Changes in TNRCC Enforcement

11/01/2001

As a result of its recent sunset review of the Texas Natural Resource Conservation Commission (“TNRCC”), the Texas Legislature directed the agency to make several changes to its rules and policies regarding enforcement.  Some that may affect you relate to:

Compliance History

In order to implement  “performance-based regulatory programs” applicable to water quality, underground injection control, solid waste, air quality, and radioactive waste activities required by the sunset legislation, the TNRCC must establish a uniform definition of compliance history for those environmental programs.   The compliance history must include consideration of enforcement orders, court judgments, consent decrees, criminal convictions, and valid notices of violation.  In response, the TNRCC has proposed revisions to its rules at 30 TAC Chapter 60.

As proposed, the compliance history would include at least five years of multimedia compliance information for all sites under TNRCC jurisdiction. The results would be used to classify each entity’s compliance history.  The TNRCC has developed a draft concept paper that identifies a possible classification methodology.  [Please see the PDF link at the bottom of the document]  The components of the compliance history include notices of violation and enforcement orders entered on or after February 1, 2002 and are listed in the attachment to this letter.  TNRCC proposes to use the compliance history in the following proceedings, on or after September 1, 2002:

  • the issuance, amendment, modification, or renewal of permits for applications submitted on or after September 1, 2002;
     
  • actions taken by the agency relating to inspections and flexible permitting;
     
  • actions relating to the suspension or revocation of a permit or imposition of a penalty for proceedings; and
     
  • actions taken by the Executive Director on other forms of authorization or participation in innovative programs (except for flexible permitting).

TNRCC also is directed to establish criteria for classifying repeat violators, more closely overseeing poor performers, and denying applications for permits or permit amendments if the applicant’s compliance history is unacceptable based on violations constituting a recurring pattern of content that demonstrates a consistent disregard for the regulatory process.  The compliance history information for each company will be made available to the public via the internet.

Finally, the TNRCC is directed to establish a strategically-directed regulatory structure to encourage enhanced performance through incentives based upon compliance history and voluntary measures undertaken by companies to improve environmental quality.  Interim incentives are to be established by September 1, 2003, with final implementation completed by September 1, 2005.

Environmental Management Systems

The sunset bill and other legislation also require the TNRCC to create a comprehensive program to provide regulatory incentives to encourage the use of environmental management systems (“EMSs”) and to integrate the use of EMSs into its regulatory programs, develop environmental management systems for small business and local governments, and establish environmental performance indicators to measure the program’s performance.   Additionally, the TNRCC is directed to consider the use of environmental management systems in an applicant’s compliance history.

The TNRCC’s proposed rules define an EMS to be “a documented management system to address applicable environmental regulatory requirements that includes organizational structure, planning activities, responsibilities, practices, procedures, processes, and resources for developing, implementing, achieving, reviewing and maintaining an environmental policy directed towards continuous improvement.”  The proposed rules provide that eligibility for regulatory incentives is available if a company’s EMS:

  • includes a written environmental policy governing performance improvement and compliance assurance;
     
  • identifies and prioritizes the environmental aspects and impacts of the person’s activities;
     
  • sets priorities, goals, and targets for continuous improvement in environmental performance;
     
  • assigns clear responsibilities for ensuring compliance for environmental laws, regulations and permit conditions;
     
  • requires written documentation of the implementation of the environmental management system and the results of the implementation; and
     
  • requires a scheduled written evaluation of refinements to the environmental management system to demonstrate how attainment of the goals has improved. 

Subject to possible EPA concurrence, regulatory incentives may include: onsite technical assistance; accelerated access to public information; operational modifications; and adjustments to the methods and frequency of compliance inspections.

Evidence Submitted by Public

The Legislature directed the TNRCC to adopt rules establishing criteria for the Executive Director’s evaluation of information provided by the public that relate to whether a company is in violation of the agency’s rules.  Under the TNRCC’s proposed rules, citizens submitting information to the agency and requesting the Executive Director’s evaluation must be willing to sign an affidavit verifying that they knew and used any relevant agency protocols in collecting the information, and that the information is accurate and valid.  Protocols will be available through agency publications and perhaps on the internet site and will be established to ensure their scientific reliability and admissibility into evidence in a legal proceeding if enforcement is brought.  Additionally, the individual must agree to testify under oath.  Under the proposal, the Executive Director retains discretion in evaluating the information, including in determining whether to proceed with the enforcement action.

The proposed rules also clarify that the Executive Director may bring an enforcement action against a company based upon citizen information, agency-developed information, or a combination of both.  The agency’s preamble to the proposal suggests that there may be some types of information provided by citizens for which no protocols are necessary, such as testimony regarding the impact of emissions on the use and enjoyment of property.  The preamble also notes that nothing in the rules should be construed as authorizing citizens to trespass onto private property to obtain information.

Please contact Jim Braddock or Jeff Civins if you have any questions.  Jim Braddock, 512.867.8462, braddocj@haynesboone.com or Jeff Civins, 512.867.8477, civinsj@haynesboone.com


COMPONENTS OF COMPLIANCE HISTORY AS PROPOSED BY THE TNRCC

  • any enforcement orders, court judgments, consent decrees, and criminal convictions of this state and the federal government relating to compliance with an environmental law, regulation, permit, order, consent decree, or other requirement under the jurisdiction of the commission or the EPA;
     
  • notwithstanding any other provision of the TWC, orders issued under TWC. §7.070 on or after February 1, 2002;
     
  • to the extent readily available to the executive director, enforcement orders, court judgments, and criminal convictions relating to violations of environmental laws of other states;
     
  • chronic excessive emissions events.  For purposes of this chapter, the term “emissions event” is the same as defined in THSC. §382.0215(a);
     
  • any information required by law or any compliance-related requirement necessary to maintain federal program authorization;
     
  • the dates of investigations;
     
  • all written notices of violation issued on or after February 1, 2002, except for those administratively determined to be without merit, specifying each violation of an environmental law, regulation, permit, order, consent decree, or other requirement;
     
  • the date of letters notifying the executive director of an intended audit conducted under the Texas Environmental, Health, and Safety Audit Privilege Act, 74th Legislature, 1995;
     
  • the type of environmental management systems, if any, used for environmental compliance;
     
  • any voluntary on-site compliance assessments conducted by the executive director under a special assistance program;
     
  • participation in a voluntary pollution reduction program;
     
  • a description of early compliance with or offer of a product that meets future state or federal government environment requirements; and
     
  • the name and telephone number of an agency staff person to contact for additional information regarding compliance history.
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