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Update on the 77th Texas Legislative Session

For more information, contact David Cabe at 512.329.5544.

Before it adjourned, the 77th Texas Legislature passed 34 bills related to protection of the state's environment. Consistent with the recommendations of the Sunset Advisory Commission, a substantial portion of the enacted legislation promotes innovation, impartiality, and public participation in the regulatory activities of the Texas Natural Resource Conservation Commission (TNRCC), and provides for incentives for the regulated community to reduce pollutant emissions.

The most far-reaching impacts of the 77th Legislative Session will likely result from the passage of House Bill 2912 -- the Sunset Bill reauthorizing the TNRCC. Perhaps the most visible outcome of HB2912 is the change of the name of the environmental regulatory agency from the TNRCC to the Texas Commission on Environmental Quality, effective 2004. The TNRCC's mission statement has also been revised to better emphasize the goal of environmental protection, requiring the Agency to consider, rather than encourage, the economic development of the state. The Legislature also directed the TNRCC to implement policies to protect the public from cumulative risks due to exposure in areas of concentrated operations.

One of the most substantive changes under HB2912 is the requirement that all grandfathered sources obtain permits in order to continue. Applications will be due in the 2003-2004 time frame. Also, HB2912 restricts the participation of the Executive Director in public hearings, especially if such participation would rehabilitate the applicant's testimony or help the applicant meet its burden of proof. Additionally, the bill is more prescriptive about how the Agency is to consider an applicant's compliance history in determining whether to grant permits. Consistent with the recommendations of the Sunset Advisory Commission, HB2912 further provides that Agency advisory committees have more balanced representation from the potentially broad spectrum of interested groups. HB2912 also expands recordkeeping and reporting requirements for upsets, unscheduled maintenance, and start-up and shutdown activities and requires facilities with excessive emissions from such activities to develop and implement corrective actions plans.

Other notable changes in the environmental laws are found in Senate Bills 1 and 5. SB1 requires that companies include emissions from upset and maintenance events in the determination of Operating Permit fees. SB5 establishes a Texas Emissions Reduction Plan (TERP) to ensure that the air quality in the state meets federal standards. Under the TERP, incentive programs will be implemented to encourage the development of emissions-reducing technologies and the use of low emitting diesel equipment and less polluting passenger vehicles. The bill also deletes the ban on morning operations of construction equipment from the State's plan for achieving compliance with the federal ozone standard.

In response to the extensive environmental legislation enacted during the 77th Session, the TNRCC has identified approximately 75 rulemaking projects, with the following high on its list:

• Senate Bill 1: Emission Fees for Upset and Maintenance Emissions
• Senate Bill 5: Repeal of Tier 2/Tier 3 Rules and Construction Operating Limitations for the Dallas/Fort Worth and Houston/Galveston areas
• Senate Bill 5: Diesel Retrofit/Re-Power Rules for On- and Non-Road Vehicles
• Senate Bill 5: New Purchase Incentive Rules for Light- and Heavy-Duty Vehicles
• Senate Bill 5: Texas Emissions Reduction Plan

The next year promises to be a busy one for the TNRCC as it attempts to manage and complete an ambitious rule-making effort resulting from the lawmaking of the 77th Legislative Session.