83R17010 JTS-F
By: Smith H.B. No. 1714
Substitute the following for H.B. No. 1714:
By: Lewis C.S.H.B. No. 1714
A BILL TO BE ENTITLED
AN ACT
relating to the discontinuance of the Texas Commission on
Environmental Quality's compliance history program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 361.084(a), (c), and (d), Health and
Safety Code, are amended to read as follows:
(a) The commission by rule shall establish a procedure to
prepare compliance summaries relating to the applicant's solid
waste management activities [in accordance with the method for
evaluating compliance history developed by the commission under
Section 5.754, Water Code]. A compliance summary shall include as
evidence of compliance information regarding the applicant's
implementation of an environmental management system at the
facility for which the authorization is sought. In this
subsection, "environmental management system" has the meaning
assigned by Section 5.127, Water Code.
(c) Evidence of compliance or noncompliance by an applicant
for a solid waste management facility permit with agency rules,
permits, other orders, or evidence of a final determination of
noncompliance with federal statutes or statutes of any state in the
preceding five years concerning solid waste management may be:
(1) offered by a party at a hearing concerning the
application; and
(2) admitted into evidence subject to applicable rules
of evidence.
(d) The commission shall consider all evidence admitted,
including the record of compliance for the preceding five years
[history], in determining whether to issue, amend, extend, or renew
a permit.
SECTION 2. Section 361.088(f), Health and Safety Code, is
amended to read as follows:
(f) Notwithstanding Subsection (e), if the commission
determines that an applicant's record of compliance for the
preceding five years [history under the method for evaluating
compliance history developed by the commission under Section 5.754,
Water Code,] raises an issue regarding the applicant's ability to
comply with a material term of its permit, the commission shall
provide an opportunity to request a contested case hearing.
SECTION 3. 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
record of compliance for the preceding five years that contains
violations that constitute a recurring pattern of egregious conduct
that demonstrates a consistent disregard for the regulatory
process, including the failure to make a timely and substantial
attempt to correct the violations [history that is classified as
unsatisfactory according to commission standards 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 record of
compliance for the preceding five years at the permitted site that
contains violations that constitute a recurring pattern of
egregious conduct that demonstrates a consistent disregard for the
regulatory process, including the failure to make a timely and
substantial attempt to correct the violations [history that is
classified as unsatisfactory according to commission standards
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 record of
compliance for the preceding five years at the permitted site that
contains violations that constitute a recurring pattern of
egregious conduct that demonstrates a consistent disregard for the
regulatory process, including the failure to make a timely and
substantial attempt to correct the violations [history that is
classified as unsatisfactory according to commission standards
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 4. Section 375.101(a), Health and Safety Code, is
amended to read as follows:
(a) A vehicle recycler or scrap metal recycling facility
that removes convenience switches from eligible vehicles in
accordance with educational materials received under this chapter
shall be provided regulatory incentives by the commission [under
programs implemented pursuant to Section 5.755, Water Code],
including on-site technical assistance [and compliance history
classification adjustments].
SECTION 5. Section 382.0216(j), Health and Safety Code, is
amended to read as follows:
(j) The commission shall account for and consider chronic
excessive emissions events and emissions events for which the
commission has initiated enforcement in the manner set forth by the
commission in its review of an entity's record of compliance for the
preceding five years [history].
SECTION 6. 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 record of
compliance for the preceding five years [history in accordance with
the method for using compliance history developed by the commission
under Section 5.754, Water Code]. In considering an applicant's
record of 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 7. Section 382.055(d), Health and Safety Code, is
amended to read as follows:
(d) In determining whether and under which conditions a
preconstruction permit should be renewed, the commission shall
consider, at a minimum:
(1) the record of compliance for the preceding five
years [performance] of the owner or operator of the facility
[according to the method developed by the commission under Section
5.754, Water Code]; and
(2) the condition and effectiveness of existing
emission control equipment and practices.
SECTION 8. 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 record of compliance
for the preceding five years contains unresolved violations that
constitute a recurring pattern of egregious conduct that
demonstrates a consistent disregard for the regulatory process,
including the failure to make a timely and substantial attempt to
correct the violations [history is classified as unsatisfactory
according to commission standards under Sections 5.753 and 5.754,
Water Code, and rules adopted and procedures developed under those
sections].
SECTION 9. Section 382.401(b), Health and Safety Code, is
amended to read as follows:
(b) The commission by rule shall establish a program that
allows the owner or operator of a facility regulated under this
chapter to use voluntarily as a supplemental detection method any
leak detection technology that has been incorporated and adopted by
the United States Environmental Protection Agency into a program
for detecting leaks or emissions of air contaminants. The program
must provide regulatory incentives to encourage voluntary use of
the alternative leak detection technology at a regulated facility
that is capable of detecting leaks or emissions that may not be
detected by methods or technology approvable under the commission's
regulatory program for leak detection and repair in effect on the
date the commission adopts the program. The incentives may
include:
(1) on-site technical assistance; and
(2) to the extent consistent with federal
requirements:
(A) inclusion of the facility's use of
alternative leak detection technology in the owner or operator's
record of compliance for the preceding five years [history] and
compliance summaries;
(B) consideration of the implementation of
alternative leak detection technology in scheduling and conducting
compliance inspections; and
(C) credits or offsets to the facility's
emissions reduction requirements based on the emissions reductions
achieved by voluntary use of alternative leak detection technology.
SECTION 10. Section 401.110, Health and Safety Code, is
amended to read as follows:
Sec. 401.110. DETERMINATION ON LICENSE. (a) In making a
determination whether to grant, deny, amend, renew, revoke,
suspend, or restrict a license or registration, the commission may
consider those aspects of an applicant's or license holder's
background that bear materially on the ability to fulfill the
obligations of licensure, including technical competence,
financial qualifications, and the applicant's or license holder's
record of compliance in areas involving radiation [compliance
history under the method for using compliance history developed by
the commission under Section 5.754, Water Code].
(b) In making a determination whether to grant, deny, amend,
renew, revoke, suspend, or restrict a license or registration, the
department may consider the technical competence, financial
qualifications, and record of compliance for the preceding five
years [history] of an applicant, license holder, or registration
holder. After an opportunity for a hearing, the department shall
deny an application for a license or registration, license or
registration amendment, or license or registration renewal if the
applicant's record of compliance for the preceding five years
[history] reveals a recurring pattern of conduct that demonstrates
a consistent disregard for the regulatory process through
significant violations of this chapter or the department's rules
adopted under this chapter.
SECTION 11. 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
record of compliance for the preceding five years [history under
the method for using 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 12. Section 401.243, Health and Safety Code, is
amended to read as follows:
Sec. 401.243. RECORD OF COMPLIANCE [HISTORY]. After an
opportunity for a hearing, the commission shall deny an application
for a license under this subchapter or an amendment or renewal for a
license under this subchapter if the applicant's record of
compliance for the preceding five years [history] reveals a
recurring pattern of conduct that demonstrates a consistent
disregard for the regulatory process through a history of
violations of this chapter or the commission's rules under this
chapter.
SECTION 13. Section 5.127(b), Water Code, is amended to
read as follows:
(b) The commission by rule shall adopt a comprehensive
program that provides regulatory incentives to encourage the use of
environmental management systems by regulated entities, state
agencies, local governments, and other entities as determined by
the commission. The incentives may include:
(1) on-site technical assistance;
(2) accelerated access to information about programs;
and
(3) to the extent consistent with federal
requirements:
(A) inclusion of information regarding an
entity's use of an environmental management system in the entity's
record of compliance for the preceding five years [history] and
compliance summaries; and
(B) consideration of the entity's implementation
of an environmental management system in scheduling and conducting
compliance inspections.
SECTION 14. Section 5.1733, Water Code, is amended to read
as follows:
Sec. 5.1733. ELECTRONIC POSTING OF INFORMATION. The
commission shall post public information on its website. Such
information shall include but not be limited to the minutes of
advisory committee meetings, pending permit and enforcement
actions, records of compliance for the preceding five years
[histories], and emissions inventories by county and facility name.
SECTION 15. Section 5.758, Water Code, is transferred to
Subchapter D, Chapter 5, Water Code, redesignated as Section 5.123,
Water Code, and amended to read as follows:
Sec. 5.123 [5.758]. REGULATORY FLEXIBILITY. (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) at least 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; 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 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.
[(c)] The commission by rule shall specify the procedure for
obtaining an exemption under this section. The rules must provide
for public notice and for public participation in a proceeding
involving an application for an exemption under this section.
(c) [(d)] The commission's order must provide a description
of the alternative method or standard and condition the exemption
on compliance with the method or standard as the order prescribes.
(d) [(e)] The commission by rule may establish a reasonable
fee for applying for an exemption under this section.
(e) [(f)] A violation of an order issued under this section
is punishable as if it were a violation of the statute or rule from
which the order grants an exemption.
(f) A permit may satisfy a requirement to demonstrate need
by showing need on a regional basis considering economic impacts.
(g) This section does not authorize exemptions to statutes
or regulations for storing, handling, processing, or disposing of
low-level radioactive materials.
(h) In implementing the program of regulatory flexibility
authorized by this section, the commission shall:
(1) promote 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 16. Section 7.070, Water Code, is amended to read as
follows:
Sec. 7.070. FINDINGS OF FACT NOT REQUIRED; RESERVATIONS.
Notwithstanding any other provision to the contrary, the commission
is not required to make findings of fact or conclusions of law other
than an uncontested finding that the commission has jurisdiction in
an agreed order compromising or settling an alleged violation of a
statute within the commission's jurisdiction or of a rule adopted
or an order or a permit issued under such a statute. An agreed
administrative order may include a reservation that:
(1) the order is not an admission of a violation of a
statute within the commission's jurisdiction or of a rule adopted
or an order or a permit issued under such a statute;
(2) the occurrence of a violation is in dispute; or
(3) the order is not intended to become a part of a
party's or a facility's record of compliance for the preceding five
years [history].
SECTION 17. Sections 26.028(d) and (e), Water Code, are
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
record of compliance for the preceding five years [history under
the method for using 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.
(e) In considering an applicant's record of compliance
[history] under Subsection (d)(4), 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.
SECTION 18. Section 26.0281, Water Code, is amended to read
as follows:
Sec. 26.0281. CONSIDERATION OF RECORD 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 record of
compliance for the preceding five years [history] of the applicant
and its operator [under the method for using compliance history
developed by the commission under Section 5.754]. In considering
an applicant's record of 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 19. 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 operates any facility for which the
discharger's record of compliance for the preceding five years
contains violations that constitute a recurring pattern of
egregious conduct that demonstrates a consistent disregard for the
regulatory process, including a failure to make a timely and
substantial attempt to correct the violations [history is
classified as unsatisfactory according to commission standards
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 20. 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 operates any facility for
which the owner's record of compliance for the preceding five years
contains violations that constitute a recurring pattern of
egregious conduct that demonstrates a consistent disregard for the
regulatory process, including a failure to make a timely and
substantial attempt to correct the violations [history is
classified as unsatisfactory according to commission standards
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 21. 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) the record of compliance for the preceding five
years [history] of the applicant and related entities [under the
method for using 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 22. Section 27.051(e), Water Code, as amended by
Chapters 347 (S.B. 324), 965 (H.B. 2912), and 1161 (H.B. 2997), Acts
of the 77th Legislature, Regular Session, 2001, is reenacted and
amended to read as follows:
(e) The [Consistent with Sections 5.753 and 5.754 and rules
adopted and procedures developed under those sections, the]
commission shall establish a procedure for the preparation of
comprehensive summaries of the applicant's record of compliance for
the preceding five years [history], including the record of
compliance for the preceding five years [history] of any
corporation or business entity managed, owned, or otherwise closely
related to the applicant. A compliance summary must include as
evidence of compliance information regarding the applicant's
implementation of an environmental management system at the
facility for which an authorization is sought. The summaries shall
be made available to the applicant and any interested person after
the commission has completed its technical review of the permit
application and prior to the promulgation of the public notice
relating to the issuance of the permit. Evidence of compliance or
noncompliance by an applicant for an injection well permit with
environmental statutes and the rules adopted or orders or permits
issued by the commission may be offered by any party at a hearing on
the applicant's application and admitted into evidence subject to
applicable rules of evidence. [In accordance with this subsection
and Sections 5.753 and 5.754 and rules adopted and procedures
developed under those sections, evidence of the compliance history
of an applicant for an injection well may be offered at a hearing on
the application and may be admitted into evidence, subject to the
rules of evidence.] Evidence of an applicant's record of [the]
compliance for the preceding five years [history of an applicant]
for an injection well permit may be offered by the executive
director at a hearing on the application and admitted into evidence
subject to the rules of evidence. All evidence admitted, including
the record of compliance for the preceding five years [history],
shall be considered by the commission in determining whether to
issue, amend, extend, or renew a permit. If the commission
concludes that the applicant's record of compliance for the
preceding five years [history] is unacceptable, the commission
shall deny the permit. In this subsection, "environmental
management system" has the meaning assigned by Section 5.127.
SECTION 23. Sections 32.101(c) and (d), Water Code, are
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) the record of compliance for the preceding five
years [history] of the applicant and related entities [under the
method for using 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.
(d) The commission shall establish a procedure for the
preparation of comprehensive summaries of the applicant's record of
compliance for the preceding five years [history], including the
record of compliance for the preceding five years [history] of any
corporation or other business entity managed, owned, or otherwise
closely related to the applicant. The summaries shall be made
available to the applicant and any interested person after the
commission has completed its technical review of the permit
application and prior to giving public notice relating to the
issuance of the permit. Evidence of compliance or noncompliance by
an applicant for a subsurface area drip dispersal system permit
with environmental statutes and the rules adopted or orders or
permits issued by the commission may be offered by any party at a
hearing on the applicant's application and admitted into evidence
subject to applicable rules of evidence. Evidence of the record of
compliance for the preceding five years [history] of an applicant
for a subsurface area drip dispersal system permit may be offered by
the executive director at a hearing on the application and admitted
into evidence subject to the rules of evidence. The commission
shall consider all evidence admitted, including the record of
compliance for the preceding five years [history], in determining
whether to issue, amend, extend, or renew a permit. If the
commission concludes that the applicant's record of compliance for
the preceding five years [history] is unacceptable, the commission
shall deny the permit.
SECTION 24. The following provisions are repealed:
(1) the heading to Subchapter Q, Chapter 5, Water
Code;
(2) Sections 5.751, 5.752, 5.753, 5.754, 5.755, 5.756,
and 5.757, Water Code;
(3) Section 361.0215(c), Health and Safety Code;
(4) Section 361.088(g), Health and Safety Code; and
(5) Section 27.051(h), Water Code.
SECTION 25. The change in law made by this Act applies only
to an application for a permit, permit amendment, or permit renewal
that is filed with the Texas Commission on Environmental Quality on
or after the effective date of this Act. An application for a
permit, permit amendment, or permit renewal that is filed with the
commission before the effective date of this Act is governed by the
law in effect on the date the application is filed, and that law is
continued in effect for that purpose.
SECTION 26. This Act takes effect September 1, 2013.