H.B. 28 78(2) BILL ANALYSIS
H.B. 28
By: Smith, Wayne
Environmental Regulation
Committee Report (Unamended)
BACKGROUND AND PURPOSE
The Texas Commission on Environmental Quality (TCEQ) has consolidated all
innovative regulatory programs into one office, changing the requirements
for innovative regulatory programs and the use of regulatory flexibility,
and establishing a new ranking system based on compliance history, modeled
on the recommendations of the Sunset Advisory Committee. H.B. 28 allows
the use of these innovative programs upon the showing of an equal
environmental benefit with economic savings to the regulated entity. This
bill also eliminates the requirement for a single uniform standard for all
entities regulated by TCEQ and authorizes TCEQ to adopt standards that are
uniform for sites that are similar in size and complexity and at which
similar activities occur. Finally, this bill provides guidance for TCEQ
concerning formulas, length of compliance history considered for ranking
purposes, and placing information on the Internet. The bill also
eliminates the requirement that all innovative programs be consolidated
into one office.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill modifies rulemaking authority
to the Texas Commission on Environmental Quality in SECTION 1(a)(Section
5.753 , Water Code) of this bill.
ANALYSIS
SECTION 1. Amends Section 5.753, Water Code, by amending Subsections
(a), (b), and (e) and adding Subsection (f), as follows:
(a) Authorizes, rather than requires, the Texas Commission on
Environmental Quality (TCEQ), consistent with other law and the
requirements necessary to maintain federal program authorization, by rule
to develop standards for evaluating site-specific compliance history that
are uniform for sites that are similar in size and complexity and at which
similar activities occur.
(b) Authorizes, rather than requires, the components of compliance
history to include certain items, including to the extent readily
available to TCEQ consent decrees and criminal convictions relating to
violations of environmental laws of the federal government, including the
United States Environmental Protection Agency. Deletes text relating to
certain other components of compliance history.
(e) Requires TCEQ by rule to establish a period for site-specific
compliance history, except as required by other law or any requirement
necessary to maintain federal program authorization.
(f) Requires that nothing in this section prevent TCEQ from considering
any relevant compliance information, including notices of violation, in
enforcement.
SECTION 2. Amends Sections 5.754(a)-(d), (g), (h), and (i), Water Code,
as follows:
(a) Authorizes, rather than requires, TCEQ by rule to establish a set of
standards for the classification of a person's compliance history at a
particular site.
(b) Provides that the rules adopted under this section must, at a
minimum, provide for three classifications of site-specific compliance
history in a manner adequate to distinguish among poor performers, or
regulated entities that in TCEQ's judgment perform in an unsatisfactory
manner, rather than below average, at a particular site; satisfactory
performers, or regulated entities that generally comply with environmental
regulations at a particular site; and high performers, or regulated
entities that have a compliance record at a particular site that
demonstrates a high level of compliance with environmental regulations at
that site.
(c) Requires TCEQ, in classifying a person's compliance history at a
particular site, to consider the size, complexity, and type of activity
at the site, and establish criteria for classifying a repeat violator,
giving consideration to the size and complexity of the site at which the
violations occurred and limiting consideration to violations of a similar
nature.
Deletes text requiring TCEQ to consider the number and complexity of
facilities owned or operated by the person. Makes conforming and
nonsubstantive changes.
(d) Makes conforming changes.
(g) Makes conforming changes.
(h) Makes conforming changes.
(i) Requires TCEQ to consider the compliance history of and other
relevant compliance information, including notices of violation, relating
to a regulated entity when determining whether to grant the regulated
entity's application for a permit or permit amendment for any activity
under TCEQ 's jurisdiction to which this subchapter applies.
SECTION 3. Amends Subsection 5.755, Water Code, by amending Subsection
(b) as follows:
(b) Requires the strategically regulatory structure to offer incentives
based on a person's compliance performance and any voluntary measures
undertaken by the person to improve environmental quality.
SECTION 4. Amends Section 5.756, Water Code, by amending Subsection (b)
and adding Subsection (e), as follows:
(b) Requires TCEQ to collect data on and make available to the public on
the Internet certain information, including the number and percentage of
all violations committed at a particular site by persons who previously
have committed the same or similar violations at that site; the number and
percentage of enforcement orders issued by TCEQ that are issued for a
particular site to entities that have been the subject of a previous
enforcement order for that site.
(e) Provides that any material about a site that is placed on the
Internet under this subchapter is subject to a quality assurance and
quality control procedure, including an opportunity for the entity that
holds the permit for the site to review the information before it is
placed on the Internet.
SECTION 5. Amends Sections 5.758 (a), (b), (d), and (h), Water Code, as
follows:
(a) Authorizes TCEQ to exempt an applicant from a requirement of a statute
or TCEQ rule regarding the abatement or control of pollution if the
applicant proposes an alternative solution that is as protective, rather
than more protective, of the environment and the public health as the
method or standard provided by statute or rule.
(b) Prohibits TCEQ from exempting an applicant under this section unless
the applicant can demonstrate to TCEQ that the applicant's proposed
project will result in protection of environmental quality that is equal
to or greater than the protection afforded by existing standards.
(d) Makes a nonsubstantive change.
(h) Requires TCEQ, in implementing the program of regulatory flexibility
authorized by this section, to take certain actions, including endorsing
alternative methods that will clearly benefit the environment. Deletes
text requiring TCEQ to take certain specific actions to implement the
problem.
SECTION 6. Repealer: Section 5.753(d), Water Code.
Repealer: Section 5.757, Water Code.
SECTION 7. Effective date: upon passage or November 1, 2003.
EFFECTIVE DATE
Upon passage, or, if the Act does not receive the necessary vote, the Act
takes effect November 1, 2003.