May 31, 2011:Twelve More Years for TCEQ
When the regular legislative session began in January the
major issues facing the legislature (not including the
“emergency” items soon identified by the Governor, of course)
included the budget, redistricting, and “sunset” legislation
for the continuation or reorganization of dozens of state
agencies. While a number of redistricting bills passed
(all except for congressional districts), and a state budget
was hammered out (minus that pesky detail about cutting
the school funding formula), the Texas Senate and House
failed to reach agreement on sunset bills for many agencies
– including the Public Utility Commission and Railroad
Commission of Texas. One that succeeded, barely, was House
Bill 2694 - the continuation of Texas’s version
of the EPA, the Texas
Commission on Environmental Quality (TCEQ).
The elements for the passage of HB 2694
actually began months before the opening of the regular session with roughly a dozen meetings of citizens around the state organized by Sierra Club and the Alliance for a Clean Texas (ACT) last summer and fall, a Sunset Advisory Commission staff report, and the adoption of recommendations by the Sunset Advisory Commission. The Sunset Commission is the 10-member body that reviews the policies and programs of a certain number of state agencies in the interim between state legislative sessions. Each state agency is to be reviewed at least once every 12 years.
HB 2694 as introduced in the session
reflected the recommendations made by the Sunset Commission,
but the bill was quickly amended both in committee and on
the House floor to include many pro-polluter provisions, including limits on the use of compliance history for penalty enhancements and severe limits on the use of “contested case hearings” in the permitting process. The “contested case hearing” amendments were added on the House floor by Rep.
Warren Chisum (R-Pampa). One was intended to prevent any contested case hearings on permit amendments related to mercury and other toxic emissions at coal and other electric power plants, while the other more onerous one sought to shift the burden of proof in a contested case hearing from the industry wanting the permit to the citizens fighting the permit, among a number of other bad provisions.
Fortunately, following a public outcry about the House amendments, HB 2694 was substituted in the Senate by Senator
Jane Huffman from the Houston area to return it to very nearly initially filed version. Both Huffman, Sunset
Chairman Glenn Hegar (R-Katy), and in particular, Senator
Kirk Watson (D-Austin) made clear in discussions on the Senate floor is that the Senate would not support a bill that included some of the provisions added by the House related to compliance history and contested case hearings.
As expected the House refused to accept the version of HB 2694 sent back from the Senate, so the bill went to conference committee to iron out the differences between the two versions. During the last couple of weeks of the legislative session, groups such as Sierra Club and Public Citizen as well as industry groups made continual visits to the five Senators and five Representatives named as “conferees” on HB 2694l
The compromise that House bill sponsor State
Rep. Wayne Smith (R-Baytown) and Senator Huffman were able to forge in the final days of the regular legislative session will do a number of things:
• Enforcement of Violations of Pollution
Laws & Permits - Limit the administrative penalty for a violator that could be increased due to a poor compliance history to 100% of the base penalty, but will continue to allow the use of “notices of violation” in determining compliance history and allowing for enhancements, or increases, for those individual violations. The maximum penalty that TCEQ can assess is raised from $10,000 to $25,000 per violation per day. Moreover, TCEQ must adopt its penalty policy into rules, and it must specifically look at the economic benefit a violator receives for not complying with the law when assessing penalties.
HB 2694 now goes to the Governor, who is expected to sign the bill, which will continue the agency for another 12 years, unless a subsequent state legislative session changes the next “sunset” date.
• Contested Case Hearings in Pollution
Permitting - Continue to allow the public to the ability to seek a “contested case hearing” through the State Office of Administrative Hearings (SOAH) for a proposed permit to pollute, including permit amendments controlling mercury emissions at coal plants, although timing and the issues covered in those hearings was restricted to “findings of fact” related to the technology used to control the emissions. For all other hearings, the issues that can be raised are not limited, but the executive director of the TCEQ will take a more active role in the hearings in support of the draft permit, the time to seek and receive discovery will be more limited, and other state agencies like Texas Parks and Wildlife will be barred from being parties in SOAH hearings (the agencies may submit comments on a proposed permit, however). Very importantly the burden of proof will remain with the permit applicant, not the citizens protesting the permit.
• Agency Response to Public Concerns – Require the TCEQ executive director to develop a program to respond better to citizen concerns, including environmental and consumer protection and make that information more accessible to the public
• Petroleum Storage Tanks – Prohibit the delivery of substances into underground storage tanks unless the tank has received a certificate of compliance and registration, and continues the Petroleum Storage Delivery Fee, which is used to help regulate and clean up leaking underground storage tanks.
• Other Provisions – Provide additional powers to the TCEQ to require reporting of water use information, review certain water management plans, and issue emergency orders on water use during a time of drought.
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