82R10360 JTS-F
By: Smith of Harris H.B. No. 2431
A BILL TO BE ENTITLED
AN ACT
relating to compliance histories for and incentives to reward
compliance performance by entities regulated by the Texas
Commission on Environmental Quality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 5.751, Water Code, is amended to read as
follows:
Sec. 5.751. APPLICABILITY. This subchapter applies to
programs under the jurisdiction of the commission under Chapters
26, [and] 27, and 32 of this code and Chapters 361, 375, 382, and
401, Health and Safety Code. It does not apply to occupational
licensing programs under the jurisdiction of the commission.
SECTION 2. Section 5.752(1), Water Code, is amended to read
as follows:
(1) "Applicable legal requirement" means an
environmental law, regulation, permit, order, consent[,] decree,
or other requirement.
SECTION 3. The heading to Section 5.753, Water Code, is
amended to read as follows:
Sec. 5.753. STANDARDS [STANDARD] FOR EVALUATING AND USING
COMPLIANCE HISTORY.
SECTION 4. Section 5.753, Water Code, is amended by
amending Subsections (a), (b), and (d) and adding Subsection (d-1)
to read as follows:
(a) Consistent with other law and the requirements
necessary to maintain federal program authorization, the
commission by rule shall develop standards [a uniform standard] for
evaluating and using compliance history.
(b) The components of compliance history must include:
(1) 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, consent decrees, and criminal
convictions relating to violations of environmental rules [laws] of
the United States Environmental Protection Agency [other states];
and
(4) changes in ownership.
(d) For purposes of using compliance history in any
escalation of penalties, the commission may not use notices of
violation unless the commission takes subsequent action or the
person is classified as a repeat violator as determined according
to criteria established under Section 5.754(c). If the commission
includes a notice of violation in a compliance history, the listing
must be preceded by the following statement prominently displayed:
"A notice of violation represents a written allegation of a
violation of a specific regulatory requirement from the commission
to a regulated entity. A notice of violation is not a final
enforcement action nor proof that a violation has actually
occurred." [The set of components shall include notices of
violations.] A notice of violation administratively determined to
be without merit may [shall] not be included in a compliance
history. A notice of violation that is included in a compliance
history shall be removed from the compliance history if the
commission subsequently determines the notice of violation to be
without merit.
(d-1) For purposes of listing compliance history or using
compliance history in any escalation of penalties, the commission
may not include as a notice of violation deviations or violations
provided by a person to the commission, such as deviations reported
in discharge monitoring reports or Title V deviation reports,
unless the commission issues a written notice of violation. Final
enforcement orders or judgments resulting from self-reported
deviations or violations may be considered as compliance history
components for purposes of determining compliance history.
SECTION 5. Section 5.754, Water Code, is amended by
amending Subsections (a), (b), (c), (d), (e), (g), and (h) and
adding Subsection (e-1) to read as follows:
(a) The commission by rule shall establish a set of
standards for the classification of a person's compliance history
as a means of evaluating compliance history. The commission may
consider the person's classification when using compliance history
under Subsection (e).
(b) Rules adopted under Subsection (a):
(1) [this section] must, at a minimum, provide for three
classifications of compliance history in a manner adequate to
distinguish among:
(A) unsatisfactory [(1) poor] performers, or
regulated entities that in the commission's judgment perform below
minimal acceptable performance standards established by the
commission [average];
(B) satisfactory [(2) average] performers, or
regulated entities that generally comply with environmental
regulations; and
(C) [(3)] high performers, or regulated entities
that have an above-satisfactory [above-average] compliance record;
(2) must establish a category of unclassified
performers, or regulated entities for which the commission does not
have adequate compliance information about the site; and
(3) must take into account both positive and negative
factors related to the operation, size, and complexity of the site,
including whether the site is subject to Title V of the federal
Clean Air Act (42 U.S.C. Section 7661 et seq.).
(c) In classifying a person's compliance history, the
commission shall:
(1) determine whether a violation of an applicable
legal requirement is of major, moderate, or minor significance;
(2) establish criteria for classifying a repeat
violator, giving consideration to the size [number] and complexity
of the site at which the violations occurred, and limiting
consideration to violations of the same nature and the same
environmental media that occurred in the preceding five years
[facilities owned or operated by the person]; and
(3) consider:
(A) the significance of the violation and whether
the person is a repeat violator;
(B) the size and complexity of the site,
including whether the site is subject to Title V of the federal
Clean Air Act (42 U.S.C. Section 7661 et seq.); and
(C) the potential for a violation at the site
that is attributable to the nature and complexity of the site.
(d) The commission by rule may [shall] establish, as
necessary, methods of assessing the compliance history 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 history [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.
(e-1) In using a person's compliance history classification
for an enforcement purpose, the components used to determine that
compliance history classification may not be used individually for
penalty enhancement or escalation.
(g) Rules adopted under Subsection (e) for the use of
compliance history shall provide for additional oversight of, and
review of applications regarding, facilities owned or operated by a
person whose compliance performance is classified as
unsatisfactory according to commission standards [in the lowest
classification developed under this section].
(h) The commission by rule shall, at a minimum, prohibit a
person whose compliance history is classified as unsatisfactory
according to commission standards [in the lowest classification
developed under this section] from[:
[(1) receiving an announced inspection; and
[(2)] obtaining or renewing a flexible permit under
the program administered by the commission under Chapter 382,
Health and Safety Code, or participating in the regulatory
flexibility program administered by the commission under Section
5.758.
SECTION 6. Section 5.755(b), Water Code, is amended to read
as follows:
(b) The strategically directed regulatory structure shall
offer incentives based on:
(1) a person's compliance history [classification];
and
(2) any voluntary measures undertaken by the person to
improve environmental quality.
SECTION 7. Section 5.756, Water Code, is amended by adding
Subsection (e) to read as follows:
(e) Before compliance performance information about a site
may be placed on the Internet under this subchapter, the
information must be evaluated through a quality assurance and
control procedure, including a 30-day period for the owner or
operator of the site to review and comment on the information.
SECTION 8. Sections 5.758(a), (b), (d), and (h), Water
Code, are amended to read as follows:
(a) The commission by order may exempt an applicant from a
requirement of a statute or commission 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:
(1) as [more] protective of the environment and the
public health as [than] the method or standard prescribed by the
statute or commission rule that would otherwise apply; and
(2) not inconsistent with federal law.
(b) The commission may not exempt an applicant under this
section unless the applicant can present to the commission
[documented] evidence that the alternative the applicant proposes
is as protective of the environment and the public health as the
method or standard prescribed by the statute or commission rule
that would otherwise apply [of benefits to environmental quality
that will result from the project the applicant proposes].
(d) The commission's order must provide a [specific]
description of the alternative method or standard and condition the
exemption on compliance with the method or standard as the order
prescribes.
(h) In implementing the program of regulatory flexibility
authorized by this section, the commission shall:
(1) promote [market] the program to businesses in the
state through all available appropriate media;
(2) endorse alternative methods that will clearly
benefit the environment and impose the least onerous restrictions
on business;
(3) fix and enforce environmental standards, allowing
businesses flexibility in meeting the standards in a manner that
clearly enhances environmental outcomes; and
(4) work to achieve consistent and predictable results
for the regulated community and shorter waits for permit issuance.
SECTION 9. Sections 361.089(a), (e), and (f), Health and
Safety Code, are amended to read as follows:
(a) The commission may, for good cause, deny or amend a
permit it issues or has authority to issue for reasons pertaining to
public health, air or water pollution, or land use, or for having a
compliance history that is classified as unsatisfactory according
to commission standards [in the lowest classification] under
Sections 5.753 and 5.754, Water Code, and rules adopted and
procedures developed under those sections.
(e) The commission may deny an original or renewal permit if
it is found, after notice and hearing, that:
(1) the applicant or permit holder has a compliance
history that is classified as unsatisfactory according to
commission standards [in the lowest classification] under Sections
5.753 and 5.754, Water Code, and rules adopted and procedures
developed under those sections;
(2) the permit holder or applicant made a false or
misleading statement in connection with an original or renewal
application, either in the formal application or in any other
written instrument relating to the application submitted to the
commission, its officers, or its employees;
(3) the permit holder or applicant is indebted to the
state for fees, payment of penalties, or taxes imposed by this title
or by a rule of the commission; or
(4) the permit holder or applicant is unable to ensure
that the management of the hazardous waste management facility
conforms or will conform to this title and the rules of the
commission.
(f) Before denying a permit under this section, the
commission must find:
(1) that the applicant or permit holder has a
compliance history that is classified as unsatisfactory according
to commission standards [in the lowest classification] under
Sections 5.753 and 5.754, Water Code, and rules adopted and
procedures developed under those sections; or
(2) that the permit holder or applicant is indebted to
the state for fees, payment of penalties, or taxes imposed by this
title or by a rule of the commission.
SECTION 10. Section 382.0518(c), Health and Safety Code, is
amended to read as follows:
(c) In considering the issuance, amendment, or renewal of a
permit, the commission may consider the applicant's compliance
history in accordance with the method for using [evaluating]
compliance history developed by the commission under Section 5.754,
Water Code. In considering an applicant's compliance history under
this subsection, the commission shall consider as evidence of
compliance information regarding the applicant's implementation of
an environmental management system at the facility for which the
permit, permit amendment, or permit renewal is sought. In this
subsection, "environmental management system" has the meaning
assigned by Section 5.127, Water Code.
SECTION 11. Section 382.056(o), Health and Safety Code, is
amended to read as follows:
(o) Notwithstanding other provisions of this chapter, the
commission may hold a hearing on a permit amendment, modification,
or renewal if the commission determines that the application
involves a facility for which the applicant's compliance history is
classified as unsatisfactory according to commission standards [in
the lowest classification] under Sections 5.753 and 5.754, Water
Code, and rules adopted and procedures developed under those
sections.
SECTION 12. Section 401.110(a), Health and Safety Code, is
amended to read as follows:
(a) In making a determination whether to grant, deny, amend,
renew, revoke, suspend, or restrict a license or registration, the
commission may consider an applicant's or license holder's
technical competence, financial qualifications, and compliance
history under the method for using [evaluation of] compliance
history developed by the commission under Section 5.754, Water
Code.
SECTION 13. Section 401.112(a), Health and Safety Code, is
amended to read as follows:
(a) The commission, in making a licensing decision on a
specific license application to process or dispose of low-level
radioactive waste from other persons, shall consider:
(1) site suitability, geological, hydrological, and
meteorological factors, and natural hazards;
(2) compatibility with present uses of land near the
site;
(3) socioeconomic effects on surrounding communities
of operation of the licensed activity and of associated
transportation of low-level radioactive waste;
(4) the need for and alternatives to the proposed
activity, including an alternative siting analysis prepared by the
applicant;
(5) the applicant's qualifications, including:
(A) financial and technical qualifications and
compliance history under the method for using [evaluation of]
compliance history developed by the commission under Section 5.754,
Water Code, for an application to the commission; and
(B) the demonstration of financial
qualifications under Section 401.108;
(6) background monitoring plans for the proposed site;
(7) suitability of facilities associated with the
proposed activities;
(8) chemical, radiological, and biological
characteristics of the low-level radioactive waste and waste
classification under Section 401.053;
(9) adequate insurance of the applicant to cover
potential injury to any property or person, including potential
injury from risks relating to transportation;
(10) training programs for the applicant's employees;
(11) a monitoring, record-keeping, and reporting
program;
(12) spill detection and cleanup plans for the
licensed site and related to associated transportation of low-level
radioactive waste;
(13) decommissioning and postclosure care plans;
(14) security plans;
(15) worker monitoring and protection plans;
(16) emergency plans; and
(17) a monitoring program for applicants that includes
prelicense and postlicense monitoring of background radioactive
and chemical characteristics of the soils, groundwater, and
vegetation.
SECTION 14. Section 26.028(d), Water Code, is amended to
read as follows:
(d) Notwithstanding any other provision of this chapter,
the commission, at a regular meeting without the necessity of
holding a public hearing, may approve an application to renew or
amend a permit if:
(1) the applicant is not applying to:
(A) increase significantly the quantity of waste
authorized to be discharged; or
(B) change materially the pattern or place of
discharge;
(2) the activities to be authorized by the renewed or
amended permit will maintain or improve the quality of waste
authorized to be discharged;
(3) for NPDES permits, notice and the opportunity to
request a public meeting shall be given in compliance with NPDES
program requirements, and the commission shall consider and respond
to all timely received and significant public comment; and
(4) the commission determines that an applicant's
compliance history under the method for using [evaluating]
compliance history developed by the commission under Section 5.754
raises no issues regarding the applicant's ability to comply with a
material term of its permit.
SECTION 15. Section 26.0281, Water Code, is amended to read
as follows:
Sec. 26.0281. CONSIDERATION OF COMPLIANCE HISTORY. In
considering the issuance, amendment, or renewal of a permit to
discharge effluent comprised primarily of sewage or municipal
waste, the commission shall consider the compliance history of the
applicant and its operator under the method for using [evaluating]
compliance history developed by the commission under Section 5.754.
In considering an applicant's compliance history under this
subsection, the commission shall consider as evidence of compliance
information regarding the applicant's implementation of an
environmental management system at the facility for which the
permit, permit amendment, or permit renewal is sought. In this
section, "environmental management system" has the meaning
assigned by Section 5.127.
SECTION 16. Section 26.040(h), Water Code, is amended to
read as follows:
(h) Notwithstanding other provisions of this chapter, the
commission, after hearing, shall deny or suspend a discharger's
authority to discharge under a general permit if the commission
determines that the discharger's compliance history is classified
as unsatisfactory according to commission standards [in the lowest
classification] under Sections 5.753 and 5.754 and rules adopted
and procedures developed under those sections. A hearing under this
subsection is not subject to Chapter 2001, Government Code.
SECTION 17. Section 27.025(g), Water Code, is amended to
read as follows:
(g) Notwithstanding the other provisions of this chapter,
the commission, after hearing, shall deny or suspend authorization
for the use of an injection well under a general permit if the
commission determines that the owner's compliance history is
classified as unsatisfactory according to commission standards [in
the lowest classification] under Sections 5.753 and 5.754 and rules
adopted and procedures developed under those sections. A hearing
under this subsection is not subject to the requirements relating
to a contested case hearing under Chapter 2001, Government Code.
SECTION 18. Section 27.051(d), Water Code, is amended to
read as follows:
(d) The commission, in determining if the use or
installation of an injection well is in the public interest under
Subsection (a)(1), shall consider, but shall not be limited to the
consideration of:
(1) compliance history of the applicant and related
entities under the method for using [evaluating] compliance history
developed by the commission under Section 5.754 and in accordance
with the provisions of Subsection (e);
(2) whether there is a practical, economic, and
feasible alternative to an injection well reasonably available; and
(3) if the injection well will be used for the disposal
of hazardous waste, whether the applicant will maintain sufficient
public liability insurance for bodily injury and property damage to
third parties that is caused by sudden and non-sudden accidents or
will otherwise demonstrate financial responsibility in a manner
adopted by the commission in lieu of public liability insurance. A
liability insurance policy which satisfies the policy limits
required by the hazardous waste management regulations of the
commission for the applicant's proposed pre-injection facilities
shall be deemed "sufficient" under this subdivision if the policy:
(A) covers the injection well; and
(B) is issued by a company that is authorized to
do business and to write that kind of insurance in this state and is
solvent and not currently under supervision or in conservatorship
or receivership in this state or any other state.
SECTION 19. Section 32.101(c), Water Code, is amended to
read as follows:
(c) The commission, in determining if the use or
installation of a subsurface area drip dispersal system is in the
public interest under Subsection (a)(1), shall consider:
(1) compliance history of the applicant and related
entities under the method for using [evaluating] compliance history
developed by the commission under Section 5.754 and in accordance
with the provisions of Subsection (d) of this section;
(2) whether there is a practical, economic, and
feasible alternative to a subsurface area drip dispersal system
reasonably available; and
(3) any other factor the commission considers
relevant.
SECTION 20. Section 5.757, Water Code, is repealed.
SECTION 21. This Act takes effect September 1, 2011.