SRC-JBJ H.B. 36 78(3)   BILL ANALYSIS


Senate Research Center   H.B. 36
By: Smith, Wayne (Ogden)
Finance
9/18/2003
Engrossed


DIGEST 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, which
is modeled on the recommendations of the Sunset Advisory Commission. H.B.
36 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.  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

Rulemaking authority is expressly granted to the Texas Commission on
Environmental Quality in SECTION 7 of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 5.753, Water Code, by amending Subsections (a),
(b), and (e) and adding Subsection (f), as follows: 

(a)  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, rather than a
uniform standard, for evaluating compliance history. 

(b)  Authorizes, rather than requires, the components of compliance
history to include:  

(1) enforcement orders, court judgments, and criminal convictions of this
state relating to compliance with applicable legal requirements under
TCEQ's jurisdiction; 
  
(2) to the extent readily available to TCEQ, enforcement orders, court
judgments, consent decrees, and criminal convictions relating to
violations of environmental laws of other states and the federal
government, including the United States Environmental Protection Agency;
and 
  
(3) changes in ownership.

Deletes and amends existing provisions relating to certain components of
compliance history. 

(e)  Requires TCEQ, except as required by other law or any requirement
necessary to maintain federal program authorization, by rule to establish
a period for site-specific compliance history. 

(f)  Provides that nothing in this section shall prevent TCEQ from
considering any relevant compliance information, including notices of
violation, in enforcement. 
 
SECTION 2.  Amends Sections 5.754(a)-(d) and (g)-(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.  Requires TCEQ to develop standards for classifying some
categories of regulated entities.  Requires TCEQ, in determining the types
of regulated entities to classify, to consider, as one of the factors in
making that determination, those regulated entities that are generally
inspected at least annually. 

(b)  Requires rules adopted under this section to provide, at a minimum,
for three classifications of site-specific compliance history in a manner
adequate to distinguish among: 

(1)  poor performers, or regulated entities that in TCEQ's judgment
perform in an unsatisfactory manner at a particular site, rather than
below average; 

(2)  satisfactory performers, rather than average performers, or regulated
entities that generally comply with environmental regulations at a
particular site; and 

(3)  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, rather than an above-average
compliance record. 

(c)  Adds to and amends actions required of TCEQ in classifying a person's
compliance history. 

(d)  Requires TCEQ by rule to establish methods of assessing the
site-specific compliance history of regulated entities for which it does
not have adequate compliance information. Authorizes the methods to
include requiring a compliance inspection at the site to determine an
entity's eligibility for participation in a program that requires a high
level of compliance. 

(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 Section 5.755(b), Water Code, to require the
strategically directed regulatory structure to offer incentives based on a
person's compliance performance, rather than history classification 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), to provide 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. Makes conforming changes. 

SECTION 5.  Amends Sections 5.758(a), (b), (d), and (h), Water Code, as
follows: 

(a)  Authorizes TCEQ by order to exempt an applicant from a requirement of
a statute or TCEQ rule regarding the control or abatement of pollution if
the applicant proposes to control or abate pollution by an alternative
method or by applying an alternative standard that is as protective,
rather than more protective, of the environment and the public health as
the method  or standard prescribed by the statute or TCEQ rule that would
otherwise apply and not inconsistent with federal law.  Makes a conforming
change. 

(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, rather
than present to TCEQ documented evidence of benefits to environmental
quality that will result from the project the applicant proposes. 

(d) Deletes the term "specific" as a modifier for "description."

(h) Deletes and amends actions required of TCEQ in implementing the
program of regulatory flexibility authorized by this section. 

SECTION 6.  Repealer: Sections 5.753(d) (relating to a standard for
evaluating compliance history) and 5.757 (Coordination of Innovative
Programs), Water Code. 

SECTION 7.  Requires TCEQ, not later than December 31, 2004, by rule to
adopt standards for classification of regulated entities required by
Section 5.754(a), Water Code, as amended by this Act.  
   
SECTION 8.  Effective date: upon passage or January 15, 2004.