By Dukes H.B. No. 3297
77R2405 SMH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the use of compliance history information by the Texas
1-3 Natural Resource Conservation Commission.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 5, Water Code, is amended by adding
1-6 Subchapter O to read as follows:
1-7 SUBCHAPTER O. COMPLIANCE HISTORY
1-8 Sec. 5.651. DEFINITION. In this subchapter, "permit"
1-9 includes a license, certificate, registration, approval, or other
1-10 form of authorization issued by the commission under this code or
1-11 the Health and Safety Code.
1-12 Sec. 5.652. COMPONENTS OF AND STANDARDS FOR EVALUATING
1-13 COMPLIANCE HISTORY. (a) The commission by rule shall develop a
1-14 single set of components of and standards for evaluating the
1-15 compliance history of an applicant or permit holder and shall
1-16 consistently apply those components and standards in evaluating
1-17 compliance history in all permitting and enforcement matters under
1-18 the commission's jurisdiction.
1-19 (b) In developing the components and standards required by
1-20 Subsection (a), the commission:
1-21 (1) shall include, among other factors to be
1-22 considered:
1-23 (A) notices of violations and enforcement
1-24 actions, state and federal enforcement orders, court judgments, and
2-1 criminal convictions;
2-2 (B) a determination of whether a violation is
2-3 significant or minor, according to commission rules;
2-4 (C) the period to be considered when determining
2-5 a regulated entity's compliance history; and
2-6 (D) inclusion of a regulated entity's compliance
2-7 history for similar operations in other jurisdictions, in addition
2-8 to the entity's past performance in this state; and
2-9 (2) shall specify that a repeat violator is an entity
2-10 that has more than one violation of the same or similar type within
2-11 the period established by the commission under Subdivision (1)(C).
2-12 (c) The commission shall consider changes in ownership when
2-13 tracking the compliance history of a regulated entity.
2-14 Sec. 5.653. COMPLIANCE INSPECTIONS AND REPORTS. (a) The
2-15 commission shall conduct annual compliance inspections of each
2-16 person engaging in an activity under a permit issued by the
2-17 commission under this code or the Health and Safety Code.
2-18 (b) In addition to conducting the inspections required by
2-19 Subsection (a), the commission shall collect data on:
2-20 (1) the number and percentage of all violations
2-21 committed by repeat offenders;
2-22 (2) the number and percentage of enforcement orders
2-23 issued by the commission that are issued to entities that have been
2-24 the subject of a previous enforcement order; and
2-25 (3) whether the violations are significant or minor,
2-26 as defined by commission rule.
2-27 (c) The commission annually shall prepare a comparative
3-1 analysis of data evaluating the performance, over time, of the
3-2 commission and of entities regulated by the commission.
3-3 (d) The commission must include in the annual enforcement
3-4 report required by Section 5.123, as added by Chapters 304 and
3-5 1082, Acts of the 75th Legislature, Regular Session, 1997, the
3-6 compliance data required by Subsection (b), and the comparative
3-7 performance analysis required by Subsection (c), organized by
3-8 region and by regulated medium.
3-9 Sec. 5.654. PERFORMANCE ASSESSMENT FOR PERMITTING,
3-10 ENFORCEMENT, AND INSPECTION DECISIONS. The commission by rule shall
3-11 develop:
3-12 (1) a method of performance assessment that
3-13 differentiates persons regulated by the commission according to
3-14 their compliance histories; and
3-15 (2) guidelines for the use of compliance history in
3-16 commission decisions regarding:
3-17 (A) the issuance, renewal, or denial of a permit
3-18 or other authorization issued by the commission;
3-19 (B) enforcement matters under the commission's
3-20 jurisdiction; and
3-21 (C) eligibility for announced inspections.
3-22 Sec. 5.655. ANNOUNCED INSPECTIONS. (a) The commission may
3-23 not announce an inspection of a facility owned or operated by a
3-24 person regulated by the commission unless the person has
3-25 established a compliance history that qualifies the person for
3-26 announced inspections under the rules adopted under Section 5.654.
3-27 (b) The commission shall track whether inspections are
4-1 announced or unannounced and shall include the information in the
4-2 report required by Section 5.123, as added by Chapters 304 and
4-3 1082, Acts of the 75th Legislature, Regular Session, 1997.
4-4 SECTION 2. Section 26.028(d), Water Code, is amended to read
4-5 as follows:
4-6 (d) Notwithstanding any other provision of this chapter, the
4-7 commission, at a regular meeting without the necessity of holding a
4-8 public hearing, may approve an application to renew or amend a
4-9 permit if:
4-10 (1) the applicant is not applying to:
4-11 (A) increase significantly the quantity of waste
4-12 authorized to be discharged; or
4-13 (B) change materially the pattern or place of
4-14 discharge;
4-15 (2) the activities to be authorized by the renewed or
4-16 amended permit will maintain or improve the quality of waste
4-17 authorized to be discharged;
4-18 (3) for NPDES permits, notice and the opportunity to
4-19 request a public meeting shall be given in compliance with NPDES
4-20 program requirements, and the commission shall consider and respond
4-21 to all timely received and significant public comment; and
4-22 (4) the commission determines that an applicant's
4-23 compliance history during [for] the period established by the
4-24 commission under Section 5.652 for consideration of compliance
4-25 history [preceding five years] raises no issues regarding the
4-26 applicant's ability to comply with a material term of its permit.
4-27 SECTION 3. Section 26.0281, Water Code, is amended to read
5-1 as follows:
5-2 Sec. 26.0281. CONSIDERATION OF [PAST PERFORMANCE AND]
5-3 COMPLIANCE HISTORY. In considering the issuance, amendment, or
5-4 renewal of a permit to discharge effluent comprised primarily of
5-5 sewage or municipal waste, the commission shall consider the [any
5-6 adjudicated decision on or] compliance history [proceeding
5-7 addressing past performance and compliance] of the applicant and
5-8 its operator under the method for evaluating compliance history
5-9 developed by the commission under Section 5.652 [with the laws of
5-10 this state governing waste discharge, waste treatment, or waste
5-11 disposal facilities and with the terms of any permit or order
5-12 issued by the commission].
5-13 SECTION 4. Sections 27.051(d) and (e), Water Code, are
5-14 amended to read as follows:
5-15 (d) The commission, in determining if the use or
5-16 installation of an injection well for the disposal of hazardous
5-17 waste is in the public interest under Subsection (a)(1) [of this
5-18 section], shall consider, but shall not be limited to the
5-19 consideration of:
5-20 (1) compliance history of the applicant under the
5-21 method for evaluating compliance history developed by the
5-22 commission under Section 5.652 and in accordance with the
5-23 provisions of Subsection (e) [of this section];
5-24 (2) whether there is a practical, economic, and
5-25 feasible alternative to an injection well reasonably available to
5-26 manage the types and classes of hazardous waste; and
5-27 (3) whether the applicant will maintain sufficient
6-1 public liability insurance for bodily injury and property damage to
6-2 third parties that is caused by sudden and non-sudden accidents or
6-3 will otherwise demonstrate financial responsibility in a manner
6-4 adopted by the commission in lieu of public liability insurance. A
6-5 liability insurance policy which satisfies the policy limits
6-6 required by the hazardous waste management regulations of the
6-7 commission for the applicant's proposed pre-injection facilities
6-8 shall be deemed "sufficient" under this subdivision if the policy:
6-9 (A) covers the injection well; and
6-10 (B) is issued by a company that is authorized to
6-11 do business and to write that kind of insurance in this state and
6-12 is solvent and not currently under supervision or in
6-13 conservatorship or receivership in this state or any other state.
6-14 (e) The commission shall establish a procedure by rule for
6-15 its preparation of compliance summaries relating to the compliance
6-16 history of [compliance and noncompliance by] the applicant in
6-17 accordance with the method for evaluating compliance history
6-18 developed by the commission under Section 5.652 [with the rules
6-19 adopted or orders or permits issued by the commission under this
6-20 chapter for any injection well for which a permit has been issued
6-21 under this chapter]. The compliance summaries shall be made
6-22 available to the applicant and any interested person after the
6-23 commission has completed its technical review of the permit
6-24 application and prior to the promulgation of the public notice
6-25 relating to the issuance of the permit. Evidence of compliance or
6-26 noncompliance by an applicant for an injection well for the
6-27 disposal of hazardous waste with the rules adopted or orders or
7-1 permits issued by the commission under this chapter may be offered
7-2 by any party at a hearing on the applicant's application and
7-3 admitted into evidence subject to applicable rules of evidence.
7-4 All evidence admitted, including compliance history, shall be
7-5 considered by the commission in determining whether to issue,
7-6 amend, extend or renew a permit.
7-7 SECTION 5. Sections 361.084(a) and (c), Health and Safety
7-8 Code, are amended to read as follows:
7-9 (a) The commission by rule shall establish a procedure to
7-10 prepare compliance summaries relating to the applicant's solid
7-11 waste management activities in accordance with the method for
7-12 evaluating compliance history developed by the commission under
7-13 Section 5.652, Water Code.
7-14 (c) Evidence of compliance or noncompliance by an applicant
7-15 for a solid waste management facility permit with agency rules,
7-16 permits, other orders, or evidence of a final determination of
7-17 noncompliance with federal statutes or statutes of any state during
7-18 [in] the period adopted under Section 5.652, Water Code, for the
7-19 consideration of compliance history [preceding five years]
7-20 concerning solid waste management may be:
7-21 (1) offered by a party at a hearing concerning the
7-22 application; and
7-23 (2) admitted into evidence subject to applicable rules
7-24 of evidence.
7-25 SECTION 6. Section 361.088(f), Health and Safety Code, is
7-26 amended to read as follows:
7-27 (f) Notwithstanding Subsection (e), if the commission
8-1 determines that an applicant's compliance history for the period
8-2 adopted under Section 5.652, Water Code, for the consideration of
8-3 compliance history [preceding five years] raises an issue regarding
8-4 the applicant's ability to comply with a material term of its
8-5 permit, the commission shall provide an opportunity to request a
8-6 contested case hearing.
8-7 SECTION 7. Section 361.089(e), Health and Safety Code, is
8-8 amended to read as follows:
8-9 (e) The commission may deny an original or renewal permit if
8-10 it is found, after notice and hearing, that:
8-11 (1) the permit holder has a compliance history that is
8-12 unacceptable under the method of evaluating compliance history
8-13 developed by the commission under Section 5.652, Water Code, during
8-14 the period established by the commission under that section for
8-15 consideration of compliance history [record of environmental
8-16 violations in the preceding five years at the permitted site;]
8-17 [(2) the applicant has a record of environmental
8-18 violations in the preceding five years at any site owned, operated,
8-19 or controlled by the applicant];
8-20 (2) [(3)] the permit holder or applicant made a false
8-21 or misleading statement in connection with an original or renewal
8-22 application, either in the formal application or in any other
8-23 written instrument relating to the application submitted to the
8-24 commission, its officers, or its employees;
8-25 (3) [(4)] the permit holder or applicant is indebted
8-26 to the state for fees, payment of penalties, or taxes imposed by
8-27 this title or by a rule of the commission; or
9-1 (4) [(5)] the permit holder or applicant is unable to
9-2 ensure that the management of the hazardous waste management
9-3 facility conforms or will conform to this title and the rules of
9-4 the commission.
9-5 SECTION 8. Section 382.0518(c), Health and Safety Code, is
9-6 amended to read as follows:
9-7 (c) In considering the issuance, amendment, or renewal of a
9-8 permit, the commission may consider the applicant's compliance
9-9 history, in accordance with the method for evaluating compliance
9-10 history developed by the commission under Section 5.652, Water
9-11 Code, during the period established by the commission under Section
9-12 5.652, Water Code, for the consideration of compliance history [any
9-13 adjudicated decision or compliance proceeding within the five years
9-14 before the date on which the application was filed that addressed
9-15 the applicant's past performance and compliance with the laws of
9-16 this state, another state, or the United States governing air
9-17 contaminants or with the terms of any permit or order issued by the
9-18 commission].
9-19 SECTION 9. Section 382.055(d), Health and Safety Code, is
9-20 amended to read as follows:
9-21 (d) In determining whether and under which conditions a
9-22 preconstruction permit should be renewed, the commission shall
9-23 consider, at a minimum:
9-24 (1) [whether] the compliance history of the facility
9-25 according to the method developed by the commission under Section
9-26 5.652, Water Code, for the consideration of compliance history [is
9-27 or has been in substantial compliance with this chapter and the
10-1 terms of the existing permit]; and
10-2 (2) the condition and effectiveness of existing
10-3 emission control equipment and practices.
10-4 SECTION 10. (a) This Act takes effect September 1, 2001.
10-5 (b) Not later than March 1, 2002, the Texas Natural Resource
10-6 Conservation Commission by rule shall establish the components of
10-7 and standards for evaluating compliance history, as required by
10-8 Section 5.652, Water Code, as added by this Act.
10-9 (c) The changes made by this Act to compliance history
10-10 requirements by amendment to or addition of the following sections
10-11 apply only to applications submitted to or inspections conducted by
10-12 the Texas Natural Resource Conservation Commission on or after
10-13 March 1, 2002:
10-14 (1) Sections 5.655, 26.028, 26.0281, and 27.051, Water
10-15 Code; and
10-16 (2) Sections 361.084, 361.088, 361.089, 382.0518, and
10-17 382.055, Health and Safety Code.