NODs or defined period for the application review?
    • Gregory – Need to be careful with limits but should consider alternative communications to help identify true errors
  • Zaffirini – with each expansion you have had, has there been enough public notice?
    • Gregory – believes so
  • Zaffirini – what advice do you have for other developers?
    • Gregory – keeping good housekeeping skills – need staff with experience at TCEQ that understands those types of things
  • Zaffirini – can you expand on insurmountable opposition?
    • Minnick – many times it is easier to justify expansion rather than the time, money and energy it takes to permit a new facility
  • Zaffirini – what are suggestions for making the permitting process better?
    • Minick – need to give the agency more resources and additional staff, supports the use of the checklist and enhanced public education
  • Zaffirini – how do developers deal with scientific public comment?
    • Minick – applicants deal with that issue in different ways – our company tries to be engaged as possible – may be some confusion with who is supposed to respond to the public
  • Gregory – noted again noted support of use of checklist in the permitting process
  • Zaffirini – have you felt you did not receive due process?
    • Smyth – if all obligations are met the expectation is that there will be a permit for a landfill – the public’s perception is that there are defined exit ramps to derail the process, if that is the case need to be very clear with the public and with the applicants
  • Zaffirini – what would be valid reasons for that to happen?
    • Smyth – if redefining deficiencies – there could be a cut off determined
  • There are several things that can be done to improve the process at the agency – the applicants retain experts that have a career of experience working with less experienced TCEQ staff
    • Industry can do things to improve the process by working with the younger staff to help get them experience needed
  • Zaffirini – is there an instance in which an application did not receive due process?
    • Gregory – described a 13-year process to remove certain waste from the landfill – was an outlier
  • Birdwell – believe we are speaking to some mechanism for appeal to be heard – what would happen if the local geopolitical authority a veto ability for landfills?
    • Gregory – there would not be landfills – but it would not likely be a good planning process in the short term or long term
    • Would wind up with a lot of inconsistency across the state, requiring varying management structures between various areas
  • Miles – what can we do statutorily to curb problems related to the blue ridge landfill?
    • Minick – do not necessarily agree that statutory changes are needed – have invested in infrastructure changes to the facility for the purpose of ensuring the facility is not the source of the odor, have set up odor hotline for complaints, reporting all odors to TCEQ
  • Miles – what is the size of the facility?
    • Minick – hundreds of acres
  • Miles – need TCEQ to have teeth in regulation to resolve this issue

Andrew Dobbs, Texas Campaign for the Environment

  • If they follow all of the rules they should get the permit, but the limitations exist to protect property and the natural environment
  • If continuing to see violations, the limitations are not enough
  • Odor problems are example of insufficient limitations and regulations
  • Permitting process has major challenges – need the process to be simpler and streamlined

Maritza Perales, Frederick, Perales, Allmon &Rockwell  

  • Notice of deficiency process – have similar NODs that do not get fixed and TCEQ staff simply inputs a provision to be completed
  • Applications need to be returned if continued NODS
  • TCEQ staff needs more resources
  • Retention of soil samples and similar information needs to be in statute to be able to better rebut after NOD
  • Current rules related to notice to groundwater districts and conservation districts needs to be bolstered – would be beneficial to both entities

Questions to the Panel

  • Zaffirini – suggesting TCEQ should verify permitting information – does TCEQ have to visit the site during permitting?
    • Dobbs – No, they do not have to visit the site right not allowing for very inaccurate information on the permit application
  • Zaffirini – should the permit fee be more expensive to cover the cost of permitting?
    • Dobbs – believes so
  • Zaffirini – related to limiting NODs or recategorizing NODs, should that be done?
    • Dobbs – need to be very clear in the statute what are included as clerical errors
    • There is so much change in the review of the application process that we need to be very precise about what deficiencies are
  • Birdwell – how would you propose regulatory certainty if the COG has denial authority based on your suggestion that applications which do not meet the COG standard be rejected? Should COGs have a veto authority?
    • Dobbs – it would be asking if it comports with the written plan which is subject to state approval
    • The question comes to makes sure that the development plans are not coming directly in contention with the COG plan
  • Birdwell – if the permit is returned is there a time limit on resubmitting?
    • Perales – nothing in writing that is aware of, only experience with additional data collection needed, so the application couldn’t be submitted again immediately
    • Perales – should have requirement on minimum time for resubmittal

Tom Kelley, Colorado County Groundwater Conservation District and part of LCRA board

  • I understand that ‘not in my backyard’ is not a good argument
  • But putting a hazardous waste dump near a river is a bad idea
  • It is irrational to think that at some point that dump will not leak into the Colorado River

James Brasher, Colorado County Groundwater Conservation District

  • We are contesting TCEQ’s approval of proposed hazardous waste facility
  • Sand and gravel are highly permeable
  • The site where the dump will be located is the antithesis for where to have this dump located
  • When the Colorado River is up, the water will infiltrate the area of the dump
  • When it leaks, it will immediately go into the river

Kelly Brown, Colorado County

  • The applicant has failed to meet its statutory regulatory requirements
  • This matter is the subject of a contested case hearing set for this year
  • The applicant is attempted to sell this as a non-commercial facility
    • If its non-commercial, they can bypass most requirements typically on this type of facility – they are exploiting statutory provisions
  • Zaffirini – Do you believe this facility would pose a risk to groundwater in the county?
    • There is a significant risk
  • Zaffirini – Is this a commercial facility?
    • It is claimed to be a non-commercial facility
  • Zaffirini – Do you know how the agency determines what kind of facility it is?
    • I don’t believe that was addressed in this case
  • Zaffirini – How will this facility affect traffic?
    • It will create problems on a two-lane highway
  • Rodriguez – You stated that TCEQ granted the application
    • The application was filed in 2013. TCEQ staff recommended approval in 2016. The status is now that several parties have requested a contested hearing.
  • Rodriguez – Your purpose today is to just give us another example of agency failure?
    • It is our view that the applicant has not met its burden and not been required to by TCEQ
  • Rodriguez – Your purpose is to point to an agency that from your perspective is not doing the right thing?
    • We think this has statewide significance.
  • Rodriguez – Do you have recommendations?
    • We will, but are not prepared to do so today
  • Birdwell – Is your initial hearing with TCEQ commissioners?
    • The staff has recommended approval of the permit. We are before an administrative law judge set for the case.

Alan Messenger, Self

  • Municipal and industrial waste has historically been handled separately by the state
  • My written testimony provides more detail

 

Environmental Safety: Study the strategies and best practices for ensuring environmental safety during maintenance, startup, and shutdown activities due to emergencies. Recommend actions to improve safety without compromising compliance or penalizing good actors.

Michael Wilson, TCEQ

  • Applications are reviewed to be sure that the permit is protective of health and safety
    • Account for shut down and start up
  • Application is used to create limitations of permit as well as special conditions
  • Unplanned events are not permitted but may be allowable through the planned events section of the permit

Kelly Cook, TCEQ

  • Hurricane Harvey dropped 19 trillion gallons of water on Texas
  • Harvey was unprecedented in its devastation
  • Gave timeline for Harvey tracking
  • When the rainfall left the state, major flooding remained
  • TCEQ has a hurricane response plan where we will move our vital equipment to the area outside of the strike zone, so we can quickly respond
  • We set up three branches of operation
  • National Guardsmen from various states assisted in our operations
  • We had 50 teams a day going into the field
  • EPA worked alongside TCEQ in our Harvey response
  • We detected levels of various chemicals above normal levels, but that is to be expected after a storm like Harvey
    • We did not detect any above levels that would be harmful to health
  • We made the restoration of waste and drinking water facilities a priority

Cynthia Gandy, TCEQ

  • There are planned emissions that may occur and also unplanned emissions
  • These events were spread geographically over time by the nature of the program
  • Baytown had more emissions than any other city
  • The goal of the Air Quality Office is to reduce emissions

Questions to Panel

  • Zaffirini – Yes or no, Does TCEQ have the authority to mandate disaster related shutdowns?
    • No
  • Zaffirini – Does TCEQ can design storage tanks to resist hurricanes?
    • Let me check
  • Zaffirini – What are the advantages or disadvantages of…
    • The advantages are that it allows the state to have a better outcome in a disaster related situation.
  • Rodriguez – Is TCEQ following up with appropriate sanctions?
    • Yes, a number of violations have already been issued
    • Romero Garcia –
  • Rodriguez – Given the level of illegal air pollution, has any office done a report on the harm of this additional pollution?
    • There are various studies going on
  • Rodriguez – Do we have a definitive report yet?
    • Some toxicologists were able to get data that we posted on our website
  • Rodriguez – Any lessons learned for dealing with future storms?
    • As part of the review, we will look at the maintenance that was done on the equipment that failed
    • There are always lessons learned
    • Communication is always something we can work on
  • Rodriguez – Will you have recommendations for us?
    • We will be glad to get back and visit
  • Birdwell – I spoke with Chief Nim Kidd TDEM, one thing unique about Harvey is the short response time we were given. Is that correct?
    • Yes
  • Birdwell – We are talking a Genesis 8 type of event here. Is TCEQ a support entity or command entity in regard to emergency shut downs?
    • We respond to them
  • Birdwell – What is the purpose of an emergency shut down?
    • It is to protect the assets
  • Birdwell – investigations are still ongoing, is that normal or due to scope of event?
    • Cook – it is standard, but there are many buckets in which things could fit and it will take a lot of investigation to run this down

IIan Levin, Environmental Integrity Project

  • This has been an issue of concern for many years – Harvey put a spotlight on it
  • There are folks surrounded by industry that are disproportionately affected when storms hit
  • There are two buckets of air pollution:
    • unforeseeable and unplanned events – the law is clear: unless it is impossible, entities must comply with regulations
    • foreseeable events – maintenance events, etc. which should be accounted for in permits
  • environmental laws only work when enforced
  • TCEQ has ability to make sure facilities and equipment are more storm proof
  • Air pollution permits have increased 4 times in the last 20 years – permitting process is where substantial preventative measures can be taken
  • Related to monitors being taken down – there were a few days of data gap

Adrian Shelley, Public Citizen

  • Used map to show proximity of pollutants to schools after Harvey
  • Related to shutdowns: TCEQ should convene industry working group to determine practices for safe shutdown procedures
  • If staggering emissions from the facilities – would need to be on the start up side
    • Need to study the feasibility of this type of plan
  • Related to the health impacts of these events – that is not available yet and would be a large amount of data and work to compile the information
  • Written testimony highlighted timeline of event – there was a lack of open and full communication from the TCEQ – resulting in perception of lack of administration
    • Noted specific communication issues from or missed by TCEQ

Questions to the Panel

  • Rodriguez – related to suspension of rules by governor – was it just to the reporting requirements?
    • Levin – counted 60 air quality rules all of which were also federal requirements – believes it was unnecessary
  • Rodriguez – related to the governor’s authority to suspend the rules – are you suggesting the governor violated law or exceeded his authority?
    • Levin – the governor was without authority to suspend any air quality rules
    • Levin – do not know that suspension was necessary – made enforcement by TCEQ even more difficult
    • Shelly – noted the governor’s enumeration of suspensions

Hector Rivero, Texas Chemical Council

  • EPA regulation in place are very extensive and requires hazardous materials inventories be reported to TCEQ
    • A risk management plan must also be developed
  • Described monitoring and reporting requirements
  • Texas has the largest network of air quality monitors in the country
  • Texas infrastructure is designed to be very resilient – was very proud of the outcomes from this magnitude storm
  • Member companies prioritize preparedness, including rehearsal plans

Cory Pomeroy, Texas Oil and Gas Association

  • Harvey knocked out 20% of the nations capacity
  • Refinery operators are in the best position to make the decision to shutdown
  • Members have sophisticated storm emergency plans and risk management plans
  • Remains committed to being a partner in solutions

Robert Royall, Harris County Fire Marshal’s Office

  • Collaboration is required to work through events like this
  • There is a requirement to verbally report releases within 24 Hours – no requirement to notify the local authority
  • Significant additions to response ability in Harris County had been made prior to Harvey – able to respond immediately after the storm
  • TCEQ was imbedded with Harris County in Unified command structure – was critical partner in response
  • Birdwell – should there be mandatory shutdowns?
    • Rivero – would be the most irresponsible decision – the safest the plant will be is running at optimal conditions, the best people to make the decisions are the ones on the ground and should be made at the plant, also noted that nobody wants to release because it would just cost money
    • Royall – concurs with previous statement
    • Pomeroy – need to shut down in a way that will make start up safe – takes time over a number of days to do
  • Birdwell – not sure how you legislate good manners in terms of requiring notification to local jurisdictions and surrounding areas, how would you best like to receive that kind of information?
    • Royall – TDEM does a great job of notifying entities but there was a lot going on
    • Rivero – very open to find a way to get that information to local emergency responders – it is in statute to notify elected officials and that could be utilized to notify emergency management

Charlene Heydinger, Texas Pace Authority

  • Discussed legislation that created PACE program that allows property owners to finance becoming more resilient
  • Pace enables expensive equipment to become more affordable
  • Free market program with no taxpayer dollars – problem is many people do not know about it

 

Monitoring: Conduct legislative oversight and monitoring of the agencies and programs under the committee’s jurisdiction and the implementation of relevant legislation passed by the 85th Legislature, including:

  • Texas Railroad Commission Sunset and funding;
  • Environmental Regulatory and Legal Primacy; and
  • The effectiveness of emission reductions recognized from the Texas Emissions Reduction Program (TERP) and grant flexibility.

Wei Wang, Texas Railroad Commission

  • Our agency has implemented all aspects of our Sunset bill
  • There is a report on our website detailing inspections and enforcement, as required by the bill
  • The proposed fee structure was posted for public comment in March
  • Our contractors are participating in the E-Verify program, as required by the Sunset bill
  • We have exceeded many of our performance efforts for FY18
  • Thank you for your support of our agency
  • Rodriguez – In your appropriations request, you are proposing the removal of rider 11 which requires your inspections and enforcement data to be placed on your website. Why?
    • We are working on a database to add to our website which will provide more detail than is required in the rider
    • We suggested removing the rider because it is duplicative and less informative
  • Birdwell – has Sunset done a review yet?
    • Not Sunset but Comptroller’s office has
  • Birdwell – but you are still subject to sunset’s lookback?
    • That is correct
  • Birdwell – what is the mechanism to regulate pipelines that are interstate
    • Many of the operators are the same that have intrastate pipelines
    • Work are public and industry outreach
    • Also working with DOT
  • Birdwell – discussed mediation and SOAH hearing process
  • Birdwell – cloud storage security – you are talking to DIR related to that?
    • That is correct

Donna Huff, TCEQ

  • TERP was established in 2001
  • Described various kinds of mobile sources
    • State has limited means to regulate mobile sources
  • TERP has been recognized in SIP as means to lower emissions in Non-attainment areas
  • Program will continue until all areas of Texas have reached attainment

Joe Walton, TCEQ

  • Only serving as resource

Hector Rivero, Texas Chemical Council

  • Strongly supports TERP
  • Challenge is to maintain TERP funding which is under Sunset Review
  • need to look at continuing the fees and ensuring FTE requirements to achieve the goals
  • recommends state take inventory of TERP programs and determine feasibility of continuing those programs or are there new programs that can be implemented
  • Birdwell – what happens if we do not continue TERP?
    • There is a timeline to reach attainment which comes with stipulations or sanctions for nonattainment
    • Noted instances of sanctions in cities
    • Huff – if reductions aren’t made in TERP it would have to come from industry

Dennis Foose, Nat G Solutions

  • TERP helps to improve the economy
  • Infrastructure for CNG has grown significantly
  • Not knowing if a program will be funded leads to closing of CNG stations, etc.

Adrian Shelley, Public Citizen

  • Large amount of support
  • Most cost-effective program to reducing NOx emissions

Cyrus Reed, Sierra Club

  • There is still an ozone problem no matter the standard
  • Will need to continue with the fees dues to constitutional spending restrictions
  • Need to continue giving money to TCEQ
  • Need to figure out what to do with LIRAP funds

Heather Ball, Texas Natural Gas Foundation

  • Need to consider government transportation for NOx reduction

Cyrus Reed, Sierra Club

  • Pipeline safety fee will be an important source of funding
  • Making progress toward more frequent well inspection
  • Appears as though the Railroad Commission is making effort to be more transparent
  • Need to consider penalty matrix