HBA-EDN H.B. 2912 77(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 2912
By: Bosse
Environmental Regulation
3/16/2001
Introduced




BACKGROUND AND PURPOSE 

The Texas Natural Resource Conservation Commission (TNRCC) protects the
state's natural resources and human health by ensuring clean air, clean
water, and the safe management of waste.  The legislature created the
agency in 1993, by consolidating the Texas Water Commission, Texas Air
Control Board, and environmental programs from the Texas Department of
Health.  The agency implements state and federal environmental regulatory
laws by issuing permits and authorizations for the control of air
pollution, the safe operation of water and wastewater facilities, and the
treatment, storage, and disposal of  hazardous, industrial,  municipal, and
low-level radioactive waste.  TNRCC ensures compliance with environmental
laws by conducting inspections of regulated facilities, monitoring air and
water quality, providing technical assistance, encouraging voluntary
compliance, and taking formal enforcement action against suspected
violators.  The agency also develops programs for the cleanup and eventual
reclamation of contaminated industrial and abandoned hazardous waste sites. 

TNRCC is subject to the Texas Sunset Act and will be abolished September 1,
2001 unless it is continued by the legislature.  In its review of TNRCC,
the Sunset Advisory Commission (commission) found that the traditional,
prescriptive regulatory approach focuses on outputs and does not adequately
support innovation, provide incentives to reward performance, or solve
persistent environmental problems.  The commission also found that TNRCC
lacks tools needed to better support its environmental protection mission
and that additional changes are needed to ensure greater public access to
the agency's decision making process.  The commission's recommendations
would give regulated entities a larger stake in and enable all affected
groups to take a greater role in protecting the environment.  House Bill
2912 continues TNRCC for 12 years and contains the commission's
recommendations to better position the agency to address the state's
environmental regulatory needs.   

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Natural Resource Conservation
Commission in SECTION 1.12 (Sec. 5.127, Water Code); SECTION 1.18 (Sec.
5.228, Water Code); SECTION 1.20 (Sec. 7.0025, Water Code); SECTION 4.01
(Secs. 5.752, 5.754, 5.756, and 5.757, Water Code); SECTION 4.06 (Sec.
382.0216, Health and Safety Code); SECTION 5.01 (Secs. 5.802-5.805, Water
Code); SECTION 6.01 (Sec. 341.102, Health and Safety Code); SECTION 8.16
(Sec. 361.079, Health and Safety Code); SECTION 8.20 (Sec. 361.082, Health
and Safety Code); SECTION 8.23 (Sec. 361.089, Health and Safety Code);
SECTION 9.07 of this bill.  In addition, under the general rulemaking
authority already granted to the policymaking bodies, rules may be
developed to implement other new provisions found in this bill. 

ANALYSIS

House Bill 2912 amends the Water and Health and Safety codes to provide for
the continuation of the Texas Natural Resource Conservation Commission
(TNRCC) until September 1, 2013, and to set forth standard Sunset Advisory
Commission recommendations for TNRCC regarding public representation,
member training, member removal, designation of a presiding officer,
conflicts of interest, written  complaints, development of an equal
employment policy, and a state employee incentive program.     

Incentive-based Regulatory Structure

The bill requires TNRCC by rule to establish regulatory tiers and
performance incentives in which different levels of compliance with
environmental regulations are used to determine eligibility for
participating in innovative regulatory programs (Sec. 5.752, Water Code).
The bill expands the scope of the Waste Reduction Advisory Committee and
renames it as the Pollution Prevention Advisory Committee to advise TNRCC
on the implementation of a regulatory structure based on incentive and
performance (Sec. 361.0215, Health and Safety Code). 

Common Definition of Compliance History

The bill requires TNRCC by rule to develop a common definition for
compliance history based on specific factors, while ensuring a means to
consider changes in ownership when tracking compliance (Sec. 5.754, Water
Code).  The bill also provides several conforming changes in ARTICLE 8 to
clarify other references to compliance history throughout the Water and
Health and Safety codes with the method of evaluating compliance history
developed by TNRCC.  TNRCC is required to track and report compliance
history information of all regulated entities and by rule develop methods
of performance assessment for regulated entities to determine eligibility
for innovative programs and to establish permit and enforcement guidelines
(Secs.  5.755 and 5.756, Water Code).  TNRCC is required to adopt the
components of and standards for evaluating compliance history by March 1,
2002, and begin tracking compliance information for use in the
incentive-based regulatory structure by September 1, 2002  (SECTION 9.04). 

Accountability in Innovative Regulatory Programs

TNRCC is required by rule to use compliance history when determining
eligibility for participation in its innovative regulatory programs and
provides that entities with an unacceptable compliance history cannot
participate in innovative regulatory programs (Secs. 5.756-5.759, Water
Code).  Entities must show that a clear environmental benefit will result
from a project to participate in TNRCC's regulatory flexibility program
(Sec. 5.760, Water Code). 

Agency Policy on Upsets and Inspections

Regulated entities must demonstrate a good compliance history before
receiving announced inspections, and TNRCC is authorized to decide whether
inspections are announced or unannounced (Sec. 5.758, Water Code).  TNRCC
is required to track and report all emissions events resulting from upsets,
accidents, and maintenance; evaluate regulated persons with a higher number
of emissions events; and limit, by rule, the number of emissions events
that may be exempt from enforcement.  The bill specifies criteria for TNRCC
to consider in developing rules limiting the number of events that may
occur each year (Secs. 382.0215 and 382.0216, Health and Safety Code). 

Laboratory Accreditation Program

The bill requires TNRCC to adopt rules to implement a voluntary
environmental testing laboratory accreditation program (accreditation
program) consistent with national standards.  The bill also transfers the
Safe Drinking Water Lab Accreditation Program from the Texas Department of
Health to consolidate it with the new accreditation program at TNRCC.  The
bill requires TNRCC by rule to assess laboratory accreditation fees
sufficient to recover program administration costs, with those fees
credited to an account that may be used only for the accreditation program.
(Sec. 5.801-5.807, Water Code).  The bill authorizes TNRCC to accept data
and analyses for all decisions affecting permitting, compliance,
enforcement, and corrective action only from labs accredited by TNRCC.  The
bill authorizes TNRCC by rule to exempt an on-site or in-house lab from the
accreditation requirement, but only if the lab is inspected as part of the
compliance inspection program (Sec. 5.127, Water Code). 

 Environmental Research

The bill requires TNRCC to coordinate and facilitate agency research needs
and efforts with the state's scientific and academic communities and to
administer grants or contracts if the money is appropriated. TNRCC is
authorized to establish an advisory board to encourage participation in the
research effort. TNRCC must follow a research model for working with the
United States Department of Agriculture, the Texas Department of
Agriculture, and other state agencies to develop long-range research plans
and to pursue specific research projects.  The bill also requires TNRCC to
report to the legislature on its ongoing research efforts and outcomes
(Sec. 5.1191-5.1193, Water Code). 

Public Interest Representation and Information 

The bill authorizes the Office of Public Interest Counsel to use outside
technical support and to recommend needed legislative and regulatory
changes (Secs. 5.273 and 5.274, Water Code).  The bill also requires
advisory committees, work groups, and task forces to be composed of
balanced representation of affected stakeholders and requires TNRCC to
track the composition and activities of these groups and make the
information easily available to the public (Sec. 5.107, Water Code).  The
bill requires TNRCC decision makers to maintain a written record of
communications with persons outside TNRCC regarding pending regulatory
matters, except unplanned contacts occurring away from TNRCC offices.  The
written record is a public record and is subject to disclosure (Sec.
5.1115, Water Code). 

Contested Permit Hearings

The bill authorizes, rather than requires, the executive director to be
named a party in contested permit hearings and requires TNRCC, by rule, to
specify the factors the executive director must consider when determining
whether to be a party in a contested case.  The bill specifies the
executive director's role as a party with respect to completing the record.
The bill requires TNRCC to adopt rules to determine when the executive
director can assist permit applicants in meeting their burdens of proof.
The bill prohibits the executive director from rehabilitating non-agency
witnesses (Sec. 5.228, Water Code).  The bill also consolidates permit
notice requirements under TNRCC's jurisdiction into Chapter 5, Water Code
and provides several conforming changes in ARTICLE 8 to predesignate and
cross-reference existing notice provisions throughout the Water and Health
and Safety codes.   

Complaint Investigations

The bill requires TNRCC to enhance coordination of complaint investigations
with local officials and to train local officials in investigating
complaints and enforcing environmental laws, with authority to recover the
cost of training.  The bill also requires TNRCC to implement policies to
respond to complaints after normal business hours (Secs. 5.1771 and 5.1772,
Water Code).  The bill authorizes TNRCC to initiate an enforcement action
based on evidence received from a private individual.  TNRCC is also
authorized to, by rule, adopt criteria for the executive director to use in
evaluating evidence.  TNRCC staff would have discretion to evaluate the
validity and credibility of evidence.  The bill authorizes TNRCC to develop
criteria for credibility and use of external evidence in an enforcement
action (Sec. 7.0025, Water Code). 

Funding and Revenue Management 

The bill authorizes TNRCC to transfer a percentage of fee revenue dedicated
to one TNRCC activity to other TNRCC activities as authorized in the
Appropriations Act (Sec.  5.707, Water Code).  The bill sets forth
provisions regarding the submission and adjustment of fees and authorizes
TNRCC to collect interest and penalties on delinquent fees.  The bill
authorizes the executive director to modify penalty and interest amounts
only upon good cause and with written explanation (Secs.  5.702-5.706,
Water Code).  

Regulation of Water Treatment Specialists

The bill requires TNRCC, by rule, to establish a program to certify water
treatment specialists and  increases the certification fee from $10 per
year to an amount not to exceed $150 per year (Secs. 341.101-341.105,
Health and Safety Code). 

EFFECTIVE DATE

September 1, 2001.