The Nickel Report

Under a process known as Sunset Review, the Texas Commission on Environmental Quality (TCEQ) will be abolished in 2023 unless a bill is passed in the 88th Texas Legislative Session reauthorizing the agency. Sunset Review is performed by the Sunset Commission, and the process takes approximately two years. The TCEQ review process began last year with the preparation of the Self Evaluation Report (SER), completed by TCEQ in September of last year. The general public is encouraged to participate in the process. Public input is confidential and not passed on to the agency at this stage. Public comments should be provided by February 1, 2022 to be fully considered.

TCEQ is one of 21 agencies currently undergoing Sunset Review. The process was established under a Texas law enacted in 1977. The primary purpose of Sunset Review is to determine if an agency is still needed. (While all agencies undergo Sunset Review, River Authorities and agencies created by the Texas constitution are reviewed but cannot be abolished.) Typically, reauthorization is for twelve years. The last Sunset Review of TCEQ was in 2011.

The Sunset Commission is made up of five senators, five representatives, and two members of the public. The Sunset Commission staff performs an extensive analysis of the agency, including the need for, performance of, and improvements or recommendations for the agency on behalf of the Sunset Commission.

The lengthy review process begins after the agency prepares the SER, and it is filed with the Sunset Commission for review by the Sunset Commission staff. The review is informed by the SER and input from interested parties. Following a thorough evaluation, the Sunset Commission staff develops recommendations and publishes a report. The report will be available on the Sunset Commission website. The agency then prepares a response, and both the report and response are considered by the Sunset Commission. A public hearing is held, and any interested party may participate through public testimony or written comments. These comments are made publicly available. After consideration of the comments and response from the agency, a second public meeting is conducted, and the Sunset Commission then votes on recommendations that will be sent to the Texas Legislature. A sunset bill is prepared and filed. The bill goes through the normal legislative process, which for TCEQ will occur during the 88th Texas Legislative Session beginning in January 2023. (The Texas Legislature meets every other year.) The sunset bill can include mechanisms for improvement, including statutory revisions. It may also include provisions for reorganization of the agency to make it more effective and efficient.

The TCEQ SER is 684 pages long and includes information on all of the programs under TCEQ authority, as well as funding sources. It also includes a summary chart of bills filed in the 87th Legislative Session that could have impacted the TCEQ, although most did not become law.

The TCEQ included the following 17 major issues in the SER:

• Funding source or financial assistance for small water systems
• Authority to protect public health, safety, and welfare during droughts and emergency water shortages
• Strengthen the required training for local emergency management and their chains of command
• Selection of state Superfund remedial actions
• Landowner responsibility for a release from a petroleum storage tank
• Revenue shortages in waste management account
• Public notice for permit applications
• Funding cleanup of illegal and unauthorized municipal solid waste disposal sites
• Revenue shortage in hazardous and solid waste remediation fee account
• Workforce challenges
• Shortage of water and wastewater operators
• Facility review of Park 35 Building F
• Facility review of Houston regional office
• Resource needs for the dam safety program
• Public meetings and permit applications
• Electronic access to permit documents
• Challenges along the international border

The major issues cover many areas of agency responsibility, from adequate funding and personnel to management of programs which protect public health and safety to statutory fixes to bring the agency into the modern world, such as filing public hearing notices electronically and virtual public hearings. Others reflect recent experiences with natural disasters, industrial accidents, and drought.

Many of the issues are likely to have strong supporters in favor and against. For example, authority to protect public health and safety during drought or water shortages may sound simple. However, it is complicated by the fact that, under the Texas water rights system, during a shortage, surface water is allocated to the senior right before the junior right, even if the junior right is for uses such as municipal supply or power generation. Further complicating the issues are the River Compacts that cover several Texas rivers. The Texas water rights system has seen many battles over the decades and is likely to again. Several River Authorities and the Texas Water Development Board are also under review. These reviews will likely result in some interesting debates over water issues during the legislative session.

Emergency response is also a highlighted issue, especially given the recent devastating natural disasters and industrial accidents in Texas. Emergency response involves many layers of organizations, from federal agencies and Local Emergency Planning Committees to local police and fire departments. TCEQ is an important part of that equation, but it can be difficult to come to agreement on process revisions given all the different parties involved.

The likelihood of TCEQ being abolished is slim to none; however, there likely will be some interesting debates about the upcoming TCEQ sunset bill.