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The Texas Commission on Environmental Quality met on August 22 to take up a full agenda, including consideration of appointing watermasters to certain river basins, the FY19 audit plan, a petition for reduction of permissible windspeed during burns, and expedited air permits.

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.

 

Item 1. PROPOSAL FOR DECISION. TCEQ Docket No. 2016-1668-WQ-E; SOAH Docket No. 582-17- 4917.

Consideration of the Administrative Law Judge’s Proposal for Decision and Proposed Order assessing administrative penalties against Larry Polinard in DeWitt County, Texas; RN108734732; regarding an aggregate production operation violation. (Link)

  • Respondent not present, motion for continuance was submitted to clerk
  • Shaw – Respondent has had many attempts, appropriate to move forward with this item
  • TCEQ Staff – 1 production violation at site owned by respondent, which had not been registered as an APO, APO registration was obtained after site had been operating as an APO for some time, Minimum penalty of $5,000 was assessed, ALJ and ED recommend adoption
  • Motion to adopt ALJ proposed order with docket number correction passes

 

Item 2. MISCELLANEOUS MATTERS. Docket No. 2018-0815-MIS. Consideration of the Executive Director’s findings and recommendation on whether a watermaster should be appointed for the Trinity River, San Jacinto River, Trinity-San Jacinto Coastal or Neches-Trinity Coastal Basins. (Link)

  • Executive Director is required to evaluate each river basin once every 5 years to determine if a watermaster should be appointed
  • This cycle: Trinity River, San Jacinto River, Trinity-San Jacinto Coastal or Neches-Trinity Coastal Basins
  • 3 main criteria: Court orders to create watermaster, petitions received for watermaster, and if senior water rights were threatened
  • 62 complaints from FY13-FY17, no history priority calls, each basin has experienced drought conditions and municipal water use restrictions at varying times, and no senior use threats
  • ED recommends not moving forward with creation of watermaster program
  • Shaw – Obvious that it is appropriate for us not to appoint watermasters

 

Item 3. Docket No. 2018-0647-AUD. Consideration and Approval of the TCEQ Chief Auditor’s Office Fiscal Year 2019 Audit Plan. (Link)

  • Statute requires prep of risk-based audit plan and approval by board, proposal includes agency wide risk assessment info and results
  • OPIC supports approval
  • Shaw – Notes that TCEQ has seen this previously, proposal follows expectations
  • Motion to approve audit plan for FY19 passes

 

Items 4-8 & 10-33. Enforcement Docket (Link found for each item through TCEQ agenda)

  • Items considered collectively, motion to approve passes

 

Item 34. MONTHLY ENFORCEMENT REPORT. Docket No. 2018-0610-MIS. Consideration of the Texas Commission on Environmental Quality Monthly Enforcement Report, submitted for discussion in accordance with Texas Water Code § 7.003. (Link)

  • 1,101 effective admin orders issues, 138 contained supplemental environmental projects
  • $9.6 million, payable amount @$5.2 million, $2 million for supplemental environmental projects
  • 219 cases pending at AG’s, 2,107 cases are being tracked for compliance
  • Proposal included summary of FY 16, 17, and 18 actions

 

Item 35. PETITION FOR RULEMAKING. Docket No. 2018-0906-PET.Consideration of a petition for rulemaking pursuant to 30 Texas Administrative Code (TAC) Section 20.15 […] reducing the upper wind speed limit for permissible outdoor burning conditions from 23 miles per hour to 20 miles per hour. (Project No. 2018-025-PET-NR) (Link)

  • Proposal to reduce maximum wind speed (23 mph to 20 mph) for permissible outdoor burning, presented by Bell County Fire Marshall

 

Steve Casey, Bell County Fire Marshall

  • Common sense, wildfires around the state
  • 3 mph can make a difference for fire spread, gusts are problematic for firefighting; wind is the major component of damage
  • Rule change would lead to more compliance and less burning at high winds, not trying to stop those who are certified for burning
  • Shaw – Need to ensure we’re looking at all sides of this, have taken action recently due to evidence that prescribed fire can mitigate damage

 

Unidentified, Texas Parks and Wildlife Department

  • Prescribed fire is one of TPWD’s key fire mitigation tools, gives overview of benefits of prescribed fire use to prevent wildfire
  • Does not agree that wind speed is the main factor for wildfire development and spread, qualified prescribed burn professional will take into account all of the data Casey used to support his argument for a 3 mph decrease

 

Justin Penick, Acorn Forestry

  • Prescribed burns are key to the ability of Texas to respond to wildfires, no direct correlation between elevated windspeeds and escaped fires
  • Arbitrarily reducing windspeed in one part of the state with damage ability to fight fires in other parts of the state; already many challenges in the state for prescribed burning

 

James Stockie, U.S. Fish and Wildlife Service

  • Partners with TPWD and Texas Forest Service, Fish and Wildlife Service has a large amount of experience with prescribed burns
  • Prescribed fire is one of the most valuable habitat management tools in the state
  • Only a limited number of burn windows per year, any attempt to limit negatively impacts fire response

 

Mort Kothmann, Prescribed Burn Alliance of Texas

  • Most prescribed burns in West Texas occur on private land
  • Proposed rule is a broad-brush approach, prescribed burns are lumped in with small burns and controlled burns, etc., wide scope doesn’t accomplish much beyond restricting management

 

Amancio Gutierrez, Texas Commission Environmental Quality Staff

  • Staff recommends evaluation of the request further and rulemaking if appropriate
  • Shaw – Many aspects to this, had heard elevated windspeeds would help with smoke dispersion, have you looked at this?
    • No, requesting ability to move forward and look at this based on petition
  • OPIC supports proceeding and evaluating proposal and providing opportunity for stakeholders to submit more comment
  • Shaw – Agrees with concern and public safety mission, though important to not prevent important work of prescribed burning
  • Shaw – Rule would not affect certified burners, but much of this work is done outside of these individuals
  • Shaw – I think we should not approve petition, but should ask staff to continue considering prescribed burning aspects
  • Niermann – Sees this from a safety perspective, would like to see a dialogue & we need to provide a forum for this technical conversation to take place; rulemaking process is more to evaluate proposal
  • Shaw – Agrees that rulemaking process does not guarantee rules, inclined to deny petition because part of solution might be outside of TCEQ rule, e.g. in existing local authority
  • Lindley – Denial doesn’t mean investigation cannot take place, proposal needs to be vetted more and rulemaking may not be the right environment for this
  • TCEQ took a 5 minute recess to consider
  • Niermann – Concern is that instruction to rulemaking would imply a path towards a proposal becoming a rule, but also wanting to have conversation continue under TCEQ as part of the evaluation
  • Lindley – Comfortable with this
  • Shaw – Would like to proceed under the assumption that this will not definitely lead to a rule, instruction to staff would be to examine the issue not only from perspective of reducing windspeed, but more broadly in ensuring we are not restricting ability to perform prescribed burns
  • Shaw – I have strong concerns about shrinking window of opportunity to perform prescribed burns
  • Niermann – So a draft motion would be to direct staff, with input from all interested parties, look at issue of windspeed from perspective of protecting lives and preventing fire, what role TCEQ’s rules would play in this, and how the question is best answered, then make recommendations on these lines
  • Lindley – Already language in rule about local control, not sure it’s appropriate to go down this path currently, concerned about ability for local governments to adjust windspeed
  • Shaw – Need to ensure local entities are aware of this
  • Shaw – If we go forward initiating this process, does staff see that it would also be able to facilitate discussions about local options available should no rule be adopted?
    • Gutierrez, TCEQ – I think staff can facilitate this, yes
  • Motion to instruct Executive Director to initiate rulemaking on aspect in petition and based on conversations from the dais passes
  • Shaw – Asks witnesses to continue to engage in process

 

Item 36. MISCELLANEOUS MATTER. Docket No. 2018-0995-MIS. Discussion of the expedited air permitting program as a follow-up to the May 30, 2018 Commissioners’ Work Session. (Link)

  • Parallels issues with the LAR and budgeting
  • Timeframes involve public input and notice, staff focused on stripping out all requirements down to bare requirements and public portion led to a minimum of 90 days, staff rounded to a 100 day minimum for permitting
  • 315 days for minor permits and 365 days for major permits falls in line with LBB and TCEQ thoughts on timeline
  • Staff review FY15-18 data, for FY15 found that 50% out of 80 major projects were expedited, for FY18 found that 75% of 40 major projects were expedited
  • Involves discussions of staff retention, training, etc., need to have a level experience/judgement to be able to adequately work larger projects, currently 61% of certain permitting staff have 0-3 years experience
  • FTEs are working overtime on these projects & in addition to overall workload, contractors only work on expedited projects & typically are handed more complex projects
  • Contractors are ahead by about 90+ days for expedite major projects compared to full time employees; minor projects were typically slower
  • Proposal also includes information from other states’ expedite projects
  • Niermann – Have we looked at turnover systematically? Part of this is probably pay, etc.
    • Can put information together on this
  • Lindley – Need to look at this not just from a numbers perspective, need to begin work on expedited process as legislature is in session soon and this is a major component of the LAR
    • Steps have been taken, not waiting to reform internal processes and identify funding, shift spending, etc.
    • Ideal situation is 6 months for major new source review issuance
  • Lindley – Always helps when applicants have a solid, protective application
  • Shaw – Has always served us well to look internally first, 6 months doesn’t make sense based on only what we have control over
  • Niermann – Excited about opportunities to put this #1 in the LAR, excited about what we can do if we get new resources from legislature this session
  • Niermann – Interesting to hear that other states have higher levels of scrutiny for nonattainment for certain processes; TCEQ focus is public health & nothing about expedited process should need different levels of scrutiny
  • Shaw – Struck me as well, perhaps didn’t want to get projects out faster and stress load in certain areas
  • Lindley – TCEQ submitted letter to Ursula Parks at the LBB about additional appropriation authority regarding the shortfall, did we receive a response?
    • We did not receive a response
  • Shaw – Would encourage us to continue to politely press this timeframe

 

The TCEQ met in executive session