Environmental News and Views Vol. 7

Hello, and welcome to the seventh edition of Environmental News and Views! This is a content series made up of several updates on what is happening. If you have not already done so, check out Volumes One, Two and Three,  Four, Five, and Six! 

It has been a busy few weeks for Brian Christian Consulting, including a brief relocation to what we will call the South Padre Island Texas Regional Office. It has also been a pretty busy period in the environmental space, so let us get right to it.

THE LEAD. The Sunset Staff Report on TCEQ and the Compact Commission Hits the Street. I have been beating the drum on the Sunset Advisory Commission reviews of the Texas Commission on Environmental Quality (TCEQ) and the Texas Low-Level Radioactive Waste Disposal Compact Commission (Compact Commission or commission) since the end of the 2019 Legislative Session. For a refresher on the Sunset process, check out my article from July 31, 2020.

We reached an important milestone on May 25th with the issuance of the Sunset staff report on TCEQ and the Compact Commission. As expected, the two agencies were combined into a single report. Let us dive in!

The Compact Commission. I have not written much about the Compact Commission, so a little background is in order.  It provides oversight of the management of low-level radioactive waste (LLRW) within the Vermont-Texas Compact. The Compact provides the framework for those two states to cooperate on the management and final disposition of LLRW generated within their borders. Generators of LLRW within those states, including Texas’ two nuclear plants, the currently decommissioning Vermont Yankee nuclear power plant, and the medical and academic communities have access to a “Compact Facility” in Texas for the final disposal of their LLRW. 

The Compact Facility is licensed by TCEQ. Waste Control Specialists (WCS) holds the license, and the facility is located near Andrews, Texas. Since Texas is home to the only LLRW disposal facility that is licensed to accept all three “Classes” of LLRW that the feds consider suitable for land burial, brokers and generators from around the country also like to use its services. Therefore, a key function of the commission is to approve “import” applications from those entities for final disposition of their LLRW at Andrews, subject to limitations that ensure adequate capacity for Texas and Vermont generators. That is the Cliff Notes version. For a primer on the broader LLRW issue, here is an article we  published last year.

Because the commission is a creature of federal law, it cannot be abolished through the Sunset process. Nonetheless, it receives state appropriations for its operations and exists also in state statute, so the Legislature likes to periodically take a look at it.

Well, Sunset staff did, and they concluded that it continues to be appropriate for the commission to be subject to periodic Sunset reviews, and that their next review should be scheduled for 2035. The report, however, does not make any other structural or policy recommendations related to the functioning of the agency (for example, the commission had pointed out in their Self-Evaluation that they lack enforcement authority over their own rules).

While it remains status quo for the moment, there is still many opportunities for new recommendations to be made, and amendments on a future Sunset bill to be drafted. A number of environmental groups, showing their incoherence when it comes to climate policy, typically try to shut down nuclear power by making it difficult, if not impossible, to transport or dispose of its LLRW. 

For its part, WCS has backed legislation during the past several sessions to modify the regulatory framework around its license and the LLRW disposal marketplace. Given the perennial controversy over radioactive materials management, I expect future attempts to modify state law. I also contend that what happens to the commission, the license issued by TCEQ, and the Compact facility is of national interest because of the site’s unique ability to accepts the three classes of LLRW from all over the country. (Full disclosure—I do work in this space).

TCEQ. I started with the Compact Commission because its review was straightforward. The Sunset staff’s findings on TCEQ, as you can imagine, or more involved. Here they are:

·       TCEQ’s policies and processes lack full transparency and opportunities for meaningful public input, generating distrust and confusion among members of the public. The report calls for public meetings to be held before and after issuance of a final draft permit; the commission to vote on “foundational” policy decisions that establish how staff approaches permitting and other regulatory actions; and the agency to develop clear guidance on “affected person” determinations for contest case hearing requests.

·       TCEQ’s compliance monitoring and enforcement processes need improvements to consistently and equitably hold regulated entities accountable. The report recommends that compliance history components be expanded, the agency put less emphasis on site complexity, and compliance history ratings be run more often. It also calls for TCEQ to consider all violations when classifying an entity as a “repeat” violator, regulated entities that have temporary or open-ended authorizations to annually confirm their operational status, and the agency to reclassify recordkeeping violations based on risk and severity of the violation.

·       TCEQ’s oversight of water could better protect the state’s scarce resources. The report recommends improvements to the environmental flows process, the cancellation of water rights that are unused for 10 years, and that TCEQ hold its annual meeting on priority groundwater management area studies in a public setting.

·       TCEQ and OPIC lack certain transparent and efficient processes for OPIC to more effectively represent the public’s interest. The report recommends that OPIC utilize umbrella contracts for expert assistance, and that the TCEQ commissioners take formal action on OPIC’s rulemaking recommendations.

·       The state has a continuing need for TCEQ. The report recommends continuing the agency for 12 years (i.e., a full ride). It also specifically calls for a clearer delineation of duties between the commissioners and staff (this latter recommendation is a standard recommendation for agencies under Sunset review, though the TCEQ report does include a discussion of the commission’s role vis-à-vis the staff).

There is a great deal to unpack here. The majority of my experience resides within the first two issues. I also remind everyone that this is just the second stage of a long process, so there is plenty of room for more discussion, the addition of new issues or deletion of the above, and legislative changes. But I do have some general observations from about 60,000 feet.

First, there may be only a little room for the public to have any more influence than they already have on permit applications. The permitting process is highly technical. Further, as with any permission granted by government, if entities meet the law and rules, they usually get that permission. It is by its nature an objective process, to be rendered fairly without passion or prejudice. I once saw an applicant agree in a public meeting to plant a screen of trees along the property line at the request of neighbors, but none of the public’s other comments resulted in any changes to Best Available Control Technology, etc. So the question is whether adding meetings adds a net benefit.

Second, I wonder whether there may be an opportunity for Commissioner Work Sessions to again play a role in providing directional guidance to staff and addressing the transparency issue. I can also see there being some benefit to technical staff continuing to perform their tasks objectively and independently. In those instances, an alternative could be public commission briefings being held on certain matters. But I would stop short of requiring a vote on everything.

Third, I understand the discussion to consider risk in complaint response and certain recordkeeping violations, but risk is very much in the eye of the beholder. Implementation, where the rubber meets the road, would be very tricky.

What is equally interesting to what is in the staff report is, of course, what is not. No call to abolish affirmative defense or expand the definition of “affected person.” No mention at all of environmental justice, no discussion of the structural issues with the agency’s funding (though that might yet be covered by the concurrent Strategic Fiscal Review being performed by the Legislative Budget Board). And, thankfully, the report does not respond to calls by some to prevent the agency from challenging “settled science.” But we can expect many of those issues to come back.

Next up of the Sunset Advisory Commission meeting on June 22nd. There, Sunset staff will lay out the report, and stakeholders can provide comment at the hearing or submit them in writing (they will be public, not confidential). TCEQ also gets a chance to respond to the report. Right now, October 12th is the date for the full Sunset Advisory Commission to make up or down votes on the staff recommendations and introduce and act on any new issues.

One last observation at this point. It has long seemed to me that the bigger issue is that the “environment” is used as a proxy to fight over other things, some as parochial as a lack of local zoning (hello, Houston); others bigger picture, like the nature of private property and our chosen economic system.  I do not have a great answer, and the best I can manage is to acknowledge that, like everything, it is complicated. What I can say is that there is more to come.

Drought Watch. Time to start regularly checking drought conditions. The U.S. Drought Monitor is a great resource for reviewing broad-scale conditions. Another is the Texas Water Development Board’s Water Data for Texas website, which shows current reservoir conditions and should really be consulted side-by-side with the drought monitor. Finally, TCEQ has a great web page that captures its drought related work, including recent alerts sent to water rights holders, public water systems, and county judges and extension agents. If drought persists into the next session, the Sunset recommendations noted above could get some traction.

TCEQ Compliance History Rule Revisions Quietly Adopted June 1st. Recall that at the end of last year the TCEQ proposed changes to its compliance history rules to allow it to more expeditiously address “exigent circumstances” that exist as a result of a significant emergency event at a site. The rules would establish a process by which the agency will put a site “under review” with the potential for it to be reclassified as “suspended.” The latter would be equivalent to a “unsatisfactory” performer with the attendant consequences. The adoption package was adopted with little fanfare on June 1, 2022. Let us all hope that the implementation of these changes is exceedingly rare. Compliance history was a big feature of the Sunset report, so expect more.

And Finally…. A fond bon voyage to my friend, Ramiro Garcia, who retired May 31st after dedicating his entire career up to this point to TCEQ. Ramiro, or Ram, began as a TCEQ Mickey Leland Intern in 1993 and rose all the way to serve for the last two years as one of the agency’s two Deputy Executive Directors. An all-around good egg. Thank you for your public service, Ram, and the very best of luck to you!

Thanks for reading everyone.

xxx