HBA-EVB S.C.R. 72 76(R) BILL ANALYSIS Office of House Bill AnalysisS.C.R. 72 By: Ratliff Civil Practices 5/22/1999 Engrossed BACKGROUND AND PURPOSE S.C.R. 72 grants permission to Dean Lumber Company, Inc. (the company), to sue the State of Texas and the Texas Natural Resource Conservation Commission (TNRCC), and makes certain allegations, as follows: The company alleges that TNRCC has engaged in predatory, malicious, and unfair practices in the enforcement of TNRCC rules and regulations that have resulted in economic damages to the company. The company alleges that it has always strived to maintain compliance with the rules and regulations of TNRCC, devoting substantial time and expense to that pursuit. The company specifically alleges that when it was notified by TNRCC of the TNRCC's upcoming inspection of the the company's facilities, TNRCC refused the company's request to schedule the inspection at a mutually convenient date. The company alleges that the refusal to schedule the inspection as requested resulted in the loss of 10 days of production. The company alleges that the loss of production resulted in the loss of customers, who were frustrated by the company's lagging production. The company specifically alleges that TNRCC has enacted rules and regulations with which it is technically and practically impossible to comply and which TNRCC has arbitrarily and capriciously enforced against the company. The company alleges that the arbitrary and capricious enforcement of the rules and regulations has resulted in the company spending thousands of dollars defending itself from the imposition of unfair and factually unwarranted penalties by TNRCC. The company specifically alleges that TNRCC intentionally and knowingly published or caused to be published false information regarding the emission levels of arsenic and chromium from the company's facility, which reflected a much higher emission level than was accurate. The company specifically alleges that as a result of the arbitrary and capricious enforcement practices of TNRCC, as well as the publication of false information regarding emission levels of arsenic and chromium, the company has been targeted for potential toxic tort lawsuits, and this has caused the company to spend thousands of dollars defending itself from these frivolous lawsuits. The company specifically alleges that once it was notified of possible noncompliance with the rules and regulations, it petitioned TNRCC to join TNRCC's voluntary compliance program but was denied solely because it was being targeted for possible sanctions by TNRCC. The company alleges that the actions of TNRCC are in direct conflict with TNRCC's stated mission that its "decisions must be based on common sense, good science, and fiscal responsibility" and deprived the company of the ability to meet financial commitments. The company alleges that it has sustained damages as a result of the actions of TNRCC. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS S.C.R. 72 grants permission to Dean Lumber Company, Inc. (the company), to sue the State of Texas and the Texas Natural Resource Conservation Commission (TNRCC) subject to Chapter 107 (Permission to Sue the State), Civil Practice and Remedies Code. S.C.R. 72 also provides the following: Provides that the remedies available to the company in the suit authorized by this resolution are limited to the remedies traditionally available for the causes of action alleged in this resolution, but prohibits the company from recovering punitive or exemplary damages resulting from the actions of TNRCC. Authorizes the company and TNRCC to agree to submit the matter that is the subject of this resolution to binding arbitration. Provides that the executive director of TNRCC be served process as provided by Subdivision (3), Subsection (a), Section 107.002 (Effect of Grant of Permission), Civil Practice and Remedies Code.