MINUTES

 

SENATE COMMITTEE ON NOMINATIONS

Wednesday, April 15, 2009

1:00 p.m. or thirty minutes upon adjournment

Senator Chamber

 

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Pursuant to a notice posted in accordance with Senate Rule 11.18, a public hearing of the Senate Committee on Nominations was held on Wednesday, April 15, 2009, in the Senate Chamber.

 

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MEMBERS PRESENT:

 

MEMBERS ABSENT:

Senator Mike Jackson

Senator Glenn Hegar

Senator Jane Nelson

Senator Robert Nichols

Senator Eliot Shapleigh

Senator Kirk Watson

 

Senator Kevin Eltife

 

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The chair called the meeting to order at 4:33 p.m.  There being a quorum present, the following business was transacted: 

 

The following members arrived after the roll was called:  Senator Glenn Hegar, Senator Kirk Watson.

 

Senator Shapleigh moved adoption of the minutes from the previous hearings held on April 8, 2009, and April 14, 2009; without objection, it was so ordered.  

 

Chairman Jackson called Dr. Bryan Shaw, nominated as a Commissioner on the Texas Commission on Environmental Quality, to the table.  Chairman Jackson introduced Shaw to the committee on behalf of Senator Ogden.

 

Chairman Jackson invited Shaw to address the committee.  Shaw discussed his career and outlined his vision for the future of the agency.

 

The chair recognized Senator Watson for initial questions.  Watson asked Shaw to clarify his comments related to emissions monitoring around the state.

 

Shaw responded that he is a proponent of accurate monitoring where it is possible.  Shaw mentioned that monitoring is different from accurate emissions factors that are determined for a particular source.

 

The chair recognized Senator Duncan to introduce Charlotte Clifton and Eric McDonald, nominated to the Teacher Retirement System of Texas Board of Trustees.  Senator Duncan briefly detailed the careers and accomplishments of Clifton and McDonald, and recommended them to the committee.

 

The chair recognized Senator Shapiro to introduce R. David Kelly nominated to the Teacher Retirement System of Texas Board of Trustees, and Lewis McMahan nominated to the Texas Water Development Board.  Senator Shapiro briefly detailed the careers and accomplishments of both, and recommended them to the committee.

 

Chairman Jackson requested that Shaw try to improve the efficiency of the operations at TCEQ during his time as a commissioner.

 

Chairman Jackson asked Shaw to comment on the potential of Liquid Natural Gas Plants being constructed on the Texas coast, and the permitting that is required to open them.  Shaw responded that he would provide Senator Jackson with the information at a later date.

 

Chairman Jackson asked Shaw to comment on the cumulative effect measure in Senate Bill 16.

 

Shaw responded with his interpretation of Article 11 of SB 16, dealing with cumulative effect when issuing new permits.  Shaw expressed concern that the language in the bill could make it difficult for newer, cleaner plants to receive permits.

 

Chairman Jackson asked Shaw to comment on the renewal of the Midlothian Cement Kiln permit.

 

Shaw responded that the permit decision is still susceptible to a motion to overturn, therefore he can only speak on it in generic terms.  Shaw explained the process that is used by the TCEQ to renew permits.  Shaw emphasized his desire to be consistent and apply renewal standards uniformly.

 

Chairman Jackson recognized Senator Nichols for questions.  Senator Nichols asked Shaw how the commission makes rulings when laws prevent common sense action.

 

Shaw responded that they are compelled to follow the law, but an identifiable fix in the law may be discernable. 

 

Senator Nichols confirmed with Shaw that the TCEQ did not present the Legislature with any recommended legal changes this session.

 

Senator Nichols commended the agency for their responsiveness to the citizens of his district whenever an environmental issue has been reported.

 

The chair recognized Senator Watson for questions.

 

Senator Watson confirmed with Shaw that there are provisions in the law that allow the TCEQ to address issues such as global warming.

 

Senator Watson asked Shaw if the TCEQ has taken any action to protect against possible climatic changes from global warming.

 

Shaw responded that to his knowledge the TCEQ has taken no action to regulate greenhouse gas emissions.  Shaw continued to say that increasing efficiency would have the added benefit of decreasing the emission of greenhouse gases.  Shaw listed many of the reasons why it is difficult to regulate greenhouse gasses.

 

Senator Watson continued to ask if the agency has taken any measures to ensure that Texas will be in compliance with potential new federal laws regulating greenhouse gasses.

 

Shaw responded that the TCEQ is reviewing the implications of possible changes in federal regulations.

 

Senator Watson confirmed with Shaw that the agency has taken no official action in preparing for new federal regulations on greenhouse gasses.

 

Chairman Jackson called to the table Charlotte Clifton, Robert Gauntt, and R. David Kelly nominated to the Teacher Retirement System of Texas Board of Trustees.  Eric McDonald was not in attendance due to a scheduling conflict, his appearance was waived.

 

Chairman Jackson recognized Senator Huffman to introduce Robert Gauntt.  Senator Huffman briefly detailed the career and accomplishments of Gauntt, and recommended him to the committee.

 

Chairman Jackson asked the nominees to comment on the current status of the Teacher's Retirement Fund.

 

Guantt expressed his confidence in all aspects of the fund despite the poor economic climate and the devaluing that has occurred.

 

The chair recognized Senator Shapleigh for questions.  Senator Shapleigh asked how the Texas program has performed relative to the top five programs in the country.

 

Guantt responded that the fund is in the top quartile of the state rankings.

 

Senator Shapleigh requested that the board provide the Senate with the performance data relative to other states over the last five quarters.

 

Senator Shapleigh asked the nominees how bonus compensation is determined.

 

The nominees described the details of bonus compensation at the agency.  

 

Senator Shapleigh expressed his concern and dissatisfaction with the policy of differed bonuses when the fund has a down year.

 

Senator Shapleigh asked the nominees about the possibility of investing in toll roads.

 

Gauntt responded that any infrastructure project would have to stand on its own merits for the fund to invest in it.

 

Clifton mentioned that five percent of the fund can be invested in infrastructure projects.

 

Senator Shapleigh confirmed with the nominees that they have had no discussions with any state government officials about investing in toll roads.

 

The chair recognized Senator Watson for a question.  Senator Watson asked the nominees if they have had any discussions with any members of the Legislature or the Governor about investing in toll roads.

 

Clifton responded that she had a brief conversation with the Governor about the fund investing in toll roads.  Kelly and Gauntt responded that they have had no conversations with the Governor or any member of the Legislature about the topic.

 

The chair recognized Senator Nelson for a comment. 

 

Senator Nelson moved that the committee vote to approve the nominations of Charlotte Clifton, Robert Gauntt, R. David Kelly and Eric McDonald to the Teacher Retirement System of Texas Board of Trustees.  At 5:40 p.m., by a vote of 5 ayes and 0 nays, the committee voted to recommend the nominees to the full Senate for confirmation.

 

Chairman Jackson called to the table Joe Crutcher, Lewis McMahan, and Edward Vaughan nominated to the Texas Water Development Board.

 

The chair recognized Senator Nichols to introduce Joe Crutcher.  Senator Nichols briefly detailed the career and accomplishments of Crutcher, and highly recommended him to the committee.

 

Chairman Jackson recognized Vaughan to briefly introduce himself to the committee.

 

Chairman Jackson commented on the importance of securing adequate water resources for the future development of the state.  Chairman Jackson asked the nominees to update the committee with any new reservoir developments.

 

The nominees described the current developments related to new reservoirs.

 

Chairman Jackson asked the nominees their opinions on the general actions taken by the Legislature on water issues.

 

Chairman Jackson asked about a new proposal that would put a tax on water.

 

The nominees responded that they were not particularly familiar with that proposal.

 

The chair recognized Senator Shapleigh for a comment.  Senator Shapleigh asked that the board stay abreast of new climate issues that are affecting water procurement in West Texas. 

 

The chair recognized Senator Nichols for a question.  Senator Nichols asked if the designation of future water sites by the Legislature will be able to stand in the face of future designations of refuge sites.

 

The nominees responded that the Legislature may need to do more to ensure sites designated as water sites remain so.

 

Chairman Jackson recognized Senator Nelson for a comment.  Senator Nelson stressed the importance of the Texas Water Development Board.

 

Senator Nichols moved that the committee vote to approve the nominations of Joe Crutcher, Lewis McMahan, and Edward Vaughan to the Texas Water Development Board.  At 5:58 p.m., by a vote of 5 ayes and 0 nays, the committee voted to recommend the nominees to the full Senate for confirmation.

 

Senator Nelson moved that the committee vote to approve the nominations of the individuals appointed to the following entities: Angelina and Neches River Authority Board of Directors, Brazos River Authority Board of Directors, Coastal Coordination Council, Coastal Water Authority Board of Directors, Upper Colorado River Authority, Guadalupe-Blanco River Authority Board of Directors, Upper Neches River Municipal Water Authority Board of Directors, Red River Compact Commission, Rio Grande Compact Commission, Sabine River Compact Administration, San Antonio River Authority Board of Directors, and the Trinity River Authority Board of Directors.  At 5:59 p.m., by a vote of 5 ayes and 0 nays, the committee voted to recommend the nominees to the full Senate for confirmation.

 

Chairman Jackson called Dr. Bryan Shaw back to the table and recognized Senator Watson for questions.

 

Senator Watson asked Shaw if greenhouse gasses emitted by human activity contribute to climate change.

 

Shaw responded that he does not believe the science is conclusive regarding human contributions to global warming.  Shaw confirmed that he does not consider the science on that issue to be settled.  Shaw mentioned that there is a consensus of scientists that still express skepticism about the findings of the Intergovernmental Panel on Climate Change.

 

Senator Watson noted that all of the tenured and tenure-tracked faculty in the Department of Atmospheric Sciences at Texas A&M University have signed on in support of the findings of the Intergovernmental Panel on Climate Change.

 

Senator Watson inquired about SB 16 and the issue of cumulative effects.  Senator Watson asked if the agency has the ability to deal with the reality that multiple emissions sources contribute to harmful cumulative pollution.

 

Shaw responded that with their current staffing levels the agency does not have the resources to proceed with a full photochemical analysis for every permit.

 

Senator Watson asked Shaw to further explain how the cumulative effect measures in SB 16 would affect permitting of new plants.

 

Shaw expressed concern that it could be harder for new, more efficient plants to open if the cumulative effect restrictions in SB 16 are adopted.

 

Senator Watson confirmed that Shaw favors taking into consideration cumulative impact in the permitting process.

 

Senator Watson asked Shaw to explain any action the commission has taken to prepare for the new federal NOx standards.

 

Shaw responded that they are monitoring the possibility of new federal standards.

 

Senator Watson asked if there are legislative changes needed to quickly remove areas from the Air Pollutant Watch List. 

 

Shaw responded that he believes the watch list has been a success.  Shaw stated that he does not have any specific recommendations to improve it.

 

Senator Watson asked if Shaw has any recommendations concerning state action on the regulation of air toxics.

 

Shaw responded that the state should continue to develop and incentivize the innovative programs that have shown success in regulating air toxics.

Senator Watson confirmed with Shaw that Texas operates under the State Implementation Plan (SIP), which requires it to be at least as stringent as federal EPA requirements.

 

Senator Watson commented on the letter he received from the EPA indicating that there are a number of deficiencies related to the TCEQ's regulation program.  Senator Watson specifically mentioned deficiencies in the public participation process as noted by the EPA.

 

Senator Watson asked Shaw how he has been involved in correcting these deficiencies.  

 

Shaw responded that the agency has made a written request asking the EPA to provide them with suggested improvements to the TCEQ's public participation process.  Shaw noted that the agency has yet to receive a response.

 

Senator Watson asked if Shaw is familiar with the deficiency identified by the EPA that the executive director of the TCEQ has too much discretion in allowing public hearings.

 

Shaw reiterated that the agency is seeking clarification from the EPA on that issue so that they can make appropriate recommendations to the Legislature.

 

Senator Watson asked why the TCEQ does not take action on its own to correct the lack of public hearings.

 

Shaw responded that they prefer to have the input of the EPA on what needs to be fixed.

 

Senator Watson confirmed with Shaw that the TCEQ commissioners recently had a divided vote deciding not to have a public hearing on a particular issue.

 

Senator Watson asked about the EPA's determination that flexible permits issued by the TCEQ do not meet federal requirements.

 

Shaw responded that the flexible permits have been pending an official decision from the EPA since 1993 or 1994.

 

Shaw explained his understanding of flexible permits and discussed the compliance issues that go along with them.

 

Senator Watson asked Shaw to comment on the qualified facilities deficiency identified by the EPA.  Senator Watson confirmed with Shaw that qualified facilities are those that the TCEQ allows to make emissions changes without obtaining a permit.

 

Senator Watson confirmed with Shaw that there are a number of other deficiencies identified by the EPA where the TCEQ is out of compliance with the Clean Air Act.

 

Shaw responded that the agency has commissioned staff to work with the EPA to determine how to correct the deficiencies.

 

Senator Watson asked why the TCEQ is not more proactive in correcting the deficiencies on its own.  Senator Watson noted that the EPA did make recommendations for actions the TCEQ could make to eliminate the deficiencies.

 

Shaw responded that he does believe the agency is working towards being more proactive in developing innovative solutions.

 

Senator Watson asked about a specific change recommended by the EPA. 

 

Shaw confirmed that the recommended change has not been made by the TCEQ.

 

The chair recognized Senator Shapleigh for questions.

 

Senator Shapleigh asked Shaw if he is aware that his testimony is under oath and that the committee hearing is recorded.

 

Shaw responded that he is.

 

Senator Shapleigh asked what Shaw's role is in the permit application process.   Shaw described how he perceives his role.

 

Senator Shapleigh confirmed that Shaw is aware of the prohibition of ex parte communications during the permitting process.

 

Senator Shapleigh questioned Shaw about the Asarco permit that is no longer contested. 

 

Senator Shapleigh listed billing records from Asarco's attorneys that indicate discussions with TCEQ commissioners during the permitting process. 

 

Senator Shapleigh asked Shaw if he is the commissioner mentioned in the billing records. 

 

Shaw responded that he is not. 

 

Senator Shapleigh asked Shaw if he would participate in such meetings.  

 

Shaw responded that he would not.

 

Senator Shapleigh asked if Shaw was aware of the meetings.

 

Shaw responded that he was only aware of the meetings when information about them appeared in the press.

Senator Shapleigh confirmed that Shaw did not write to any law enforcement agency expressing concern when he became aware of the meetings.

 

Senator Shapleigh asked if Shaw was ever aware of any illegal activity of former executive director Glenn Shankle. 

 

Shaw responded that he was not aware of any such activity.

 

Senator Shapleigh confirmed that Shaw is aware of the Waste Control license permitting a radioactive waste dump in Andrews, TX.

 

Senator Shapleigh commented on Shankle's overruling of the staff recommendation that the dump not be permitted a license by the TCEQ due to concerns over the proximity of two aquifers to the proposed dump location.

 

Senator Shapliegh asked Shaw to provide the committee with the names of the TCEQ employees who resigned upon learning the news that Shankle took a job lobbying for Waste Control Services upon his resignation at the TCEQ.

 

At 6:45 p.m. Chairman Jackson announced that the committee would stand at ease to allow Shaw to gather the requested information.

 

At 7:10 p.m. Chairman Jackson called the committee back to order.

 

The chair recognized Senator Shapleigh to continue with questions.

 

Senator Shapleigh asked Shaw if he had obtained the names of the individuals who left the agency upon learning of Shankle's current employment with Waste Control Services.

 

Shaw responded that Pat Bobeck and Glenn Lewis are the individuals who left the agency.

 

Senator Shapleigh asked if any employee quit due to the Asarco recommendations and ruling.

 

Shaw responded that he is not aware of any employees who quit due to the Asarco case.

 

Senator Shapleigh asked Shaw to detail the employment restrictions on commissioners leaving the TCEQ.

 

Shaw responded that there is a two-year revolving door policy preventing a former commissioner or executive director from arguing cases before the commission.

 

Senator Shapleigh asked if Shankle has lobbied anyone at the TCEQ since his departure from the agency.

 

Shaw responded that to his knowledge Shankle has not lobbied anyone at the agency.

 

Senator Shapleigh asked Shaw to speak briefly on his interactions with the attorneys who represented Asarco.

 

Shaw mentioned that he had minimal social interaction with those individuals, but did not discuss the Asarco case with them.  Shaw described the interaction as taking place at a reception welcoming him and Chairman Buddy Garcia to the TCEQ.

 

Shaw provided further details of the reception at the request of Senator Shapleigh.

 

Senator Shapleigh presented Shaw and the other committee members with a letter from the EPA concerning the Asarco permit.

 

Senator Shapleigh commented that the EPA letter indicates that the TCEQ was applying the incorrect standard to the permitting process associated with Asarco.

 

Senator Shapleigh confirmed with Shaw that the EPA Region 6 staff did conclude that the TCEQ applied the wrong standard to the Asarco permit.

 

Senator Shapleigh asked if the TCEQ has any plans to repay the $1.4 million in attorney fees spent by the city of El Paso to oppose the Asarco permit.

 

Shaw answered that the TCEQ does not have any plans to do so at this point.

 

Senator Shapleigh confirmed that Shaw does not know of any other employees at the agency that have had ex parte communications with the litigants from Asarco. 

 

Chairman Jackson called to the table Robin Schneider representing the Texas Campaign for the Environment, and Karen Hadden representing SEED Coalition.  Schneider submitted a form to testify against the nomination of Shaw and she provided public testimony to the committee.  Hadden submitted a form to testify on the nomination of Shaw and she provided public testimony to the committee. 

 

Dr. Bryan Shaw was left pending before the committee.

 

At 7:36 p.m. Senator Jackson moved that the committee stand recessed subject to the call of the chair; without objection, it was so ordered. 

 

 

 

 

 

 

 

 

_____________________________

Senator Mike Jackson, Chair

 

 

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Brian Carey, Clerk