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85th Texas Legislative Highlights

Aug. 16, 2017: Lawmakers improve environmental programs managed by the TCEQ

 

Texas capitol
6,631 bills files. 1,209 bills passed. 716 bills analyzed by the TCEQ. 196 passed bills analyzed by the TCEQ.

Thanks to the work of the 85th Texas Legislature, the state will now benefit from better water management, cleaner air, and quicker processing of air and water permit applications.

During the legislative session, which lasted from January through May, Texas Commission on Environmental Quality staffers kept busy supporting the work of lawmakers, including providing testimony at the Capitol and analyzing more than 700 proposed bills, of which nearly 200 passed.

A number of these bills will have a significant impact on the TCEQ, including the following six:

TCEQ Commissioners Toby Baker (standing, left), Jon Niermann (standing, right), and Chairman Bryan W. Shaw, Ph.D., P.E., (seated, right) meet with Texas Gov. Greg Abbott in May at the Capitol during the governor’s visit with recipients of the Texas Environmental Excellence Awards, the state’s highest environmental award.
TCEQ Commissioners Toby Baker (standing, left), Jon Niermann (standing, right), and Chairman Bryan W. Shaw, Ph.D., P.E., (seated, right) meet with Texas Gov. Greg Abbott in May at the Capitol during the governor’s visit with recipients of the Texas Environmental Excellence Awards, the state’s highest environmental award.

Here are the highlights of those key bills and what they mean for Texans:

SB 1105: Water program funding

Since 2006, revenue flowing into the TCEQ’s Water Resource Management Account, 0153, has not covered all the agency’s obligations to fund water programs, resulting in fee increases. The Office of Water—which has oversight of more than 6,700 public drinking water systems and more than 4,000 authorizations related to wastewater facilities—receives much of its funding through fees collected from the drinking-water and wastewater systems it regulates.

SB 1105exit transfers the fund balance from the TCEQ’s Used Oil Recycling Account, 0146, to the Water Resource Management Account, slowing the rate at which fee increases are needed.

Elizabeth Sifuentez Koch, director of the agency’s Budget and Planning Division, says that the Used Oil Recycling Account brings in about $2 million each year from the sale of automotive oil, at the rate of a penny a quart. This fee affects most consumers when they get an oil change. Currently, the entire $2 million goes toward the Used Oil Recycling Program, but the program only uses around $500,000 annually.

“One of the purposes of the Used Oil Recycling Program was to prevent pollution of water resources from the improper disposal of used oil,” she says. “Keeping with that notion, the automotive-oil fee would continue to support the programs that protect the water resources of the state.”

Beginning Sept. 1, that fee will start going into the Water Resource Management Account, along with the transfer of the remaining balance in the Used Oil Recycling Account. The Used Oil Recycling Program will continue to operate, but now its funding source will be the Water Resource Management Account.

“It’s definitely a benefit to everyone,” Koch says, “because we will not have to increase fees this year and because there will be some growth in the account because of the used-oil fee.”

SB 1330: Radioactive waste oversight funding

Like SB 1105 with regard to the funding of water programs, SB 1330exit provides similar relief for the Radioactive Materials Division, which funds the Texas Low-Level Radioactive Waste Disposal Compact Commission, which is the federal entity that oversees low-level radioactive waste entering and leaving the disposal facility in Andrews County.

Covering the Compact Commission’s expenses on top of the division’s other obligations has caused more funds to leave the account than are coming in.

The agency has always assessed a 1.25 percent fee on all low-level radioactive waste received by the Andrews County facility. This fee was meant to support the Compact Commission, but it has been going into the state’s general revenue and has not always been funneled back to the agency. Now, the fee will go directly into the Low-Level Radioactive Waste Fund, to pay for the Compact Commission’s activities.

“The Compact Commission is funded by receipts from disposal invoices,” says Charles Maguire, director of the agency’s Radioactive Materials Division. “People disposing of the waste pay. The taxpayers in Texas are not paying for the Compact Commission.”

The Compact Commission provides authorizations for disposal of low-level radioactive waste, hearing petitions for the import of waste into Texas or the export of waste out of Vermont.

“We support the Compact Commission’s efforts,” Maguire says. “When somebody petitions to import for disposal, we’re responsible for reviewing that petition, and we attend the meetings in case they have technical questions.”

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SB 1045: Air permitting process

Thanks to SB 1045exit, public notices for some new-source air quality permits will become more efficient and may result in an increase in meaningful public participation.

SB 1045 will allow some applicants to consolidate the required first and second public notices into a single notice, thereby allowing the agency to complete the draft permits within 15 days of receiving the application. This measure will apply only to cases where the agency determines that the application is administratively and technically complete.

“These are going to be case-by-case air quality permits,” says Janis Hudson, an attorney in the agency’s Environmental Law Division. “This won’t apply to permits by rule or standard permits. Standard air permits aren’t held to the same notice requirements.”

Currently, the first notice—the notice of receipt of application and intent to obtain permit—opens a public comment period of at least thirty days. Following that, the applicant must publish a second notice—the notice of application and preliminary decision—once the agency finishes the draft permit. The second notice also opens a second 30-day public comment period.

However, it is not until the second notice is published that members of the public can see a draft of the permit, which means that, with some applications, they are not able to request a contested-case hearing in the proper timeframe.

The analysis of SB 1045 published on the Texas Legislature Online website notes that “because a draft permit will be available immediately for permits that use the consolidated notice, members of the public will be more informed of the permit’s effects and avoid situations where failure to request a contested case hearing during the NORI [first 30-day] period currently leads to a loss of options. This bill therefore increases meaningful public participation.”

The bill does not change any other notice requirements. Applicants must still post signs at the site of proposed construction and make available a hard copy of the permit application and draft permit at a public location, such as a library or courthouse.

The public will still have the opportunity to comment on the permit application and draft permit and request a public meeting or contested-case hearing.

Applicants could expect cost savings from only having to publish just one round of newspaper notices instead of two.

“We expect that [TCEQ] rules may be proposed later in the fall,” Hudson says. “And there will be a public hearing and opportunity to comment.”

SB 1731: Extending TERP

Without this year’s legislative action, the Texas Emissions Reduction Plan would have been set to expire in 2019.

SB 1731exit extends the TERP program, which targets smog-causing nitrogen oxides (NOx), and helps improve air quality around the state until all areas in Texas meet the federal air quality standards for ozone. TERP’s principal purpose is to reduce NOx emissions in areas of the state in nonattainment for ground-level ozone, as well as other areas nearing nonattainment. To meet this goal, TERP offers a range of grant programs that encourage reducing NOx emissions, primarily from large, heavy-duty mobile sources.

Some TERP programs—such as the Diesel Emissions Reduction Incentive Program, which provides grants to replace or upgrade older heavy-duty vehicles and equipment with newer, cleaner models—are scheduled to start their next yearly cycle this fall. Other programs, such as the Texas Clean Fleet Program, are scheduled to start their next annual cycle next year, after new program rules are adopted.

The bill also re-establishes the Light-Duty Motor Vehicle Purchase or Lease Incentive Program. This was a rebate program for light-duty vehicles that run on alternative fuels, electricity, or hydrogen fuel cells. This program will be re-launched in late spring.

Those interested in applying for a grant through one of TERP’s grant programs can go to www.terpgrants.org or call 800-919-TERP (8377) for more information. Eligibility requirements differ from program to program.

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SB 1430: Encouraging seawater desalination

With 367 miles of coastline on the Gulf of Mexico, Texas has an untapped reserve of water, but it’s not quite ready for drinking.

SB 1430exit will make it easier to take advantage of this salty resource to meet the state’s freshwater needs by creating a process to expedite amendments for existing water-rights permits where the permit holder is off-setting freshwater use with desalinated seawater.

Kim Wilson, director of TCEQ’s Water Availability Division, says that the bill allows those types of permit holders to go to the front of the line.

The bill analysis for SB 1430 in Texas Legislature Online states that “four regional water planning groups have identified seawater desalination as a water management strategy. … If these projects come to fruition, they are expected to supply 116,000 acre-feet per year of new water supplies by 2070.”

An example of an expedited amendment allowed in the bill might involve moving or adding a diversion point, the specific location from which the water-right holder draws water.

“If you brought in desalinated seawater as part of your water supply, whatever amount of freshwater you’re no longer using is offset by the desalinated seawater,” Wilson says. “You have the ability to amend your permit through an expedited process to allow that water to be used somewhere else in the basin under certain conditions.”

There are three conditions that amendments must meet to qualify for the expedited process. First, the amount of water that’s being moved has to be less than or equal to the amount already permitted. Second, if the permit specifies the rate at which the water-right holder can take out water, then the combined rate of the original and added diversion points cannot exceed the specified rate. Lastly, when adding or moving a diversion point, it has to stay in the same river basin.

The law becomes effective on Sept. 1, but TCEQ rulemaking will be required to implement the legislation.

“We’ll propose a rule after the first of the year,” Wilson says. “We anticipate finalizing it late summer of 2018.”

The bill will also put a 270-day time limit on contested-case hearings once they have been referred to the State Office of Administrative Hearings. The time limit will apply only to amendment applications that meet the aforementioned criteria.

HB 294: Addressing negligent utilities

With HB 294exit, lawmakers expanded the circumstances in which the Texas attorney general can bring suit against negligent water and wastewater utilities to keep them running.

Under current law, when water and sewer utilities abandon operation of their facilities or violate a final order of the TCEQ or the Public Utility Commission of Texas, either agency can request the attorney general to bring suit for the appointment of a receiver—a person or company with authority to manage and carry on the business of the utility.

HB 294 adds another circumstance in which a receiver can be requested: when a utility violates a final judgment issued by a district court in a suit brought by the attorney general.

“It adds another tool to the toolbox,” says Alex Hinz, who works within the Response and Capacity Development Team of the agency’s Water Supply Division.

Requesting the appointment of a receiver is a last-resort action, once the agency has exhausted all other options to bring a utility back into operation or into compliance.

“If the water system or utility is unresponsive to TCEQ violations, then normally that case will be referred to the TCEQ’s Enforcement Division,” Hinz says. “Once you get an order issued by the TCEQ and you don’t comply, it can eventually go to the attorney general’s office to address the violations or for appointment of a receiver.”

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