Floor Packet Page No. 50
Amend CSHB 2912 as follows:
(1) Strike SECTION 4.01 on page 53, line 21 through page 59,
line 11, and substitute the following:
SECTION 4.01. Chapter 5, Water Code, is amended by adding
Subchapter Q to read as follows:
SUBCHAPTER Q. PERFORMANCE-BASED REGULATION
Sec. 5.751. APPLICABILITY. This subchapter applies to
programs under the jurisdiction of the commission under Chapters 26
and 27 of this code and Chapters 361 and 382, Health and Safety
Code. It does not apply to occupational licensing programs under
the jurisdiction of the commission.
Sec. 5.752. DEFINITIONS. In this subchapter:
(1) "Applicable legal requirement" means an
environmental law, regulation, permit, order, consent, decree, or
other requirement.
(2) "Innovative program" means:
(A) a program developed by the commission under
this subchapter, Chapter 26 or 27 of this code, or Chapter 361 or
382, Health and Safety Code, that provides incentives to a person
in return for benefits to the environment that exceed benefits that
would result from compliance with applicable legal requirements
under the commission's jurisdiction;
(B) the flexible permit program administered by
the commission under Chapter 382, Health and Safety Code; or
(C) the regulatory flexibility program
administered by the commission under Section 5.758.
(3) "Permit" includes a license, certificate,
registration, approval, permit by rule, standard permit, or other
form of authorization issued by the commission under this code or
the Health and Safety Code.
(4) "Region" means a region of the commission's field
operations division or that division's successor.
(5) "Strategically directed regulatory structure"
means a program that is designed to use innovative programs to
provide maximum environmental benefit and to reward compliance
performance.
Sec. 5.753. DEFINITION OF COMPLIANCE PERFORMANCE. (a)
Consistent with other law and the requirements necessary to
maintain federal program authorization, the commission by rule
shall develop a definition of compliance performance.
(b) The components of compliance performance must include:
(1) notices of violations, enforcement orders, court
judgments, consent decrees, and criminal convictions of this state
and the federal government relating to compliance with applicable
legal requirements under the jurisdiction of the commission or the
United States Environmental Protection Agency;
(2) notwithstanding any other provision of this code,
orders issued under Section 7.070;
(3) to the extent readily available to the commission,
enforcement orders, court judgments, and criminal convictions
relating to violations of environmental laws of other states; and
(4) changes in ownership.
(c) The set of components must also include any information
required by other law or any requirement necessary to maintain
federal program authorization.
(d) Except as required by other law or any requirement
necessary to maintain federal program authorization, the commission
by rule shall establish a period for compliance performance.
Sec. 5.754. CLASSIFICATION AND USE OF COMPLIANCE
PERFORMANCE. (a) The commission by rule shall establish a set of
standards for the classification of a person's compliance
performance.
(b) Rules adopted under this section must, at a minimum,
provide for four classifications of compliance performance
distinguishing among levels of performance from the lowest to the
highest level.
(c) In classifying a person's compliance performance, the
commission shall:
(1) determine whether a violation of an applicable
legal requirement is of major, moderate, or minor significance;
(2) specify that a repeat violator is an entity that
has more than one violation of the same or similar type within the
period established by the commission under Section 5.753(d); and
(3) consider the significance of the violation and
whether the person is a repeat violator.
(d) The commission by rule shall establish methods of
assessing the compliance performance of regulated entities for
which it does not have adequate compliance information. The
methods may include requiring a compliance inspection to determine
an entity's eligibility for participation in a program that
requires a high level of compliance.
(e) The commission by rule shall provide for the use of
compliance performance classifications in commission decisions
regarding:
(1) the issuance, renewal, amendment, modification,
denial, suspension, or revocation of a permit;
(2) enforcement;
(3) the use of announced inspections; and
(4) participation in innovative programs.
(f) Rules adopted under Subsection (e) for the use of
compliance performance shall provide for additional oversight of,
and review of applications regarding, facilities owned or operated
by a person whose compliance performance is in the lowest
classification developed under this section.
(g) The commission by rule shall, at a minimum, prohibit a
person whose compliance performance is classified in the lowest
classification developed under this section from:
(1) receiving an announced inspection; and
(2) participating in the flexible permit program
administered by the commission under Chapter 382, Health and Safety
Code, and the regulatory flexibility program administered by the
commission under Section 5.758.
Sec. 5.755. STRATEGICALLY DIRECTED REGULATORY STRUCTURE.
(a) The commission by rule shall develop a strategically directed
regulatory structure to provide incentives for enhanced
environmental performance.
(b) The strategically directed regulatory structure shall
offer incentives based on:
(1) a person's compliance performance classification;
and
(2) any voluntary measures undertaken by the person to
improve environmental quality.
(c) An innovative program offered as part of the
strategically directed regulatory structure must be consistent with
other law and any requirement necessary to maintain federal program
authorization.
Sec. 5.756. COLLECTION AND ANALYSIS OF COMPLIANCE
PERFORMANCE INFORMATION. (a) The commission shall collect data
on:
(1) the results of inspections conducted by the
commission;
(2) whether inspections are announced or unannounced;
(3) the number and percentage of all violations
committed by persons who previously have committed the same or
similar violations;
(4) the number and percentage of enforcement orders
issued by the commission that are issued to entities that have been
the subject of a previous enforcement order;
(5) whether a violation is of major, moderate, or
minor significance, as defined by commission rule;
(6) whether a violation relates to an applicable legal
requirement pertaining to air, water, or waste; and
(7) the region in which the facility is located.
(b) The commission annually shall prepare a comparative
analysis of data evaluating the performance, over time, of the
commission and of entities regulated by the commission.
(c) The commission shall include in the annual enforcement
report required by Section 5.123, as added by Chapters 304 and
1082, Acts of the 75th Legislature, Regular Session, 1997, the
comparative performance analysis required by Subsection (b),
organized by region and regulated medium.
Sec. 5.757. COORDINATION OF INNOVATIVE PROGRAMS. (a) The
commission shall designate a single point of contact within the
agency to coordinate all innovative programs.
(b) The coordinator shall:
(1) inventory, coordinate, and market all innovative
programs;
(2) provide information and technical assistance to
persons participating in or interested in participating in those
programs; and
(3) work with the pollution prevention advisory
committee to assist the commission in integrating the innovative
programs into the commission's operations, including:
(A) program administration;
(B) strategic planning; and
(C) staff training.
(2) On page 59, line 15, strike "5.760" and substitute
"5.758".
(3) On page 59, line 16, strike "5.760" and substitute
"5.758".
(4) On page 62, strike lines 22-25 and substitute the
following:
(c) The committee shall advise the commission on the
creation and implementation of the strategically directed
regulatory structure developed under Section 5.755, Water Code.
(5) On page 83, strike lines 21 through 25 and substitute
the following:
(4) the commission determines that an applicant's
compliance performance under the method for evaluating compliance
performance developed by the commission under Section 5.754
<history for the preceding five years> raises no issues regarding
the applicant's ability to comply with a material term of its
permit.
(6) On page 84, line 19, strike "HISTORY" and substitute
"PERFORMANCE".
(7) On page 84, line 22, strike "history" and substitute
"performance".
(8) On page 84, line 24, strike "history" and substitute
"performance".
(9) On page 86, lines 18 through 22, strike "history" and
the underlined language and substitute: "performance is in the
lowest classification under Sections 5.753 and 5.754 and rules
adopted and procedures developed under those sections <history".>
(10) On page 88, strike lines 21 and 22 and substitute the
following:
SECTION 9.12. Section 27.051, Water Code, is amended by
amending Subsections (d) and (e) and adding Subsection (h) to read
as follows:
(11) On page 89, line 1, strike "history" and substitute
"performance <history>".
(12) On page 89, line 2, strike "history" and substitute
"performance".
(13) On page 89, strike lines 22 through 26 and substitute
the following:
(e) Consistent with Sections 5.753 and 5.754 and rules
adopted and procedures developed under those sections, the <The>
commission shall establish a procedure for preparing summaries of
the applicant's compliance performance <by rule for its preparation
of compliance summaries relating to the history of compliance and
noncompliance by the applicant with the rules>
(14) On page 90, line 2, strike "compliance" and substitute
"<compliance>".
(15) On page 90, line 11, following the period, insert the
following:
In accordance with this subsection and Sections 5.753 and 5.754 and
rules adopted and procedures developed under those sections,
evidence of the compliance performance of an applicant for an
injection well may be offered by the executive director at a
hearing on the application and may be admitted into evidence,
subject to the rules of evidence.
(16) On page 90, line 12, strike "history" and substitute
"performance <history>".
(17) On page 90, between lines 14 and 15, insert the
following:
(h) In determining whether the use or installation of an
injection well is in the public interest under Subsection (a)(1),
the commission shall consider the compliance performance of the
applicant in accordance with Subsection (e) and Sections 5.753 and
5.754 and rules adopted and procedures developed under those
sections.
(18) On page 93, line 7, strike "361.084(a) and (c)" and
substitute "361.084(a), (c), and (d)".
(19) On page 93, line 12, strike "history" and substitute
"performance".
(20) On page 93, lines 17 through 20, strike the language
that begins with "during" and ends with "concerning" and substitute
"<in the preceding five years> concerning".
(21) On page 93, between lines 24 and 25, insert the
following:
(d) The commission shall consider all evidence admitted,
including compliance performance <history>, in determining whether
to issue, amend, extend, or renew a permit.
(22) On page 94, lines 5 through 7, strike the language that
begins with "history" and ends with "raises" and substitute:
"performance under the method for evaluating compliance performance
developed by the commission under Section 5.754, Water Code,
<history for the preceding five years> raises".
(23) On page 94, lines 18 through 22, strike the underlined
language and substitute: "having a compliance performance that is
in the lowest classification under Sections 5.753 and 5.754, Water
Code, and rules adopted and procedures developed under those
sections".
(24) On page 95, line 5, between "the" and "permit", insert
"applicant or".
(25) On page 95, lines 5 through 9, strike the underlined
language and substitute the following:
"compliance performance that is in the lowest classification under
Sections 5.753 and 5.754, Water Code, and rules adopted and
procedures developed under those sections".
(26) On page 96, lines 1 through 5, strike the underlined
language and substitute the following:
"the applicant or permit holder has a compliance performance that
is in the lowest classification under Sections 5.753 and 5.754,
Water Code, and rules adopted and procedures developed under those
sections".
(27) On page 96, line 21, strike "history" and substitute
"performance".
(28) On page 96, line 22, strike "history" and substitute
"performance".
(29) On page 96, line 24, strike ", for the consideration of
compliance history".
(30) On page 97, line 19, strike "history" and substitute
"performance of the owner or operator".
(31) On page 97, line 21, strike ", for the consideration of
compliance history".
(32) On page 101, strike lines 3 through 6 and substitute
the following:
"compliance performance that is in the lowest classification under
Sections 5.753 and 5.754, Water Code, and rules adopted and
procedures developed under those sections <history contains>".
(33) On pages 102, 103, and 104, strike SECTIONS 9.31 and
9.32 and appropriately renumber subsequent sections in Article 9.
(34) On page 111, line 9, strike "March" and substitute
"February".
(35) On page 111, lines 10 and 11, strike "and standards for
evaluating compliance history" and substitute "compliance
performance".
(36) On page 111, line 11, strike "5.754" and substitute
"5.753".
(37) On page 111, lines 14 through 16, strike all between
"Commission" and the period and substitute "by rule shall establish
the standards for the classification and use of compliance
performance, as required by Section 5.754, Water Code, as added by
this Act".
(38) On page 111, strike lines 17 through 22 and substitute
the following:
(c) Not later than September 1, 2003, the Texas Natural
Resource Conservation Commission by rule shall establish interim
incentives as part of the strategically directed regulatory
structure required by Section 5.755, Water Code, as added by this
Act.
(d) Not later than September 1, 2005, the Texas Natural
Resource Conservation Commission by rule shall complete all rules
necessary for the strategically directed regulatory structure
required by Section 5.755, Water Code, as added by this Act.
(e) The Texas Natural Resource Conservation Commission shall
report to the 78th and 79th legislatures regarding the
implementation of the strategically directed regulatory structure
required by Section 5.755, Water Code, as added by this Act. The
reports must include recommendations regarding statutory
impediments to program implementation, progress in the development
of rules and incentives, participation in the program, changes in
federal statutes and policies affecting implementation of the
program, and benefits accruing to the environment from the program.
A report required by this subsection shall be filed not later than
December 15 of the year preceding the year in which the legislative
session begins.
(39) On page 111, line 23, strike "(d)" and substitute
"(f)".
(40) On page 111, line 24, strike "history" and substitute
"performance".
(41) On page 112, line 2, strike "March" and substitute
"February".
(42) On page 112, line 3, strike "5.757" and substitute
"5.754".
(43) On page 112, line 6, strike "382.055, 382.056, 401.110,
and 401.112" and substitute "382.055, and 382.056".
(44) On page 112, line 7, strike "(e)" and substitute "(g)".
(45) On page 112, line 8, strike "history" and substitute
"performance".
(46) On page 112, line 10, strike "Sections 5.758 and 5.759"
and substitute "Section 5.754".
(47) On page 112, line 11, strike "March" and substitute
"February".
(48) On page 112, line 14, strike "(f)" and substitute
"(h)".
(49) On page 112, line 15, strike "history" and substitute
"performance".
(50) On page 112, line 19, strike "March" and substitute
"February".
(51) On page 112, strike lines 20 through 26.