By: Julie Nahrgang
When you read this, the excitement and tension around the election will have already dissipated a bit. And prefiling for the 89th Session of the Texas Legislature will have begun. We will still be eagerly awaiting interim reports from the committees with oversight around water bills but will have a fairly good understanding of the direction of the reports based on the invited testimony heard during the interim hearings. We will likely still be waiting on a response from the Office of the State Chemist after providing comments to the proposed rulemaking around biosolids fertilizers. On the federal front, WEAT is closely watching two bills – the WIPPES Act and Senator Lummis’ Water Systems PFAS Liability Protection Act, as well as the final budget including SRFs and their erosion through earmarks. It’s a busy time of year. But then again, if you’re working in the water industry, there’s never any slow moments or downtime!
On September 6, 2024, the Texas Feed and Fertilizer Control Service/ Office of the State Chemist filed a proposed rule change to the Fertilizer Rule covering biosolids labeled biosolids fertilizers. As for background, most biosolids land applied in Texas are regulated by the TCEQ and require either an authorization for marketing and distributing and notification for hauling - or are permitted through the municipal permit itself or a separate permit for specific land application. They fall into Class A, Class AB, and Class B. The requirements for authorization/notification vs permit depend on whether the biosolids are Class A/AB or Class B. Biosolids regulated by the TCEQ will not be impacted by the Office of the State Chemist proposed rule.
The State Chemist regulates biosolids that are labeled as fertilizers. To be labeled as a fertilizer, all material and percentages must be shown on the label and the biosolids fertilizer must meet 40 CFR Part 503 standards. The biosolids land applied in Johnson County are labeled as biosolids fertilizer. As many of you already know, ranchers adjacent to the land application site in Johnson Co have brought suit against Synagro and a suit against the EPA claiming that the biosolids contained PFAS that killed livestock including a calf and contaminated their farms. Since the biosolids were labeled and marketed as a fertilizer, they are therefore regulated by the State Chemist. Hence the current proposed rule change by the State Chemist applicable only to biosolids fertilizers. See below for a rundown of the proposed rule change to Title 4, Agriculture Chapter 65, Commercial Fertilizer Rules:
• STATEMENT IN PREAMBLE “... The principle thrust of this rule is to avoid contamination by forever chemicals with known deleterious impact to the environment and life systems including, but not limited to, per and polyfluoroalkyl substances.”
•CHANGES TO RULE “(c) The waste products shall not contain any deleterious or harmful substance in sufficient amount to render it injurious to beneficial plant life, animals, humans, aquatic life, soil, or water when applied in accordance with directions for use on the label.“
•CHANGES TO RULE UNDER LABELING: “(4) Contains any deleterious or harmful substance in sufficient amount to render it injurious to beneficial plant life, animals, humans, aquatic life, soil, or water.”
WEAT and TACWA, as well as a number of other organizations and entities, provided comments. WEAT’s comments included:
•Requesting Stakeholder meetings to be fully vet the impacts of the rule changes
•Noting that the proposed rule is a major environmental rule and fails to meet procedural requirements of including a regulatory analysis and fiscal note
•Noting the terminology should be specific as the preamble refers to “forever chemicals”, which is not a scientific term and PFAS chemicals are themselves not well defined
•The scope of the rule should be defined - the rule itself is vague and EPA suggested method 1633 test for only 40 PFAS compounds
•Noting that the rule writing is premature as the EPA is months away from publishing their risk assessment of PFAS in biosolids.
Overall, the proposed rule change fails to meet procedural requirements and fails to rely on science as the science simply isn’t available yet. To date, WEAT has not received a response to our comments from the Office of the State Chemist. The Chemist has until March 6, 2025 to adopt a final rule, which includes a response to comments which must be published in the Texas Register. If they do not publish a final rule by March 6, the rule is considered withdrawn. They can adopt the rule earlier than March 6 if they want to, so we will have to keep an eye on the Texas Register, which is published each Friday. We look forward to engaging with the agency on this issue as biosolids treatment and disposal methods are a critical component to the clean water industry and our Texas clean water entities.
To date, a number of Texas counties including Johnson, Wise, Ellis, Henderson, have passed resolutions prohibiting biosolids land application. That said, counties do not have the authority to ban biosolids and will likely ask the legislature to give them the authority to do so and/or file a bill prohibiting biosolids land application as has been done in Maine. WEAT will continue to follow regulatory and legislative changes and update membership.
The 89th Session of the Texas Legislature will no doubt open with a bang. Prefiling will begin on November 12, 2024, which is also the date of WEAT and TACWA’s Water Environment Horizon Conference. We know there is a lot of pent up excitement to file bills. The 88th Legislature had four special sessions and an impeachment. There was a lot of energy put into contentious social issues and bills during the 88th and its special sessions. There’s no doubt an appetite to file and refile bills that weren’t able to be heard or didn’t move during the 88th because of the weight of other bills and issues dominating the landscape.
One bill we expect to see filed is Chairman Charles Perry’s extension of SB 28 or Texas Water Fund. We know Texas will once again enjoy a budget surplus this biennium. It will not be as big as the $32 billion windfall of the previous biennium but the comptroller estimates as much as $21 billion surplus. This means that water will have another large apple to take a bite out of in terms of funding. Chairman Perry and Lt. Governor Patrick have both signaled that water will have another big session. What we hope to see is another one time infusion into the TWF and a bill proposing a continuous funding model for the Texas Water Fund. There are a few potential models floating around. One is similar to the parks model which takes a portion of the sales tax of certain items and dedicates that to a different fund. So, a portion of sales tax applied to say toilets and showerheads would drop into the TWF. It is too early to know if this will be the model that takes hold, or if any model takes hold for that matter, but a number of people are working with our elected officials to talk about water and the importance of a dedicated funding stream. And we know our great water leaders, like Senator Perry, are already alluding to providing further legislative help to our water funding needs.
In the next issue of Texas WET, we will have election results, WEAT’s bill tracking report, interim reports (likely), and all the many other twists and turns of the Texas Legislature. Stay tuned. And as we ruminate around what we’re grateful for, I know I am deeply grateful for the work you all do and the chance to amplify and support it. Thank you for working for Texas’ water!