Brian Christian Consulting

We’ve reached the point in session when the Sine Die Clock posted on Harvey Kronberg’s Quorum Report looks more like the light at the end of the tunnel (insert train joke here).  As this is published, we’re just inside 50 days to go.  But in many respects, the next 50 days will feel like the session’s entire 140 days.  Time will warp.  Personal hygiene and grooming will suffer.  Many will not see the sun until late May.

By this point, the big priorities—the budget, school finance, property tax relief—are in play.  Though the wheels will inevitably come off conference committee negotiations, the Legislature usually pulls things out of the ditch (to mix metaphors) in the end, so I’m not prepared to predict there will be a special session.

From the standpoint of environmental legislation, there really have not been many surprises.  Additionally, many of these issues cross the aisle (environmental controversies tend to do that), with bill authors spanning the political spectrum.  At this writing, only a few of these bills have been scheduled for hearings, but the maneuvering on them could run right up to the deadline for conference committee reports to be distributed—11:59PM on May 25, 2019.

Now, full disclosure:  I am working on some of these issues. I will not, however, opine on specific legislation.  The intent of this blog is to be informational and, hopefully, interesting!

The Numbers.

I derived these figures using an online legislative tracking system familiar to all.  Accounting for any human error or changes in how they categorized bills over the years, I believe, at the very least, that these proportions are correct.

This session, nearly 200 bills that directly affect the operations of the Texas Commission on Environmental Quality (TCEQ) have been filed.  That’s a whopping 65 percent increase over 2017.  Now these run the gamut in terms of impact, but there are many that deal with high-profile issues.

Usually, you see this volume of bills when TCEQ is up for Sunset Review (the last times were 2001 and 2011).  This year, however, there has been an 8 percent increase over the total number filed during the review in 2011.  Further, nearly three-times more TCEQ-related bills have been filed this session compared to 2001 (and we thought that session was rough).  It makes me wonder what TCEQ’s Sunset Review in 2022-2023 will bring.

Going granular, these rather impressive numbers have been driven by a handful of big issues….

Aggregates.

The Texas Miracle (a booming economy, thousands moving in-State each day, new commercial and residential development) literally rests on the building blocks that are mined, crushed, and processed all over the state.  So, it’s really no surprise that this business sector is active.  The state is geologically well-suited for quarries; and applications for new concrete batch plants, rock crushers, and hot mix asphalt plants are common.

These activities can draw substantial opposition from neighbors, who are concerned about their quality of life, noise, light, safety, and property values.  Since many of these issues fall outside of the regulatory purview of the TCEQ, environmental concerns have become the primary focus of their efforts to fight these sites.

Ahead of session, observers predicted that aggregate production operations (quarries, sand mines, etc.), and the facilities that often accompany them (concrete batch plants, rock crushers) would be among the dominant issues, and they were right.  A rough count shows more than 40 bills would affect how such sites are regulated.  Further, two major themes have emerged—one is to move at least some form of regulation of quarries to the Railroad Commission of Texas; the other is to restrict where they (or their associated facilities) can be located.  Other proposals include land reclamation, special water quality protections, and mitigation of road damage caused by truck traffic.

Garbage.

Municipal solid waste-related bills seem to be the next most filed.  Like the quarry issue, a lot of this is being driven by local issues.  There have been high-profile complaint-related cases on the enforcement side of TCEQ.  The booming economy and population growth have resulted in several controversial municipal solid waste landfill applications in-house at TCEQ.  Plus, there are smaller transfer station applications that have sparked local control concerns in communities such as Bastrop.  The Legislature has also examined the location of landfills relative to flood plains.

On the appropriations side, TCEQ has requested eight Full-Time-Equivalent staff to help beef-up routine inspections of solid waste sites (which the House included in their version of the Budget).  Additionally, bills have been filed that would require onsite inspections of proposed sites during application review to ground-truth representations; enhanced public participation requirements during enforcement; greater consideration of local land-use recommendations; and various siting restrictions to address flood plain concerns.

Regarding trying to keep trash out of landfills, bills intended to spur market development for recycled materials seem to be on the move.  The House version is on the General State Calendar for April 9^th, and the Senate companion was voted out of committee the previous week.

Texas Emissions Reduction Plan.

It would not be a legislative session without TERP.  The major priority is to extend the funding sources (various fees paid by equipment purchasers and drivers), which would otherwise sunset at the end of this August.  Currently, the plan appears to be to extend them two more years (the programmatic elements , however, have essentially been continued indefinitely).  The big ongoing issue is the un-appropriated balance in the TERP account, which has surged to well over $1 billion.

Looking Downrange.

A host of other TCEQ-related bills have been filed, addressing such issues as expedited air permitting, contested case hearings, testing for lead in school drinking water, low-level radioactive material disposal rate-making, flooding, and water availability permitting.  At the end of the day, I would expect the agency to have around 50 that have passed, been signed, and need to be implemented.

This session is also a preview of both the next session, and the TCEQ’s next Sunset session (currently set for the 2022-2023 cycle).  Some observers have already suggested that legislators wait on some of these issues until Sunset.  Plus, the recent industrial accidents in the greater Houston area have shone a Klieg Light on what some perceive as gaps in TCEQ’s regulatory authority.  Thus, emissions events, TCEQ’s role in emergency response, inspection priorities and resources, penalties, and increased environmental monitoring may all be on the table.  Advocacy groups will fire-up their fund-raising, and don’t be surprised if a number of these issues show up in interim committee studies.  Buckle up!