For Immediate Release:   Friday, February 8, 2002    Contact: Fred Richardson 512.477.1729

Environmental Groups Make Case to Texas AG:

Don't Throw Out Polluter History Rules

AUSTIN¾ A group of advocates for environmental protection filed a brief today asking Attorney General John Cornyn to uphold new state rules issued by the Texas Natural Resource Conservation Commission that require stricter oversight of companies that frequently violate state pollution limits.

The Alliance for Clean Texas, an umbrella organization for more than 20 groups, filed the brief in response to a request from State Rep. Warren Chisum for an Attorney General's advisory opinion on the rules. In his request letter, Rep. Chisum asserts that the rules will produce "absurd or unjust" results.

"It's common sense that the state should spend more time checking up on the chronic polluters," said Erin Rogers of the Sierra Club. "If you're a police officer doing community policing, you don't spend a lot of time checking up on the 'A' students. You spend your time making sure that the kids who usually get into trouble keep their noses clean."

At the heart of the controversy is a rule implemented by TNRCC in response to a key "sunset" reform from the last legislative session. The new law rewards companies with good compliance histories with regulatory flexibility, while requiring closer scrutiny of chronic bad actors. 

 On December 18 Rep. Chisum filed a request for an advisory opinion on the legislative intent and constitutionality of the agency's interpretation of the new law rule. Rep. Chisum argues that the rule is unconstitutional.

Today is deadline for filing briefs on the issue. The Attorney General has six months from the date the request was filed to issue an opinion.  State Rep. Fred Bosse, the sponsor of HB 2912, is filing a brief which spells out the legislative intent.

Industry lobbyists pushed for a rule that would have provided a "clean slate" for all regulated businesses, including chronic bad actors. In a nutshell, industry wants the TNRCC to only look at Notices of Violation (NOVs) issued after February 1, 2002. NOVs are the the most common written record of non-compliance with state and federal environmental laws, and represent the first formal step in the enforcement process. This "clean-slate" provision was also sought by industry advocates during the legislative session, and it appears to be what Rep. Chisum is seeking through the advisory opinion.

"Despite what industry lobbyists may have intended, the record clearly shows that the legislature meant to strengthen the use of compliance information," said attorney Ilan Levin, who drafted the brief for the Alliance. "The new law clarifies the commission's long-standing authority to factor in a company's environmental record, good or bad, into agency decisions." 

For detailed background on the compliance history rules, see the Alliance for a Clean Texas' analysis at www.tnrcc-watch.org