77th Legislative Session

Below is ACT’s Legislative Wrap-Up of the 77th Legislative Session distributed to the Texas Action Network (now ACT News and ACT Code Green) .

77th TEXAS LEGISLATURE WRAP UP

Environmental advocates hailed a series of victories on major issues as the 77th session of the Texas Legislature came to a close, even while lamenting a number of areas where the legislators fell short. Positive outcomes on dirty old plants, radioactive waste, water conservation, wildlife protection, and reform of the state’s environmental regulatory agency marked a session in which lawmakers took steps to improve the quality of the environment in Texas.

It was called “one of the most positive sessions for the environment in a decade” by the head of the Lone Star Chapter of the Sierra Club, one of the partners in the Alliance for a Clean Texas. (He tempered his remarks, however, by noting how anti-environment the legislature had been in 1995, ‘97, and ‘99.) The Alliance, made up of 21 environmental and public interest organizations, is now preparing for its first interim meeting to plan for ongoing activities and set its next strategic priorities. After all, even with progress being made this session, “we still have a long way to go to cure our state’s environmental problems and fully protect people in their homes and communities.”

Below is additional information on the results from the session on issues that the Texas Action Network (TexAN) wrote to lawmakers about (plus some not covered by alerts). Thanks again for your interest and support for a clean and healthy Texas.

TNRCC REFORM:
The Sunset review of the Texas Natural Resource Conservation Commission (TNRCC) was the focus of a lot of attention and several alerts this session. This was on top of hard work from many local organizations along with statewide environmental, consumer, and religious groups over the last 2 years. As a result of all of the attention and pressure, we were collectively able to win some important victories.

HB 2912-the TNRCC Sunset bill–passed on the second to last day of the legislative session (May 27) after negotiations in a joint House/Senate conference committee. The biggest victory in the bill is finally closing the Grandfather Loophole (see below). There were also a number of other significant improvements that will give citizens useful tools for protecting themselves from polluters.

While we did not succeed in creating an independent Office of Public Interest Counsel, establishing prohibitions on appointing TNRCC Commissioners with clear conflicts of interest, or removing air pollution fee caps that create pollution volume discounts, we were successful in the following areas:

  1. Requiring TNRCC to take into account the cumulative impacts of pollutionwhen issuing new permits or expansions – an important environmental justiceprovision for which community groups have been advocating for years. In addition, on the subject of “upsets” (unexpected emissions), the bill requires the TNRCC to establish action plans for certain upsets and to do an annual assessment and report on upset events to the legislature.
  2. Strengthening public participation in TNRCC decision-making – The Sunsetbill gives citizens access to information and a number of new avenues forinfluencing permitting and enforcement decisions.  For example, TNRCC must post advisory committee meeting minutes, pending permit and enforcement actions, compliance histories, violations by repeat violators, and emissions inventories on its website. Also, TNRCC must keep better complaint files, accept complaints through the internet, and do an annual complaints analysis. And finally, TNRCC must accept citizen-gathered evidence in enforcement cases.
  3. Limiting the role of the TNRCC Executive Director in contested case hearings – The Executive Director, infamous for defending polluters and attacking citizens in permit hearings, is now restricted to participating in a limited number of cases, solely to provide administrative information for the record. The Executive Director is no longer allowed to help the polluters meet their burden of proof.
  4. Changing the mission statement of TNRCC from one requiring TNRCC to”encourage” economic development to one in which the agency merely has to”consider” economic development.  This language is a compromise between the House, which wanted economic development language removed altogether and the Senate, which wanted TNRCC to continue to prioritize economic development.
  5. Requiring TNRCC to develop a broad definition of compliance history and use this history in permitting and enforcement decisions, such as whether to use announced or un-announced inspections.  TNRCC is also required to prepare an annual comparative analysis of data evaluating the performance of the regulated facilities to see how well they are complying with their permits and the law.

The bill also prohibits hazardous waste disposal in salt domes, requires permits for Class B sewage sludge spreading, increases penalties for and allows TNRCC to suspend operations at rock crushing facilities and concrete batch plants operating without permits, toughens standards for manure collection at confined animal feeding operations, and requires an interim study on an independent Office of Public Interest Counsel, among other provisions.

GRANDFATHER LOOPHOLE FINALLY RETIRED:
 After 30 years, the Texas Legislature finally closed the Grandfather Loophole in the Texas Clean Air Act.  Legislators across the political spectrum, particularly in the Texas Senate, finally realized that it is impossible to address the state’s air pollution crisis without requiring older industrial polluters to use modern pollution controls and obtain permits.  Environmental groups marked the occasion with a gigantic tombstone on the steps of the Capitol that provided a photo opportunity for legislators and the public alike.

Efforts to close the Grandfather Loophole on the House floor initially failed.  On April 19, the House passed an amendment to HB 2912 offered by Rep. Warren Chisum that was opposed by environmental groups.  It would have required permits but little in the way of reductions from most remaining grandfathered facilities.  Rep. Zbranek’s efforts to stop the Chisum amendment failed by a vote of 45 to 98.

However, on May 14, Sen. David Bernsen (D-Beaumont) pushed for much better language to close the Grandfather Loophole when HB 2912 was on the floor of the Texas Senate.  The amendment passed on a strong bipartisan vote 22 to 7.   The House and Senate Conference Committee adopted the Senate language over the House language.

On May 27, 2001, the Texas House and Senate passed legislation that closed the Grandfather Loophole in the Texas Clean Air Act, although the deadlines for cleanup are later than those we proposed.  The bill to reform the TNRCC (House Bill 2912) included a provision to require grandfathered plants to obtain permits and make substantial cuts in their pollution, especially in the eastern half of Texas where the air in many areas is violating health standards for ozone. Grandfathered plants in the eastern half of the state install modern pollution controls by March 1, 2007 and by March 1, 2008 in the rest of the state.  Oil and gas plants along pipelines will be required to reduce their emissions by at least 50% in the eastern region.

RADIOACTIVE WASTE DUMPING BILL STOPPED:
 Another defining issue for TexAN and ACT was the attempt to create an opportunity for a single private company to bring vast amounts of radioactive waste to Texas. In a way, this went well beyond being simply an environmental issue – besides being bad policy for Texas, it also encompassed issues of corporate greed and political influence through campaign contributions.

The long, strange trip of SB 1541 ended with the House Calendars Committee voting 5-3 not to send the bill to the House floor. Sen. Duncan’s bill would have authorized a for-profit low-level radioactive waste dump to handle waste produced by Texas, Vermont and Maine. The bill was “hijacked,” in the words of one industry lobbyist, by Sen. Teel Bivins who amended the bill on behalf of Waste Control Specialists to establish a second dump to exclusively handle low-level waste produced by the federal government. Bivins said the importation of U.S. Department of Energy waste was necessary to make the dump “economically viable” for WCS, which spent a reputed $3 million on hired gun lobbyists to push the bill. While Texas Compact partners will produce 2.7 million cubic feet of low-level waste over the next 35 years, the DOE is looking to unload 93 million cu. ft. of waste by 2008. Bivins offered to make the DOE liable for waste it would send to Texas, but the DOE was shown to have a miserable track record on clean-ups. Almost every radioactive waste dump in America has leaked, and clean-up costs can run into billions of dollars.

AIR:
SB 5 – Clean Air Incentives: SB 5 provides an array of incentives for reducing air pollution. The bill establishes three types of incentive programs:

  • Retrofitting or replacing diesel engines;
  • Reducing pollution that results from cooling homes, offices, and government buildings; and
  • Rebates for the purchase of the cleanest cars sold in the United States ranging from $1250 to $5000.

The program will be funded by fees on diesel equipment and an increase in the fees charged on newly registered vehicles. In the short term these programs will provide a set of tools to help Texas cities (particularly Houston) meet the EPA “one hour” ozone standard, while also preparing the state to meet EPA standards for “8 hour” smog readings and ultra-fine particles. Greenhouse gases that contribute to global warming will also be reduced if these programs are implemented successfully. We failed to obtain provisions to provide incentives to reduce sprawl and to encourage the use of mass transit.

WATER:
SB 2 will require regional water plans to describe the water quality impacts of their proposed water management strategies, include water conservation practices and drought management measures in their plans, and report to the Texas Water Development Board on how their projects would be funded (which will allow for a more critical look at which projects are feasible and which are not). It sets up an interim study on water resources to address a broad range of water issues, including water efficiency, environmental issues, water marketing, water financing, and water conveyance systems. SB 2 also creates a sales tax exemption for equipment, supplies and services for rainwater harvesting, water reuse, and water conservation. Unfortunately, some of the provisions to fully consider environmental and economic costs of projects that were in the Senate version did not survive the conference committee.

TEXAS OF PARKS & WILDLIFE DEPARTMENT (TPWD):
Our parks department was also under Sunset review this session. In addition, there were the usual questions on funding for our state parks.

A key provision in the TPWD sunset bill is a requirement for the agency to prepare a “Land and Water Resources Conservation” plan. The agency will inventory all land and water associated with historical, natural, recreational, and wildlife resources in the state that are owned by governmental entities and nonprofit entities that provide public access. The inventory will then be used to develop a conservation plan that will guide the agency’s future decisions on how it will meet the state’s growing conservation and recreation needs. While it is unfortunate that land holdings of the School Land Board, the General Land Office, and the Permanent University Fund will be exempted from analysis and inclusion in the plan, the implementation of this policy is a significant gain for the natural environment and recreation in Texas.

Sadly, state parks were, as usual, a low priority for our lawmakers involved in the appropriations process. This is especially true this year due to a very tight state budget. Thus, money problems will continue to plague the park system, which not only doesn’t have the funds to maintain the parks we have, but which hasn’t had a bond issue to acquire new parklands since 1967. Texas parks have suffered for decades from shortsighted thinking, political wrangling, and extremely tightfisted government. The loss of our natural heritage is terrible threat that we have to deal with, and soon.

CAFO POLLUTION OF LAKE WACO & BOSQUE RIVER
HB 2912 was amended in the House with a provision by Rep. Jim Dunnam and Rep. Kip Averitt that requires individual permits for certain dairy operations within the Bosque River watershed. Currently most dairies have general permits for discharge and manure run-off, with loose standards. The measure also requires soil testing on land where waste is applied in Bosque watershed. The provisions of Dunnam’s amendment were slightly weakened with substitute language from the Senate version of HB 2912.

CONCRETE PLANT REGULATIONS MAINTAINED
Sen. Brown’s bill, SB 546, would have been a gift to Texas concrete manufacturers. Brown sought to deny affected citizens the existing right to challenge permits for new concrete batch plants in a contested case hearing. Brown also sought a “rocket docket” permitting system for new concrete batch plants that would have required the TNRCC to grant permits to concrete makers in a lightning-fast 45 days. Brown’s bill would have been the final step in a series of successful efforts by the concrete industry to erode citizen rights in concrete batch plant permitting. Concrete bath plants produce tremendous amounts of dust, most notably crystalline silica, which has been designated a Level 1 carcinogen by the International Agency for Research on Cancer (asbestos and vinyl chloride have also received the Level 1 designation). Batch plants also generate great amounts of noise and heavy truck traffic. The siting of a batch plant in or near a residential community can severely reduce property values and impact the health of nearby families. The bill was cleared for debate by the full Senate, but left pending.

LAWMAKERS WHO MADE A CRITICAL DIFFERENCE:
this session in securing environmental protections included Rep. Fred Bosse and Sen. David Bernsen, as well as Representatives Burnam, Maxey, McClendon, Puente, Hochberg, Danburg, Dutton, and Zbranek and Senators Shapleigh and Truan.

  • The Alliance For A Clean Texas (ACT)

    is a coalition environmental, public interest, consumer rights and religious organizations from around the state dedicated to improving public health, quality of life and the environment in Texas by working for change at the regulatory and legislative levels.