Bush Budget Includes Sunset Measure

Tucked away in the fiscal 2006 federal budget is a provision for creation of a Sunset Commission - a federal equivalent of the dreaded (by bureaucrats and others alike) Texas Sunset Commission and similar entities in 36 other states. Curiously, Rolling Stone magazine - and doubtless other media entities mind-linked together - has lambasted the Sunset Commission are a "radical" plan under which the President "with a vote of hand-picked lobbyists," could "terminate any federal agency he dislikes."

How naive! The budget proposal would authorize the Commission to review every federal program on a 10-year cycle. Programs that fail to justify their existence would be terminated, unless Congress acts to continue them. The Sunset Commissioners would be appointed by the President and the leadership in the House and Senate and - as in Texas - would take testimony from the public.

Texans know that Sunset sometimes results in tougher regulation, which is exactly what happened the last time the Texas Commission on Environmental Quality went under the microscope (in fact, the name change itself from Texas Natural Resource Conservation Commission was a Sunset recommendation).

President Bush went to Washington five years ago in hopes of creating a Sunset Commission and also in hopes of getting Congress to move to biennial budgets (given that each Congress serves two years, why not?). The chief reason, we surmise, that some are horrified at the idea of a Sunset Commission is not that any agency might be vaporized, but rather that its operations would be scrutinized to eliminate redundancy and save public dollars.

The budget proposal clearly states that one target of the federal Sunset Commission would be poor management and duplication of effort - which often occurs as a result of overlapping Congressional jurisdiction over the myriad of federal programs. The White House hopes to improve block grant programs, such as the ones that fund the construction of water treatment and wastewater treatment plants; small business research programs, which help small businesses come up with better products; and credit programs that provide direct loans and loan guarantees to agencies. Notably, many of these programs impact environmental quality at the state level.

Now for some embarrassment. Of 98 federal block grants examined by the Office of Management and Budget for fiscal 2006 funding, 45% could not show results and 8% were termed ineffective. A Congressional Budget Office review found that, in fiscal 2005, Congress appropriated more than $170 billion for programs whose spending authorizations had expired. They also found that the average federal program duplicates five others.

One hoped-for outcome of a Sunset Commission would be forcing Congress to meet its own deadlines for reauthorization of federal programs. For example, the Superfund law (CERCLA) is way overdue for reauthorization, but political squabbling over how to revamp the law has blocked the legislation. A Sunset review of the Environmental Protection Agency might (for example) include the laundry list of federal environmental laws that are out of date, ineffective, or counterproductive. Such a review might result, as it did in Texas, in tougher regulations in some areas and more realistic ones elsewhere.

The downside in creation of a Sunset Commission is that it might force Congress to do its job - keep our laws and regulations current. Sunset brings things to light - and many in Washington prefer to operate in the dark so that no one really knows what they are doing - or not doing. No wonder there is bipartisan opposition on the Hill to this very good idea.

Allens Creek Reservoir Update

The Brazos River Authority is seeking authorization from the Texas Commission on Environmental Quality to operate its 12 reservoirs as a single system and to appropriate the water made available by system operations, along with available unappropriated water and return flows. One of the reservoirs included within the BRA's system is the proposed Allens Creek Reservoir, which is jointly owned and permitted to the BRA, the city of Houston, and the Texas Water Development Board.

The TWDB, as part of its state water planning process, has adopted system optimization as a preferred management strategy to meet future water needs. The BRA's proposed system presents a perfect example of system optimization - making large amounts of water available to meet future needs without the capital investment or potential environmental issues associated with traditional water supply projects such as new reservoirs.

In order to proceed with the inclusion of Allens Creek Reservoir in its application, the BRA must demonstrate that other owners of the reservoir have no objection to inclusion of Allens Creek Reservoir as part of its system. On April 19, the TWDB authorized issuance of a statement as to its consent to inclusion of the reservoir. A similar request is expected to be granted by the city of Houston.

The overall application, which is still pending, seeks a new appropriation of 421,449 acre-feet per year of water for multiple uses, including municipal, agricultural, industrial, mining, and other beneficial uses, on a firm yield basis. This figure includes all available return flows at the projected year 2060 levels - about 90,000 af/y.

The BRA also seeeks to use up to 90,000 af/y of water from its firm supply to produce, along with other unappropriated flows, an interruptible water supply of an additional 670,000 af/y. All waters would be available as an interbasin transfer to the adjoining coastal basins and in cities and counties whose service areas are partially within the Brazos River Basin. The amount of available water will vary depending on where the water is withdrawn in the basin, with yield increasing as more water is withdrawn lower in the basin. Allens Creek is anticipated to contribute about 40,000 af/y to the system operation yield.

The TWDB noted that inclusion of Allens Creek in the system operation could reduce the average content of the reservoir by 2% to 9%, but the system operation is not anticipated to reduce the Allens Creek yield. They also said that construction of the reservoir could be delayed because of the increased yield resulting from operating the Brazos Basin reservoirs as a system and the increased appropriation sought by the system application.

The BRA has already offered to Texas Parks and Wildlife Department a dedication of 100,000 af/y of interruptible water (or 9,000 to 10,000 af/y of firm water) to be placed into the Texas Water Trust, with the TWDB as trustee. The planned use of return flows and new appropriations, however, has the potential to impact other future uses and planned projects in the basin. For that reason, the BRA application specifies that reuse of return flows would be subject to interruption by municipalities or dischargers for their direct reuse or indirect reuse within the extraterritorial jurisdiction of Certificate of Convenience and Necessity.

Technology Grants Awarded

TCEQ has announced the award of $655,750 in air pollution reducetion grants under the New Technology Research and Development program. The Texas Legislature created the NTRD to provide financial incentives to encourage and support research, development, and commercialization of technologies aimed at reducing pollution in Texas.

The NTRD program is currently focusing on projects that develop and facilitate commercialization of technologies that could receive funding under the Texas Emissions Reductions Plant incentive grants program. During TERP's second round of funding for fiscal 2004, TCEQ awarded over $65 million in incentive grants, and the agency plans to provide at least $127 million in incentive grants during fiscal 2005.

Projects considered under this round of NTRD funding were limited to emissions testing of retrofit and/or add-on devices for heavy-duty diesel engines and qualifying diesel fuel additives. TCEQ selected nine projects to receive grants, including -

- Extengine Transport System, a selective catalytic reduction system for heavy-duty diesel engines.

- Spearhead Technologies, EngineMax precombustion catalyst with biodiesel.

- GTAT California, Viscon diesel fuel additive.

- ORYXE Energy International, biodiesel mixed with ORYXE diesel fuel additive.

- SFA International, a bimetallic diesel fuel additive.

- North Texas Bio-Energy, biodiesel mixed with an additive to control nitrogen oxides emissions.

Most of the NTRD-funded projects demonstrate the potential to achieve cost-effective reductions of nitrogen oxides, one of the primary components that form ground-level ozone. Most also demonstrate technology that should be offered for sale in Texas as soon as is practicable, but no later than 5 years after the application is made for the grant.

SOP Timetable Starts NOW*

* with one exception so far

The attorney circus was on display at the afternoon agenda session on April 13, as barristers far and wide came to discuss whether the newly adopted site operating plan rules for landfills would have to be complied with by those whose applications for new landfills or for permit modifications or amendments to existing landfills were already in house.

Administrative Law Judge Kerry Sullivan is handling the WMT case. The applicants for new permits include the city of Anson (represented by attorney Keith A. Pardue), with Judge Bill Zukauckas filing a CQ; Tan Terra Environmental Services, Inc. (represented by attorney Brent Ryan), with Judge Sarah Ramos; and Regional Land Management Services, Ltd. (also represented by Brent Ryan), with Judge Deborah Ingraham.

Attorney John Riley was also on hand, representing Waste Management of Texas, Inc., in its fight to win an expansion of its Hillside recycling and disposal facility in Grayson County. All four applicant attorneys spoke at agenda, as did Public Interest Counsel attorney Mary Alice Boehm-McKaughan. The lone protestant attorney on hand was Eric Allmon (who just recently left TCEQ). There are numerous other parties to the four cases who did not speak at agenda.

The Commissioners learned during the discussion that only 10 other landfill applications that were in some stage of review at the agency as of December 2, 2004, the effective date of the SOP rules. Only three of these (plus those under consideration at agenda) are for new facilities. None of the other applications has yet reached the contested case hearing stage.

TCEQ had already specified that any application for a new landfill permit or major amendment to an existing permit received on or after that date would be processed under the new SOP rules. All applications for non-landfill permits and registrations and for modifications of permits and registrations requesting changes to site operating plans issued after December 1, 2004, will also be processed under the new SOP rules.

TCEQ had also on January 20, 2005, authorized a regional call-in schedule for the 79 largest operating Type I landfills. Under the scheme, the largest (based on waste acceptance rate) landfills in each region and landfills with more than 2 years of life left will be asked to update their SOP's at the same time. Phase 1 of this process will require about 8 weeks, with subsequent phases following on similar, but even more compressed, timetables with a goal of reducing the time between call-ins to just 6 weeks.

Riley led off by asking that the case regarding WMT be removed from the docket. Riley explained that protestant attorney Rick Lowerre (for whom Allmon was substituting) had withdrawn the certified question request for WMT, but that WMT was still interested as to how the CQ decisions might apply to the WMT case. WMT, he noted, is an existing facility and thus falls under (in his view) different rules than unbuilt facilities seeking a permit for the first time. Moreover the WMT facility is already on the call-in list and will have to obtain a new SOP anyway.

Not so fast, said Commissioner Larry Soward. If you drop out, you are off the radar screen. Riley did not like that option, and capitulated. Then Judge Sullivan said he would not object to removing the WMT case from the docket, inasmuch as protestants had withdrawn their request. Soward agreed that he did not want a gratuitous ruling in a case for which there may well be a pending settlement.

The hearing was down to three cases, but only one of the remaining applicants (Tan Terra) did not want its site operating plan to have to conform to the new rules. Pardue said that Anson wanted to be efficient and opted for a SOP under the new rules to avoid having to return to the Commission shortly after receiving a permit (if one is awarded). This is an arid-exempt landfill, and the city hopes the revisions will not cause any undue delay in permit issuance.

Ryan said that RLM decided in favor of using the new SOP rules after participating in the rulemaking process. But Tan Terra wanted to be judged under the existing rules and wait for the call-in to update its SOP. The chief reason is that the case is already at a hearing in which the SOP in the draft permit is not at issue. Revising the SOP, however, would open it up as an issue for protestants and jeopardize permit issuance.

Ryan further stated that TCEQ rules allow for discretion on this issue. While acknowledging that 40 TAC 305.127(4)(B) states that any applicable rules that take effect prior to final administrative adjudication of an application shall be included in the permit, there are exceptions to that general rule. In this case, the call-in schedule itself [at 30 TAC 330.111(b)] allows landfills to operate under the old SOP rules until they are called in to modify their authorizations.

A more significant exception can be found at 30 TAC 305.127(3), Ryan argued. This rule allows TCEQ to include in a permit a timetable for the permittee to achieve compliance with a regulatory requirement, including a newly adopted or amended rule. Tan Terra would thus be able to obtain its permit and initiate construction of its facility while at the same time revising its SOP and submitting that revision to TCEQ.

Given the presumed length of a forthcoming hearing, it is likely that Tan Terra will have an approved SOP upgrade before the facility was ready to receive waste. By inference, Ryan was saying that, while most other landfills would only need a couple of months to update their SOP's, requiring Tan Terra to do so could cost the facility much more time (due to the hearing), such that it would constitute unequal treatment.

Commissioner Larry Soward perceived that the other two cases could be quickly resolved by simply agreeing to allow them to modify their SOP's to fit the new rules. He also suggested including in Tan Terra's permit a provision requiring a SOP update by a time certain - or otherwise under the call-in schedule. A chief concern of all the Commissioners (and of staff) was not to disrupt the call-in schedule by unduly burdening staff with SOP revisions in pending permits.

Meanwhile, Allmon flatly disagreed with any effort to provide leniency to pending applications on the SOP rules. Allmon and staff attorneys were both adamant that Soward's idea of a special permit condition regarding SOP updates was flawed and could be "a foot in the door" for future ducking of new rules. Commissioner Ralph Marquez sought the practical solution of issuing a permit so that a facility could begin construction but conditioning the acceptance of waste upon approval of a revised SOP. Allmon would not even agree with that idea, but it did not matter. The Commissioners voted to allow the Tan Terra permit to be processed under the old SOP rules.

EMRS Rolls Along!

TCEQ staff provided an update on the agency's environmental monitoring and response system (EMRS) project at the April 15 work session. Steve Spaw, director of monitoring operations, had good news and bad news about both the water quality pilot project that is focusing on the Leon-Bosque watershed in central Texas and the air quality pilot project that is focusing on highly reactive volatile organic compounds being released from facilities near the Houston Ship Channel.

Bosque-Leon Water Pilot

In the water pilot, TCEQ has installed continuous monitoring stations at several sites that take hourly physical measurements and record nutrient measurements every 6 hours. Physical parameters include dissolved oxygen, pH, conductivity, temperature, and turbidity; nutrient parameters include nitrates, ammonia, and total reactive phosphorus.

During the pilot, TCEQ distinguished between low and medium level notifications, which were based on available historical data (that is, which entities might be the source of the pollutants measured) and high level notifications, which were based on significant environmental impact on aquatic life (dissolved oxygen and ammonia), drinking water characteristics (nitrates), or maximum measurable concentrations of phosphorus.

During the pilot, there were 17 false notifications associated with instrument error, but all were early in the effort (before mid-January), and six associated with chronic rainfall events during late November. Several lagoon overflows occurred at the time, making it difficult if not impossible to determine whether the readings were from new runoff or overflows of ponded water. In addition, there were nine low-level nitrate notifications in Green's Creek, but these appeared to be related to low flows and natural decay and denitrification rather than to any recent spills or pollution events. There were also two medium notifications for ammonia at Gatesville in early March. Staff, when pressed, acknowledged that reliability increased to 90% at three of the sites since January.

The good news, then, is that TCEQ is using cutting edge technology new to this type of application and without any U.S.-based support network - and learning a lot about what is happening in the study area. The bad news is that excessive rainfall activity early I the project and instrument failures resulted in significant data losses (over 50% at most sites).

Staff say they have learned that instrument sensitivity and linear range are better than expected, but that reliability is negatively impacted by high suspended particle loads associated with rainfall events. On the other hand, having ongoing quality control information has been very helpful. Having staff evaluate all the notifications for accuracy in a timely manner is critical to the success of the project. The electronic notification process functioned properly, but notification follow up and correlation is difficult when a single monitor covers a large geographic area that encompasses a large number of nonpoint sources. Finally, TCEQ found it very helpful to link water quality measurements to precipitation and flow.

Staff heartily recommended continuing the pilot, but focusing it on a smaller part of the watershed. They proposed to strategically place three additional monitors at sites that would help isolate specific micro-watersheds. This could be done by relocating the sites from Green's Creek to an area with fewer flood control structures, but Commissioner Larry Soward said such a move could upset the public. Better, he insisted, that TCEQ find the money for additional monitors (about $80,000) than to create a public relations problem. Staff also proposed to develop new electronic tools to help correlate precipitation, flow, and nutrient measurements with potential source areas by integrating GIS mapping, modeling, and NEXRAD data.

Houston Ship Channel Air Pilot

The Houston EMRS air quality pilot was designed as a 6-month effort to gain information on the relationship between HRVOC releases and fast ozone formation in the Houston-Galveston-Brazoria area. TCEQ Region 12 took an active role, as did dozens of members of the Houston Regional Monitoring network and the East Harris County Manufacturers Association. In all, about 60 facilities out of 90 entities that have emissions of any of the targeted pollutants participated in the study, which had no enforcement component. Unfortunately, the failure of the other third of the facilities to get on board meant that verifying the sources of many of the readings that triggered notification could not be linked to any participant.

The scheme involved using data from real-time sources that came into the TCEQ Meteostar LEADS data ingest-display system as the basis for triggering alerts. Seven PAMS AutoGC sites, three of which were industry sponsored, with 1-hour measurements were used to identify ethylene, propylene, 1,3-butadiene, 1-butene, cis-2-butene, and trans-2-butene. TCEQ established low and medium trigger levels for each chemical but only required responses for medium level notifications. Notification was sent by e-mail or pager to voluntary participating upwind facilities within 10 miles of the monitoring site and in a 90-degree wedge centered on the average hourly wind direction.

More medium alerts than expected were triggered during the pilot. Of 160 in all, 119 were from the Clinton Drive and Cesar Chavez monitors, a fact which suggested the need for dickering with the trigger levels. The 2003 baseline data for some sites appeared to be biased by incomplete, invalid, or unavailable data, and staff discerned that safeguards should be put in place to prevent multiple alerts during single 8-hour periods. These 160 events yielded over 1,100 notifications.

The information on the sources of trigger events may be distorted by the nonparticipating facilities, but the results showed that 40% of trigger events occurred during loading operations at one or more targeted facilities. The problem was that 37% of trigger events occurred when no non-routine activities were occurring. Staff recommended that the EMRS notification and response checklist be revised jointly to delineate information gathering priorities and to focus on the most important things.

To that end, during the next run of the pilot, TCEQ will narrow the universe of sites that must respond to EMRS alarms. Only those facilities with the potential to emit the specific HRVOC that is the subject of the alert will be notified. Notification will also be limited to 10 km rather than 10 miles from the monitor station that identified the HRVOC of concern. There will be some tinkering with trigger levels to enable a focus on the more significant HRVOC spikes. More tinkering may be done with the radius and width of the wedge based on wind speed (with a 360-degree circle with a 1-mile radius where wind speed is less than 1 mph, for example). All of these changes could have the intended side benefit of bringing more facilities into the voluntary program.

The report prompted Commissioner Ralph Marquez to state his intention to make a greater push for participation by the remaining entities (all of which have been identified by staff). Marquez noted that he will be speaking at the early May ECMA breakfast and will encourage signups (which start on June 1). He also said that at two recent meetings he attended in Washington, DC, he was approached by several EPA regional administrators and a host of state officials who all wanted to know more about the EMRS program.

HGB Transportation Control Measures

TCEQ on April 15 at work session approved the substitution of certain transportation control measures for the Houston-Galveston-Brazoria 8-hour ozone nonattainment area for those initially adopted in the December 2000 state implementation plan revision. The reason for the action is that 25 of the projects that were on the initial list are unable to proceed on their SIP-approved schedule - that is, the hoped-for emission reductions will not be available by November 2007.

The Houston-Galveston Area Council has to demonstrate through the conformity process "timely implementation" of transportation control measures, each of which has to be approved by EPA as SIP revisions before HGAC is off the hook for reporting on them as in conformity. The kicker here is that EPA may not formally approve the new SIP before the June 4, 2005, conformity deadline because of the new changes.

The good news is that, as of March 7, 2005, EPA concurred with TCEQ's decision to substitute the newly proposed conformity measures for those which are unworkable under the deadline. The bad news is that even with these substitutions, there will be a conformity lapse - meaning that capacity increasing transportation projects will be put on hold - if EPA does not make a conformity determination by June 4.

Among the projects that will not be complete prior to 2007 are two hike and bike trails for Missouri City (tagged at a collective $5.8 million) and two in Houston (Braes Bayou and West Braes Bayou, also costing a collective $5.8 million, plus other hike and bike trails; construction of four new railroad track segments by the Port of Houston Authority (projects totaling $15.6 million); and a grade separation at Jones Road and FM 1960 in Houston (a $6 million project). Replacement projects include adding several park and ride stations and several turn signal modifications.

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