SRC-JXG S.C.R. 72 76(R)   BILL ANALYSIS


Senate Research Center   S.C.R. 72
76R13289 SKT-FBy: Ratliff
Jurisprudence
5/6/1999
As Filed


DIGEST 

Currently, Dean Lumber Company, Inc., (DLC), alleges that the Texas Natural
Resource Conservation Commission (TNRCC) engaged in predatory, malicious,
and unfair practices in the enforcement of TNRCC rules and regulations that
resulted in economic damages to DLC.  DLC  has always strived to maintain
compliance with the rules and regulations of TNRCC, and devoting
substantial time and expense to that pursuit.  DLC alleges that when it was
notified by TNRCC of its upcoming inspection of DLC facilities, TNRCC
refused DLC's request to schedule the inspection at a mutually convenient
date.  DLC alleges that TNRCC's refusal to schedule the inspection resulted
in the loss of 10 days of production and the loss of customers, who were
frustrated by DLC's lagging production.  DLC 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 DLC.  DLC alleges that the arbitrary and capricious
enforcement of these rules and regulations  resulted in DLC spending
thousands of dollars defending itself from the imposition of unfair and
factually unwarranted penalties by TNRCC.  DLC alleges that TNRCC
intentionally and knowingly published or caused to be published false
information regarding the emission levels of arsenic and chromium from DLC,
which reflected  a much higher emission level than was accurate. As a
result of TNRCC, as well as the publication of false information regarding
emission levels, DLC has been targeted for potential toxic tort lawsuits,
which has caused DLC to spend thousands of dollars defending itself from
these frivolous lawsuits.  Once DLC was notified of possible noncompliance
with TNRCC rules and regulations, DLC petitioned TNRCC to join TNRCC's
voluntary compliance program, but was denied solely because it was being
targeted for possible sanctions by TNRCC.  DLC 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 DLC of the ability to meet financial
commitments.  DLC alleges it has sustained damages as a result of the
actions of TNRCC.  S.C.R. 72 would grant DLC permission to sue the State of
Texas and TNRCC. 

PURPOSE

As proposed, S.C.R. 72 submits the following resolutions:

That the legislature of the State of Texas grants the Dean Lumber Company,
Inc. (DLC), permission to sue the State of Texas and the Texas Natural
Resource Conservation Commission (TNRCC) subject to Chapter 107, Civil
Practice and Remedies Code. 
 
That the remedies available to DLC in the suit authorized by this
resolution are limited to the remedies traditionally available for the
causes of action alleged in this resolution, but that DLC may not recover
punitive or exemplary damages resulting from the actions of TNRCC.  
 
That DLC and TNRCC may agree to submit the matter that is the subject of
this resolution to binding arbitration. 

That the executive director of TNRCC be served process as provided by
Section 107.002(a)(3), Civil Practice and Remedies Code.