Effort to Protect Citizen Rights Being Undermined by Other Bills

Environmental Group Says Agreement on H.B. 801 Is Being "Chipped Away" by Other Legislation

The Lone Star Chapter of the Sierra Club charged today that there is another "chip" program underway at the Texas Legislature this spring that has nothing to do with protecting children’s health. That effort, says the Sierra Club, involves several pieces of legislation that would have the combined effect of eliminating contested cases on many pollution control permits issued by the state’s environmental agency.

"Earlier this session there was a massive public outcry over a bill to eliminate contested cases for pollution control permits that resulted in a total revamping of the bill and retention of contested cases," said Sierra Club state director Ken Kramer. "Now some groups are trying to sneak below the radar screen to pass bills and provisions of bills that would eliminate contested case rights on a piecemeal basis. Apparently these groups feel that this approach will avoid the public and media scrutiny that scuttled their shotgun attack on contested case rights."

Kramer said that the much praised compromise agreement between industry and public interest groups over H.B. 801 is being "chipped away" by these other individual bills aimed at the contested case right for specific types of permit actions. He identified the following bills as part of this effort:

** a bill to allow the Texas Natural Resource Conservation Commission (TNRCC) to issue "general permits" for virtually all types of wastewater discharges (general permits do not offer the opportunity for the public to request a contested case hearing);

** a bill to authorize TNRCC to grant a permit amendment or renewal of a wastewater discharge permit meeting certain conditions without having to offer the opportunity for a contested case hearing;

** a bill to prevent certain information on air quality impacts from being used in contested case hearings on concrete batch plants;

** a bill to eliminate the opportunity for a contested case hearing on certain air pollution control permits or permit amendments; and

** provisions in the Governor’s bill on a voluntary program for grandfathered air polluters that would deny citizens the right to a contested case proceeding on permits for those polluters.

"One of the most disturbing things about this development is that some of the same business groups who were represented in the H.B. 801 negotiations and signed off on the agreement are either lobbying or expressing support for one or more of these bills," Kramer said. "Apparently environmental interests are expected to abide by the 801 agreement, but some business and industry groups do not feel bound by the agreement."

"We want to make it clear to the groups that are pushing bills that violate the 801 agreement that we will make every effort to make the public and the media aware of these actions," said Kramer. "We also will report to the public on how their legislators vote on these bills so that the public may hold their elected officials accountable for their votes on citizen rights."

[Information Note: In it original form H.B. 801 would have eliminated most contested case proceedings for pollution control permits. Extensive negotiations between industry and public interest group representatives, initiated by the House sponsor of H.B. 801 (Rep. Tom Uher), resulted in a bill that retained the contested case opportunity for all but one minor type of permit action. The revised H.B. 801 also makes modifications in the contested case process that have been characterized as benefiting all parties in a case. H.B. 801 has been endorsed by all major environmental groups and most major business groups working on environmental issues this session. The bill has passed the House and is expected to be on the Senate floor shortly.]

Bills Moving in the Legislative Process That Would Eliminate a Contested Case Opportunity, Authorize TNRCC to Eliminate Such an Opportunity, or Interfere with the Rights of Citizens to Participate Effectively in a Contested Case - 5/6/1999

 H.B. 1283 by Rep. David Counts (favorably reported from Senate NR Committee)

This bill dramatically expands TNRCC’s authority to issue "general permits" for wastewater discharges. With only minimal constraints TNRCC could establish general permits for practically any type or size of category of discharge. A general permit issued to a wastewater discharger, unlike an individual permit for a discharger, does NOT provide an opportunity for the public to request a contested case hearing on the individual dischargers covered by the permit. Therefore, if TNRCC receives this expanded authority to issue general permits and implements it on a broad scale, the agency may effectively eliminate contested case opportunities for wastewater discharge permits.

 H.B. 1479 by Rep. Ron Clark (voted favorably from Senate NR Committee)

This bill authorizes TNRCC to issue amendments and renewals of wastewater discharge permits without having to offer the public the opportunity to request a contested case hearing on the amendment or renewal if no significant or material changes in the volume, quality, or location of the discharge is being sought. Current law gives the TNRCC the authority to issue a wastewater discharge permit amendment or renewal without offering an opportunity for a contested case hearing if the amendment or renewal would improve the quality of the discharge. This bill would extend the authority to situations where there is no change in the discharge even if the public and affected property owners believe that the existing quality of a wastewater discharge is not high enough to maintain good water quality in the receiving stream.

 H.B. 2312 by Rep. Warren Chisum (Senate companion: S.B. 1298 by Sen. Brown) – (both bills are in House Calendars Committee)

The bill interferes with the rights of citizens to challenge such TNRCC authorizations for concrete batch plants in that it prohibits TNRCC from requiring that an applicant for such an authorization conduct modeling of the air pollution impacts of a plant before the plant is constructed and it prohibits citizens challenging the concrete batch plant from being able to submit evidence regarding such modeling in any hearing on the plant’s request for authorization to operate. [Concrete batch plants may operate under a "standard exemption" rather than a permit from TNRCC, but current law offers the public the opportunity to request a contested case hearing on the granting of such an exemption for concrete batch plants only.]

H.B. 3678 by Rep. Edmund Kuempel (in House Calendars Committee)

This bill would eliminate the opportunity for the public to request a contested case hearing before an independent hearings examiner on an amendment to an existing air pollution control permit or, in some cases, a new permit for construction of a facility emitting air pollutants if certain conditions are met. Most of the changes proposed in this bill were considered in the negotiations over H.B. 801 but were NOT approved during those negotiations.

S.B. 766 by Sen. Buster Brown/House sponsor: Rep. Ray Allen (in House Calendars Committee)

This bill is the general legislation to continue the voluntary effort to encourage grandfathered air polluters to enter the state’s air pollution control permitting process. Among other provisions, the bill would allow an existing grandfathered facility to obtain a state permit between the effective date of the Act and August 31, 2001 without having to face the prospect of the public requesting a contested case hearing on the permit. This means that facilities which have been operating for thirty years or more without ever having to undergo the level of public scrutiny provided by a contested case hearing would be able to obtain a permit with only a limited public notice and comment process such as was envisioned in the original version of H.B. 801. In addition, one provision of S.B. 766 would authorize TNRCC to issue a "standard permit" to a NEW facility that qualifies for such a permit WITHOUT having to give the public the opportunity to request a public hearing on such a permit. TNRCC claims that they currently have the authority to issue standard permits without offering the public the opportunity for a contested case hearing, and indeed that is what TNRCC has been doing for several years. We have not been able to locate that authority in current law, however.