2024 Environmental News and Views--Vol. 3
Howdy, and welcome to the third edition of this year’s Environmental News and Views! I’ve had a lot to say grace over workwise in the past few months (a good, no, GREAT thing), so I’ve fallen behind my usual pace on this newsletter. Still, the world turns, EPA does whatever it does, and the wheels of government grind on.
Let’s catch up on some stuff!
The Lead: TCEQ Sunset Update. It’s difficult to fathom that the 88th Regular Session of the Texas Legislature concluded over a year ago. Recall that through the Sunset Review process, the Texas Commission on Environmental Quality (TCEQ) was handed a number of new statutory (and non-statutory) reforms to implement.
First off, if you haven’t checked it out, the TCEQ has a Sunset Implementation Page. Go to www.tceq.texas.gov , and from there, you can click on a link to their page which features an implementation table to see what they have to do and how they’re going about it.
We’ve covered some of these issues while they were still working their way through the legislative process, but we’re hitting some milestones where an update on some of them seems appropriate. Richard A. Hyde, P.E. and I hit on some of these recently at the 2024 EHS Seminar and Industry Trade Show in Galveston, TX, but there have also been some new developments since then.
Annual Reporting by Permittees on Certain Temporary or Indefinite Permits. The Sunset Bill (SB 1397) included a new requirement that a person who holds a temporary or indefinite term permit that does not already include a regular reporting requirement must annually report to the commission on whether the activity subject to the permit is ongoing. In the real world, this would apply to something like a registered permit-by-rule, but not to a temporary water right—make sense?
Anyway, what’s new here is that TCEQ has rolled out that the initial reports will be due on December 31, 2024, and each December 31st thereafter. Further, the TCEQ has begun updating it’s website to provide guidance on impacted authorizations. Here are the ones I could find at the time I write this: Air Permits, MSW Facilities with an NOI, and scrap tire generators.
This was something of a sleeper issue during session, so sign-up for updates from TCEQ.
Public Participation in Permitting. The Sunset Commission and the Legislature directed TCEQ to generally improve transparency and the ease with which the public can participate. This included new requirements for posting of applications on TCEQ’s website, conducting outreach and training to the public on how to comment on permits, extending the comment period for certain air permit applications (pretty much just the Air Quality Standard Permit for Concrete Batch Plants) to 36 hours after any public comment meeting, providing guidance on how TCEQ determines “affected persons” for contested case hearings, providing security if requested at public meetings, and statutory codifications of TCEQ rules governing the handling of public notices (e.g., submitting newspaper verifications).
Regarding posting of applications online, it’s my understanding that that is “coming soon,” and the agency has been telling stakeholders through advisory committees, the Trade Fair, and other means that this is coming. Indeed, it appears that the Office of Waste has started.
As for other requirements, TCEQ has announced that it will be holding a series of stakeholder meetings to get informal public input on possible rule changes. On the evening of July 15th, the agency will host a hybrid virtual/in-person meeting that can be attended in-person in Austin, Midland, and Harlingen. On July 16th and 18th, they’ll do it again for folks in Arlington and Houston, respectively. Here are the details:
Increased Penalties for the Worst of the Worst. SB 1397 included a carefully crafted provision that increased penalties for the worst types of violations. For example, if the violation involves an actual release that exceeds levels protective of human health and the environment, the person previously committed the violation, and the commission determines they could have reasonably anticipated and avoided said violation, then the penalty can be up to $40,000 per violation per day.
Fortunately, this sort of thing is rare. The new provision took effect September 1, 2023, and as of this writing has not had to be put to use.
Compliance History. First, an aside. In the early 2000s, I was part of discussions about getting rid of compliance history formulas and ratings because of their widely recognized (by both regulated entities and NGOs) limitations. Alas, it was not to be.
Anyway, compliance history ratings/formulas came roaring back as an issue in 2022/2023, and a number of changes were mandated. Among them: updating the formula to make sure it correctly takes into account a site’s complexity, and, if needed, developing a separate formula for super-complex sites; expanding “repeat violator” to minor violations; and updating a rating more frequently.
There’s still more to come on this but suffice to say that I think the agency is grappling with how to handle, for example, recordkeeping violations in the context of “repeat violations.” I would advise anyone to key into that issue in particular, as some recordkeeping violations may become more serious than they have been in the past.
Also, those of us in the trenches when the formula was originally developed have more than little PTSD about that process, so I don’t envy the agency folks looking at the complexity issue. I think we can start looking for a rulemaking this Fall.
PM 2.5 Standard Update. This past May 6th, the new annual fine particulate standard of nine (9) micrograms per cubic meter took effect. Just before that date, on April 30th, EPA issued revised modeling guidance for the new standard. That guidance includes a new Significant Impact Level, or SIL, that was lowered from 0.2 micrograms per cubic meter to 0.13.
This has immediate implications for permitting. TCEQ did a thorough job at its Trade Fair of walking folks through the impacts. The best takeaway, though, was TCEQ’s practical advice to prospective applicants, which is worth showing in full below.
In addition to changes to how individual permits are developed moving forward, TCEQ will also have to re-evaluate its Air Quality Standard Permits. This will mean new protectiveness reviews, possible resulting amendments to standard permit conditions, and re-proposal and issuance. Whether certain types of standard permits will even be available in some areas of the state is a very real question.
On the Air Quality Planning side of the house, the process for designating PM 2.5 nonattainment areas has begun (as for classifications, all areas will be classified as “moderate”). The map below shows design values as of 2022, and you’ll see the counties that are already monitoring at or above the standard. But nonattainment areas are often more than just the counties with monitors in them (the default has always been the metropolitan statistical areas). Notice, too, that there are counties in South Texas that could be impacted. The influence of Saharan dust and agricultural fires in Mexico can hopefully the considered in this process.
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The rough schedule for the designation process is:
? Summer 2024: Informal comment on designation recommendations
? Fall/Winter 2024: TCEQ considers recommendations
? February 2025: Designation recommendations due to EPA
? Early 2026: Final designations made
? Summer 2027: Nonattainment SIP revisions due
? Winter 2032: Attainment date for moderate nonattainment areas
Per the first bullet above, TCEQ has scheduled virtual stakeholder meetings by area. The meetings will take place June 25-27. Go to TCEQ's SIP "Hot Topics" page to register (https://www.tceq.texas.gov/airquality/sip/Hottop.html ).
Legislative Update. I posted on LinkedIn a few weeks ago about the committee homework assignments handed out the Lieutenant Governor Patrick and Speaker Phelan. On the Senate side, the Senate Committee on Natural Resources and Economic Development (SNRED) will be studying the impact of federal environmental actions (which the charge refers to as “federal incompetence”) on the Texas Economy. The committee will also examine cement kiln permitting in Texas.
On June 13th, SNRED met to discuss the charge on federal actions, and it was pretty eye-opening. TCEQ representatives decried EPA’s misplaced priorities and focus on “vanishing environmental benefits.” TCEQ also pointed out that the Federal Clean Air Act was never intended to drive emissions reductions to “background” levels. Nicely put. A meeting on the cement kiln charge is scheduled for September 17th.
On the House side, the House Committee on Environmental Regulation will drill into recent changes to the National Ambient Air Quality Standards. As of this writing, no hearings have been scheduled.
And, since it’s never too early to start thinking about the next session, for planning purposes, here are the key dates:
? November 11, 2024: Pre-filing of bills begins
? January 14, 2025: Session begins
? March 14, 2025: Bill filing deadline
? June 2, 2025: Session ends
? June 3, 2025: Special session begins (kidding?)
Final Thoughts. If you’re not following independent media sources, you’re missing out. Among my favorites, and one of highlighted before, is Bari Weiss’ The Free Press (www.thefp.com ). Every weekday morning they send out a news round-up that is hilarious, illuminating, head-scratching, and infuriating all at the same time. Today’s (June 20th) includes this nice little blurb:
“Climate activists vandalized Stonehenge in England on Wednesday. Two campaigners from the group Just Stop Oil covered the monolith, which has stood for 5,000 years, in orange powder paint. A spokesperson for English Heritage called the incident “extremely upsetting.” It’s also confusing. Aren’t these the people who want us to return to the Stone Age? (BBC)”
And on that note, thanks for reading!
XXX